United States v. Jarreous Blewitt

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0141p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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X

Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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Nos. 12-5226/5582

v.

,

>

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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—Joseph H. McKinley, Jr., Chief District Judge.

Decided and Filed: May 17, 2013

Before: MERRITT, MARTIN, and GILMAN, Circuit Judges.

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COUNSEL

ON BRIEF: Jamie L. Haworth, Frank W. Heft, Jr., OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Louisville, Kentucky, for Appellant in 12-5226. Laura R.

Wyrosdick, Frank W. Heft, Jr., OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Louisville, Kentucky, for Appellant in 12-5582. Candace G. Hill, UNITED STATES

ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee.

MERRITT, J., delivered the opinion of the court in which MARTIN, J., joined.

GILMAN, J. (pp. 18–23), delivered a separate dissent.

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OPINION

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MERRITT, Circuit Judge. This is a crack cocaine case brought by two currently

incarcerated defendants seeking retroactive relief from racially discriminatory mandatory

minimum sentences imposed on them in 2005. The Fair Sentencing Act was passed in

August 2010 to “restore fairness to Federal cocaine sentencing” laws that had unfairly

1

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

impacted blacks for almost 25 years. The Fair Sentencing Act repealed portions of the

Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder

cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for

sentencing purposes. The 100-to-1 ratio had long been acknowledged by many in the

legal system to be unjustified and adopted without empirical support. The Fair

Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio. However, thousands

of inmates, most black, languish in prison under the old, discredited ratio because the

Fair Sentencing Act was not made explicitly retroactive by Congress.

In this case, we hold, inter alia, that the federal judicial perpetuation of the

racially discriminatory mandatory minimum crack sentences for those defendants

sentenced under the old crack sentencing law, as the government advocates, would

violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the

doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal

racial discrimination in the same way as the Fourteenth Amendment forbids state racial

discrimination). As Professor William J. Stuntz, the late Harvard criminal law professor,

has observed, “persistent bias occurred with respect to the contemporary enforcement

of drug laws where, in the 1990s and early 2000s, blacks constituted a minority of

regular users of crack cocaine but more than 80 percent of crack defendants.” The

Collapse of American Criminal Justice 184 (2011). He recommended that we “redress

that discrimination” with “the underused concept of ‘equal protection of the laws.’” Id.

at 297.

In this opinion, we will set out both the constitutional and statutory reasons the

old, racially discriminatory crack sentencing law must now be set aside in favor of the

new sentencing law enacted by Congress as the Fair Sentencing Act of 2010. The Act

should apply to all defendants, including those sentenced prior to its passage. We

therefore reverse the judgment of the district court and remand for resentencing.

Nos. 12-5226/5582 United States v. Blewett, et al. Page 3

I.

The district court judge, bound by unavoidable mandatory minimums, sentenced

the Blewett1 cousins in 2005 to a mandatory minimum of ten years each under the old

100-to-1 crack cocaine law, sentences based on the quantity of crack cocaine possessed.

The Blewetts seek retroactive resentencing under 18 U.S.C § 3582(c)(2)2 and 28 U.S.C.

§ 994(u)3 because the Fair Sentencing Act of 2010, P.L. No. 111-220, 124 Stat. 2372,

as implemented by new sentencing guidelines, has substantially reduced crack cocaine

sentences, including the mandatory minimum sentences imposed in this case. See

21 U.S.C. § 841(b) (increasing the amount of crack from 50 grams to 280 grams to

trigger the 10-year mandatory minimum and from 5 grams to 28 grams to trigger the

five-year mandatory minimum). If the Blewetts were sentenced today under the revised

crack law, they would not be subject to a statutory minimum because the quantity of

crack involved falls below the threshold for any statutory minimum.

The old 100-to-1 crack cocaine ratio has led to the mass incarceration of

thousands of nonviolent prisoners under a law widely acknowledged as racially

discriminatory. There were approximately 30,000 federal prisoners (about 15 percent

of all federal prisoners) serving crack cocaine sentences in 2011. United States Sent’g

Comm’n, Analysis of the Impact of Guideline Implementation of the Fair Sentencing

1

Although Cornelius and Jarreous spell their last names differently, we will use the “Blewett”

spelling in this opinion for ease of reference.

2

18 U.S.C. § 3582(c)(2) provides in relevant part:

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), . . . the court may reduce the term of imprisonment, after

considering the factors set forth in section 3553(a) to the extent that they are applicable,

if such a reduction is consistent with applicable policy statements issued by the

Sentencing Commission.

3

This statute provides:

If the Commission reduces the term of imprisonment recommended in the guidelines

applicable to a particular offense or category of offenses, it shall specify in what

circumstances and by what amount the sentences of prisoners serving terms of

imprisonment for the offense may be reduced.

Nos. 12-5226/5582 United States v. Blewett, et al. Page 4

Act of 2010 if the Amendment Were Applied Retroactively, at 12 (May 2011).4

Thousands of these prisoners are incarcerated for life or for 20, 10, or 5 years under

mandatory minimum crack cocaine sentences imposed prior to the passage of the Fair

Sentencing Act. More than 80 percent of federal prisoners serving crack cocaine

sentences are black. See, e.g., United States Sent’g Comm’n, Annual Report 2011 at 37

(83%); United States Sent’g Comm’n, 1996 Sourcebook of Federal Sentencing Statistics

tbl.29, at 47 (85.8%). In fiscal year 2010, before the passage of the Fair Sentencing Act,

almost 4,000 defendants, mainly black, received mandatory minimum sentences for

crack cocaine. United States Sent’g Comm’n, 2010 Sourcebook of Federal Sentencing

Statistics tbl.43.

In 2010, recognizing the statistical evidence of widespread racial discrimination

based on empirical studies, Congress passed the Fair Sentencing Act. The preamble to

the Fair Sentencing Act, recognizing racial injustice, states that it is designed “to restore

fairness to Federal cocaine sentencing.” Justice Breyer’s majority opinion in Dorsey v.

United States, 132 S. Ct. 2321, 2328 (2012), states that the new law was adopted

“because the public had come to understand sentences embodying the 100-to-1 ratio

as reflecting unjustified race-based differences.” The Chairman of the Judiciary

Committee, Senator Patrick Leahy, reflecting on the purpose of the new Act, stated that

the former 100-to-1 ratio law is “one of the most notorious symbols of racial

discrimination in the modern criminal justice system.” 156 Cong. Rec. S1683 (daily ed.

Mar. 17, 2010). Many members of Congress stated that the old law should be changed

because it was racially discriminatory and not based on any coherent rationale.5

4

All the Sentencing Commission publications cited herein are available on the Commission’s

website (www.ussc.gov).

5

Here is a representative sample of 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.”);

Nos. 12-5226/5582 United States v. Blewett, et al. Page 5

Yet, despite the passage of the Act and the Supreme Court’s condemnation of the

100-to-1 ratio in Dorsey, more than 17,000 such crack prisoners sentenced under the old,

racially discriminatory law are not eligible for resentencing. The majority of these

people, the government claims, cannot benefit from the new law because they received

a sentence under the old mandatory minimums or received a career offender designation

(requiring two previous drug convictions). So according to figures supplied by the

Sentencing Commission, less than one-half of those given excessive, racially

discriminatory sentences, like the ones imposed on the Blewetts, are eligible for relief.

United States Sent’g Comm’n, Analysis of the Impact of Guideline Implementation of

the Fair Sentencing Act of 2010 if the Amendment Were Applied Retroactively, at 12

(May 2011).

Congress, as Justice Breyer’s opinion in Dorsey confirmed, intended in the Fair

Sentencing Act to repeal and redress the wrongs of the older crack sentencing statute that

Congress believed had proven itself to be arbitrary, irrational, and racially

discriminatory. The status quo has now been overturned. The question remaining is:

how retroactive is the new law? Fully? Or only partially, just covering a minority of

those wrongly sentenced?

The answer to the question turns on our interpretation of principles of equal

protection and several interlocking rules, provisions of sentencing law, including

background canons of statutory interpretation, the Fair Sentencing Act, the previous

statutes it repealed or modified, and the sentencing guideline provisions propagated

pursuant to it. We regard as the most important consideration the clear congressional

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

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 6

purpose to end the long, racially discriminatory sentences imposed in crack cocaine

cases over the past 25 years and the fact that the perpetuation of such sentences is

unconstitutional.6

II.

We readily acknowledge that no party challenges the constitutionality of denying

retroactive application of the Fair Sentencing Act to people who were sentenced under

the old regime. That does not mean, however, that the constitutional question is

irrelevant as we determine whether the Blewetts are entitled to a sentence reduction.

That is because we are constrained to interpret statutes and sentencing guidelines so as

to avoid potential conflict with the Constitution. The constitutional-doubt canon means

that a statute or other authoritative text should be interpreted in a way that avoids

creating an unconstitutional law or placing its constitutionality in doubt. The most

recent treatise on the subject of canons of construction quotes a statement defining the

meaning of the constitutional-doubt canon found in United States ex rel. Attorney

General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909): “[W]here a statute is

susceptible of two constructions, by one of which grave and doubtful constitutional

questions arise and by the other of which such questions are avoided, our duty is to adopt

the latter.” Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal

Texts 247 (2012). The interpretation the government puts forth to deny retroactive

application of the Fair Sentencing Act would result in a violation of equal protection.

6

Like passing a foreign ship at night with an “ahoy,” our dissenting colleague starts with a poetic

metaphor about “setting sail . . . without any legal ballast.” The dissent then refuses to acknowledge, come

to grips with or rebut the equal protection argument in this case. The dissent fails even to acknowledge

the language of the Supreme Court in Dorsey stating that Congress found the old 100-to-1 ratio to be

racially discriminatory and therefore reduced the penalty to 18-to-1. Nor does the dissent acknowledge

or rebut the many legislative history statements that the law the dissent would continue to apply is blatantly

racially discriminatory. The dissent only cites United States v. Hammond, No. 12-5522, 2013 WL

1363908 (6th Cir. Apr. 5, 2013), as authority. The Hammond case does not purport to deal with the equal

protection problem. A dissent that refuses to acknowledge the main problem in a case and then relies

primarily on a case that does not mention the problem is not responsive or relevant. In order to be

responsive, disagreement at least requires a discussion about why we should continue to hold thousands

of people in jail who are there because of a law that is acknowledged to be racially discriminatory by a

majority of the Supreme Court and by the vote of a large majority of the Congress of the United States.

Congress does not often acknowledge that it passed a racially discriminatory law and then try to redress

its own prior mistake. To be relevant, a dissent must at least try to deal with that issue.

Nos. 12-5226/5582 United States v. Blewett, et al. Page 7

Quite apart from the legal doctrine that guides the Equal Protection Clause (as

incorporated into the Due Process Clause of the Fifth Amendment), the discriminatory

nature of prior crack sentences is no longer a point of legitimate debate. The racially

discriminatory impact of the 100:1 sentencing scheme surfaced early on when statistics

showed that nearly one hundred percent of all crack defendants were non-white. See

United States Sent’g Comm’n, 2011 Sourcebook of Federal Sentencing Statistics tbl.34

(94% nonwhite); LaJuana Davis, Rock, Powder, Sentencing—Making Disparate Impact

Evidence Relevant in Crack Cocaine Sentencing, 14 J. Gender Race & Just. 375, 386-88

& n.68 (2011). From 1988 to 1995, federal prosecutors prosecuted no whites under the

crack provisions in 17 states, including major cities such as Boston, Denver, Chicago,

Miami, Dallas, and Los Angeles. Dan Weikel, War on Crack Targets Minorities over

Whites, L.A. Times, May 21, 1995, http://articles.latimes.com/1995-05-21/news/mn-

4468_1_crack-cocaine. These alarming numbers are not unlike the Supreme Court’s

early cases of facially neutral laws creating an overwhelmingly disparate result. See Yick

Wo v. Hopkins, 118 U.S. 356 (1886).

The Sentencing Commission and the Supreme Court recognized the disparity as

well. In the 1990s, the Supreme Court first recognized the discriminatory impact of the

100:1 ratio. United States v. Armstrong, 517 U.S. 456, 479 (1996) (Stevens, J.,

dissenting) (“[I]t is undisputed that the brunt of the elevated federal penalties falls

heavily on blacks.”). In a 1995 report to Congress, the Sentencing Commission said,

“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.” United

States Sent’g Comm’n, Special Report to the Congress: Cocaine and Federal Sentencing

Policy, at Chapter 7D (Feb. 1995). In 1995, the Commission submitted to Congress an

amendment to the sentencing guidelines that would have equalized penalties between

crack and powder cocaine. Congress rejected the recommendation. In 1997, the

Commission unanimously recommended that Congress lower the 100-to 1 ratio and gave

Congress several options to adjust the disparity between crack and powder cocaine

penalties. See United States Sent’g Comm’n, Special Report to the Congress: Cocaine

and Federal Sentencing Policy (Apr. 1997). Congress took no action on the

Nos. 12-5226/5582 United States v. Blewett, et al. Page 8

recommendations. In 2002, the Commission again “unanimously and firmly”

recommended to Congress that the drug quantity ratio between crack and powder

cocaine be reduced. United States Sent’g Comm’n, Report to the Congress: Cocaine and

Federal Sentencing Policy viii (May 2002). While the Sentencing Commission adjusted

the guideline ranges for crack cocaine in 2007 in Amendment 706 to decrease the length

of sentences, Congress made no changes to the 100-to-1 ratio to adjust the mandatory

minimums for crack cocaine until it passed the Fair Sentencing Act in 2010. Hence

thousands of black defendants now remain in federal prisons under long sentences, some

for life.

In view of the statistical facts and the widespread congressional consensus

leading to the adoption of the Fair Sentencing Act’s remedial provisions, there can be

no doubt that the old crack law was racially discriminatory in effect. As a matter of legal

doctrine, there is no equal protection violation without discriminatory intent. See

Washington v. Davis, 426 U.S. 229 (1976). When the old 100-to-1 crack cocaine statute

was adopted, it presumably did not violate the Equal Protection Clause because there

was no intent or design to discriminate on a racial basis. Its adoption was simply a

mistake. Since 1986, however, we have gained knowledge of the old statute’s

devastating effect on blacks. Congress itself acknowledged this problem by enacting the

Fair Sentencing Act.

The Fair Sentencing Act was a step forward, but it did not finish the job. The

racial discrimination continues by virtue of a web of statutes, sentencing guidelines, and

court cases that maintain the harsh provisions for those defendants sentenced before the

Fair Sentencing Act. If we continue now with a construction of the statute that

perpetuates the discrimination, there is no longer any defense that the discrimination is

unintentional. The discriminatory nature of the old sentencing regime is so obvious that

it cannot seriously be argued that race does not play a role in the failure to retroactively

apply the Fair Sentencing Act. A “disparate impact” case now becomes an intentional

subjugation or discriminatory purpose case. Like slavery and Jim Crow laws, the

intentional maintenance of discriminatory sentences is a denial of equal protection.

Nos. 12-5226/5582 United States v. Blewett, et al. Page 9

This analysis is undermined by neither McCleskey v. Kemp, 481 U.S. 279 (1987),

nor Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979), two cases

that on first glance might appear to sanction the discrimination at issue here. In

McCleskey, the Supreme Court held that a detailed study showing racial disparity in the

application of Georgia’s death penalty could not make out intentional discrimination.

Statistical proof of discriminatory application was not enough; McCleskey was required

to “prove that the Georgia Legislature enacted or maintained the death penalty statute

because of an anticipated racially discriminatory effect.” McCleskey, 481 U.S. at 298.

Here Congress enacted the new law to remedy racial discrimination. McCleskey’s

disapproval of statistical evidence is also distinguishable. McCleskey was obviously

concerned to preserve a system of criminal enforcement where multiple decisionmakers

were involved and where each decision to impose the death penalty required assessment

of the individual defendant’s unique personal, mitigating characteristics. See id. at

292–97. But in the context of crack cocaine sentencing, the defendant’s independent

characteristics do not factor into the equation, and the decisionmaker’s choice is a

discretionless mandatory minimum. In the general course of things, the prosecutor will

charge based on an objectively verifiable quantity of crack, and the court will impose a

sentence no lower than that mandated by Congress. See David A. Sklansky, Cocaine,

Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1316-18 (1995).

Feeney dealt with a state law that gave hiring preference in civil service positions

to veterans. Because the overwhelming majority of veterans were male, the practical

effect of the law was to deprive better qualified women of job opportunities. The Court

found that the plaintiff had not shown any purpose to discriminate against women.

Discriminatory purpose, it was held, “implies more than intent as volition or intent as

awareness of consequences. It implies that the decisionmaker, in this case a state

legislature, 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.”

Feeney, 442 U.S. at 279 (citation omitted). Feeney, however, makes it clear that racial

discrimination, “regardless of purported motivation, is presumptively invalid and can be

upheld only upon an extraordinary justification.” Id. at 272. There is overwhelming and

Nos. 12-5226/5582 United States v. Blewett, et al. Page 10

unavoidable proof that the continued application of the old crack law keeps blacks in jail

at a discriminatory rate. This proof supports an inference that the old crack laws have

been maintained at least in part because of their discriminatory effects. The Supreme

Court in Dorsey,7 the legislative history of the Fair Sentencing Act, and the United

States Sentencing Commission in various special reports to Congress have all explicitly

advised that the old mandatory minimums are racially discriminatory. Obviously, this

court should not place a meaning on the new statute and guidelines that would perpetuate

proven racial discrimination and thereby violate equal protection. There is no excuse

for judges to engage in perpetuating such discrimination or to sanction it by refusing to

correct it.

The role of the judge is especially important here. A host of precedents, from

1880 forward, forbid judicial perpetuation of racial discrimination. In striking down the

behavior of a Virginia judge in refusing to call blacks as grand or petit jurors in 1878,

the Supreme Court denied the plea of the attorney general of Virginia to allow such

judicial conduct. Relying on the Fourteenth Amendment, as well as an act of Congress

prohibiting such discrimination, the court refused to permit this practice. “It is idle,” the

Court said, “to say that the act of Congress is unconstitutional because it inflicts

penalties upon State judges for their judicial action.” Ex parte Virginia, 100 U.S. 339,

348-49 (1880). Judges, both state and federal, must comply with the principles of equal

protection found in the Fourteenth Amendment. Likewise, in striking down racially

restrictive covenants judicially enforced by courts, the Supreme Court explained that

judicial perpetuation of discrimination is not immunized from equal protection

principles:

The difference between judicial enforcement and non-enforcement of the

restrictive covenants is the difference to petitioners between being denied

rights of property available to other members of the community and

being accorded full enjoyment of those rights on an equal footing

7

See 132 S. Ct. 2321, 2328 (2012) (stating that the new law was adopted “because the public had

come to understand sentences embodying the 100-to-1 ratio as reflecting unjustified race-based

differences”).

Nos. 12-5226/5582 United States v. Blewett, et al. Page 11

. . . . State action, as that phrase is understood for the purposes of the

Fourteenth Amendment, refers to exertions of state power in all forms.

Shelly v. Kraemer, 334 U.S. 1, 19-20 (1948). The Supreme Court has invalidated the

judicial perpetuation of racial discrimination through the failure of courts to allow

custody awards of white children to mixed-race parents. See Palmore v. Sidoti, 466 U.S.

429, 433 (1984) (“The Constitution cannot control such prejudices but neither can it

tolerate them. Private biases may be outside the reach of the law, but the law cannot,

directly or indirectly, give them effect.”). The entire body of school desegregation cases

condemning as discriminatory the perpetuation of racial segregation in the assignment

of students or teachers leads us to the same conclusion about the judge’s role. See, e.g.,

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15–16 (1971) (“[A] school

desegregation case does not differ fundamentally from other cases involving the framing

of equitable remedies to repair the denial of a constitutional right. The task is to correct,

by a balancing of the individual and collective interests, the condition that offends the

Constitution.”). In short, the principle that judges may not enforce obvious racial

discrimination—and indeed, are duty-bound within their powers to ensure that it does

not occur—is time-honored in our law.

The remedy is straightforward and relatively simple. The Fair Sentencing Act

and the new retroactive Sentencing Guidelines subsequently adopted by the Sentencing

Commission can and should be interpreted to replace retroactively the old,

discriminatory mandatory minimums with the new, more lenient minimums. It is our

duty under the constitutional-doubt canon of statutory construction. The Equal

Protection Clause requires us to alter what Senator Leahy called “one of the most

notorious symbols of racial discrimination in the modern criminal justice system” and

an “imbalance that . . . disparages the Constitution’s promise of equal treatment for all

Americans.” See supra, at 5 & n.5. In light of our new knowledge about the racial

discrimination inherent in the old law, inertia and judicial instinct to avoid change and

maintain the status quo should no longer protect the old sentences. We should not allow

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

the government’s legalisms to undermine the purpose of the Fair Sentencing Act and its

more lenient punishment system for crack cocaine.8

III.

Laying aside the equal protection basis for revising the old mandatory

minimums, the Sentencing Guidelines themselves call for such a construction.

The government, ignoring the equal protection violation, relies on a purely

technical argument. The government provides no convincing reason why ordinary

guideline sentences and “mandatory minimum” sentences should be treated differently.9

The government’s argument is that mandatory minimum sentences are “final” and

should not be disturbed or set aside under § 3582(c)(2), even though the Sentencing

Commission has retroactively changed other crack sentences under the old 100-to-1

ratio. It claims that the Sentencing Commission itself has made a distinction between

long mandatory minimum sentences, which it wishes to retain, and other crack

sentences.

The mechanism by which Congress sought to reduce crack cocaine sentences was

simply to reduce the excessive 100-to-1 ratio it had spelled out in earlier drug statutes,

a method recommended by the Sentencing Commission. The Supreme Court in Dorsey

explains the process:

In 2010, Congress accepted the Commission’s recommendations . . . and

enacted the Fair Sentencing Act into law. The Act increased the drug

amounts triggering mandatory minimums for crack trafficking offenses

from 5 grams to 28 grams in respect to the 5-year minimum and from

8

Other canons of statutory construction support retroactivity of the mandatory minimums as well.

The Fair Sentencing Act is clearly a remedial statute and should therefore be liberally construed. Chisholm

v. Georgia, 2 U.S. (2 Dall.) 419, 476 (1793) (Jay, C.J.). Further, if there is a doubt under the interlocking

texts of the statutory and guideline provisions or under the application notes or any amendment to the

guidelines, the rule of lenity should apply. Under that rule, ambiguity should be resolved in the

defendant’s favor. See United States v. Granderson, 511 U.S. 39, 47-54 (1994); Williams v. United States,

458 U.S. 279, 290 (1982); Bifulco v. United States, 447 U.S. 381, 387 (1980).

9

Mandatory minimum sentences generally remain widely criticized by the criminal justice

literature, the federal judiciary, and the Sentencing Commission. The Commission identified mandatory

minimums for drug offenses and the corresponding guidelines as “a primary cause of a widening gap

between the average sentences of Black, White, and Hispanic offenders” in the guidelines era. United

States Sent’g Comm’n, Fifteen Years of Guidelines Sentencing (2004).

Nos. 12-5226/5582 United States v. Blewett, et al. Page 13

50 grams to 280 grams in respect to the 10-year minimum (while leaving

powder at 500 grams and 5,000 grams respectively). The change had the

effect of lowering the 100-to-1 crack-to-powder ratio to 18-to-1.

132 S. Ct. at 2329 (citations omitted). The Sentencing Commission incorporated and

integrated the new statutory minimums into its system by attempting to harmonize the

new crack guidelines with the new mandatory minimums.

The government argues that the Fair Sentencing Act did not give retroactive

effect to the old mandatory minimums like those imposed on the Blewetts because a

mandatory minimum does not fit the language—“sentencing range that has subsequently

been lowered by the Sentencing Commission”—used by Section 3582(c)(2). The

government ignores the fact, however, that the guidelines range is entirely dependent on,

not independent of, a statutory mandatory minimum or maximum. The mandatory

minimums and maximums are an integral part of and gave rise to the sentencing

guideline ranges. They are the most significant part because they provide the bookends:

The mandatory minimum provides the floor of the range and the mandatory maximum

provides the ceiling if a certain threshold quantity of crack is involved. The Sentencing

Commission itself instructs judges to use the mandatory minimums in this manner. See

§ 5G1.1(b) (“the statutorily required minimum sentence shall be the guideline

sentence”).10 For example, if a defendant’s guideline range is 50-70 months with a

statutory mandatory minimum of 60 months, the floor of the guideline range then

elevates to 60 and the resulting guideline range is 60-70 months. The entire system of

revised crack guidelines is therefore driven by the new mandatory minimums.

The Commission uses the new statutory minimums as the gravitational force

around which the new system revolves. The statutory minimums are closely integrated

into the structure of the revised guidelines. When the entire retroactive guideline process

is based on the new congressional minimums, it makes no sense for the government to

10

§ 5G1.1(b) provides:

(b) Where a statutorily required minimum sentence is greater than the

maximum of the applicable guideline range, the statutorily required

minimum sentence shall be the guideline sentence. (Emphasis

added.)

Nos. 12-5226/5582 United States v. Blewett, et al. Page 14

argue that prisoners sentenced under the old crack guidelines should have their ordinary

guideline sentences revised sharply downward retroactively to reflect the 18-to-1 ratio

while leaving the prisoners sentenced under the old, now-repealed, statutory minimums

languishing in prison under the 100-to-1 ratio. The new minimums ordered by the Fair

Sentencing Act to be incorporated by the guidelines are no longer “statutory” only.

They are just as much a part of the retroactive guidelines as other guidelines because

they have been incorporated in the retroactive system. As the Third Circuit has

observed, a contrary result “would not make sense” because the old minimums would

“always trump the new Guidelines for the large number of defendants whose Guidelines

ranges are [now] below the mandatory minimum,” as in this case. United States v.

Dixon, 648 F.3d 195, 201 (3d Cir. 2011) (defendant’s offense committed prior to the

Act, but sentenced after passage of the Act). Consistent policy requires that the new

statutory minimums also be given retroactive effect.

The government’s argument leads to the absurd result that the Blewetts would

remain in prison for ten years when under the revised guidelines they are now subject

to no minimum at all. Also absurd, the government’s view of retroactivity would give

major kingpins the greatest benefit of retroactivity because their amended guideline

range is above the mandatory minimum while hundreds of more petty, less culpable

offenders like the Blewetts remain in prison without any benefit of the revised law. This

result perpetuates racial discrimination, defies the goal of consistency, creates a huge

sentencing disparity in violation of the purpose of the Sentencing Reform Act of 1984,

and does not eliminate the unfairness that Congress had in mind and that Dorsey points

out as the reason the new guidelines are given retroactive treatment.

Further, section 3582(c)(2) on retroactivity dovetails with § 1B1.10 of the

guidelines, which is called a “policy statement” covering “Reduction in Term of

Imprisonment as a Result of Amended Guideline Range.”11 The government argues

11

This entire guideline provides as follows:

§1B1.10. Reduction in Term of Imprisonment as a Result of Amended Guideline

Range (Policy Statement)

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against providing redress by pointing not to the language of this guideline provision but

to an “Application Note” on “Eligibility.” The government makes this argument in the

face of the fact that the Sentencing Commission itself pointed out to Congress the racial

discrimination that led to the change in the law. The meaning of the Application Note

is ambiguous:

(a) Authority. –

(1) In General. – In a case in which a defendant is serving a term of imprisonment, and the

guideline range applicable to that defendant has subsequently been lowered as a result of an

amendment to the Guidelines Manual listed in subsection (c) below, the court may reduce the

defendant’s term of imprisonment as provided by 18 U.S.C. 3582(c)(2). As required by 18

U.S.C. 3582(c)(2), any such reduction in the defendant's term of imprisonment shall be consistent

with this policy statement.

(2) Exclusions. – A reduction in the defendant's term of imprisonment is not consistent with this

policy statement and therefore is not authorized under 18 U.S.C. 3582(c)(2) if –

(A) None of the amendments listed in subsection (c) is applicable to the defendant; or

(B) An amendment listed in subsection (c) does not have the effect of lowering the defendant's

applicable guideline range.

(3) Limitation. – Consistent with subsection (b), proceedings under 18 U.S.C. 3582(c)(2) and this

policy statement do not constitute a full resentencing of the defendant.

(b) Determination of Reduction in Term of Imprisonment.–

(1) In General. – In determining whether, and to what extent, a reduction in the defendant's term

of imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement is warranted, the court

shall determine the amended guideline range that would have been applicable to the defendant

if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the

defendant was sentenced. In making such determination, the court shall substitute only the

amendments listed in subsection (c) for the corresponding guideline provisions that were applied

when the defendant was sentenced and shall leave all other guideline application decisions

unaffected.

(2) Limitation and Prohibition on Extent of Reduction.–

(A) Limitation. – Except as provided in subdivision (B), the court shall not reduce the

defendant's term of imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement to a term

that is less than the minimum of the amended guideline range determined under subdivision (1) of

this subsection.

(B) Exception for Substantial Assistance. – If the term of imprisonment imposed was less than

the term of imprisonment provided by the guideline range applicable to the defendant at the time

of sentencing pursuant to a government motion to reflect the defendant’s substantial assistance

to authorities, a reduction comparably less than the amended guideline range determined under

subdivision (1) of this subsection may be appropriate.

(C) Prohibition. – In no event may the reduced term of imprisonment be less than the term of

imprisonment the defendant has already served.

(c) Covered Amendments.—Amendments covered by this policy statement are listed in

Appendix C as follows: 126, 130, 156, 176, 269, 329, 341, 371, 379, 380, 433,454, 461, 484, 488,

490, 499, 505, 506, 516, 591, 599, 606, 657, 702, 706 as amended by 711, 715, and 750 (parts

A and C only).

Nos. 12-5226/5582 United States v. Blewett, et al. Page 16

(A) Eligibility. — Eligibility for consideration under 18 U.S.C.

§ 3582(c)(2) is triggered only by an amendment listed in

subsection (c) that lowers the applicable guideline range (i.e., the

guideline range that corresponds to the offense level and criminal

history category determined pursuant to § 1B1.1(a), which is

determined before consideration of any departure provision in the

Guidelines Manual or any variance). Accordingly, a reduction in

defendant’s term of imprisonment is not authorized under 18

U.S.C. § 3582(c)(2) and is not consistent with this policy

statement if: (i) none of the amendments listed in subsection (c)

is applicable to the defendant; or (ii) an amendment listed in

subsection (c) is applicable to the defendant but the amendment

does not have the effect of lowering the defendant’s applicable

guideline range because of the operation of another guideline or

statutory provision (e.g., a statutory mandatory minimum term of

imprisonment).

(Emphasis added.) The government argues that the old statutory minimums still

“operate” as “another guideline or statutory provision” to prevent the lowering of the

“applicable guideline range,” even though these minimums have been repealed and the

new minimums have been incorporated into the Commission’s new crack guidelines.

Why does the parenthetical phrase at the end of the Note — “e.g., a statutory mandatory

minimum term of imprisonment” — refer to the old, discriminatory minimums instead

of the new, more lenient ones that presumably are not racially discriminatory? The

statutory minimums have been reduced and incorporated into the guidelines by the

Sentencing Commission. The old, repealed discriminatory minimums are no longer a

part “of the operation of” the sentencing system. They should not be used to foreclose

“lowering the defendant’s applicable guideline range.” We should not presume that the

Sentencing Commission would point out to Congress the racially discriminatory nature

of the old crack guidelines, and request new mandatory minimums around which to

rebuild the new retroactive guidelines, and then decide to retain the old crack minimums

as the “guideline sentence” under §5G1.1(b).

IV. Conclusion

The old crack cocaine statutory minimums are racially discriminatory as the

legislative history of the Fair Sentencing Act makes clear, as the Dorsey case states, and

Nos. 12-5226/5582 United States v. Blewett, et al. Page 17

as the Sentencing Commission reports to Congress advise. Perpetuation of such racially

discriminatory sentences by federal courts is unconstitutional and therefore the

sentencing guidelines must be interpreted to eliminate such a result. Accordingly, the

judgment of the district court is reversed and remanded for the resentencing of plaintiffs

in accordance with this opinion.

Nos. 12-5226/5582 United States v. Blewett, et al. Page 18

__________________

DISSENT

__________________

RONALD LEE GILMAN, Circuit Judge, dissenting. I fear that my panel

colleagues have sua sponte set sail into the constitutional sea of equal protection without

any legal ballast to keep their analysis afloat. To start with, they “readily acknowledge

that no party challenges the constitutionality of denying retroactive application of the

Fair Sentencing Act to people who were sentenced under the old regime.” Maj. Op. 6.

Opining on this unbriefed and unargued issue is thus fraught with the likelihood of

running aground on the shoals of uncharted territory.

They further concede that the law establishing the 100-to-1 ratio between powder

cocaine and crack cocaine for sentencing purposes was constitutional when enacted:

When the old 100-to-1 crack cocaine statute was adopted, it presumably

did not violate the Equal Protection Clause because there was no intent

or design to discriminate on a racial basis. Its adoption was simply a

mistake.

Maj. Op. 8.

So far, so good. But then the majority veers off into the abyss with the following

analysis:

Since 1986, however, we have gained knowledge of the old statute’s

devastating effect on blacks. . . . The discriminatory nature of the old

sentencing regime is so obvious that it cannot seriously be argued that

race does not play a role in the failure to retroactively apply the Fair

Sentencing Act. A “disparate impact” case now becomes an intentional

subjugation or discriminatory purpose case. Like slavery and Jim Crow

laws, the intentional maintenance of discriminatory sentences is a denial

of equal protection.

Id. at 8-9.

The majority reaches this conclusion without citing a single case in support. This

is not due to a lack of diligent research; it is due to the lack of any such cases. The best

Nos. 12-5226/5582 United States v. Blewett, et al. Page 19

the majority can do is try to distinguish two Supreme Court decisions (McCleskey v.

Kemp, 481 U.S. 279 (1987), and Personnel Administrator of Massachusetts v. Feeney,

442 U.S. 256 (1979)) that even the majority concedes “on first glance might appear to

sanction the discrimination at issue here.” Maj. Op. 9. Those efforts at distinguishing

McCleskey and Feeney are in vain, however, because binding Sixth Circuit precedent has

already foreclosed the majority’s constitutional argument.

The majority reaches the issue of equal protection not directly, but through

applying the “constitutional-doubt canon” of statutory construction (also known as

“constitutional avoidance,” see Clark v. Martinez, 543 U.S. 371, 384 (2005)). Maj. Op.

6. Two conditions are necessary before a court may invoke this interpretative canon:

(1) the statute in question must be “susceptible of two constructions,” and (2) one

construction raises “grave and doubtful constitutional questions” that the other

construction avoids. Id. (internal quotation marks omitted). The present case meets

neither condition.

I start with the first condition. This court has already interpreted the Fair

Sentencing Act as applied to dozens of defendants who, like the Blewetts, were

convicted and sentenced prior to the effective date of the Act. See, e.g., United States

v. Hammond, — F.3d —, No. 12-5522, 2013 WL 1363908 (6th Cir. Apr. 5, 2013);

United States v. Hollins, No. 12-5182, 2012 WL 5477119 (6th Cir. Nov. 13, 2012);

United States v. Downs, 487 F. App’x 286 (6th Cir. 2012). In each of these decisions,

this court has held that the Act is not retroactive to defendants who were convicted and

sentenced before its effective date.

The majority therefore errs in employing the constitutional-avoidance canon to

select a construction of the Act that is favorable to the Blewetts when this court has

already chosen the contrary construction. See Clark, 543 U.S. at 385 (“The canon of

constitutional avoidance comes into play only when, after the application of ordinary

textual analysis, the statute is found to be susceptible of more than one construction; and

the canon functions as a means of choosing between them.” (emphasis in original)). We

are instead bound by Hammond, a prior reported decision that interprets the same statute

Nos. 12-5226/5582 United States v. Blewett, et al. Page 20

under the same factual circumstances as the present case. See, e.g., Salmi v. Sec’y of

Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“A panel of this Court

cannot overrule the decision of another panel. The prior decision remains controlling

authority unless an inconsistent decision of the United States Supreme Court requires

modification of the decision or this Court sitting en banc overrules the prior decision.”

(internal quotation marks omitted)).

And even if Hammond were not fatal to the cause taken up by my colleagues,

their resort to the constitutional-avoidance canon would still be flawed because this court

has already answered any “grave and doubtful constitutional questions” raised by the

continued application of the old crack-cocaine/powder-cocaine sentencing disparity.

Over 20 years ago, this court held that “the one to one hundred ratio of crack to cocaine

does not violate Equal Protection Standards.” United States v. Williams, 962 F.2d 1218,

1227 (6th Cir. 1992).

Subsequent equal protection attacks on the crack/powder ratio have likewise been

rejected. See, e.g., United States v. Reece, 994 F.2d 277, 278 (6th Cir. 1993) (holding

that the ratio’s disparate impact “may not alone support a finding of invidious

discrimination in a facially neutral law”); United States v. Muse, 250 F. App’x 700, 701-

02 (6th Cir. 2007) (noting that the Sixth Circuit has already rejected equal protection

arguments for invalidating the 100-to-1 ratio and that “[e]very court of appeals to

address the issue has upheld the ratio in the face of similar constitutional challenges”).

Just as Hammond resolves any doubt of statutory interpretation regarding the limited

retroactivity of the Fair Sentencing Act, so do Reece and Williams resolve any doubt

regarding the constitutionality of pre-Act sentences that the Act leaves intact. Moreover,

knowledge of the ratio’s disparate racial impact—which is the majority’s rationale for

distinguishing the constitutional validity of the ratio’s initial enactment from the

constitutional invalidity of its continued enforcement—was recognized and rejected as

the basis of the equal protection challenge in Reece. See 994 F.2d at 278 (noting the

defendant’s use of statistics to show a disparate racial impact, but holding that evidence

Nos. 12-5226/5582 United States v. Blewett, et al. Page 21

of such impact was insufficient because “only purposeful discrimination merits strict

scrutiny”).

Another point bears mentioning. The majority’s basic premise is that the

continued enforcement of a sentencing regime that equates one gram of crack cocaine

to one hundred grams of powder cocaine violates the Equal Protection Clause because

it has a known disparate racial impact. Yet the majority apparently has no problem with

the Fair Sentencing Act’s reduction of that disparity to an 18-to-1 ratio. Why, however,

is a 100-to-1 ratio—but not an 18-to-1 ratio—an equal protection violation? In my

opinion, the lack of any constitutionally relevant distinction between the old ratio and

the new ratio further undermines the majority’s equal protection rationale.

Having addressed the shortcomings of the majority’s sua sponte constitutional

argument, I turn now to the argument that the Blewetts actually presented: i.e., that the

Supreme Court’s interpretation of the Fair Sentencing Act in Dorsey v. United States,

132 S. Ct. 2321 (2012), makes the Act fully retroactive as applied to defendants seeking

modification of a mandatory-minimum sentence in a proceeding under 18 U.S.C.

§ 3582(c)(2). As noted above, however, the Hammond decision has already rejected the

Blewetts’ proposed reading of the Fair Sentencing Act, and it did so “in light of Dorsey.”

Hammond, 2013 WL 1363908, at *2. My colleagues in the majority, moreover, have

previously joined in unpublished decisions that reached the same conclusion as set forth

in Hammond. See United States v. Mundy, 486 F. App’x 598, 598-99 (6th Cir. 2012)

(per curiam decision joined by Judge Martin); United States v. Stanley, No. 11-4423,

2012 WL 4014932, at *3 (6th Cir. Sept. 12, 2012) (opinion joined by Judge Merritt).

In short, Hammond is the law of this circuit and cannot be overturned by this panel.

But even if we were to approach this issue with no prior circuit precedent to bind

us, the Blewetts’ argument would fail because 18 U.S.C. § 3582(c)(2) allows a court to

modify a term of imprisonment that has already been imposed only if two conditions are

met: (1) the defendant’s sentence was based on a sentencing range that has

subsequently been lowered by the Sentencing Commission, and (2) a reduction in the

defendant’s sentence would be consistent with the so-called “policy statement” found

Nos. 12-5226/5582 United States v. Blewett, et al. Page 22

at U.S. Sentencing Guidelines § 1B1.10. The Blewetts, however, were sentenced under

a mandatory-minimum statute that was subsequently amended by Congress, not a

“sentencing range that has subsequently been lowered by the Sentencing Commission.”

18 U.S.C. § 3582(c)(2) (emphases added).

In an effort to satisfy the first condition of 18 U.S.C. § 3582(c)(2), the majority

notes that “[t]he statutory minimums are closely integrated into the structure of the

revised guidelines.” Maj. Op. 13-14. But why this close integration precludes Congress

from treating the two sentencing schemes differently is unexplained. See Hammond,

2013 WL 1363908, at *2 (holding that the defendant’s mandatory-minimum sentence

“has not subsequently been lowered by the Sentencing Commission” and therefore could

not qualify for a modification under § 3582(c)(2) (internal quotation marks omitted)).

The Blewetts fare no better under 18 U.S.C. § 3582(c)(2)’s second condition

because only those amendments to the Guidelines included in USSG § 1B1.10(c) may

trigger eligibility for a sentence modification under § 3582(c)(2). USSG § 1B1.10, cmt.

n.1(A) (2012). Guideline § 1B1.10(c) incorporates Amendment 750 (parts A and C

only), which implemented certain aspects of the Fair Sentencing Act. Part A amended

the Drug Quantity Table found in USSG § 2D1.1 that is used to calculate sentencing

ranges, while part C eliminated the reference in USSG § 2D2.1 to a five-year mandatory-

minimum sentence for simple possession of more than five grams of crack cocaine.

In contrast, the Blewetts asked the district court for a sentence modification

under 18 U.S.C. § 3582(c)(2) based on the Fair Sentencing Act’s amendment of 21

U.S.C. § 841(b)(1), the latter providing the mandatory-minimum sentences for drug-

trafficking offenses. But neither part A nor part C of Amendment 750 includes the

changes made to § 841(b)(1). Because the Blewetts seek the benefit of a statutory

amendment that was not incorporated into USSG § 1B1.10, they are ineligible for a

modification of their sentences. See Hammond, 2013 WL 1363908, at *2 (holding that

the district court did not have authority to reduce a defendant’s sentence under

§ 3582(c)(2) because the defendant’s mandatory-minimum sentence “was not an

amendment incorporated into the Sentencing Commission’s policy statement”).

Nos. 12-5226/5582 United States v. Blewett, et al. Page 23

The Dorsey decision strongly supports the proposition that the Fair Sentencing

Act’s amendment of a statutory mandatory-minimum sentence provides no relief to

defendants seeking modification of a sentence under 18 U.S.C. § 3582(c)(2) because

changes in criminal penalties generally apply to defendants not yet sentenced, but do not

apply to defendants already sentenced. See Dorsey, 132 S. Ct. at 2335. A proceeding

under § 3582(c)(2) is a modification of a previously imposed sentence and is not itself

a sentencing or resentencing. Dillon v. United States, 130 S. Ct. 2683, 2690 (2010) (“By

its terms, § 3582(c)(2) does not authorize a sentencing or resentencing proceeding.”).

The Fair Sentencing Act therefore applies to not-yet-sentenced defendants such as those

in Dorsey, but does not apply to already-sentenced defendants, such as the Blewetts, who

seek § 3582(c)(2) modifications. See Dorsey, 132 S.Ct. at 2335 (distinguishing the

initial imposition of a sentence under 18 U.S.C. § 3553 from the modification of a

sentence under § 3582(c) and recognizing that disparities “will exist whenever Congress

enacts a new law changing sentences,” but concluding that the disparity created by the

Court’s decision reflects “the ordinary practice” in federal sentencing); see also

Hammond, 2013 WL 1363908, at *2 (noting that “Dorsey itself disfavors [retroactive

application of the Fair Sentencing Act] in the context of § 3582”).

Finally, the majority contends that “it cannot seriously be argued that race does

not play a role in the failure to retroactively apply the Fair Sentencing Act.” Maj. Op.

8. To the contrary, the failure to retroactively apply the Fair Sentencing Act is solely

due to a faithful interpretation of the statutory scheme and a recognition of the rule of

stare decisis. Congress is of course free to amend the Fair Sentencing Act to make it

fully retroactive, but that is a legislative prerogative and not appropriate for this court

to do simply by decree.

For all of the reasons set forth above, I respectfully dissent.