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Oral Args. in Blewett Crack Resentencing En Banc Rehearing

By William Peacock, Esq. | Last updated on

We've noted that the Sixth Circuit desperately needs to fix its Fair Sentencing Act crack resentencing jurisprudence, and it appears that they will do so soon. Oral argument in the en banc rehearing of Blewett v. United States were heard last week (recordings here), and for the sake of the attorneys and defendants involved in these cases, they really need to fix this.

As a quick refresher on the FSA confusion, the court decided Hammond, where it held that the FSA was not retroactive. It then ignored Hammond in Blewett and decided the case on Equal Protection grounds, stating that because the law had a disparate impact on black offenders, it was inherently racist, as was any judge who enforced it today. The opinion was pulled within weeks in favor of a rehearing. Multiple decisions since have vacillated between Hammond as controlling precedent and sheer confusion (a 1-1-1 split with no controlling holding).


Hammond very well may have been incorrect. It held that Section 3852's sentence reduction procedures were only applicable to Sentencing Commission reductions, and therefore the FSA's new mandatory minimums could not be applied retroactively.

Another common issue: A defendant receives a downward departure for substantial assistance, thereby avoiding the pre-FSA mandatory minimum, yet then has an above-minimum sentence -- does he now get a reduction as well? (That scenario, found in Johnson and Joiner, presented the 1-1-1 split, and a reluctant Hammond application, respectively).

(Sidebar: Oddly enough, the Johnson opinion has disappeared off of the Internet. According to PACER records, an amended (and restricted) opinion was filed a week after the original, followed by a petition for rehearing en banc.)

The popular opinion today is that the pre-FSA crack sentencing disparities were draconian, and most hope, for the sake of fairness, that the FSA is applied retroactively. But there is another consideration: finality.

Finality Fixation

Finality is an important consideration in legal decisions. When a case is decided, and appeals exhausted, we place significant emphasis on finality. Otherwise, we are unable to rely on precedent (like Hammond), prisoners clog up courts with resentencing requests, and the system collapses.

Or so the argument goes.

But even if such an argument is valid, Professor Douglas A. Berman, who was invited to submit an amicus brief in the Blewett case, argues that the circumstances here outweigh any "finality fixation" that courts and others may have.

He notes that every federal policy-making body (Congress, POTUS, DOJ, U.S. Sentencing Commission, and others) all agree that pre-FSA sentences were excessive, that Section 3582 has been used to reduce sentences for serious offenders (to which Sentencing Commission reductions were applicable), and that the same procedures should benefit the less serious offenders, like the Blewetts. Otherwise, you're tossing reductions at the serious repeat and/or armed offenders, while holding less serious offenders to the same 100 to 1 draconian sentences.

It's an interesting argument. We'll see if the Sixth Circuit adopts it.

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