# United States v. Jarreous Blewitt

> Court of Appeals for the Sixth Circuit · December 3, 2013 · 746 F.3d 647

URL: https://www.frixlaw.com/law-library/cases/2644647

## Case

- **Full name:** UNITED STATES Of. America, Plaintiff-Appellee, v. Cornelius Demorris BLEWETT (12— 5226) and Jarreous Jamone Blewitt (12-5582), Defendants-Appellants
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** December 3, 2013
- **Citations:** 746 F.3d 647; 2013 U.S. App. LEXIS 24018; 2013 WL 6231727
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Batchelder, Merritt, Boggs, Moore, Cole, Clay, Gilman, Gibbons, Rogers, Sutton, Cook, McKeague, Griffin, Kethledge, White, Stranch, Donald
- **Cited by:** 69 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2644647

## How later opinions describe it (automated extraction)

- holding that “(1) the [FSAJ’s new mandatory minimums do not apply to defendants sentenced before it took effect; (2) § 3582(c)(2) does not provide a vehicle for circumventing that interpretation; and (3) the Constitution does not provide a basis for blocking it”
- explaining that 6 No. 18-6273, United States v. Gatewood “[w]ithholding the benefits of a change from previously sentenced defendants . . . is the general practice in federal sentencing”
- noting that the government’s interest in finality is “of the weightiest sort” and that it “is essential to the operation of our criminal justice system” (quotations omitted)

## Opinion text

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0336p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
Nos. 12-5226/5582
v.
,
>
-
-
CORNELIUS DEMORRIS BLEWETT (12-5226)

Defendants-Appellants. N-
and JARREOUS JAMONE BLEWITT (12-5582),

Appeal from the United States District Court
for the Western District of Kentucky at Bowling Green.
No. 1:04-cr-36-2—Joseph H. McKinley, Jr., Chief District Judge.
Argued: October 9, 2013
Decided and Filed: December 3, 2013
Before: BATCHELDER, Chief Judge; MERRITT, BOGGS, MOORE, COLE,
CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE,
GRIFFIN, KETHLEDGE, WHITE, STRANCH and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Frank W. Heft, Jr., OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Louisville, Kentucky, for Appellants. Terry M. Cushing, UNITED STATES
ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee. Vincent M. Southerland,
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., New York, New
York, for Amicus Curiae. ON BRIEF: Frank W. Heft, Jr., Scott T. Wendelsdorf, Laura
R. Wyrosdick, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Louisville,
Kentucky, for Appellants. Terry M. Cushing, UNITED STATES ATTORNEY’S
OFFICE, Louisville, Kentucky, David M. Lieberman, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Vincent M.
Southerland, Ria Tabacco Mar, NAACP LEGAL DEFENSE AND EDUCATIONAL
FUND, INC., New York, New York, Candace C. Crouse, PINALES STACHLER
YOUNG BURRELL & CROUSE CO., L.P.A., Cincinnati, Ohio, Douglas A. Berman,
THE OHIO STATE UNIVERSITY MORITZ COLLEGE OF LAW, Columbus, Ohio,
Dennis G. Terez, Jeffrey B. Lazarus, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Cleveland, Ohio, for Amici Curiae.

1
Nos. 12-5226/5582 United States v. Blewett, et al. Page 2

SUTTON, J., delivered the opinion of the court, in which BATCHELDER, C. J.,
BOGGS, GILMAN, GIBBONS, COOK, McKEAGUE, GRIFFIN and KETHLEDGE,
JJ., joined, and MOORE, J., joined in the result. MOORE, J. (pp. 21–33), delivered a
separate opinion concurring in the judgment. MERRITT, J. (pp. 34–37), delivered a
separate dissenting opinion, in which DONALD J., joined. COLE, J. (pp. 38–43),
delivered a separate dissenting opinion. CLAY, J. (pp. 44–58), delivered a separate
dissenting opinion, in which DONALD, J., joined. ROGERS, J. (pp. 59–67), delivered
a separate dissenting opinion, in which WHITE and STRANCH, JJ., joined, MERRITT,
J., joined in part, and COLE, J., joined except for the last paragraph. WHITE, J.
(pp. 68–79), delivered a separate dissenting opinion.

_________________

OPINION
_________________

SUTTON, Circuit Judge. The Anti-Drug Abuse Act of 1986 established
mandatory minimum sentences for possessing crack cocaine with the intent to distribute
it: 5 years for possessing 5 grams, 10 years for possessing 50 grams. 100 Stat. 3207.
The Fair Sentencing Act of 2010 increased the amount of crack cocaine needed to
activate the same mandatory minimums. It now takes 28 grams to trigger the 5-year
penalty and 280 grams to trigger the 10-year penalty. 124 Stat. 2372. Through these
changes, the Fair Sentencing Act significantly reduced, but did not eliminate, a
sentencing disparity between offenses involving crack and powder cocaine. What used
to be a 100:1 ratio between the amount of powder and crack needed to trigger the
mandatory minimums has become an 18:1 ratio.

At issue in this case is whether the changes created by the Act apply to
defendants sentenced five years before the new law took effect. Consistent with a 142-
year-old congressional presumption against applying reductions in criminal penalties to
those already sentenced, 1 U.S.C. § 109, consistent with the views of all nine Justices
and all of the litigants in Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012),
consistent with the decisions of every other court of appeals in the country, and
consistent with dozens of our own decisions, we hold that the Act does not retroactively
undo final sentences.
Nos. 12-5226/5582 United States v. Blewett, et al. Page 3

I.

In 2005, a federal court convicted cousins Cornelius Blewett and Jarreous Blewitt
(the Blewetts) of possessing crack cocaine with the intent to distribute it. Neither side
contests that Cornelius had 19.65 grams and Jarreous 26.92 grams. Under the Anti-Drug
Abuse Act, those amounts normally would have produced a 5-year minimum sentence.
But because the Blewetts each had a prior felony drug conviction, the Act doubled the
minimum. See 21 U.S.C. §§ 841(b), 851. The court sentenced each cousin to 10 years,
the lowest sentence possible under the law.

After Congress enacted the Fair Sentencing Act, the Blewetts moved for a
sentence reduction. See 18 U.S.C. § 3582(c)(2). The Blewetts’ 19.65 and 26.92 grams
of crack cocaine fall short of the 28 grams required for the Fair Sentencing Act’s new
mandatory minimums to kick in. As a result, the Blewetts claimed that, even though
they were sentenced before the Fair Sentencing Act took effect, they should benefit from
Congress’s reduction of the statutory penalties. The district court denied their request.

The Blewetts appealed. While the appeal was pending, Jarreous’s prison
sentence (though not his term of supervised release) ended, prompting the government
to ask us to dismiss his appeal as moot. Because we no doubt have jurisdiction over one
of the defendants in this consolidated appeal, we need not resolve the motion and may
proceed to answer the merits question presented by this appeal. See Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 98 (1998); Norton v. Mathews, 427 U.S. 524, 531
(1976).

II.

In our view: (1) the Fair Sentencing Act’s new mandatory minimums do not
apply to defendants sentenced before it took effect; (2) § 3582(c)(2) does not provide a
vehicle for circumventing that interpretation; and (3) the Constitution does not provide
a basis for blocking it.
Nos. 12-5226/5582 United States v. Blewett, et al. Page 4

A.

The Fair Sentencing Act. Under the general saving statute, enacted in 1871, a
law that reduces statutory penalties for an offense presumptively does not alter penalties
incurred before the new law took effect. 1 U.S.C. § 109. A statute may overcome this
default rule but only expressly or by clear implication. Dorsey, 132 S. Ct. at 2332. The
Fair Sentencing Act nowhere provides that it covers offenders sentenced before it
became effective. Nor do the Act’s clear implications show a desire to apply the new
law to offenders already sentenced. To the contrary, no feature of the Act is backward
looking and many are forward looking. Congress, to be sure, disapproved of the old
mandatory minimums; that is why it changed them. But if rejection of the old penalty
were all it took to make a new penalty retroactive to all individuals previously sentenced,
every new penalty would be fully retroactive, shearing the general saving statute of
meaning.

Dorsey reinforces this conclusion. Its core holding is that the Fair Sentencing
Act applies to all individuals sentenced after its effective date, which of course defeats
the Blewetts’ claim. The Blewetts were sentenced in 2005, five years before the Act
became law.

Dorsey’s reasoning points in the same direction. The Court identified six factors
that supported this cut-off date, one that made the Act applicable to individuals who had
distributed crack cocaine before its effective date but who were sentenced after it. While
all six factors favored the Dorsey outcome, the same is not remotely true here.

Factor one. Dorsey began by explaining that Congress may overcome the § 109
default rule by a clear statement or clear implication. Id. at 2331. This factor helped
Dorsey: He could point to language in the Fair Sentencing Act suggesting that Congress
wanted the new ratios to apply to future sentences. See id. at 2332–33 (discussing § 8
of the Act). But it hurts the Blewetts: They cannot find, indeed they do not even try to
find, any similar textual foothold to support their claim that Congress wanted the new
ratios to alter final sentences.
Nos. 12-5226/5582 United States v. Blewett, et al. Page 5

Factor two. Under the sentencing guidelines system created by the Sentencing
Reform Act of 1986, Dorsey pointed out, a defendant’s sentence normally depends on
the rules “in effect on the date the defendant is sentenced.” Id. at 2332. This rule helped
Dorsey: When he was first sentenced, the new minimums were in effect. But this rule
hurts the Blewetts: When they were sentenced, the old minimums were in effect.

Factor three. Dorsey explained that the “language in the Fair Sentencing Act
implies that Congress intended to follow the Sentencing Reform Act background
principle here.” Id. In other words, Dorsey concluded that both the Fair Sentencing Act
and the Sentencing Reform Act counsel in favor of applying the relevant sentencing law
on the date of initial sentencing. This factor favored Dorsey (who was sentenced after
the Act’s effective date) but hurts the Blewetts (who were sentenced five years before
the Act’s effective date).

Factor four. If the new mandatory minimums did not apply to everyone
sentenced after the Act’s passage, Dorsey cautioned, two offenders who committed the
same crime—one say a week before the Act became law, one a week after—could
receive “disparate sentences” despite “roughly contemporaneous sentencing, i.e., the
same time, the same place, and even the same judge.” Id. at 2333. While this date-of-
the-crime consideration favored Dorsey, it means nothing here. Under our holding and
the holdings of all courts in the country, everyone sentenced at the same time is treated
the same way: The new minimums apply to everybody sentenced after the Act, and the
old minimums apply to everybody sentenced before it. In this instance, disparities will
arise only if our court picks a different cut-off date and begins applying the new law to
old sentences.

Factor five. Congress required the Sentencing Commission to apply the new
guidelines (reflecting the new ratios) to all future sentences. Id. at 2332–33. Dorsey
thus reasoned that Congress would not have simultaneously insisted on using new
guidelines for all future sentences but on using new statutory minimums for some future
sentences. Id. at 2334. This factor helped Dorsey but it cuts the other way here.
Nos. 12-5226/5582 United States v. Blewett, et al. Page 6

Congress, all agree, did not require the Commission to apply the new guidelines to past
sentences.

Factor six. Dorsey found no “strong countervailing consideration” to using the
date of sentencing for determining when the Act applied. Id. at 2335. While that factor
helped Dorsey, it hurts the Blewetts. This case involves a “countervailing consideration”
of the weightiest sort: the government’s interest in the finality of its sentences. Not only
is that principle codified in the § 109 saving statute, but “the principle of finality . . . is
essential to the operation of our criminal justice system.” Teague v. Lane, 489 U.S. 288,
309 (1989) (plurality opinion); see Johnson v. United States, 544 U.S. 295, 309 (2005).

Dorsey carefully marshaled all six factors before holding that, despite the § 109
presumption, the Fair Sentencing Act applied to defendants who offended before but
were sentenced after the Act’s passage. And even with all six factors pointing one way,
Dorsey remained a close case: The Court divided 5–4, and the five agreed that the issue
was “difficult.” 132 S. Ct. at 2330. Where Dorsey had six pluses going for him, the
Blewetts have (at best) two zeros and four minuses.

Dorsey’s outcome and six-factor test leave little doubt over what to do here. The
Act simply does not apply to individuals sentenced before its effective date, let alone
five years before its effective date. But one need not take our word for how to read
Dorsey or how to apply the six-factor test here. Listen to how the Court itself reads the
opinion. Congress, it acknowledged, intended to follow the “ordinary practice [of]
apply[ing] new penalties to defendants not yet sentenced, while withholding that change
from defendants already sentenced.” Id. at 2335 (emphasis added). That is today’s case.
Removing any doubt about the point, the Court acknowledged the reality that its decision
would create a “disparity . . . between those pre-Act offenders already sentenced and
those not yet sentenced as of [the Act’s date of effectiveness].” Id. That too covers
today’s case. No disparity would exist if the Act applied to all previously sentenced
defendants.

All of the participants in Dorsey, moreover, assumed that defendants sentenced
before the Fair Sentencing Act’s passage could not benefit from its provisions. The
Nos. 12-5226/5582 United States v. Blewett, et al. Page 7

Court made this assumption in the majority and dissenting opinions. See id.; id. at 2343
(Scalia, J., dissenting). So did the Justices at oral argument. See Transcript of Oral
Argument at 34, 46. So did Dorsey. See Brief for Petitioner at 51. And so did the
United States. See Brief for the United States at 23–24, 48–51. The Court-appointed
amicus curiae summed it all up when he said that “everybody agrees” Congress did not
want to reopen final sentences. Transcript of Oral Argument at 40. All of this may not
amount to a binding holding from the Supreme Court. But according to a reliable
source, circumstances like these “have much weight, as they show that this point neither
occurred to the bar or the bench.” Bank of United States v. Deveaux, 5 Cranch 61, 88
(1809) (Marshall, C.J.).

Precedents from our circuit have long accepted this interpretation. We have held
in published opinions that the Fair Sentencing Act does not apply to individuals
sentenced before its effective date. See United States v. Bell, 731 F.3d 552 (6th Cir.
2013); United States v. Hammond, 712 F.3d 333 (6th Cir. 2013). And we have adhered
to the same rule in dozens of unpublished cases—enough to add a page and a half to this
opinion had we wished to inflict the burden on our readers. See, e.g., United States v.
Williams, 522 F. App’x 278 (6th Cir. 2013); United States v. Gooch, 518 F. App’x 473
(6th Cir. 2013); United States v. Tillman, 511 F. App’x 519 (6th Cir. 2013).

Every other federal court of appeals—except the Federal Circuit, which does not
hear criminal cases—has followed this path. See United States v. Santos-Rivera,
726 F.3d 17, 28 n.2 (1st Cir. 2013); United States v. Diaz, 627 F.3d 930, 931 (2d Cir.
2010) (per curiam); United States v. Turlington, 696 F.3d 425, 428 (3d Cir. 2012);
United States v. Mouzone, 687 F.3d 207, 222 (4th Cir. 2012); United States v. Kelly,
716 F.3d 180, 181 (5th Cir. 2013); United States v. Foster, 706 F.3d 887, 888 (7th Cir.
2013); United States v. Reeves, 717 F.3d 647, 651 (8th Cir. 2013); United States v.
Augustine, 712 F.3d 1290, 1294–95 (9th Cir. 2013); United States v. Lucero, 713 F.3d
1024, 1027 (10th Cir. 2013); United States v. Hippolyte, 712 F.3d 535, 542 (11th Cir.
2013); United States v. Swangin, 726 F.3d 205, 208 (D.C. Cir. 2013). Notwithstanding
Nos. 12-5226/5582 United States v. Blewett, et al. Page 8

hundreds if not thousands of opportunities, no other appellate court in the country has
held to the contrary.

Last but not least, the Sentencing Commission, which is responsible for
overseeing the guidelines and for implementing parts of the Fair Sentencing Act, has
concluded that the changes to the statutory mandatory minimums do not apply
retroactively. Nothing the Commission has done, it acknowledges, “make[s] any of the
statutory changes in the Fair Sentencing Act of 2010 retroactive.” 76 Fed. Reg. 41,332,
41,333 (July 13, 2011).

Swimming against this tide, the Blewetts target an alleged anomaly that arises
from our conclusion. Suppose, the Blewetts point out, that the district court had
sentenced Cornelius to the minimum of 120 months but Jarreous to 125 months because
Jarreous possessed more cocaine. In this scenario, the Blewetts correctly observe,
Jarreous could get a five-month sentence reduction (down to the mandatory minimum),
but Cornelius, already at the minimum, would get nothing.

Yet this result says nothing about the forward-looking or backward-looking
nature of the Fair Sentencing Act. It instead says something about, and is a potential
consequence of, all statutory minimum and maximum sentences, whether in the Fair
Sentencing Act or elsewhere. Suppose once more that the district court starts out
intending to give Cornelius 120 months and Jarreous 125. But in this example, the
district court becomes acquainted with the defendants’ efforts to rehabilitate themselves,
and decides that each deserves a reduction. In this instance, Jarreous could profit from
this mitigating circumstance, but Cornelius, already at the minimum, could not. It works
the same way with statutory maximums. Suppose that the district court started out
wishing to give both cousins the maximum sentence permitted by the statute yet one of
them deserved an even higher sentence due to the aggravating circumstances of his
crime. Here, too, the court would have to treat the cousins the same, even though one
of them committed a worse crime. None of this is anomalous; it is a natural consequence
of having cliff-creating mandatory minimum or maximum sentences in the first place.
As the Supreme Court has acknowledged, “[w]hereas guidelines seek a smooth
Nos. 12-5226/5582 United States v. Blewett, et al. Page 9

continuum, mandatory minimums result in ‘cliffs.’” Neal v. United States, 516 U.S. 284,
292 (1996) (quoting United States Sentencing Commission, Special Report to Congress:
Mandatory Minimum Penalties in the Federal Criminal Justice System iii (1991)).

What is more, the whole point of any retroactivity debate is whether to apply
more lenient penalties to everyone or to apply them only to those sentenced after the new
law takes effect. And the whole point of § 109 is to create a presumption in favor of a
disparity between people who offended before a decrease in statutory penalties and
people who offended after. Because § 109 mandates greater
cliffs/mismatches/disparities between the two groups of individuals in the normal course,
it hardly respects the saving statute to allow more modest disparities to drive the
retroactivity analysis. The lead dissent authored by Judge Rogers mentions the saving
statute once in a quotation from Dorsey, and it is fair to ask whether the dissent has
flipped the § 109 presumption against retroactivity into a presumption in favor of it.

In a variation on this theme, the lead dissent finds the following two propositions
irreconcilable: (1) that Congress wanted the new statutory minimums to be prospective
(2) but it wanted the new guidelines to be retroactive. To eliminate the inconsistency
between these two statements, the lead dissent concludes that the first statement must be
false. But it offers no explanation for this question-begging choice. One could eliminate
the inconsistency just as readily by saying that the second statement is false or by
considering why both statements could be true.

The Fair Sentencing Act, for what it is worth, offers little guidance on whether
the second statement is true or false. The Act, as Dorsey explains, affirmatively instructs
the Sentencing Commission to use the new ratios for all future sentences. See 124 Stat.
2374, § 8; Dorsey, 132 S. Ct. at 2332, 2335. The Act does not tell the Commission to
use the new ratios for all past sentences—that is, to make the new ratios retroactive. At
first, indeed, the Commission adopted the new ratios only prospectively. See 75 Fed.
Reg. 66,188 (Oct. 27, 2010). Months later, the Commission solicited public comments
about whether to make the new ratios retroactive. See 76 Fed. Reg. 24,960 (May 3,
Nos. 12-5226/5582 United States v. Blewett, et al. Page 10

2011). Later still, almost a year after the Fair Sentencing Act became law, the
Commission finally voted for retroactivity. See 76 Fed. Reg. 41,332 (July 13, 2011).

If the Commission’s year-later choice was legitimate, as the lead dissent assumes,
that is not because Congress directed it to do so. The only congressional directive
concerned new ratios for future sentences. All that could justify the Commission’s
authority to make the new guidelines retroactive is its authority to fill the gap in the Fair
Sentencing Act and to construe its own guidelines and policy statements. Let us assume
for the sake of argument that the Commission indeed had such authority and thus
permissively made the guidelines retroactive to individuals previously sentenced. But
if that is true, no principle of administrative deference would allow us to accept the
Commission’s judgment on that score and ignore its contrary judgment on a related
score—whether the Fair Sentencing Act applied to individuals already sentenced. Its
opinion on this last point is unequivocal: The Commission explained that its decision
“only allows the guideline changes to be considered for retroactive application; it does
not make any of the statutory changes in the Fair Sentencing Act of 2010 retroactive.”
76 Fed. Reg. at 41,333. If the lead dissent wishes to respect the Commission’s
administrative authority to make the guidelines retroactive based on its interpretation of
the Act, § 109 and § 3582, it should respect the Commission’s view that this authority
ends at the door of congressional mandatory minimums. To do otherwise is a bait and
switch.

Nor was the Commission’s choice an unusual one or for that matter an
“incoherent anomaly.” Dissenting Op. at 66 (Rogers, J.). The point of mandatory
minimums and maximums, for better or worse, is to give Congress more control over
sentencing. It makes considerable sense that the Commission would think it has
discretion to operate outside the minimums, including by making changes retroactive,
but would respect Congress’s control over minimums and maximums by declining to
make changes that cross this line. It merely shows that the Commission sees this the
same way we do—and for that matter the way every appellate court in the country has
seen it.
Nos. 12-5226/5582 United States v. Blewett, et al. Page 11

In focusing on the Sentencing Commission’s decision to make the new guidelines
partially retroactive as the reason why the Fair Sentencing Act is retroactive, the lead
dissent’s theory creates another problem. It would mean that the new minimums were
not retroactive when the Act took effect but became retroactive a year later when the
Commission decided to make the corresponding guidelines retroactive. As the dissent
puts it, “The Sentencing Commission . . . made the Fair Sentencing Act-driven
guidelines retroactive. Doing so provided the statutory key to making the statutory
minimum changes [retroactive].” Dissenting Op. at 66 (Rogers, J.).

This theory of springing retroactivity has no antecedents. Under this reading, the
Fair Sentencing Act gave the Sentencing Commission the power to decide which
minimums, new or old, would apply to offenders already sentenced and in the process
allowed a retroactive alteration of the Act to spring forth like a jack-in-the-box at a date
of the Sentencing Commission’s choosing. Besides its novelty, the theory raises serious
constitutional doubts. The constitutionality of the Sentencing Commission depends on
the premise that Congress did not “vest in the [Commission] the legislative responsibility
for establishing minimum and maximum penalties.” Mistretta v. United States, 488 U.S.
361, 396 (1989).

The lead dissent adds that all six of Dorsey’s factors support treating the Fair
Sentencing Act as fully retroactive. See Dissenting Op. at 60 (Rogers, J.). That is an
aggressive reading of the decision, one disclaimed by Dorsey, 132 S. Ct. at 2335 (“[The
Fair Sentencing Act creates a] new disparity . . . between those pre-Act offenders already
sentenced and those not yet sentenced as of [the Act’s effective date].”), and one yet to
find support from a single other appellate court in the country.

Judge White goes one step beyond Judge Rogers, indeed a step beyond what the
Blewetts or anyone else has argued in this case. She maintains that Congress
affirmatively wanted the Sentencing Commission to decide whether to make the new
mandatory minimums retroactive—and that the Commission exercised this authority by
making the minimums retroactive. The short answer is: when and where? Nothing in
the text of the Fair Sentencing Act or the Commission’s handiwork offers any support
Nos. 12-5226/5582 United States v. Blewett, et al. Page 12

for this theory. Nor does the dissent reconcile this theory with the Supreme Court’s
assurance that Congress did not want “to impose an unforeseeable, potentially complex
application date” when it passed the Act. Id. at 2336. Nor does it explain why we
should force upon the Commission a power that the Commission disclaims. See supra
at 10. Nor does it explain why, as recently as September 25, 2013, the chair of the
Sentencing Commission recommended to the Senate Judiciary Committee “that the
provisions of the Fair Sentencing Act of 2010, which Congress passed to reduce the
disparity in treatment of crack and powder cocaine, be made retroactive.” Reevaluating
the Effectiveness of Federal Mandatory Minimum Sentences: Hearing Before the Sen.
Comm. on the Judiciary, 113th Cong. 2 (2013) (statement of Patti B. Saris, Chair, U.S.
Sentencing Comm’n). There would be no need for Congress today to make the
minimums retroactive if the Commission already did so at some still-unidentified date
in the past.

The support for this theory apparently comes from a 1994 law establishing a
“safety valve” from mandatory minimums and providing that the new rules “shall apply
to all sentences imposed on or after the 10th day beginning after the date of enactment.”
108 Stat. 1796, 1986. The dissent claims that the absence of a similar clause in the Fair
Sentencing Act shows that the Act left its effective date up to the Sentencing
Commission. This theory overlooks a simpler explanation for the inclusion of this
clause in the 1994 statute. By default under the saving statute, the new safety valve
would not have applied to people who offended before the statute’s effective date, even
those sentenced after the effective date. See 1 U.S.C. § 109. In order to overcome this
default rule, Congress had to provide that the safety valve “shall apply to all sentences
imposed” after the effective date. The effective date provision in the 1994 law thus
confirms the importance, not the irrelevance, of the saving statute, and that Congress
knows how to overcome it.

In the last analysis, all indicators of meaning—the default rule that reductions in
criminal penalties are not retroactive, the absence of any language in the Fair Sentencing
Act that overcomes this presumption, the outcome, reasoning and assumptions of
Nos. 12-5226/5582 United States v. Blewett, et al. Page 13

Dorsey, a cascade of authority from our court and every other court of appeals, and the
Sentencing Commission’s own interpretation—show that the Act does not apply to
defendants sentenced before its effective date. That would be the end of this dispute but
for another law—18 U.S.C. § 3582(c)(2)—which the Blewetts claim allows them to
sidestep this conclusion.

B.

Section 3582(c)(2). Enacted as part of the Sentencing Reform Act of 1984,
§ 3582(c)(2) permits inmates to seek a sentence reduction in a specific setting: “in the
case of a defendant who has been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the Sentencing Commission
pursuant to 28 U.S.C. § 994(o).” This provision does not cover the Blewetts’ request,
as Judge Gilman ably explained at the panel stage of this dispute. See United States v.
Blewett, 719 F.3d 482, 496–97 (6th Cir. 2013) (Gilman, J., dissenting). It applies only
to sentencing ranges decreased “by the Sentencing Commission” in accordance with
“§ 994(o).” In the Fair Sentencing Act, Congress, not the Sentencing Commission,
lowered these mandatory minimum criminal penalties. Congress is not the Sentencing
Commission. Compare U.S. Const. art. I, § 1 (establishing Congress), with 28 U.S.C.
§ 991(a) (establishing the Sentencing Commission). When Congress lowers a penalty,
it acts under Article I of the Constitution, not 28 U.S.C. § 994(o). It follows that a
mandatory minimum subsequently lowered by Congress is not, as § 3582(c)(2) requires,
a “sentencing range . . . subsequently . . . lowered by the Sentencing Commission
pursuant to 28 U.S.C. § 994(o).”

Not only does the straightforward language of § 3582(c)(2) limit its coverage to
decreases in sentencing ranges made by the Sentencing Commission, but two features
of its adoption cement this interpretation. The statute came into being through the
Sentencing Reform Act of 1984, which created the Sentencing Commission and
authorized the sentencing guidelines system. It is unsurprising that Congress would
limit this “narrow” sentence-reduction option, Dillon v. United States, 130 S. Ct. 2683,
Nos. 12-5226/5582 United States v. Blewett, et al. Page 14

2691 (2010), to retroactive modifications of the sentencing guidelines by the Sentencing
Commission, not to non-retroactive modifications of criminal laws by Congress.

That leads to the second point. Under the Sentencing Reform Act of 1984, the
Sentencing Commission has no authority to contradict congressional mandatory
minimum sentences. 28 U.S.C. § 994(b)(1). In upholding the Sentencing Reform Act
against a non-delegation challenge, the Supreme Court relied on the premise that the
Commission’s decisions had to “be consistent with pertinent provisions of Title 18 of
the United States Code.” Mistretta, 488 U.S. at 375. If, as we conclude, the Fair
Sentencing Act of 2010 does not apply to sentences imposed before its effective date,
nothing in § 3582(c)(2) in particular or in the Reform Act of 1984 in general permits the
Sentencing Commission to override that conclusion.

Section 3582(c)(2) thus permits criminal defendants to seek a sentence reduction
when the Sentencing Commission lowers a guidelines range. But it does not permit
criminal defendants to transform a non-retroactive reduction in penalties enacted by
Congress into a retroactive one.

In response, the Blewetts offer a creative, but in the last analysis unconvincing,
line of argument. It goes like this: (1) at their sentencing hearings in 2005, the
Sentencing Guidelines recommended a sentencing range of 120–137 months for
Cornelius and 120–125 months for Jarreous; (2) after passage of the Fair Sentencing Act
in 2010, the Sentencing Commission adopted Amendment 750, which reduced
sentencing ranges for crack cocaine offenders and today would give Cornelius 63–78
months and Jarreous 70–87 months; (3) this amendment allows affected defendants to
seek a sentence reduction under § 3582(c)(2); and (4) the court therefore must apply the
new mandatory minimum statutory sentences for crack cocaine offenses, not the old
ones, in deciding the § 3582(c)(2) motion.

The problem with this theory is that it treats § 3582(c)(2) as an alchemist’s stone,
capable of transforming a prospective law into a retroactive one. All a defendant needs
to do is somehow get into a sentence reduction proceeding. Once there, he can take
advantage of any changes to mandatory minimum statutes—retroactive or not, related
Nos. 12-5226/5582 United States v. Blewett, et al. Page 15

to the Fair Sentencing Act or not—made since his initial sentencing. At least four
roadblocks stand in the way of this interpretation.

First, the argument overlooks “the limited scope and purpose of § 3582(c)(2).”
Dillon, 130 S. Ct. at 2692. Sentence modification proceedings are not “plenary
resentencing proceedings.” Id.; see Blewett, 719 F.3d at 497 (Gilman, J., dissenting).
Section 3582(c)(2) allows consideration only of retroactive amendments to the
sentencing guidelines, with other sentencing elements—mandatory minimums
included—held constant.

Second, the argument proves too much. Suppose the Fair Sentencing Act
contained a clause saying, “This Act does not apply to offenders sentenced before its
passage.” Even then, the Blewetts’ theory would mean that the Sentencing
Commission’s retroactive reduction of the crack guidelines would allow them to enter
a sentence reduction proceeding. And, even then, their theory would mean that, once
there, they could benefit from the Act’s new minimums. How odd to give a law
retroactive effect even though it said it did not have retroactive effect. Nor does this
problem go away because the current law lacks an anti-retroactivity clause. Instead of
appearing in the Fair Sentencing Act, a clause with similar effect appears in a
neighboring law that covers all laws that lower criminal sentences: § 109, the general
saving statute.

Third, the Sentencing Commission, no fan of the crack-powder disparities,
disavows the Blewetts’ interpretation. One of its policy statements—which § 3582(c)(2)
requires courts to follow—states that “a reduction in the defendant’s term of
imprisonment is not authorized” to the extent blocked by “the operation of another . . .
statutory provision (e.g., a statutory mandatory minimum term of imprisonment).”
U.S.S.G. § 1B1.10 cmt. n.1. Here, “another . . . statutory provision”—the Anti-Drug
Abuse Act—blocks reduction of the Blewetts’ sentence beyond 120 months.

The Blewetts reply that the phrase “statutory provision” in § 1B1.10 refers to the
Fair Sentencing Act, not to the Anti-Drug Abuse Act. But why? As shown, the Fair
Sentencing Act does not govern offenders sentenced before its enactment, making it
Nos. 12-5226/5582 United States v. Blewett, et al. Page 16

implausible that a guideline of the Sentencing Commission would alter that statutory
directive of Congress. The guideline instead refers to the applicable “statutory
provision”—the Anti-Drug Abuse Act. We thus look to that law, not the Fair Sentencing
Act, to figure out whether “another . . . statutory provision” prevents the Blewetts’
sentences from getting any lower. No other circuit in the country questions this
interpretation.

Ending any doubt about this conclusion, the Sentencing Commission itself has
announced that Amendment 750 “only allows the guideline changes to be considered for
retroactive application; it does not make any of the statutory changes in the Fair
Sentencing Act of 2010 retroactive.” 76 Fed. Reg. at 41,333. The very entity
responsible for writing § 1B1.10, for lowering the guidelines sentencing ranges and for
creating the pivot point of the Blewetts’ argument thus disagrees that the retroactive
lowering of the one (some guidelines ranges) has the effect of retroactively lowering the
other (the mandatory minimums).

Fourth, the Blewetts’ interpretation would make a fool’s errand of Dorsey.
Under their theory, even if Dorsey had lost the debate about the meaning of the Fair
Sentencing Act, he still could have brought a § 3582(c)(2) motion to get the benefit of
the new mandatory minimums. If that were true, why decide Dorsey? The Justices have
better things to do than to resolve difficult 5–4 issues that don’t matter. There remain
more ways to say less, but we will leave it at that with respect to the statutory arguments.

C.

The Constitution. Even if the Fair Sentencing Act applies only to individuals
sentenced after its effective date and even if § 3582(c)(2) does not convert the Act into
a retroactive change to these mandatory minimums, the Blewetts claim that the
Constitution’s equal-protection and cruel-and-unusual-punishment principles give them
relief. Long before the passage of the Fair Sentencing Act, our court and others
repeatedly rejected similar constitutional challenges to the crack and powder cocaine
sentencing disparities. See United States v. Blair, 214 F.3d 690, 702 (6th Cir. 2000)
(“The law is well settled in this circuit that the [crack-powder] ratio withstands
Nos. 12-5226/5582 United States v. Blewett, et al. Page 17

constitutional scrutiny.”); see also, e.g., United States v. Garcia-Carrasquillo, 483 F.3d
124, 134 (1st Cir. 2007); United States v. Samas, 561 F.3d 108, 110 (2d Cir. 2009);
United States v. James, 78 F.3d 851, 853 n.2 (3d Cir. 1996); United States v. Burgos, 94
F.3d 849, 876–77 (4th Cir. 1996); United States v. Fisher, 22 F.3d 574, 579 (5th Cir.
1994); United States v. Chandler, 996 F.2d 917, 918–19 (7th Cir. 1993) (per curiam);
United States v. Watts, 553 F.3d 603, 604 (8th Cir. 2009); United States v. Dumas,
64 F.3d 1427, 1429–30 (9th Cir. 1995); United States v. Cornelius, 696 F.3d 1307, 1325
(10th Cir. 2012); United States v. Solomon, 848 F.2d 156, 157 (11th Cir. 1988) (per
curiam); United States v. Holton, 116 F.3d 1536, 1548 (D.C. Cir. 1997). Congress’s
mitigation of the crack and powder disparities does not weaken these precedents; it
strengthens them. Besides, the Blewetts cite no cases that call these conclusions into
question. “This is not due to a lack of diligent research; it is due to the lack of any such
cases.” Blewett, 719 F.3d at 495 (Gilman, J., dissenting).

Observing that users of crack cocaine are predominantly black but users of
powder are predominantly white, the Blewetts insist (along with the dissents authored
by Judges Merritt, Cole, Clay and White, and with support from the concurrence in the
judgment authored by Judge Moore) that a congressional failure to make the Fair
Sentencing Act fully retroactive would violate the equal protection component of the
Fifth Amendment’s Due Process Clause. But this guarantee forbids only intentional
discrimination. A law that lacks a “racially discriminatory purpose” does not become
unconstitutional “solely because it has a racially disproportionate impact.” Washington
v. Davis, 426 U.S. 229, 239 (1976). No evidence shows that Congress acted with the
purpose to discriminate when it refused to apply the Fair Sentencing Act to
defendants—all defendants, white or black—sentenced before the Act took effect.

The Blewetts and Judge Clay add that Congress must have foreseen that its
failure to make the Fair Sentencing Act fully retroactive would have a racially
disproportionate impact. But as Judge Gilman rightly pointed out, see 719 F.3d at 495,
that makes no difference. A disproportionate effect does not violate the Equal Protection
Clause, even if it was foreseen. The Supreme Court has instructed us that the “intent”
Nos. 12-5226/5582 United States v. Blewett, et al. Page 18

in “intentional discrimination” means more than “intent as awareness of consequences.”
Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). A violation arises only when
a public official takes an action “‘because of,’ not merely ‘in spite of,’ its adverse effects
upon an identifiable group.” Id. No evidence exists that Congress refused to make the
Fair Sentencing Act retroactive because this refusal would disproportionately harm black
defendants.

This theory of discrimination also makes little sense. Is it really possible that the
same Congress that was deeply concerned about racial justice when looking at future
sentences suddenly became racist when contemplating past sentences? That is a heavy
lift. A more basic explanation exists for what Congress did, and for what it failed to do,
in the Fair Sentencing Act. The government has a powerful interest in avoiding the
disruption of final sentences. See Johnson, 544 U.S. at 309; Teague, 489 U.S. at 309
(plurality opinion). Congress did nothing extraordinary or for that matter discriminatory
when it respected this interest. It was merely sticking to what Dorsey called the
“ordinary practice” in federal sentencing, “withholding [a] change from defendants
already sentenced.” 132 S. Ct. at 2335.

The Blewetts, joined by several of the dissents, insist that Congress acted
“irrationally” by failing to make the Fair Sentencing Act fully retroactive. But the
government has a strong interest in the finality of sentences, and the Fair Sentencing Act
advances that interest. Ruling otherwise means forgetting Armour v. City of
Indianapolis, which endorsed “the rationality of the distinction . . . the law often makes
between actions previously taken and those yet to come,” 132 S. Ct. 2073, 2082 (2012),
and forgetting Dillon v. United States, which was “aware of no constitutional
requirement of retroactivity that entitles defendants sentenced to a term of imprisonment
to the benefit of subsequent . . . amendments,” 130 S. Ct. at 2692.

Two of the dissents respond that, because Congress did not insist on the finality
of sentences based on the old guidelines, it acted irrationally by insisting on the finality
of sentences based on the old statutory minimums. See Dissenting Op. at 41–43 (Cole,
J.); Dissenting Op. at 77–79 (White, J.). That does not follow. Congress created the
Nos. 12-5226/5582 United States v. Blewett, et al. Page 19

minimums, and the Commission created the guidelines. It is eminently rational for
Congress to decide the retroactivity of its creations and to allow the Commission to
decide the retroactivity of its creations. This argument also overlooks the reality that
§ 3582(c)(2) grants the district courts discretion to reduce sentences; it does not impose
a mandate on them. Dillon, 130 S. Ct. at 2692. If the dissents’ theory is correct,
countless district court judges have violated the Equal Protection Clause by exercising
this discretion to leave in place some old sentences but not others, and we apparently
have aided and abetted those constitutional violations in countless decisions of our own
that found no abuse of discretion. Doubtful.

Turning to another part of the Constitution, the Blewetts and Judge Merritt (with
support from Judge Moore’s opinion) contend that the Eighth Amendment prohibits the
continued imprisonment of a defendant sentenced under the old mandatory minimum
laws. Yet they cannot contend that their 10-year sentences were cruel and unusual when
imposed. After all, the Supreme Court has upheld a mandatory minimum of life without
parole for possession of 672 grams of cocaine without intent to distribute. Harmelin v.
Michigan, 501 U.S. 957 (1991). The Blewetts’ crimes are less serious in one respect
(they possessed less cocaine), but more serious in two others (they possessed with intent
to distribute and they had prior felony drug convictions). Harmelin precludes the
conclusion that the Blewetts’ much shorter mandatory minimum sentences were cruel
and unusual.

The Blewetts persist that their sentences became cruel and unusual when
Congress passed the Fair Sentencing Act. But the Eighth Amendment is not a ratchet
that makes a harsher system of penalties unconstitutional the moment a more lenient one
is (prospectively) adopted, a theory that would have the perverse effect of discouraging
lawmakers from ever lowering criminal sentences. Withholding the benefits of a change
from previously sentenced defendants at any rate is not “unusual”; it is the general
practice in federal sentencing, as Dorsey and § 109 confirm.

The Blewetts turn last of all to the principle that courts should interpret statutes
to avoid serious constitutional doubts. See Crowell v. Benson, 285 U.S. 22, 62 (1932).
Nos. 12-5226/5582 United States v. Blewett, et al. Page 20

Yet a weak constitutional argument and a weak statutory argument do not add up to a
strong constitutional avoidance argument. Just the opposite, as Judge Gilman explained.
See 719 F.3d at 495–96. Avoidance permits the adoption of an interpretation only if that
reading of the statute is “fairly possible.” Crowell, 285 U.S. at 62. It is not “fairly
possible” to read “Sentencing Commission” in § 3582(c)(2) to mean “Congress,” or to
interpret the Fair Sentencing Act to contain a clear implication of full retroactivity
sufficient to displace the general saving statute’s default rule. Avoidance comes into
play when there is a “serious doubt,” not just any doubt, about a statute’s
constitutionality. Id. The Supreme Court’s decisions in cases like Davis and Harmelin
leave no serious doubt about the constitutionality of § 3582(c)(2) and the Fair
Sentencing Act as written.

*****

At the end of the day, this is a case about who, not what—about who has
authority to lower the Blewetts’ sentences, not what should be done with that authority.
In holding that the courts lack authority to give the Blewetts a sentence reduction, we
do not mean to discount the policy arguments for granting that reduction. Although the
various opinions in this case draw different conclusions about the law, they all agree that
Congress should think seriously about making the new minimums retroactive. Indeed,
the Fair Sentencing Act, prospective though it is, dignifies much of what the Blewetts
are saying as a matter of legislative reform and may well be a powerful ground for
seeking relief from Congress. Yet the language of the relevant statutes (the Fair
Sentencing Act, § 109 and § 3582(c)(2)) and the language of the relevant decisions
(Dorsey, Davis and Harmelin) leave us no room to grant that relief here. Any request
for a sentence reduction must be addressed to a higher tribunal (the Supreme Court) or
to a different forum altogether (the Congress and the President).
Nos. 12-5226/5582 United States v. Blewett, et al. Page 21

_________________

CONCURRENCE
_________________

KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. Each
of our sister circuits has held that the Fair Sentencing Act does not apply to prisoners
sentenced to the statutory minimum before the Act’s effective date. Majority Op. at 7
(collecting cases). The Sentencing Commission shares this view, though it has
repeatedly asked Congress to extend the Act’s benefits to all prisoners serving sentences
for crack-cocaine violations. See, e.g., Reevaluating the Effectiveness of Federal
Mandatory Minimum Sentences: Hearing Before S. Comm. on the Judiciary, 113th
Cong. 9 (2013) (statement of Judge Patti B. Saris, Chair, U.S. Sentencing Comm’n).
Nothing in the statute’s text leads me to conclude that these positions are in error.
Petitioners’ arguments to the contrary are unconvincing, and therefore, I must concur in
the majority’s judgment to affirm the district court. I write separately, however, to
express several reservations.

I.

On June 3, 2013, Jarreous Blewitt completed his period of custodial
imprisonment, and his eight-year term of supervised release began to run. The
government, as a result, asks us to dismiss Jarreous Blewitt’s appeal as moot, but the
majority sidesteps this motion. Instead, the majority proceeds directly to the merits
because it has “no doubt” as to our “jurisdiction over one of the defendants in this
consolidated appeal . . . .” Majority Op. at 3 (citing Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 98 (1998); Norton v. Mathews, 427 U.S. 524, 531 (1976)). I do not
believe that Article III allows such a move, nor do I think the Supreme Court encourages
us to take such a step.
Nos. 12-5226/5582 United States v. Blewett, et al. Page 22

A.

The Constitution allows “federal courts [to] adjudicate only actual, ongoing cases
or controversies.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990). Under Article
III, we are “not empowered to decide moot questions or abstract propositions.” North
Carolina v. Rice, 404 U.S. 244, 246 (1971) (internal quotation marks omitted).
When—for whatever reason—the dispute discontinues or we are no longer able to grant
meaningful relief to the prevailing party, the action is moot, and we must dismiss for
lack of jurisdiction. Knox v. Serv. Emp. Int’l Union, 132 S. Ct. 2277, 2287 (2012). This
is not a small or purely academic matter given that the “constitutional elements of
jurisdiction are an essential ingredient of separation and equilibration of powers . . . .”
Steel Co., 523 U.S. at 101.

The majority cites Steel Co. for the proposition that a federal court may reach the
merits of a case—regardless of justiciability concerns—as long as the court holds that
it has jurisdiction over one of the companion cases. Majority Op. at 3. In its hurry to
reach the merits, however, the majority misses the main thrust of Steel Co., and in doing
so, it puts this court in direct conflict with the Supreme Court, our sister circuits, and
scholars. In Steel Co., Justice Scalia’s majority explicitly rejected the doctrine of
“hypothetical jurisdiction”—the practice of assuming jurisdiction when the merits
provide a quicker and easier answer. 523 U.S. at 101 (“Hypothetical jurisdiction
produces nothing more than a hypothetical judgment—which comes to the same thing
as an advisory opinion . . . .”). As a result, the lower courts, including this one, have
recognized that a federal court must satisfy itself of its jurisdiction, no matter how
difficult, before reaching the merits of a case. See, e.g., Am. Civil Liberties Union v.
Nat’l Sec. Agency, 493 F.3d 644, 651–52 (6th Cir. 2007); In re LimitNone, LLC, 551
F.3d 572, 576 (7th Cir. 2008); Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir.
2004); see also Wright, Miller & Cooper, Federal Practice and Procedure § 3533.1
(2008) (“[T]he Supreme Court appears to have ruled that a court may never bypass a
difficult and important Article III [justiciability] question in favor of resolving an easy
and nonprecedential question on the merits.”). It is unclear how assuming that we have
Nos. 12-5226/5582 United States v. Blewett, et al. Page 23

jurisdiction over Jarreous Blewitt because we are empowered to act in Cornelius
Blewett’s case is anything but hypothetical jurisdiction.

Despite the strong, categorical language in Steel Co., that case did recognize that
“the absolute purity of the rule that Article III jurisdiction is always an antecedent
question” had been “diluted” by previous cases. Steel Co., 523 U.S. at 101. One of
those cases was Norton, cited by the majority, in which the Court refused to address
whether a three-judge district court had jurisdiction in the proceedings below because
“the case alternatively could be resolved on the merits in favor of the same party.”
Norton, 427 U.S. at 532. Because “the merits ha[d] been rendered plainly insubstantial”
in a companion case, id., the Norton court avoided the “difficult and perhaps close
jurisdictional arguments,” id. at 530. Subsequent courts have interpreted the Steel Co.
majority’s choice to distinguish, rather than overrule, Norton as license to create
exceptions to the general rule.1 Perhaps, by citing Steel Co. and Norton, the majority
here aims to take advantage of these safety valves. However, neither of the recognized
exceptions is applicable here.

First, on occasion, we have joined other circuits in “permit[ting] courts to assume
that statutory jurisdiction—as distinct from constitutional jurisdiction—exists in order
to resolve a case, by means of a straightforward merits analysis, in favor of the party
contesting jurisdiction.” Khodr v. Holder, — F. App’x —, 2013 WL 4017141, at *4 n.4
(6th Cir. 2013); see also id. (collecting cases). This exception fits with Norton itself,
which skipped over whether facts existed that would satisfy the statute that provided for
the convening of a three-judge district court. Norton, 427 U.S. at 529–30. It does not
apply here, because the case and controversy requirements—including mootness—sound
in Article III. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 180 (2000); SEC v. Med. Comm. for Human Rights, 404 U.S. 403, 407
(1972); Rice, 404 U.S. at 246.

1
Five justices did agree that exceptional circumstances might warrant the assumption of statutory
jurisdiction. See Steel Co., 523 U.S. at 110 (O’Connor, J., joined by Kennedy, J., concurring); id. at 111
(Breyer, J., concurring); id. at 112 (Stevens, J., joined by Souter, J., concurring in the judgment).
Nos. 12-5226/5582 United States v. Blewett, et al. Page 24

Second, other courts of appeals have recognized the slightly broader
“foreordained exception.” See, e.g., Starkey v. Boulder Cnty. Soc. Servs., 569 F.3d 1244,
1261 (10th Cir. 2009) (collecting cases). One of our sister circuits has read Steel Co. and
Norton

to allow an exception to the rule against assuming the existence of
standing in those “peculiar circumstances” where the outcome on the
merits has been “foreordained” by another case such that “the
jurisdictional question could have no effect on the outcome,” provided
the court “d[oes] not use the pretermission of the jurisdictional question
as a device for reaching a question of law that otherwise would have
gone unaddressed.”

Ctr. for Reprod. Law & Policy v. Bush, 304 F.3d 183, 194 (2d Cir. 2002) (quoting Steel
Co., 523 U.S. at 98). Another circuit has similarly adopted this exception, but that court
stressed that it avoids only “difficult question[s]” of jurisdiction, Seale v. INS, 323 F.3d
150, 157 (1st Cir. 2003), and that it “does not create new precedent,” id. at 152. This
case does not fit comfortably within such exceptions. Furthermore, whether we have
jurisdiction in this case is relevant to many other 18 U.S.C. § 3582(c)(2) appeals. Thus,
there is no reason to invoke this limited exception that has been recognized by only a
few circuits. Instead, we should satisfy ourselves of our jurisdiction and address the
government’s motion to dismiss.

B.

Under our general procedure and mootness principles, the government’s motion
should nonetheless be denied. On prior occasions, we have stated that “‘[t]he test for
mootness is whether the relief sought would, if granted, make a difference to the legal
interests of the parties.’” Ford v. Wilder, 469 F.3d 500, 504 (6th Cir. 2006) (quoting
McPherson v. Mich. High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir. 1997)
(en banc)). Traditionally, once a prisoner finishes his sentence of imprisonment, any
challenge to the term of imprisonment (as opposed to the underlying conviction) cannot
make a difference absent a showing of collateral consequences. See Lane v. Williams,
455 U.S. 624, 631 (1982) (“Since respondents elected only to attack their sentences, and
since those sentences expired during the course of these proceedings, this case is
Nos. 12-5226/5582 United States v. Blewett, et al. Page 25

moot.”). Here, U.S.S.G. § 1B1.10(b)(2)(C) bars a district court from reducing a
prisoner’s sentence below the term of imprisonment “already served,” which would
seem to render Jarreous Blewitt’s appeal moot. However, we have recognized that “an
appeal is not entirely moot ‘so long as the appeal potentially implicates the length of the
[defendant’s] supervised release term.’” United States v. Waltanen, 356 F. App’x 848,
851 (6th Cir. 2009)2 (quoting United States v. Maken, 510 F.3d 654, 656 n.3 (6th Cir.
2007)); see also United States v. May, 568 F.3d 597, 602 (6th Cir. 2009); McClain v.
Bureau of Prisons, 9 F.3d 503, 505 (6th Cir. 1993). To take advantage of this exception,
though, Jarreous Blewitt must demonstrate that a failure to grant him eligibility for a
§ 3582(c)(2) sentence reduction has collateral consequences for him. Demis v. Sniezek,
558 F.3d 508, 512 (6th Cir. 2009); see also Spencer v. Kemna, 523 U.S. 1, 14 (1998).

In his response to the government’s motion to dismiss, Jarreous Blewitt argues
that a favorable outcome in this appeal could impact a district court’s calculus when
determining whether to modify or terminate his term of supervised release. Jarreous
Blewitt Resp. at 2. I agree. In United States v. Johnson, 529 U.S. 53, 60 (2000), the
Supreme Court held that terms of imprisonment and of supervised release are not

2
In Waltanen, a panel dismissed a prisoner’s appeal as moot, in part, because he “did not move
the district court to reconsider his supervised release term.” 356 F. App’x at 851; see also United States
v. Bravo, 362 F. App’x 456 (6th Cir. 2010). Furthermore, the panel in Waltanen held that “any issue
relating to early termination [of supervised release was] premature and not ripe for our consideration”
because the prisoner had not been on supervised release for the one-year requirement embedded in 18
U.S.C. § 3583(e)(1). 356 F. App’x at 852. In my view, both of these conclusions are in error.
First, requiring a prisoner to file a § 3583 motion, in circumstances such as these, is overly
formalistic and blind to reality. When Jarreous Blewitt filed for § 3582(c)(2) relief in district court, his
petition was timely. When he won on appeal, his § 3582(c)(2) petition still was timely. Only now, after
the government has sought en banc review—approximately eighteen months after the district court first
ruled—is the mootness of Jarreous Blewitt’s motion in question. To say that Jarreous Blewitt cannot get
relief now because he did not make a § 3583 filing in district court, at a time when such a motion would
not have been ripe, makes little sense.
Second, a determination that a § 3583(e)(1) motion would not be ripe until a prisoner has served
one year of his term—is incorrect and unwise. Section 3583(e)(1) states that a court may terminate
supervised release “any time after the expiration of one year of supervised release,” but it is silent as to
when a prisoner may file for relief. Requiring a prisoner to wait until one year of supervised release has
passed to file a § 3583 petition would essentially tack on extra time and defeat the congressional judgment
that a district court should have discretion to terminate supervised release after the first year has been
served. See United States v. Epps, 707 F.3d 337, 344 (D.C. Cir. 2013). Such a requirement does not fit
with the text of § 3583, and therefore, I would not support a decision imposing such a judicial amendment
to the statute. Furthermore, § 3583(e)(2) allows a district court to “modify, reduce, or enlarge the
conditions of supervised release, at any time prior to the expiration or termination of the term of
supervised release . . . .” Id. (emphasis added); see also United States v. Shultz, — F.3d —, 2013 WL
5736052, at *5 (6th Cir. 2013) (noting that a defendant could seek a modification whenever the need
arose). Therefore, a district court could proceed under § 3583(e)(2) in the alternative, even if this court
chose unwisely to overread § 3583(e)(1).
Nos. 12-5226/5582 United States v. Blewett, et al. Page 26

“interchangeable,” but “equitable considerations of great weight exist when an
individual is incarcerated beyond the proper expiration of his prison term,” which could
impact a district court’s § 3583 analysis. In circumstances similar to Jarreous Blewitt’s,
the D.C. Circuit has stated, “eligib[ility] for a reduced sentence under § 3582(c)(2), if
it led to an actual sentence reduction, would necessarily inform the district court’s
evaluation of a motion for termination or reduction of [a] term of supervised release
under § 3583(e)(1) or (e)(2).” United States v. Epps, 707 F.3d 337, 345 (D.C. Cir.
2013); see also Levine v. Apker, 455 F.3d 71, 77 (2d Cir. 2006); Mujahid v. Daniels, 413
F.3d 991, 994–95 (9th Cir. 2005). Here, Jarreous Blewitt cannot receive an actual
reduction of his imprisonment term because U.S.S.G. § 1B1.10(b)(2)(C) precludes a
district court from reducing a term of imprisonment below time “already served.” The
Sentencing Guidelines, however, direct district courts to “consider any such reduction
that it was unable to grant [as a result of § 1B1.10(b)(2)(C)] in connection with any
motion for early termination of a term of supervised release under 18 U.S.C.
§ 3583(e)(1).” U.S.S.G. § 1B1.10 cmt. n. 5(B). Therefore, a holding that Jarreous
Blewitt is eligible for a § 3582(c)(2) sentence reduction renders a modification or
termination of supervised release more likely, and thus, his appeal is not moot.

II.

Regrettably, the Fair Sentencing Act—as written—does not benefit prisoners,
like the petitioners, who were sentenced to the crack-cocaine mandatory minimums
before the Act’s effective date. The statute is silent as to its retroactive application, and
statements of individual members of Congress, though eloquent and compassionate,
cannot trump or supplement the text of the Act, which was passed by both houses of
Congress and signed into law by the President. Thus, the general savings statute,
1 U.S.C. § 109, resolves this silence in favor of purely prospective application.
Nos. 12-5226/5582 United States v. Blewett, et al. Page 27

III.

Petitioners challenge the district court’s denial of a sentence reduction under
18 U.S.C. § 3582(c)(2). Normally, federal courts cannot disturb or recalculate a
prisoner’s sentence once it is finally imposed, § 3582(b), but “[s]ection 3582(c)(2)
establishes an exception to the general rule of finality . . . .” Dillon v. United States, 130
S. Ct. 2683, 2690 (2010). The Supreme Court has further stated that it is “aware of no
constitutional requirement of retroactivity that entitles defendants sentenced to a term
of imprisonment to the benefit of subsequent Guidelines amendments.” Id. at 2692.
Rather, § 3582(c)(2) is merely “a congressional act of lenity.” Id. Congress can always
broaden this statutory right, or it can establish neutral roadblocks that result in the denial
of relief to certain types of prisoners. Currently, to be eligible for § 3582(c)(2) relief,
a prisoner must show: (1) that the Sentencing Commission amended a guideline range
and made that amendment retroactive, see § 3582(c)(2); (2) that his sentence was “based
on” the guideline range amended by the Sentencing Commission, id.; Freeman v. United
States, 131 S. Ct. 2685, 2692–93 (2011) (plurality opinion); and (3) that the application
of the new guideline range would actually “have the effect of lowering the defendant’s
applicable guideline range,” U.S.S.G. § 1B1.10(a)(2)(B).

Petitioners here satisfy the first two requirements, but they cannot clear the final
hurdle to eligibility. The new guidelines do not have the effect of lowering petitioners’
applicable guideline range because the new mandatory minimums are not retroactive.
The old mandatory minimums, like other statutory minimums, continue to block relief.
Given that there is no constitutional right to a sentence reduction and that Congress
could abolish § 3582(c)(2) completely, I cannot say that Congress’s choice to limit relief
under § 3582(c)(2) to prisoners not subject to mandatory minimums presents a
constitutional problem. Cf. Lindh v. Murphy, 96 F.3d 856, 872 (7th Cir. 1996)
(justifying 28 U.S.C. § 2254(d)’s limitation of federal habeas review on similar logic),
rev’d on other grounds, 521 U.S. 320 (1997).

Importantly, under § 3582(c)(2), prisoners can seek only a sentence modification,
and we can decide only whether they are eligible for a reduction. Petitioners cannot
Nos. 12-5226/5582 United States v. Blewett, et al. Page 28

challenge the legality of their sentences or the sentencing courts’ original calculations
of the sentencing guidelines. Dillon, 130 S. Ct. at 2694. The power and discretion of
the federal courts, as well as our scope of review, are similarly constrained under
§ 3582(c)(2). Dillon, 130 S. Ct. at 2691; United States v. Washington, 584 F.3d 693, 694
(6th Cir. 2009). As a result, the constitutionality of Cornelius Blewett’s and Jarreous
Blewitt’s sentences is not before us today. But let there be no mistake: if a prisoner,
who is serving a sentence based on the old mandatory minimums, challenged his
sentence under 28 U.S.C. §§ 2241 or 2255, we could address the constitutional question
directly.3 Two decades ago, we held that sentences imposed pursuant to the 100-to-1
ratio did not violate the Fifth or the Eighth Amendments. See United States v. Williams,
962 F.2d 1218, 1227–28 (6th Cir. 1992) (Equal Protection); United States v. Levy, 904
F.2d 1026, 1034 (6th Cir. 1990) (Eighth Amendment). For the reasons stated below, I
lack faith in the soundness of those decisions.

A. Equal Protection

The federal government may not “deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend. XIV, § 1; Bolling v. Sharpe, 347 U.S.
497, 499 (1954) (applying the Fourteenth Amendment’s commands to the federal
government through the Fifth Amendment). At one point, these blunt words meant
“‘that equal protection and security should be given to all under like circumstances in
the enjoyment of their personal and civil rights; . . . that no greater burdens should be
laid upon one than are laid upon others in the same calling and condition; and that in the
administration of criminal justice no different or higher punishment should be imposed
upon one than such as is prescribed to all for like offenses.’” Yick Wo v. Hopkins,
118 U.S. 356, 367–68 (1886) (quoting Barbier v. Connolly, 113 U.S. 27, 31 (1884)).
Today, this fundamental protection prevents the federal government from enforcing its
laws in a racially discriminatory manner or maintaining statutes that are no longer
rationally related to a legitimate end.

3
The petitioners neither ask us to construe their § 3582(c)(2) motions as applications for habeas
relief nor challenge the constitutionality of their sentences. Thus, we cannot rule on the question now.
Nos. 12-5226/5582 United States v. Blewett, et al. Page 29

“Discrimination on the basis of race, odious in all aspects, is especially
pernicious in the administration of justice,” because it “destroys the appearance of
justice and thereby casts doubt on the integrity of the judicial process.” Rose v. Mitchell,
443 U.S. 545, 555–56 (1979). Such discrimination “not only violates our Constitution,”
but also “is at war with our basic concepts of a democratic society and a representative
government.” Smith v. Texas, 311 U.S. 128, 130 (1940) (footnote omitted). In 2012,
82.6 percent of convicted federal crack-cocaine defendants were African American, yet
African Americans represent only one-third of crack-cocaine users in the United States.
U.S. Sentencing Comm’n, Sourcebook of Federal Sentencing Statistics 103 tbl. 34
(2012); H.R. Rep. No. 111–670, at 4 (2010) (citing Substance Abuse & Mental Health
Servs. Admin., Results from the 2005 National Survey on Drug Use and Health:
Detailed Table J, tbl. 1.43a (Sept. 2006)). In the same time-frame, only 6.7 percent of
convicted federal crack-cocaine defendants were Caucasian, despite the fact that the
majority of users is white. U.S. Sentencing Comm’n, Sourcebook, at 103 tbl. 34. No
conception of equality, no decent government, can long tolerate a criminal-justice system
in which its citizens are treated so differently if such treatment is based on the color of
their skin.

On its face, the 100-to-1 ratio is not a racial classification, and thus, proof of
disparate impact is not enough. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 264–65 (1977). The Supreme Court also requires a demonstration that the
discriminatory enforcement of the law is motivated by a discriminatory purpose,
McCleskey v. Kemp, 481 U.S. 279, 292 (1987), that the government “selected or
reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite
of,’ its adverse effects upon an identifiable group,” Pers. Adm’r of Mass. v. Feeney, 442
U.S. 256, 279 (1979). In most cases, satisfying this standard requires particularized
proof of motive, see, e.g., United States v. Armstrong, 517 U.S. 456, 465 (1996), yet
“[s]ometimes a clear pattern, unexplainable on grounds other than race, emerges from
the effect of the state action even when the governing legislation appears neutral on its
face.” Arlington Heights, 429 U.S. at 266. In those rare situations, “[t]he evidentiary
inquiry is then relatively easy.” Id.
Nos. 12-5226/5582 United States v. Blewett, et al. Page 30

The federal government’s enforcement of the crack-cocaine laws is stark and
wildly disproportionate in its effects. Since Congress created the 100-to-1 ratio in 1986,
African Americans have constituted eighty to ninety-five percent of federal crack-
cocaine defendants while continuing to be a minority of crack-cocaine users. See, e.g.,
U.S. Sentencing Comm’n, Sourcebook, at 103 tbl. 34; David A. Sklansky, Cocaine,
Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1289 (1995) (citing U.S. Sentencing
Comm’n, Annual Report 46, 88 (1992)). While the 100-to-1 ratio was in effect, the
average federal drug sentence for African Americans was forty-nine percent longer than
the average federal drug sentence for Caucasians. Barbara S. Meierhoefer, Fed. Judicial
Ctr., The General Effect of Mandatory Minimum Prison Terms 20 (1992) (reporting data
as of 1990). The impact of this policy was, and is, felt beyond the prison walls. See
generally Michelle Alexander, The New Jim Crow 140–77 (rev. ed. 2012). At minimum,
these statistics begin to suggest a criminal-justice system that treats one race much
harsher than others. If true, this cannot stand. “Our Constitution is color-blind, and
neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U.S. 537,
559 (1896) (Harlan, J., dissenting). By burdening one race above all others, the
enforcement of the 100-to-1 ratio has potentially offended the Constitution’s basic
guarantee of equal treatment.

Even if the current binding constitutional doctrine does not allow the application
of strict-scrutiny analysis, the 100-to-1 ratio must still survive rational-basis review to
remain valid. Supreme Court precedent teaches that “if a law neither burdens a
fundamental right nor targets a suspect class, we [must] uphold the legislative
classification so long as it bears a rational relation to some legitimate end.” Romer v.
Evans, 517 U.S. 620, 631 (1996). “[T]he Constitution presumes that even improvident
decisions will eventually be rectified by the democratic processes.” City of Cleburne v.
Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985). When faced with
“‘[d]iscriminations of an unusual character,’” however, we must provide “careful
consideration.” United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (quoting Romer,
517 U.S. at 633).
Nos. 12-5226/5582 United States v. Blewett, et al. Page 31

In Williams, this circuit in 1992 upheld the 100-to-1 ratio against a generic
rational-basis challenge because Congress then believed that (1) crack cocaine is
pharmacologically different than powder cocaine and (2) the effects of crack-cocaine
trafficking are more extreme. 962 F.2d at 1227. These assumptions underlying the 100-
to-1 ratio may have been rational and constitutional in 1986 or 1996, “but history makes
clear that constitutional principles of equality, like constitutional principles of liberty,
property, and due process, evolve over time; what once was a ‘natural’ and ‘self-evident’
ordering later comes to be seen as an artificial and invidious constraint on human
potential and freedom.” Cleburne, 473 U.S. at 466 (Marshall, J., concurring and
dissenting in part). Moreover, “[s]hifting cultural, political, and social patterns at times
come to make past practices appear inconsistent with fundamental principles upon which
American society rests, an inconsistency legally cognizable under the Equal Protection
Clause.” Id.

The experience of the past quarter-century has drawn the rationality of the 100-
to-1 ratio into question. As my dissenting colleagues explain, the validity of the
Congress’s original assumptions may not survive careful consideration today. See Cole,
J., dissenting at 39–40; Clay, J., dissenting at 42–49; see also United States v. Smith,
73 F.3d 1414, 1418–22 (6th Cir. 1996) (Jones, J., concurring). Furthermore, rather than
protecting our citizens, the law has led to the mass incarceration of African-American
men and has bred distrust of law enforcement in the larger African-American
community. It is time that the federal judiciary determines again whether the
Constitution abides such actions.

B. Eighth Amendment

The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” While these
words may be imprecise, the Supreme Court has held that the “Amendment contains a
‘narrow proportionality principle,’ that ‘does not require strict proportionality between
crime and sentence’ but rather ‘forbids only extreme sentences that are grossly
disproportionate to the crime.’” Graham v. Florida, 130 S. Ct. 2011, 2021 (2010)
Nos. 12-5226/5582 United States v. Blewett, et al. Page 32

(quoting Harmelin v. Michigan, 501 U.S. 957, 997, 1000–01 (1991) (Kennedy, J.,
concurring)). When considering whether a sentence is grossly disproportionate, we are
largely “guided by objective criteria, including (i) the gravity of the offense and the
harshness of the penalty; (ii) the sentences imposed on other criminals in the same
jurisdiction; and (iii) the sentences imposed for commission of the same crime in other
jurisdictions.” Solem v. Helm, 463 U.S. 277, 292 (1983). But in addition, we must
remember that “[t]he Amendment . . . draw[s] its meaning from the evolving standards
of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86,
101 (1958) (plurality opinion).

In Levy, United States v. Avant, 907 F.2d 623 (6th Cir. 1990), and United States
v. Pickett, 941 F.2d 411 (6th Cir. 1991), we upheld the 100-to-1 ratio against Eighth
Amendment challenges. A panel noted in Levy—without much explanation—that “[a]
ten-year sentence for drug possession simply does not approach the same level of gross
inequity” that had previously been held unconstitutional. 904 F.2d at 1034 (quoting
United States v. Cyrus, 890 F.2d 1245, 1248 (D.C. Cir. 1989)). In Avant, a panel stated
that a ten-year sentence for possessing 7.3 grams of crack cocaine was “severe,” but
nonetheless constitutional. 907 F.2d at 627.

In the past two decades, however, new information and events have cast doubt
upon the continued validity of those decisions. Congress has passed the Fair Sentencing
Act, lowering the disparity between crack and powder cocaine. The Sentencing
Commission has, in turn, lowered the guidelines for crack cocaine. As of 2007, “[o]nly
13 states ha[d] some form of distinction between crack cocaine and powder cocaine,”
none of which employed a 100-to-1 ratio or worse. U.S. Sentencing Comm’n, Report
to the Congress: Cocaine and Federal Sentencing Policy 98–104 (2007). Since then,
Missouri has lowered its ratio from 75-to-1 down to 18.75-to-1. Compare Mo. Rev. Stat.
§ 195.222(2) (2011) with Mo. Rev. Stat. § 195.222(2) (2013). Now, only Missouri,
Arizona (12-to-1), and New Hampshire (28-to-1) have ratios above 10-to-1. See Ariz.
Rev. Stat. §§ 13-3408(A)(2), (B)(2); 13-3401(36)(b), (c); N.H. Rev. Stat. § 318-
B:26(I)(a)(1), (3). In short, no American jurisdiction today treats crack-cocaine
Nos. 12-5226/5582 United States v. Blewett, et al. Page 33

offenders in such a disproportionate way as the federal government did prior to the Fair
Sentencing Act. These changes, particularly when considered in conjunction with the
new information discussed above in Section III(A) of this opinion and in the dissents,
suggest that the mandatory minimums in force before the enactment of the Fair
Sentencing Act now constitute grossly disproportionate punishment. At the very least,
we should reconsider whether Levy and its progeny still remain good law.

***

The majority cites Washington v. Davis, 426 U.S. 229 (1976), and Harmelin to
show the limits of our Constitution. It might as well add Armstrong and McCleskey to
its parade of horribles. I do not concede that these cases foreclose a challenge to the
100-to-1 ratio today, nor do I believe that mistakes should be repeated and relied upon
to shrink further our constitutional protections. History and experience can reveal that
our past decisions were wrong, and thankfully we are not forever bound by a cramped
reading of our charter of government. Still, I am mindful that “[i]t is not for our court,
as an inferior one, to give full expression to any personal inclination any of us might
have and to take the lead in expanding constitutional precepts when we are faced with
a limiting Supreme Court decision which, so far as we are told directly, remains good
law.” Jones v. Alfred H. Mayer Co., 379 F.2d 33, 43 (8th Cir. 1967) (Blackmun, J.),
rev’d, 392 U.S. 409 (1968). If the 100-to-1 ratio remains constitutional under those
decisions, I will apply them and remain faithful to my oath. But I nonetheless look
forward to a day when our law reflects the full promise of our Constitution and our
sentencing policy is more colorblind, more compassionate, and more fair.

For the reasons stated above, I concur in the judgment.
Nos. 12-5226/5582 United States v. Blewett, et al. Page 34

_________________

DISSENT
_________________

MERRITT, Circuit Judge, dissenting. I agree with Judge Rogers’ dissenting
opinion that the Fair Sentencing Act displays a congressional intent for the U.S.
Sentencing Commission to draft a new set of greatly reduced crack cocaine guidelines
to be applied both to new and old crack cocaine offenses. This remedial intent, as set
out in my original panel opinion in this case, United States v. Blewett, 719 F.3d 482
(May 17, 2013), includes mandatory minimum sentences in order to correct the wrongs
of the past. Congress specifically repealed the old mandatory minimums as excessive
and unfair in order to “restore fairness.” It replaced the old excessive sentences with
greatly reduced mandatory minimum sentences. Congress wanted change, not the status
quo. Congress knew that a large number of the long sentences to be reviewed under
§ 3582(c)(2) were mandatory and that most of the defendants were African-American.1

1
On September 18, 2013, the Sentencing Commission reported some of its findings on the
consequences of applying the new mandatory minimums to all defendants:
The Commission has determined that, should the mandatory minimum penalty
provisions of the FSA be made fully retroactive, 8,829 offenders would likely be
eligible for a sentence reduction, with an average reduction of 53 months per offender.
That would result in an estimated total savings of 37,400 bed years over a period of
several years and to [sic] significant cost savings. The Commission estimates that 87.7
percent of the inmates eligible for a sentence reduction would be Black.
Statement of Judge Patti B. Saris, Chair, United States Sentencing Comm’n for the Hearing on
“Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences” before the Comm. on the
Judiciary, United States Senate, Sept. 18, 2013 (footnotes omitted). At $30,000 a “bed year,” the
budgetary savings would exceed $1.1 billion. The change would also eliminate much of the racial
discrimination in sentencing that the legislative history of the FSA acknowledged had been a part of the
crack/powder cocaine sentencing disparity.
Here is a small but representative sample of the many statements by members of Congress
concerning the purpose of the Fair Sentencing Act:
155 Cong. Rec. S10491 (daily ed. Oct. 15, 2009) (statement of Sen. Dick Durbin,
Assistant Senate Majority Leader) (“Vice President Joe Biden, one of the authors of the
legislation creating this disparity in sentencing, has said: ‘Each of the myths upon
which we based the disparity has since been dispelled or altered.’”); 156 Cong. Rec.
H6202 (daily ed. July 28, 2010) (statement of Rep. Robert C. “Bobby” Scott, Chairman
of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security)
(“We are not blaming anybody for what happened in 1986, but we have had years of
experience and have determined that there is no justification for the 100-to-1 ratio.”);
156 Cong. Rec. H6202 (daily ed. July 28, 2010) (Statement of Rep. Daniel E. Lungren)
(“We initially came out of committee with a 20-to-1 ratio. By the time we finished on
the floor, it was 100-to-1. We didn’t really have an evidentiary basis for it, but that’s
Nos. 12-5226/5582 United States v. Blewett, et al. Page 35

I agree also with the dissent that the intent behind this congressional action to
“restore fairness” is inconsistent with enforcing a “no-change” sentencing policy based
on a doctrine of “finality” that the majority repeatedly relies on to deny relief throughout
its opinion. The majority is mistaken in suggesting that it is the “government” that wants
“to avoid disrupting the finality” of the old sentences. It is not Congress that has
suggested “finality” as the governing policy. Only the Department of Justice as a party
to this action, and the court itself, take that position. The “finality” of the mandatory
sentences in this case is not a “default” position or the norm as the majority mistakenly
asserts. Rather the opposite is true. The cases are to be further reviewed under
§ 3582(c)(2) to “restore fairness” and remedy the wrongs of the past.

Both the National Association of Criminal Defense Lawyers and the NAACP
have filed amicus briefs arguing that the position of the Department of Justice in this
case, if upheld, creates a sentencing system so disproportionate, irrational and racially
biased that it violates the proportionality requirement of the Eighth Amendment and the
equal protection requirements of the Fifth and Fourteenth Amendments.

Once again the majority answers these arguments with its “strong-interest-in-
finality” policy, attributing this reason to Congress. But it is not Congress that has
created this situation. It intended, as Judge Rogers’ opinion makes clear, to greatly
reduce such sentences. It is the court itself in its misunderstanding of congressional
intent that has introduced irrationality and disproportionality into the system that
Congress intended to correct.

It is not Congress’ but this court’s decision to create the vast disproportionality
in sentencing when it denies authority to reduce the Blewetts’ mandatory sentences from

what we did, thinking we were doing the right thing at the time.”);156 Cong. Rec.
S1682 (daily ed. Mar. 17, 2010) (statement of Sen. Patrick Leahy) (“The racial
imbalance that has resulted from the cocaine sentencing disparity disparages the
Constitution’s promise of equal treatment for all Americans.”); 156 Cong. Rec. H6198
(daily ed. July 28, 2010) (statement of Rep. James E. Clyburn, House Majority Whip)
(“The current drug sentencing policy is the single greatest cause of the record levels of
incarceration in our country. One in every 31 Americans is in prison or on parole or on
probation, including one in 11 African Americans. This is unjust and runs contrary to
our fundamental principles of equal protection under the law.”); 156 Cong. Rec. H6203
(daily ed. July 28, 2010) (statement of Rep. Steny Hoyer) (“The 100-to-1 disparity is
counterproductive and unjust.”).
Nos. 12-5226/5582 United States v. Blewett, et al. Page 36

ten years to zero years, as provided in the new Act. The court visits that disparity on a
prison population that is ninety percent African-American. Both the Department of
Justice and this court know the facts, the degree of disproportionality, the irrationality
of the disparity, and the racial makeup of the prison population that must suffer the
consequences. It chooses to disregard these facts in favor of its overriding policy of
“finality.”

I am convinced by the argument of the National Association of Criminal Defense
Lawyers on the disproportionality and irrationality of the position of the Department of
Justice, now adopted by our court. In its amicus brief it argues:

Unless the government can put forward legitimate penological
justifications for refusing the Blewetts (and similar less-serious, lower-
quantity crack offenders) the opportunity to apply for sentence
modifications under 18 U.S.C. § 3582(c)(2) based on the FSA’s more
lenient crack sentencing provisions, their sentences are “by their nature
disproportionate to the offense,” Graham, 130 S. Ct. at 2028, and a
purposeless mandate that they serve out the full duration of now-
repealed, excessive pre-FSA mandatory minimum sentences would result
in significant and enduring Eighth Amendment violations. [Citing
Graham v. Florida, 130 S. Ct. 2011, 2028 (2010).]

Amicus Brief, National Association of Criminal Defense Lawyers, p. 13.

The amicus brief of the NAACP extends the irrationality and disproportionality
argument to take into account the consequences for African-Americans under the Equal
Protection Clause. Relying on numerous Sentencing Commission reports like the
September 13, 2013, report quoted in footnote 1 above, the NAACP argues throughout
its amicus brief that the disproportionality in crack sentencing falls primarily on African-
American defendants. It argues that the purpose of Congress was to remedy the
discrimination, not to suppress it or cover it up by foreclosing the opportunity for
sentence modification under § 3582(c)(2). I agree with the NAACP argument that the
majority’s failure to allow review of the old mandatory sentences simply perpetuates the
racial discrimination that the FSA was designed to change. These mandatory sentences
are in some instances as long as life imprisonment. The “no-change” policy of the
Department of Justice and our court in denying review has grave consequences for many
Nos. 12-5226/5582 United States v. Blewett, et al. Page 37

thousands of imprisoned African-Americans that deserve to be released earlier in light
of the new statute and guidelines and the grossly excessive sentences of the past that
practically all observers now recognize.
Nos. 12-5226/5582 United States v. Blewett, et al. Page 38

_________________

DISSENT
_________________

COLE, Circuit Judge, dissenting. I join all but the last paragraph of Judge
Rogers’s persuasive dissent. I write separately to explain my view that applying the
100-to-1 mandatory minimums to deny eligibility for § 3582(c)(2) proceedings violates
equal protection principles.

There is no question now that the 100-to-1 ratio disproportionately affects
African Americans. African-American crack users are more likely to be convicted of
federal crack offenses than their White counterparts. Last year, for example, African
Americans made up 30% of reported crack users but 83% of federal crack convicts.1
White people, in contrast, accounted for 62% of users but only 7% of convicts. Federal
crack convicts, substantially more likely to be African-American, receive longer
sentences than powder cocaine convicts. In 2007, under the 100-to-1 ratio and before
the Sentencing Commission sought to mitigate modestly the disparity, the average crack
sentence was 50% longer than the average powder cocaine sentence.2 And more
generally, the 100-to-1 ratio yields a sentencing guideline range three to six times longer
for crack offenders than powder cocaine offenders with the same drug quantities.3 It is
hardly a revelation that the ratio negatively affects African Americans more than White
people. The Sentencing Commission reported so to Congress in 1995 (“The 100-to-1
crack cocaine to powder cocaine quantity ratio is a primary cause of the growing
disparity between sentences for Black and White federal defendants.”), and again in
1997 (“[S]entences appear to be harsher and more severe for racial minorities than others

1
See Substance Abuse & Mental Health Servs. Admin., Results from the 2012 National Survey
on Drug Use and Health, tbl. 1.38A; U.S. Sentencing Comm’n, 2012 Sourcebook of Federal Sentencing
Statistics, tbl. 34.
2
Unfairness in Federal Cocaine Sentencing: Hearing Before Subcomm. on Crime, Terrorism,
and Homeland Security of the H. Comm. on the Judiciary, 111th Cong. 50 (2009) (statement of Judge
Ricardo H. Hinojosa, Acting Chair, U.S. Sentencing Comm’n).
3
U.S. Sentencing Comm’n, Report to the Congress: Cocaine and Federal Sentencing Policy 11
(2002).
Nos. 12-5226/5582 United States v. Blewett, et al. Page 39

as a result of this law.”), and again in 2002 (“[T]o the extent that the 100-to-1 drug
quantity ratio is shown to result in unduly severe penalties for most crack cocaine
offenders, the impact of that severity falls primarily upon black offenders.”), and again
in 2007 (“The current severity of crack cocaine penalties mostly impacts minorities.”).4

There is no question now that the 100-to-1 ratio is unjustified. The Sentencing
Commission issued four separate reports telling Congress that the ratio was too high and
unjustified because, in part, the “current quantity-based penalties overstate the relative
harmfulness of crack cocaine compared to powder cocaine” and the “current severity of
crack cocaine penalties mostly impacts minorities.”5 Congress enacted the Fair
Sentencing Act in response to these concerns. See Dorsey, 132 S. Ct. at 2329. As the
Supreme Court described it, Congress “specifically found in the Fair Sentencing Act that
[a 100-to-1] sentence was unfairly long.” Id. at 2333. Other federal actors too
recognized that the 100-to-1 ratio is arbitrary. Representative Daniel Lungren, for
example, explained the ratio’s genesis: “We initially came out of committee with a
20-to-1 ratio. By the time we finished on the floor, it was 100-to-1. We didn’t really have
an evidentiary basis for it, but that’s what we did, thinking we were doing the right thing
at the time.”6 In congressional hearings addressing the 100-to-1 ratio, the Department
of Justice urged Congress not to “ignore the mounting evidence that the current cocaine
sentencing disparity is difficult to justify based on the facts and science.”7 And the U.S.
Drug Enforcement Administration’s former Administrator testified that “[t]he facts and
the passage of time have built a growing consensus that the sentencing disparity is

4
See U.S. Sentencing Comm’n, Special Report to Congress: Cocaine and Federal Sentencing
Policy ch. 7 (1995); U.S. Sentencing Comm’n, Special Report to Congress: Cocaine and Federal
Sentencing Policy 8 (1997); U.S. Sentencing Comm’n, Report to the Congress: Cocaine and Federal
Sentencing Policy 103 (2002); U.S. Sentencing Comm’n, Report to the Congress: Cocaine and Federal
Sentencing Policy 8 (2007).
5
U.S. Sentencing Comm’n, Report to the Congress: Cocaine and Federal Sentencing Policy 8
(2007); Dorsey v. United States, 132 S. Ct. 2321, 2328 (2012).
6
156 Cong. Rec. H6196-01 (2010) (statement of Rep. Lungren).
7
Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity: Hearing
Before the Subcomm. on Crime and Drugs of the S. Comm. on the Judiciary, 111th Cong. 99 (2009)
(statement of U.S. Dep’t of Justice through Lanny A. Breuer, Assistant Attorney General).
Nos. 12-5226/5582 United States v. Blewett, et al. Page 40

fundamentally unfair, has a disparate racial impact and undermines the perception of
fairness and the integrity of our criminal justice system.”8

There is no question now that using the 100-to-1 mandatory minimums to deny
eligibility for § 3582(c)(2) sentence modifications continues to treat African-American
offenders more harshly than White offenders. African Americans not only are
overrepresented among those prosecuted and sentenced under the 100-to-1 ratio, they
also were more likely to be subject to the 100-to-1 minimums at sentencing. In fiscal
year 2010, for example, African Americans composed 79% of those subjected to the
crack mandatory minimums.9 Only 4.4% of that group was White. And the Sentencing
Commission estimates that if the 100-to-1 minimums do not prevent § 3582(c)(2)
sentence modifications, 88% of inmates eligible for a reduction would be African-
American.10

Why, then, are African Americans otherwise eligible for sentence modifications
still imprisoned by a racially discriminatory, unjustified, repealed law? “Finality,” the
majority and the government reply. They argue that Congress intended to keep these
sentences final.

Judge Rogers’s analysis cogently explains that Congress did not, in fact, intend
to keep these sentences final when it passed the Fair Sentencing Act. Instead, the Act’s
18-to-1 ratio applies retroactively to reduce sentences driven by the 100-to-1 guidelines
and those driven by the 100-to-1 minimums. But the bigger problem, to my mind, is that
this claim of finality cannot withstand even rational basis scrutiny under equal protection
principles.

8
Id. at 146–47 (statement of Asa Hutchinson).
9
U.S. Sentencing Comm’n, Report to the Congress: Mandatory Minimum Penalties in the
Federal Criminal Justice System 192 (2011).
10
Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences: Hearing Before S.
Comm. on the Judiciary, 113th Cong. (2013) (statement of Judge Patti B. Saris, Chair, U.S. Sentencing
Comm’n).
Nos. 12-5226/5582 United States v. Blewett, et al. Page 41

Take those everyone agrees are eligible for § 3582(c)(2) proceedings: crack
convicts sentenced above the 100-to-1 minimums. The majority and the government
concede that an individual in this category could receive a sentence reduction. See
Majority Op. at 8. In other words, a district court could hold a hearing and recalculate
the inmate’s sentence, thereby disrupting its finality and incurring the time and costs of
doing so. But then the majority says something odd: a district court still must apply the
racially discriminatory, unjustified, repealed minimums to deny a full reduction to the
new guidelines, all in the name of finality—finality that already has been set aside. This
approach is irrational; it does not rationally further finality. Applying the minimums in
this way would fail basic rational basis scrutiny. See Nordlinger v. Hahn, 505 U.S. 1,
10 (1992) (equal protection requires that “the classification rationally further a legitimate
state interest”).

What about using the 100-to-1 minimums to deny eligibility for § 3582(c)(2)
altogether? This at least has the appearance of being rationally related to finality by
preventing some crack convicts from accessing the statutory mechanism specifically
designed to disrupt their sentences. But the appearance proves deceptive upon a closer
look.

First, this case calls for a more searching form of review than we apply in the
typical rational basis case. This unusual scenario, involving a clear racially disparate
impact, Congress’s repudiation of the 100-to-1 guidelines and minimums as
discriminatory and unjustified, and retroactive application of the 18-to-1 guidelines,
gives us reason to be suspicious of a simultaneous effort to deny retroactive application
of the 18-to-1 minimums. See, e.g., United States v. Windsor, 133 S. Ct. 2675, 2692
(2013) (“Discriminations of an unusual character especially suggest careful
consideration to determine whether they are obnoxious to [equal protection
principles].”); see also Romer v. Evans, 517 U.S. 620, 632–35 (1996); City of Cleburne,
Tex. v. Cleburne Living Ctr., 473 U.S. 432, 447–50 (1985); U.S. Dep’t of Agric. v.
Moreno, 413 U.S. 528, 534–38 (1973). As these cases demonstrate, our system of tiered
scrutiny need not be unyielding in the face of recognized injustice.
Nos. 12-5226/5582 United States v. Blewett, et al. Page 42

Second, arguing that the Fair Sentencing Act rationally furthers finality makes
little sense when the Act itself permits a slew of similarly situated crack offenders to
disrupt finality. As of October, in fact, 7,400 crack offenders have received sentence
reductions based on retroactive application of the 18-to-1 guidelines.11 Contrary to the
majority’s suggestion, Op. at 9–10, Congress clearly gave the Sentencing Commission
proper authority to apply retroactively the guidelines changes made in response to the
Fair Sentencing Act. 28 U.S.C. § 994(u); Dillon v. United States, 130 S. Ct. 2683, 2688
(2010). The Act permits those initially sentenced above the 100-to-1 minimums—the
more serious offenders—to intrude on finality. No persuasive justification exists for
prohibiting those initially sentenced at the 100-to-1 minimums—the less serious
offenders—from doing the same.

Third, § 3582(c)(2) in part already addresses finality interests by restricting relief
to offenders whose sentences were based on ranges lowered and made retroactive by the
Sentencing Commission, among other limitations. See 18 U.S.C. § 3582(c)(2); U.S.S.G.
§ 1B1.10; 18 U.S.C. § 3553(a).

Finality is easily used as a post-hoc explanation that makes past unjustified
discrimination permanent. But these three considerations, taken together, undercut the
majority’s view of finality as inviolable. The Fair Sentencing Act cannot be said to
further finality interests rationally when it permits modification of sentences above, but
not at, the racially discriminatory, unjustified, repealed 100-to-1 minimums.

That we have previously rejected equal protection challenges to the 100-to-1
ratio in the § 3582(c)(2) context does not mean we must do so now. Simply put, our
knowledge and Congress’s knowledge have changed. The ratio disproportionately
affects African Americans. The ratio is unjustified. Congress repealed the law because
the ratio is unjustified, with full awareness of its discriminatory effects. Using the ratio
to deny sentence modifications continues to treat African-American offenders more
harshly than White offenders, despite Congress’s aim to the contrary. Because of

11
U.S. Sentencing Comm’n, Preliminary Crack Retroactivity Data Report Fair Sentencing Act
6 tbl. 3 (Oct. 2013).
Nos. 12-5226/5582 United States v. Blewett, et al. Page 43

Congress’s acknowledgment of these problems and its explicit attempt to address them,
“constitutional arguments that were unavailing in the past may not be foreclosed in the
future.” United States v. Then, 56 F.3d 464, 467 (2d Cir. 1995) (Calabresi, J.,
concurring); see also United States v. Reddrick, 90 F.3d 1276, 1284 (7th Cir. 1996)
(Cudahy, J., concurring) (“The rationality of the 100:1 crack/powder ratio and its
implications for equal protection will no doubt be the subject of continuing examination
both within the judiciary and without.”); United States v. Smith, 73 F.3d 1414, 1422 (6th
Cir. 1996) (Jones, J., concurring) (“Continued use of the law to perpetuate a result at
variance with rationality and common sense—even in a war on drugs—is
indefensible.”).

I do not argue lightly that what once was rational has been made irrational by
changed circumstances. But this is the rare case deserving such treatment. Our court
mistakenly paid no heed to Judge Nathaniel Jones years ago in Smith, 73 F.3d at 1418.
We would be wise to mark his words today: “As judges, we should no longer remain
wedded to that which experience shows is neither rational nor fair.”

I respectfully dissent.
Nos. 12-5226/5582 United States v. Blewett, et al. Page 44

_________________

DISSENT
_________________

CLAY, Circuit Judge, dissenting. The Fair Sentencing Act (“FSA”), Pub. L. No.
111–220, 124 Stat. 2372 (2010), was passed by Congress in 2010 to reinstill some
semblance of fairness and equality to a system plagued by inequality and injustice.
Under the majority’s interpretation of this statute, however, thousands of individuals,
predominately African Americans from low-income communities like Cornelius Blewett
and Jarreous Blewitt (“the Blewetts”), are foreclosed from obtaining the benefits of the
FSA. Instead, the majority reads the FSA to further the injustice that has existed in the
crack cocaine sentencing system for over twenty years. Under this reading, individuals
like the Blewetts will continue to be incarcerated in a disproportionate, unjustified
manner, in violation of their rights under the Equal Protection Clause. Because I
disagree with the majority’s characterization of the FSA’s retroactivity and believe this
Court’s opinion furthers the injustice that has resulted from such an unequal sentencing
regime, I respectfully dissent.

With the Anti-Drug Abuse Act of 1986 (“1986 Drug Act”), Pub. L. No. 99–570,
100 Stat. 3207 (1986), Congress created an unequal sentencing regime designed to
punish drug offenders more heavily “depending primarily upon the kind and amount of
drugs involved in the[ir] offense.” Dorsey v. United States, 132 S.Ct. 2321, 2327 (2012).
Because this regime established a 100-to-1 sentencing ratio between crack and powder
cocaine, a crack cocaine offender possessing five grams of crack with intent to distribute
received a five-year mandatory minimum sentence while such a sentence was only
applied to a powder cocaine offender in possession of 500 grams of powder cocaine with
intent to distribute. Id. Under this regime, the mean sentence for crack cocaine
offenders was 133.4 months, while powder cocaine offenders “receive[d] a mean
sentence of approximately [90] months.” United States v. Smith, 73 F.3d 1414, 1419 (6th
Cir. 1996) (Jones, J., concurring) (citing Sentencings Drop by 2,000, GUIDE LINES, June
1995 at 4).
Nos. 12-5226/5582 United States v. Blewett, et al. Page 45

Although, at that time, this ratio may have been deemed necessary in some
quarters to confront the troubling rise of crack cocaine, the rationale behind such a
sentencing disparity has since been debunked and has been abandoned by most of the
parties originally in favor of the 1986 statute. 156 CONG. REC. H6202 (daily ed. July 28,
2010) (statement of Rep. Robert C. “Bobby” Scott, Chairman, H. Subcomm. on Crime,
Terrorism, Homeland Sec., and Investigations of the H. Comm. on the Judiciary) (“We
are not blaming anybody for what happened in 1986, but we have had years of
experience and have determined that there is no justification for the 100-to-1 ratio.”).
See also 155 CONG. REC. S10491 (daily ed. Oct. 15, 2009) (statement of Sen. Durbin)
(“Vice President Joe Biden, one of the authors of the legislation creating this disparity
in sentencing, has said: ‘Each of the myths upon which we based the disparity has since
been dispelled or altered.’”).

In 2010, after years of reports from the United States Sentencing Commission
(“Sentencing Commission”) and criticism from parties on all sides of the American legal
system, including the law enforcement community, Congress finally heeded the loud call
for reform by enacting the FSA. Among other things, this statute greatly reduced the
ratio for mandatory minimum sentencing between crack and powder cocaine from 100-
to-1 to 18-to-1 and instructed the Sentencing Commission to create sentencing
guidelines consistent with those new mandatory minimums. Dorsey, 132 S.Ct. at 2329.
The Sentencing Commission did as instructed by designing sentencing guidelines in
tandem with Congress’ new mandatory minimums and explicitly making the guidelines
retroactive. Id. at 2336. Therefore, the FSA replaced the harsh and unjust mandatory
minimums and the mandatory minimums led to new sentencing guidelines, which are
expected to reduce future sentences for low-level drug offenders and have the potential
to mitigate some of the past injustice associated with the 1986 Drug Act.

The Blewetts are two African American drug offenders who received ten-year
sentences under the 1986 Drug Act’s mandatory minimum for possession of crack
cocaine with the intent to distribute. Under the FSA’s new sentencing requirements,
however, their offenses would not warrant application of the old mandatory minimum
Nos. 12-5226/5582 United States v. Blewett, et al. Page 46

sentences. Therefore, despite being sentenced prior to Congress’ enactment of the FSA,
the Blewetts sought sentence reductions under the statute’s new mandatory minimums.
When the district court denied their motions, they appealed their case, bringing an
important question before this Court: whether the FSA’s new mandatory minimums,
which were designed to avoid the disparities and inequality associated with the old 100-
to-1 regime, should apply retroactively to individuals like the Blewetts, who were
sentenced prior to the FSA’s enactment.

While the majority adopts the government’s position that Congress did not intend
for these mandatory minimums to be applied retroactively to individuals already
sentenced and serving out their time under the 1986 Drug Act, the constitutional
guarantees of equal protection compel a contrary reading–that the mandatory minimums
designed by Congress to remedy past injustices are retroactive and provide relief to
individuals like the Blewetts.

We do not purport to devise a procedural mechanism for implementing the
retroactive application of the FSA. Although the other separate opinions in this case
attempt to address that issue, and the matter of whether the availability of § 3582(c)(2)
may be a viable approach, the objective of this opinion is limited to addressing the issue
of whether a failure to grant retroactivity constitutes an equal protection violation under
circumstances where untold thousands of individuals remain imprisoned under old
mandatory minimum sentences pursuant to a sentencing regime rife with inequities and
discrimination.

I. The 100-to-1 Ratio is Unsupported by Penological or Pharmacological
Interests

Each of the justifications originally presented in support of the 1986 Drug Act’s
disparity between crack and powder cocaine sentencing has since been debunked.1 The

1
As the Honorable Reggie B. Walton, United States District Judge for the District of Columbia,
described in his statement before the Senate Committee on the Judiciary, he originally “advocated in
support of disparity between crack and powder because [he], too, thought, based upon the information
available [] at the time, that disparity at least on some level was appropriate.” However, he no longer
supports the disparity and instead, recognizes that there is no evidentiary support for its further application.
Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity: Hearing Before the
Nos. 12-5226/5582 United States v. Blewett, et al. Page 47

original disparity was justified by what appeared to be an important pharmacological
difference between crack and powder cocaine as well as a fear of greater violence
surrounding dealings and use of crack cocaine versus powder cocaine. USSC, SPECIAL
REPORT TO CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY 8 (May 2007)
(2007 Report) [hereinafter COCAINE AND FEDERAL SENTENCING POLICY (May 2007)].
However, as Republican Representative, Daniel Lungren, stated in support of the FSA,
“We initially came out of committee with a 20-to-1 ratio. By the time we finished on
the floor, it was 100-to-1. We didn’t really have an evidentiary basis for it, but that’s
what we did, thinking we were doing the right thing at the time.” 156 CONG. REC.
H6202 (daily ed. July 28, 2010) (statement of Rep. Lungren). Mr. Elmore Briggs,
Director of Clinical Services at the District of Columbia Department of Health,
Addiction, Recovery, and Prevention Administration, has concluded that despite
differences in mechanisms for delivery of crack and powder cocaine into the body,
“trafficking sentencing should be equalized for cocaine regardless of the form of drug.”
COCAINE AND FEDERAL SENTENCING POLICY, at B-10 (May 2007).2 In a 2002 statement
submitted to the Sentencing Commission, 28 former United States Attorneys serving as
United States Circuit Court of Appeals and District Court judges stated “that the ‘current
disparity between powder cocaine and crack cocaine, in both the mandatory minimum
statutes and the guidelines, cannot be justified and results in sentences that are unjust and
do not serve society’s interest.’” USSC, REPORT TO THE CONGRESS: COCAINE AND

FEDERAL SENTENCING POLICY 2 (May 2002) (2002 Report). Members of Congress have
similarly acknowledged that there is no pharmacological basis for the large disparity in
sentencing between crack and powder cocaine. For example, during a 2009 Senate

S. Subcomm. on Crime and Drugs of the S. Comm. on the Judiciary, 111th Cong. 7 (2009) (statement of
the Honorable Reggie B. Walton, United States District Judge for the District of Columbia).
2
Dr. Nora Volkow, Director of the National Institute on Drug Abuse, also testified before the
Sentencing Commission that “all forms of cocaine, regardless of the route of administration, result in a
similar blockage of dopamine transporters . . . which is why repeated use of any form of cocaine can lead
to addiction and other health consequences.” Despite acknowledging that route of administration can cause
different effects in the body, “she emphasized that the excess risk [of addiction] is not attributable to crack
cocaine smoking or injecting [powder] cocaine.” COCAINE AND FEDERAL SENTENCING POLICY, at B-10–B-
11 (May 2007). Similarly, Dr. Harolyn Belcher, Associate Professor of Pediatrics at Johns Hopkins
University School of Medicine, stated in a report to Congress that although “the rate of drug distribution
varies depending on the method of administration, [] the fetal effects of crack cocaine and powder cocaine,
once they pass through the placenta, should be identical.” Id. at B-12.
Nos. 12-5226/5582 United States v. Blewett, et al. Page 48

hearing considering adoption of the FSA, Senator Dick Durbin recalled that he and
fellow members of Congress irrationally feared crack cocaine in the mid-to-late 1980s
as it “had just appeared on the scene and it scared us, because it was cheap and it was
addictive. We thought it was more dangerous than many narcotics and left the legacy
of crack babies and broken lives.” 156 CONG. REC. S1680 (daily ed. March 17, 2010)
(statement of Sen. Durbin). However, he stood before the Senate in 2010 requesting
unanimous approval of the FSA, which would rescind the old mandatory minimums
enacted in 1986 as a response to the advent of crack cocaine and the fear associated with
the new drug and “immediately ensure that every year, thousands of people are treated
more fairly in our criminal justice system.” Id. at S1681.

Additionally, members of Congress and the legal and criminal justice
communities, including the “bipartisan U.S. Sentencing Commission, the Judicial
Conference of the United States, the National District Attorneys Association, the
National Association of Police Organizations, the Federal Law Enforcement Officers
Association, the International Union of Police Associations, and dozens of former
Federal judges and prosecutors . . .” have recognized that there is no penological
evidence supporting the continued application of the old mandatory minimums that
created such huge disparities in sentencing. 156 CONG. REC. H6203 (daily ed. July 28,
2010) (statement of Rep. Hoyer). The Honorable Reggie B. Walton, United States
District Judge for the District of Columbia, testified before the Senate Subcommittee on
Crime and Drugs that “[he saw] no greater level of violence in reference to the cases that
c[a]me before [him] involving crack cocaine as compared to any other drug.” Restoring
Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity: Hearing
Before the S. Subcomm. on Crime and Drugs of the S. Comm. on the Judiciary, 111th
Cong. 7 (April 29, 2009) [hereinafter Restoring Fairness to Federal Sentencing]
(statement of the Honorable Reggie B. Walton, United States District Judge for the
District of Columbia). The penological interests that once motivated the large disparity
in crack and powder cocaine sentencing can no longer justify such harsh sentences.
Dr. Alfred Blumstein, Professor of Urban System and Operations Research at Carnegie
Mellon University, testified before the Sentencing Commission that “the maturation and
Nos. 12-5226/5582 United States v. Blewett, et al. Page 49

stabilization of the crack cocaine market has had an important effect in reducing the
level of violence,” indicating that the fears of greater violence surrounding crack cocaine
are no longer based in fact. COCAINE AND FEDERAL SENTENCING POLICY, at B-13 (May
2007).3 Dr. Bruce Johnson, Director of the Institute for Special Populations Research
at the National Development and Research Institutes echoed this perspective when he
suggested replacing the 100-to-1 drug quantity ratio with either a 10-to-1 or a 2-to-1
drug quantity ratio to more appropriately capture the respective safety concerns
surrounding crack and powder cocaine. Id. at B-15.

II. Racial Disparities in Sentencing

Even more disconcerting than the lack of evidence to support the great disparity
in cocaine offense sentencing is the disparate impact such sentences have had on low-
income, African American communities. Representative Bobby Scott, speaking on the
floor of the House of Representatives, stated that “[the] disparity is particularly
egregious when you consider that the Sentencing Commission has concluded that there
is no pharmacological difference between the two forms of cocaine, and that 80 percent
of the crack defendants are black, whereas only 30 percent of the powder cocaine
defendants are black.” 156 CONG. REC. H6197 (daily ed. July 28, 2010) (statement of
Rep. Scott). Representatives Sheila Jackson Lee and Steny Hoyer also highlighted the
disproportionate impact of the crack-powder disparities on low-income communities of
color. Id. at H6199 (statement of Rep. Jackson Lee) (“I will say to you that this fell
heavily on the poor African American and Hispanic communities.”); id. at H6203
(statement of Rep. Hoyer) (“It has long been clear that 100-to-1 disparity has had a racial
dimension as well, helping to fill our prisons with African Americans disproportionately
put behind bars for longer.”).

3
Dr. Blumstein also “pointed out that one of the attractive features of the federal sentencing
guidelines is the ability to increase basic [] sentences for aggravating features . . . such as carrying a gun
or using a gun. This opportunity, according to Dr. Blumstein, obviates the need to differentiate between
powder cocaine and crack cocaine in the drug guideline . . . .” COCAINE AND FEDERAL SENTENCING
POLICY, at B-14 (May 2007).
Nos. 12-5226/5582 United States v. Blewett, et al. Page 50

Dr. Peter Reuter, Professor in the School of Public Policy and the Department of
Criminology at the University of Maryland, confirmed the disparate impact on African
Americans when he testified that “the disparity in sentences produced a tragic
disproportion in the share of crack cocaine prison time served by African Americans.”
COCAINE AND FEDERAL SENTENCING POLICY, at B-16 (May 2007). In 1993, although
the majority of crack cocaine users were white, “[b]lack defendants accounted for 88
percent of all federal convictions for crack distribution . . . .” Stuart Taylor, Jr.,
Courage, Cowardice on Drug Sentencing, LEGAL TIMES (April 24, 1995). Therefore,
under the 100-to-1 regime, which requires a sentence three to eight times longer for
crack than for powder cocaine, the sentences for African Americans tended to be far
longer on average than sentences for white powder cocaine offenders. As Senator
Durbin stated before the Senate,

Disproportionately, African Americans who are addicted use crack
cocaine. The use of powder cocaine is spread across the population
among Whites, Hispanics, and others. So the net result of this was that
the heavy sentencing we enacted years ago took its toll primarily in the
African-American community. It resulted in the incarceration of
thousands of people because of this heavy sentencing disparity and a
belief in the African-American community that it was fundamentally
unfair. It was the same cocaine, though in a different form, and they
were being singled out for more severe and heavy sentences.

156 CONG. REC. S1680–81 (daily ed. March 17, 2010) (statement of Sen. Durbin).

Members of Congress were emphatic in suggesting that these racial disparities
in cocaine sentencing produced equal protection problems. Representative Ron Paul
stated on the floor of the House of Representatives that “[the FSA] makes an attempt to
correct a very, very serious problem in equal justice in our systems . . . .” 156 CONG.
REC. H6203 (daily ed. July 28, 2010) (statement of Rep. Paul). Senator Patrick Leahy
also stated that “[t]he racial imbalance that has resulted from the cocaine sentencing
disparity disparages the Constitution’s promise of equal treatment for all Americans . .
. . [The FSA] reduces the disparities that leave some in jail for years while their more
privileged counterparts go home after relatively brief sentences.” 156 CONG. REC. S1682
(daily ed. Mar. 17, 2010) (statement of Sen. Leahy, Chairman, S. Comm. on the
Nos. 12-5226/5582 United States v. Blewett, et al. Page 51

Judiciary). The racial disparities inherent in the old sentencing regime create an equal
protection issue and a human rights issue, which could be resolved by retroactive
application of the FSA’s new sentencing ratio. Restoring Fairness to Federal
Sentencing, at 3 (statement of Sen. Durbin, Chairman, S. Subcomm. on Crime and Drugs
of the S. Comm. on the Judiciary) (“Our record-high incarceration rates and the racial
disparities in our criminal justice system are human rights issues that we must face
honestly.”).

III. Equal Protection Analysis

The Equal Protection Clause stipulates that “[n]o state shall . . . deny to any
person within its jurisdiction the equal protection of the laws” and these protections
apply equally against acts of state governments and the federal government. U.S.
CONST. amend. XIV, § 1; Bowling v. Sharpe, 347 U.S. 497, 500 (1954); United States
v. Paradise, 480 U.S. 149, 166 n.16 (1987) (plurality opinion). Under these equal
protection principles, “‘all persons subjected to . . . legislation shall be treated alike,
under like circumstances and conditions, both in the privileges conferred and in the
liabilities imposed.’” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 602 (2008) (quoting
Hayes v. Missouri, 120 U.S. 68, 71–72 (1887)).

The concerns leading to the passage of the Thirteenth, Fourteenth, and Fifteenth
Amendments are particularly relevant in the context of legislation that draws distinctions
based on race and disproportionately impacts African Americans. Bell v. Maryland,
378 U.S. 226, 289 (1964) (Goldberg, J., concurring). At the heart of equal protection is
an intent to eradicate racial disparity in treatment under the law. “Such opinions
immediately following the adoption of the Amendments clearly reflect the contemporary
understanding that they were ‘to secure to the colored race, thereby invested with the
rights, privileges, and responsibilities of citizenship, the enjoyment of all the civil rights
that, under the law, are enjoyed by white persons . . . .’” Id. (quoting Neal v. Delaware,
103 U.S. 370, 386 (1880)).

Although the FSA is not facially discriminatory, an interpretation of the FSA
foreclosing the retroactive application of its new mandatory minimums would present
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an equal protection problem inasmuch as it would subject a group that is
overwhelmingly predominately African American to starkly different treatment under
the law. Such an interpretation can meet neither strict scrutiny nor rational basis review
and should therefore be avoided by this Court.

A. Strict Scrutiny

Although the FSA is neutral on its face and a decision regarding the retroactivity
of the mandatory minimums would also be facially neutral, the majority’s interpretation
of the FSA’s retroactivity poses serious constitutional concerns. A law presents an equal
protection violation and must therefore be struck down or read differently if it is
motivated by a racially discriminatory purpose and has a disparate impact on an
identifiable group. City of Mobile v. Bolden, 446 U.S. 55, 62 (1980). The Supreme
Court explained in Vill. of Arlington Heights v. Metro. Hous. Dev. Corp. that “[t]he
impact of the official action

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2644647. Public record. Not legal advice.