United States v. Jarreous Blewitt

1, 10, 153 L.Ed.2d (2002). eases demonstrate These “claims” class members have putative

even 1367(d). § Ver- of 28 U.S.C. purposes explain how the efficien- failed to true has Pipe American tolling sought cies if class mem- putative advanced would be law to file individual state were forced bers any state law claims preserve actions might run of limitations whose statutes proceedings. of class during the course no indication that Con- Because we find putative class gress intended to exclude tolling from the available members 1367(d), § operation of we hold through articulated plaintiffs properly here purposes “claims” for state law 1367(d). IV. reasons, foregoing we affirm the For the district court. decision of America, UNITED STATES Plaintiff-Appellee, (12- Demorris BLEWETT Cornelius 5226) and Jamone Blewitt Jarreous

(12-5582), Defendants-Appellants. 12-5226,

Nos. 12-5582. Appeals, Court of United States Sixth Circuit. May 2013. Granted, Rehearing Opinion En Banc July Vacated Haworth,

ON BRIEF: Jamie L. Frank Heft, Jr., W. Office of the Federal Public Defender, Louisville, Kentucky, for Appel- lant Wyrosdick, 12-5226. Laura R. Heft, Jr., Frank W. Office of the Federal Defender, Louisville, Public Kentucky, for Appellant Hill, in 12-5582. Candace G. Office, Attorney’s Louisville, United States Kentucky, Appellee. MERRITT, MARTIN,

Before: GILMAN, Judges. Circuit MERRITT, J., delivered opinion MARTIN, J., the court in which joined. GILMAN, 494-98), (pp. J. delivered a separate dissent.

OPINION

MERRITT, Judge. Circuit brought by This is a crack cocaine case two currently incarcerated defendants nation). Stuntz, Professor William J. racially dis- As from relief seeking retroactive law professor, criminal minimum sen- the late Harvard criminatory observed, bias occurred “persistent has in 2005. The them imposed on tences contemporary enforce- respect 2010 with August in passed Act was where, in the 1990s and drug ment of laws Federal cocaine sen- to “restore fairness 2000s, minority constituted a early blacks unfairly impacted that had tencing” laws crack cocaine but more regular of users of The Fair Sen- years. for almost blacks crack percent than 80 of defendants.” Anti- portions of the tencing repealed American Criminal Justice Collapse 1986 that instituted Drug Act of Abuse (2011). that we “re- He recommended powder crack and ratio between with “the under- dress that discrimination” crack as cocaine, gram of treating one concept ‘equal protection used cocaine grams powder equivalent to 100 ” Id. at 297. laws.’ The 100-to-l ra- sentencing purposes. for many acknowledged by long had tio opinion, In we will set out both unjustified system to be legal in reasons constitutional empirical support. adopted without old, discriminatory crack sentenc- racially the ratio to a Sentencing Act lowered Fair aside in favor of ing law must now be set However, ratio. lenient 18-to-l more sentencing by enacted Con- the new law inmates, black, languish most thousands Act of 2010. gress as the old, in under the discredited prison defendants, to all apply The Act should Sentencing Act was not the Fair pas- to its including prior those sentenced by Congress. explicitly retroactive made judgment sage. We therefore reverse court and remand for resen- alia, of the district case, hold, inter In this we tencing. judicial perpetuation federal

discriminatory mandatory minimum crack I. sentenced for those defendants sentences law, by un- judge, court bound sentencing crack as the The district under the old minimums, advocates, sentenced would violate the avoidable government Clause, to a mandato- the Blewett1 cousins incorporated Protection as Equal years each under the by ry the doctrine minimum of ten into the Fifth Amendment law, crack cocaine sentences old 100-to-l Bolling Sharpe, (1954) (Fifth crack cocaine quantity based on the Amend- 98 L.Ed. 884 possessed. The Blewetts seek forbids federal racial discrimination ment U.S.C. resentencing Fourteenth way in the same as the 3582(c)(2)2 994(u)3 § § and 28 U.S.C. be- racial discrimi- Amendment forbids state ment, considering spell after the factors set forth Although and Jarreous their Cornelius 3553(a) differently, they the "Blew- names we will use extent that are last in section spelling opinion ease of refer- ett” in this for applicable, a reduction is consistent if such ence. applicable policy statements issued with Sentencing Commission. 3582(c)(2) provides § in relevant 2. 18 U.S.C. part: provides: 3.This statute the case of a defendant who has been the term of im- If the Commission reduces imprisonment a term of based sentenced to guidelines prisonment recommended subsequently sentencing range that has on a applicable particular offense or cate- to a by the Commis- been lowered offenses, 994(o), gory specify in what it shall pursuant U.S.C. ... sion to 28 by what amount imprison- circumstances and may reduce the term of court cause the Fair Sentencing Act of United States Sent’g Comm’n, 1996 111-220, P.L. No. 124 Stat. imple- Sourcebook of Federal Sentencing Statis- mented new sentencing guidelines, has tbl.29, (85.8%). tics at 47 year fiscal substantially reduced -crack cocaine sen- 2010, before the passage of the Fair Sen- tences, including the mandatory minimum tencing Act, 4,000 almost defendants, imposed sentences in this case. See 21 black, mainly received mandatory mini- 841(b) U.S.C. (increasing the amount of mum sentences crack cocaine. United grams from 50 to 280 grams to Comm’n, States Sent’g 2010 Sourcebook of trigger 10-year mandatory minimum Federal Sentencing Statistics tbl.43. grams and from 5 grams trigger recognizing the minimum).

the five-year mandatory statistical evi- If the of widespread dence racial Blewetts today were sentenced discrimination under the based on law, empirical studies, revised crack they Congress would not be sub- ject passed the to a statutory Sentencing minimum Act. because the The quantity preamble of crack involved the Fair falls Sentencing Act, below the any recognizing threshold for injustice, racial minimum. states that it is designed “to restore fairness to Federal The old 100-to-l crack cocaine ratio has cocaine sentencing.” Breyer’s Justice ma- led to the mass incarceration of thousands jority opinion in Dorsey States, v. United of prisoners nonviolent under a widely law — -, 132 acknowledged racially discriminatory. (2012), L.Ed.2d 250 states that the new There 30,000 were approximately federal law was adopted the public “because (about had prisoners 15 percent of all federal come to understand sentences embodying prisoners) serving crack cocaine sentences the 100-to-l ratio as unjustified reflecting in 2011. United Sent’g Comm’n, race-based differences.” The Analysis Chairman of Impact of the of Imple- Guideline the Judiciary Committee, mentation Senator Patrick Fair Sentencing Act of Leahy, reflecting 2010 if on purpose the Amendment Were of Applied Ret- Act, new 2011).4 stated that roactively, at 12 (May former 100-to-l Thousands ratio of these law is prisoners “one of are the most incarcerated for life notorious 20, 10, or symbols for of years or 5 racial under mandatory discrimination in the minimum modern justice crack system.” cocaine sentences criminal imposed prior to passage Cong. of the Fair Rec. (daily 2010). S1683 Sentencing ed. Mar. Act. More than percent of pris- Many federal members of Congress stated oners serving crack cocaine sentences the old law are should be changed because it See, black. e.g., United States Sent’g racially discriminatory and not based Comm’n, Report Annual (83%); 2011 at 37 on coherent rationale.5 prisoners sentences of serving of im- Leader) ("Vice terms Majority sistant Senate Pres- prisonment for the may Biden, offense be reduced. ident Joe one authors of the legislation creating disparity sen- 4. All Sentencing publications Commission tencing, has said: myths upon 'Each cited herein are available on the Commis- which we disparity based the has since sion’s (www.ussc.gov). website dispelled ”); been or Cong. altered.' 28, 2010) (daily (state- Rec. July H6202 ed. representative 5. Here is a sample of state- Rep. Scott, ment of "Bobby” Robert C. ments Congress members of concerning Chairman of the Judiciary House Subcom- purpose of the Fair Act: Crime, mittee on Terrorism and Homeland Cong. (daily Rec. ("We S10491 ed. Security) Oct. blaming anybody are not for 2009) (statement Durbin, Sen. Dick As- what happened in but we have had sentencing of the older crack wrongs Yet, passage despite proven had Congress believed condemnation statute that Supreme Court’s 17,000 irrational, than and racial- Dorsey, arbitrary, more itself to be under the sentenced has now prisoners quo discriminatory. such The status ly are not eli- discriminatory law old, racially remaining question overturned. majority of resentencing. gible Fully? law? is the new is: how claims, can- government people, these minority covering a just only partially, Or they the new law from not benefit wrongly sentenced? of those manda- the old a sentence received turns on our question The answer of- a career received or tory mínimums equal protec- principles interpretation previous two (requiring designation fender rules, provi- interlocking convictions). figures tion and several according So drug Commission, law, including back- sentencing sions supplied excessive, given statutory interpretation, of those canons ground less than one-half sentences, like the discriminatory Act, stat- previous the Fair Blewetts, eligible are modified, on imposed the sen- ones repealed utes it Comm’n, Sent’g relief. for propagated provisions guideline tencing Imple- Impact of Guideline Analysis of the most as the regard it. We pursuant to Act of of the Fair mentation congres- clear important consideration Applied Ret- the Amendment Were 2010 if racially long, end to purpose sional 2011). (May 12 roactively, at in imposed discriminatory sentences years and past 25 over cocaine cases opin Breyer’s as Justice Congress, of such sen- perpetuation fact confirmed, intended Dorsey in ion tences is unconstitutional.6 and repeal Act to redress Hoyer) 2010) (statement Steny Rep. and have determined years experience counterproduc- ("The disparity is 100-to-l justification for the 100-to- that there is no unjust.”). ratio.”); (daily Cong. ed. tive Rec. H6202 156 1 28, 2010) (Statement Rep. Daniel E. July night foreign ship at with an passing a 6. Like ("We initially came out of com- Lungren) colleague dissenting starts with “ahoy,” our By the time 20-to-l ratio. mittee with "setting ... with- sail metaphor about poetic floor, it was 100-to-l. on the we finished dissent then re- legal ballast.” The out evidentiary really basis have an We didn’t grips with or acknowledge, to come fuses to did, it, thinking we we that's what but argument in protection equal rebut the time.”); thing doing right at the were acknowledge fails even The dissent case. (daily Mar. ed. Cong. Rec. S1682 Dorsey Supreme Court in language Leahy) (statement 2010) Patrick of Sen. Congress the old stating found ("The has resulted imbalance that racial discriminatory and there- ratio to be sentencing disparity dis- from cocaine 18-to-l. Nor penalty to fore reduced promise of parages Constitution’s acknowledge rebut or does the dissent Americans.”); Cong. for all treatment history many legislative statements 2010) (state- (daily July ed. Rec. H6198 apply is would continue law dissent Clyburn, House Ma- Rep. E. James ment discriminatoiy. The dissent blatantly racially ("The drug sentencing Whip) jority current Hammond, 712 only United States v. cites single greatest cause policy is Cir.2013), (6th authority. as F.3d coun- in our of incarceration record levels purport to deal with not case does Hammond prison in every is try. in 31 Americans One dissent that problem. A equal protection including probation, one parole or on or on problem a acknowledge in the main refuses unjust This Americans. in 11 African primarily on a case that relies case and then prin- contrary to our runs fundamental respon- is not problem law.”); does not mention under the equal protection ciples of responsive, to be In order July sive relevant. (daily ed. H6203 Cong. Rec. II. ry nature of prior crack sentences is no longer a point of legitimate debate. The readily We acknowledge that no racially discriminatory impact of the 100:1 party challenges the constitutionality of sentencing scheme surfaced early on when denying application of the Fair statistics that nearly showed one hundred Sentencing Act to people who were sen percent of all crack defendants were non- tenced under regime. the old That does white. See United States Sent’g Comm’n, mean, however, that the constitutional 2011 Sourcebook of Federal Sentencing question is irrelevant as we determine (94% Statistics nonwhite); tbl.34 LaJuana whether the Blewetts are entitled to a Davis, Rock, Powder, Sentencing Making — sentence reduction. That is because we Disparate Impact Evidence Relevant in are constrained to interpret statutes and Crack Cocaine Sentencing, 14 J. Gender sentencing guidelines so as to poten avoid Race & Just. (2011). 386-88 & n.68 tial conflict with the Constitution. The From 1988 to federal prosecutors constitutional-doubt canon means that a prosecuted no whites under the crack pro- statute or other authoritative text should states, visions including major cities interpreted a way that avoids creat such Boston, Denver, Chicago, Miami, ing an unconstitutional law or placing its Dallas, and Los Angeles. Weikel, Dan constitutionality in doubt. The most re War on Targets Crack Minorities over cent treatise subject on the of canons of Whites, Times, L.A. May 1995, http:// construction quotes a statement defining artieles.latimes.com/1995-05-21/news/mn- the meaning of the constitutional-doubt 4468_l_crack-cocaine. These alarming canon found in United States ex rel. Attor numbers are not unlike Supreme the ney General v. Co., Delaware & Hudson early Court’s eases of facially neutral laws 366, 408, 213 U.S. 527, 29 S.Ct. 53 L.Ed. creating an overwhelmingly disparate re- (1909): a “[W]here statute is suscepti sult. See Yick Hopkins, Wo v. constructions, ble of two by one of which 356, 1064, (1886). 30 L.Ed. 220 grave and doubtful questions constitutional Sentencing Commission and the Su- by arise and the other which such ques preme recognized Court the disparity as avoided, tions are duty our is to adopt the well. 1990s, In the Supreme Court latter.” Antonin Scalia Bryan & Garner, first recognized the discriminatory impact Reading Law: The Interpretation Legal of the 100:1 ratio. United States v. Arm- (2012). Texts 247 The interpretation the strong, 456, government puts forth deny to 134 L.Ed.2d (Stevens, J., dis- application of the Fair Sentencing Act (“[I]t senting) is undisputed that the brunt would result in a equal protec violation of of the elevated penalties federal falls tion. blacks.”). heavily on In a report to Quite apart from the legal doctrine that Congress, the Sentencing Commission guides the Equal (as Protection Clause said, “The 100-to-l crack cocaine to pow- incorporated into the Due Process Clause der cocaine quantity ratio is a primary of the Fifth Amendment), the discriminato- cause of growing disparity between disagreement requires least at a Congress discussion of Congress United States. why about we should continue to hold thou- acknowledge does not passed often that it people

sands jail who are there because racially discriminatory law try and then to of a law that acknowledged to be prior redress its own mistake. To be rele- discriminatory by a majority vant, Supreme a dissent try must at least to deal with Court and large the vote of a majority of that issue. did not presumably adopted, was de- ute federal and White Black

sentences Clause be- Protection Equal Comm’n, violate Sent’g States fendants.” design to was no intent cause there Cocaine Congress: to the Report Special adop- Its a racial basis. on discriminate Policy, Chapter Sentencing and Federal Since a mistake. simply tion was (Feb. 1995). In the Commission 7D knowledge of however, gained we have to amendment Congress an submitted to on devastating blacks. effect statute’s old that would have sentencing guidelines problem acknowledged itself Congress and crack between equalized penalties Sentencing Act. Fair enacting the rejected Congress cocaine. powder Commis- In recommendation. step Sentencing The Fair that Con- unanimously recommended sion job. The forward, it did not finish but gave and 1 ratio the 100-to lower gress by virtue of continues racial discrimination adjust dis- options Congress several statutes, sentencing guidelines, a web cocaine powder and between parity the harsh maintain cases that and court Sent’g United States See penalties. sentenced defendants those provisions for Congress: to the Comm’n, Report Special If we con- Act. the Fair before Sentencing Policy Federal and Cocaine of the stat- a construction tinue now with 1997). action on took no Congress (Apr. discrimination, perpetuates ute the Com- the recommendations. longer defense there is no firmly” “unanimously and again mission The dis- is unintentional. discrimination drug Congress recommended sentencing old criminatory nature of the powder between crack quantity cannot serious- that it regime is obvious so Sent’g be reduced. United cocaine a role play does not that race ly argued Congress: Cocaine Comm’n, Report retroactively apply in the failure Policy (May viii Federal impact” “disparate Act. A 2002). Sentencing Commission While subjuga- an intentional now becomes case ranges for crack adjusted guideline Like discriminatory case. purpose tion or de- 706 to in Amendment in 2007 cocaine laws, intentional the Jim Crow slavery and sentences, Congress length of crease the discriminatory sentences is of maintenance the to changes to made no equal protection. a denial for crack mandatory mínimums adjust by neither analysis is undermined This passed cocaine until 279, 107 Kemp, McCleskey v. of black Hence thousands in 2010. (1987), nor L.Ed.2d 262 1756, 95 S.Ct. prisons federal remain in now defendants Massachu Administrator Personnel sentences, for life. long some 442 99 S.Ct. Feeney, U.S. setts (1979), that on cases 870 two 60 L.Ed.2d facts and of the statistical In view sanction the appear to glance might first consensus congressional widespread In at issue here. McCles- discrimination the Fair Sen adoption of leading to the a held that de Supreme Court key, the there provisions, Act’s remedial tencing disparity study showing racial tailed crack law was that the old no doubt can be penalty death Georgia’s application As a effect. discriminatory in racially discrimina out intentional not make doctrine, no could there legal matter of discriminatory proof tion. Statistical discriminatory without protection violation McCleskey enough; not Davis, was application Washington v. intent. See Georgia (1976). to that required “prove 48 L.Ed.2d maintained or enacted Legislature cocaine stat- 100-to-l crack old When penalty death statute (citation because an antici omitted). S.Ct. 2282 Feeney, racially pated discriminatory however, effect.” makes it clear that racial dis- McCleskey, 298, 107 481 U.S. at crimination, “regardless of purported mo- Congress Here enacted the tivation, new law to is presumptively and invalid can remedy racial discrimination. McCles- upheld only upon an extraordinary jus- key disapproval ’s of statistical evidence is tification.” Id. at 99 S.Ct. 2282. distinguishable. also McCleskey was obvi There is overwhelming and unavoidable ously preserve concerned to system proof application continued criminal enforcement multiple where deci- old crack law keeps jail blacks in at a dis- sionmakers were involved and where each criminatory rate. proof This supports an decision to impose the death inference penalty re the old crack laws have quired assessment of the individual been maintained at defen least in part unique dant’s personal, of their mitigating discriminatory charac effects. The Su- 292-97, teristics. preme See id. at Court in Dorsey,7 S.Ct. 1756. the legislative But in the history context of cocaine Fair Sentencing Act, sen and tencing, independent defendant’s States Sentencing char Commission special acteristics do not various factor into equation, reports Congress and the have explicitly all decisionmaker’s choice is a advised that discre- old mandatory tionless mínimums are minimum. In gen discrim- inatory. Obviously, eral course things, this court prosecutor should will place charge meaning based on on the an new objectively statute and verifiable guidelines crack, quantity of would perpetuate proven court will im racial pose a discrimination and thereby sentence no lower than violate that man equal protection. dated There is no Congress. See excuse for David A. Sklan- judges to engage in sky, Cocaine, Race, perpetuating such dis- Equal Protection, crimination or to sanction byit refusing 47 Stan. L. (1995). Rev. 1316-18 correct it. Feeney dealt with a gave state law that

hiring preference in civil positions service The role of judge is especially to veterans. Because the overwhelming important here. A precedents, host of majority of male, veterans were prac- forward, from judicial forbid perpetu tical effect of the law deprive was to bet- ation of racial discrimination. striking qualified ter job women of opportunities. down the behavior Virginia of a judge The Court found that the plaintiff had not refusing call grand blacks as petit shown purpose to against discriminate jurors in Supreme the Court denied women. Discriminatory purpose, plea was the of the attorney general Virginia of held, “implies more than intent as volition to judicial such allow conduct. Relying on or intent as awareness of consequences. the Amendment, Fourteenth as as an well It implies the decisionmaker, that in this act of Congress prohibiting such discrimi case a legislature, state selected or nation, reaf- the court refused to permit particular firmed a of course action at practice. idle,” “It said, is the Court “to part least in of,’ ‘because merely say ‘in that the act of Congress is unconstitu of,’ spite its adverse upon an effects iden- tional because it penalties inflicts upon group.” tifiable Feeney, 442 U.S. at judges State judicial for their action.” Ex See-U.S.-, 2321, 2328, 183 embodying understand sentences the 100-to- (2012) L.Ed.2d 250 (stating that the new law 1 reflecting unjustified as race-based dif- adopted public ferences”). "because the had come to 490 554 L.Ed.2d 28 1, 15-16, S.Ct. 91 339, 348-49, 25 Virginia,

parte does case (1971) (“[A] desegregation school and both state (1880). Judges, 676 L.Ed. other cases fundamentally of from principles the with not differ federal, comply must reme- framing equitable of in the Fourteenth involving found protection equal Likewise, striking down in a constitutional denial of repair the dies to Amendment. judicially correct, en- by a balanc- restrictive covenants to The task is right. ex- Court courts, Supreme inter- collective forced and the individual ing of of dis- judicial perpetuation that plained the Consti- that offends ests, condition equal from immunized is not crimination short, tution.”). principle In principles: protection racial dis- obvious not enforce may judges enforce- judicial indeed, duty-bound difference between The are crimination—and the re- of and non-enforcement ment that it does ensure to powers their within the difference is covenants strictive our law. in time-honored not occur—is rights being denied between petitioners and remedy is straightforward The to other members available property The Fair relatively simple. accorded community being and the new Act and rights on an those enjoyment full adopted by subsequently Guidelines action, as that footing.... State and should be can Sentencing Commission purposes for the understood phrase is retroactively replace interpreted Amendment, refers to the Fourteenth discriminatory minimums old, in all forms. power of state exertions It new, lenient minimums. more with 1, 19-20, Kraemer, 68 U.S. v. Shelley the constitutional-doubt duty our (1948). The Su L.Ed. S.Ct. statutory construction. canon of judicial invalidated has preme Court requires us Clause Equal Protection discrimination racial perpetuation called “one Leahy Senator alter what cus to allow courts failure of through the racial dis symbols of notorious the most to mixed- children tody awards white justice modern criminal crimination Sidoti, parents. Palmore race See ... dis an “imbalance and system” L.Ed.2d 429, 433, 104 promise the Constitution’s parages (“The con cannot Constitution See for all Americans.” equal treatment it to neither can prejudices but trol such of our new light at 5 & n. 5. supra, out may be Private biases them. lerate racial discrimination knowledge about law, the law but the reach side judicial law, inertia inherent old indirectly, give them cannot, directly or maintain change and to avoid instinct effect.”). deseg body of school entire old longer protect the no should quo status condemning discrimina regation cases gov not allow We should sentences. segregation racial tory perpetuation pur to undermine legalisms ernment’s teachers of students or assignment its pose of about the conclusion us to the same leads system punishment more lenient See, v. Char e.g., Swann judge’s role. Educ., cocaine.8 402 U.S. lotte-Mecklenburg Bd. of Further, C.J.). is a doubt there sup if statutory construction Other 8. canons statutory guide- and interlocking of the texts retroactivity mandatory minimums port application notes under the provisions or clearly line Sentencing Act as well. The rule guidelines, to the amendment be lib therefore and statute should remedial rule, ambi- lenity apply. Under should Georgia, 2 U.S. erally construed. Chisholm the defendant’s be resolved in 476, (1793) (Jay, guity should 419, (2 Dali.) 440 1 L.Ed.

491 III. and from 50 grams to grams respect (while to the 10-year minimum Laying equal aside the protection leaving powder at 5,000 500 grams and for revising basis the old mandatory mini grams respectively). The change had mums, Guidelines them the effect of lowering the 100-to-l selves call for such a construction. crack-to-powder ratio to 18-to-l. government, The ignoring pro- (citations omitted). S.Ct. The violation, tection a purely relies on techni- Sentencing incorporated Commission and cal argument. government The provides integrated the new mínimums no convincing why reason ordinary guide- into its system by attempting to harmonize line sentences and “mandatory minimum” the new crack guidelines with the new sentences should be differently.9 treated mandatory mínimums. government’s The argument is that man- government The argues that the Fair datory minimum sentences are “final” and Sentencing Act did not give retroactive should not disturbed or set aside under effect to the old mandatory mínimums like 3582(c)(2), § though even the Sentencing imposed those on the Blewetts because a Commission has retroactively changed oth- mandatory minimum does fit the lan- er crack sentences under the old 100-to-l guage “sentencing range that has subse- — ratio. It claims that Com- quently been by lowered the Sentencing mission itself has made a distinction be- 3582(c)(2). by Commission”—used Section long tween mandatory sentences, minimum government ignores fact, however, retain, which it wishes and other crack guidelines range is entirely depen- sentences. on, dent not independent of, a statutory by mechanism Congress which mandatory minimum or maximum. The sought to reduce crack cocaine sentences mandatory mínimums and máximums are simply to reduce the excessive 100-to- an integral part of gave to the rise 1 ratio it spelled had drug out earlier sentencing guideline ranges. They are the statutes, a method recommended significant most part they provide Sentencing Commission. The Supreme the bookends: The mandatory minimum Court in Dorsey explains process: provides the floor range and the Congress accepted Commis- mandatory provides maximum ceiling sion’s ... recommendations if enacted a certain quantity threshold of crack is the Fair Sentencing Act into law. The involved. The Sentencing Commission it- the drug increased amounts self trigger- judges instructs mandatory use the ing mandatory mínimums for crack 5Gl.l(b) traf- mínimums in this § manner. See ficking (“the offenses from 5 grams to 28 statutorily required minimum sen- grams in respect 5-year sentence”).10 minimum tence shall be the guideline Granderson, favor. See United States v. identified drug mínimums for of- 39, 47-54, U.S. 114 S.Ct. 127 L.Ed.2d and the corresponding guidelines fenses as "a (1994); States, Williams v. United primary widening cause gap between 279, 290, 73 L.Ed.2d 767 Black, White, average sentences of and His- (1982); States, v. United Bifulco panic guidelines offenders” in the Unit- era. (1980). 100 65 L.Ed.2d 205 Comm'n, Sent'g ed Fifteen Years of (2004). Guidelines Mandatory 9. generally minimum sentences widely remain jus- criticized the criminal 1.1(b) provides: 5G literature, tice the judiciary, federal the Sentencing Commission. The Commission ranges [now] are whose Guidelines dants guideline if a defendant’s example, For minimum,” as in this mandatory the below statutory awith months 50-70 range is Dixon, 648 F.3d months, the case. of 60 mandatory minimum Cir.2011) (defendant’s (3d offense 195, 201 elevates range then guideline of the floor Act, the but sentenced prior to committed range is resulting guideline and the to 60 Act). poli- Consistent of the passage after re- system of The entire months. 60-70 statutory mini- that the new cy requires therefore driven guidelines vised effect. retroactive given also be mums mandatory mínimums. new by the the argument leads government’s The statutory the new uses The Commission re- Blewetts would result absurd force gravitational mínimums as under years when for ten prison in main revolves. system the new which around are now sub- they guidelines revised closely inte- are statutory mínimums absurd, all. Also ject to no minimum the revised of the structure into grated retroactivity view of government’s retroactive the entire guidelines. When greatest major kingpins give would con- on new is based process guideline their because retroactivity of benefit mínimums, makes no sense gressional range is above guideline amended argue prisoners government for of hundreds minimum while guidelines the old crack under sentenced like culpable offenders petty, less more sen- ordinary guideline have their should any prison in without Blewetts remain retroac- downward sharply revised tences result law. This revised of the benefit ratio while the 18-to-l reflect tively to discrimination, defies racial perpetuates under prisoners sentenced leaving the huge consistency, creates a of goal mínimums now-repealed, old, pur- in violation sentencing disparity the 100-to-l prison in languishing Reform pose by the mínimums ordered The new ratio. the unfairness not eliminate and does incorporated Act to Dor- in mind and that Congress had “statutory” longer no are guidelines guide- the new points out as reason sey part a just as much They are only. treatment. given are retroactive lines guidelines as other guidelines 3582(c)(2) Further, on retroactiv- section in incorporated they have been guide- § 1B1.10 with ity dovetails the Third Cir- As system. the retroactive a statement” lines, “policy called which is observed, contrary result “would has cuit Imprison- in covering Term míni- “Reduction the old sense” because not make Guideline of Amended as a Result trump the new ment “always mums would argues government Range.”11 of defen- large number Guidelines a de- in which a case In General.—In lb) statutorily required minimum Where a imprisonment, serving a term of fendant is greater the maximum than sentence is applicable to that range, guideline range guideline the statu- and the applicable shall subsequently sentence lowered torily required minimum has defendant (Emphasis add- Guide- guideline sentence. be the of an amendment as a result below, ed.) (c) listed subsection lines Manual term may defendant's reduce the the court provides as guideline follows: entire 11. This by U.S.C. provided imprisonment 3582(c)(2). by 18 U.S.C. required As Impris- Term 1B1.10. Reduction 3582(c)(2), defen- such reduction Guideline as Result of Amended onment be con- imprisonment shall dant's Statement) term Range (Policy policy statement. sistent with (a) Authority.— against providing by pointing redress not termined before consideration of any departure language guideline provision provision to the of this variance). Guidelines Manual or “Application but to an Note” on “Eligibili- Accordingly, a reduction in defen- ty.” government makes argu- this dant’s term of imprisonment is not in ment the face of the fact that the Sen- authorized 18 U.S.C. tencing pointed itself out to Commission 3582(c)(2) § and is not consistent Congress the racial discrimination that led (i) this policy with statement if: to the in change the law. The meaning of none of the amendments listed in Application ambiguous: Note is (c) applicable subsection is to the (A) Eligibility. Eligibility for consider- — defendant; (ii) or an amendment 3582(c)(2) ation under 18 U.S.C. is (c) in listed subsection applicable is triggered only by an amendment to the defendant but the amendment (c) in listed subsection lowers not have does lowering effect of applicable (¿a, guideline range applicable guideline defendant’s guideline range corre- range because the operation of of sponds to the offense level crim- guideline another or pro- inal history category determined (e.g., vision a statutory mandatory lBl.l(a), pursuant §to which is de- term minimum imprisonment). (2) (2) Exclusions.—A reduction in the defen- Limitation and Prohibition on Extent of imprisonment dant's term of is not consis- Reduction.— policy tent with this statement and there- (A) Except provided in sub- Limitation. — fore is not authorized under 18 U.S.C. (B), division the court shall reduce 3582(c)(2) if— imprisonment term of defendant's under 18 (A) None of the amendments listed in sub- 3582(c)(2) U.S.C. policy and this statement (c) defendant; applicable section is to the to a term that is less than the minimum of guideline the amended range determined (B) (c) An amendment listed in subsection (1) under subdivision of this subsection. does not have the lowering effect of (B) Exception for Substantial Assistance.— guideline applicable defendant’s range. imprisonment If the term of imposed was (3) Limitation. —Consistent with subsection imprisonment less provid- than the term of (b), proceedings 3582(c)(2) under 18 U.S.C. by guideline ed range applicable to the policy and this statement do not constitute sentencing at the time pursu- defendant resentencing a full (b) of the defendant. government ant to a motion to reflect the Determination Reduction in Term defendant’s substantial assistance to au- Imprisonment.— thorities, a (1) comparably reduction less than whether, In determining General.—In guideline extent, the amended range determined and to what a reduction in the de- under subdivision imprisonment may fendant's term this subsection under 18 3582(c)(2) appropriate. policy U.S.C. and this statement warranted, (C) the court shall may determine the no Prohibition. —In the re- event guideline range amended that would have imprisonment duced term be less than applicable to the defendant if the imprisonment term the defendant has amendment(s) guidelines listed already served. (c) subsection had been in effect at time (c) Covered Amendments.—Amendments making defendant was sentenced. policy covered are listed statement determination, such the court shall substi- Appendix C as follows: only tute the amendments listed in subsec- 176, 269, 329, 341, 371, 379, 380, 433, 454, (c) tion corresponding guideline for 461, 484, 488, 490, 499, 505, 506, 516, provisions applied that were when de- 599, 606, 657, 702, 706 as amended fendant was sentenced and shall leave all (parts only). and 750 A and C guideline application other unaf- decisions fected. with in accordance ing plaintiffs added.) ar- government (Emphasis opinion. still statutory mínimums old that the gues or statuto- guideline “another as

“operate” lowering of prevent to ry provision” GILMAN, Circuit LEE RONALD even range,” guideline “applicable dissenting. Judge, re- have mínimums though these have sua colleagues my panel I fear that have been mínimums new and the pealed sea of into the constitutional set sail sponte new the Commission’s into incorporated any legal without ballast protection paren- does Why guidelines. crack start afloat. To analysis their keep to the Note— the end of phrase thetical that no acknowledge with, “readily they minimum “e.g., constitutionality challenges party old, imprisonment” term —refer Fair of the application denying instead discriminatory mínimums sen- who were people Act to Sentencing presumably ones that new, lenient more Maj. regime.” Op. under the old tenced discriminatory? The stat- racially are not unbriefed on this Opining reduced and have been utory mínimums with the fraught issue is thus unargued guidelines into the incorporated on the running aground likelihood old, re- Sentencing Commission. territory. of uncharted shoals are no discriminatory mínimums pealed of’ operation “of longer part that the law estab- concede They further not They should be system. sentencing powder ratio between lishing the the defendant’s “lowering sentencing used to foreclose crack cocaine cocaine and should range.” We guideline when applicable enacted: was constitutional purposes Sentencing Commis- presume not cocaine 100-to-l crack old When the ra- Congress to out point would sion did adopted, presumably it statute was discriminatory nature old cially Equal Protection Clause not violate new manda- request guidelines, design or to nowas intent because there to which rebuild around tory mínimums adop- Its a racial basis. on discriminate and then guidelines, the new retroactive a mistake. simply tion mínimums the old crack to retain decide 5Gl.l(b). Maj. Op. 488. sentence” under “guideline majority far, But then good. So so Conclusion IV. following abyss with off into veers analysis: statutory míni- cocaine The old crack discriminatory as the racially are mums however, gained have we Since history of the Fair legislative devastat- of the old statute’s knowledge states, clear, Dorsey case as the Act makes discrimina- on blacks-The ing effect reports sentencing regime Commission and as the old tory nature of such Perpetuation seriously advise. Congress cannot is so obvious by feder- a role in discriminatory play sentences race does argued that retroactively apply the and therefore is unconstitutional the failure al courts “disparate im- inter- Act. A must be sentencing guidelines an intentional now becomes Accord- pact” a result. case such preted eliminate discriminatory purpose subjugation court the district judgment of ingly, the laws, Crow slavery and Jim case. Like the resentenc- remanded for reversed and the intentional maintenance of 12-5182, discrimi- Fed.Appx. 2012 WL natory sentences is a (6th denial of equal 5477119 13, 2012); Cir. Nov. United protection. Downs, v. States (6th 487 Fed.Appx. 286 Cir.2012). Id. 488. In at each of these decisions, this court has held that the Act is not retroac The majority reaches this conclusion tive to defendants who were convicted and without citing single case in support. sentenced before its effective date. This is not due to a lack of diligent re search; it is due to the lack of any such The majority therefore errs in employ- cases. The best the majority can do is try ing the constitutional-avoidance canon to to distinguish two Supreme Court deci select a construction Act that is sions (McCleskey v. Kemp, 279, 481 U.S. favorable to the Blewetts when this court 107 1756, S.Ct. 95 (1987), L.Ed.2d 262 and has already chosen the contrary construc- Personnel Administrator Massachu Clark, tion. See 543 385, at U.S. 125 S.Ct. v. setts Feeney, 256, (“The 716 canon of constitutional avoidance (1979)) 60 L.Ed.2d 870 that even the ma comes into play only when, after the appli- jority glance “on concedes first might ap cation of ordinary textual analysis, pear to sanction the discrimination issue statute found to be susceptible of more Maj. here.” Op. 488. Those efforts at dis than construction; one and the canon func- tinguishing McCleskey and Feeney are in tions as a means choosing between vain, however, because binding Sixth Cir them(emphasis in original)). We are cuit precedent has already foreclosed the instead by Hammond, bound a prior re- majority’s constitutional argument. ported decision that interprets the same

The majority reaches the statute issue of equal the same factual circum- protection not directly, but through present stances as apply- See, case. e.g., ing the “constitutional-doubt v. Sec’y canon” Salmi Servs., Health & Human (also (6th construction 774 Cir.1985) (“A F.2d known 689 panel “constitutional avoidance,” see this Court Clark v. cannot overrule the decision Martinez, 543 another panel. prior decision re- (2005)). 160 L.Ed.2d 734 mains Maj. Op. controlling authority unless an in- Two conditions are necessary consistent before decision of the United States may court Supreme invoke this interpretative requires canon: Court modification of (1) the in question statute the decision must be “sus- or this Court en sitting banc ceptible of constructions,” two (internal overrules the prior one decision.” construction “grave quotation omitted)). raises marks doubtful constitutional questions” that the other even if And Hammond were fatal not (internal construction avoids. Id. quota- up by cause my taken colleagues, their omitted). tion marks present case resort to the constitutional-avoidance can- meets neither condition. on would still be flawed because this court

I start with the first condition. This already has any answered “grave and court already has interpreted the Fair doubtful constitutional questions” raised Sentencing Act as applied to dozens of application continued old who, defendants Blewetts, like the were crack-cocaine/powder-cocaine sentencing convicted and prior to sentenced the effec- disparity. years ago, Over this court tive See, date of the Act. e.g., held that “the one to one hundred ratio of Hammond, (6th States v. 712 F.3d 333 crack to cocaine does not Equal violate Cir.2013); Hollins, United States v. No. Protection Standards.” United States v. not however, ratio —but is a (6th Why, Cir. Williams, F.2d vio- equal protection ratio —an an 18-to-l 1992). lack of my opinion, lation? on attacks protection Subsequent equal be- distinction constitutionally relevant have ratio likewise crack/powder the new ratio and the old tween Reece, See, e.g., United rejected. majority’s further undermines Cir.1993) (6th (holding 277, 278 F.2d rationale. protection “may impact disparate the ratio’s shortcomings of the Having addressed dis- finding a invidious support alone ar- constitutional sponte law”); majority’s sua the facially neutral in a crimination that argument the now to I turn gument, Muse, Fed.Appx v. States i.e., that actually presented: Cir.2007) the Blewetts that (6th (noting the 701-02 interpretation Court’s Supreme the equal already rejected has Circuit Sixth Dorsey v. United Act in Sentencing Fair invalidating the arguments protection — 2321, 183 U.S.-, States, “[ejvery court of and that fully (2012), the Act makes L.Ed.2d upheld has the issue to address appeals seek- to defendants applied as constitution- of similar in the face the ratio mandatory-minimum of a modification ing re- as Hammond Just challenges”). al U.S.C. under 18 proceeding in a interpreta- sentence any doubt solves above, however, 3582(c)(2). As § noted retroactivity of limited the regarding tion reject- already has decision Act, Hammond so Reece and Sentencing do Fair proposed reading the Blewetts’ ed regarding the any doubt resolve Williams light Act, it so “in did that pre-Act constitutionality of sentences Hammond, 712 F.3d Moreover, Dorsey.” knowl- of Act leaves intact. moreover, majority, colleagues My im- racial disparate the ratio’s edge of deci- unpublished joined previously have rationale for majority’s is the pact—which as same conclusion reached the validity sions that constitutional distinguishing See United forth in Hammond. con- set enactment from ratio’s initial (6th 598, 598-99 Fed.Appx. Mundy, v. en- invalidity its continued stitutional Cir.2012) joined decision (per curiam rejected recognized and forcement —was Martin); Stanley, United States Judge chal- protection the basis Cir.2012) (6th (not- Fed.Appx. 410-11 at 278 Reece. See 994 F.2d lenge in Merritt). joined by Judge (opinion of statistics to use defendant’s ing the circuit law of this short, is the Hammond impact, holding but racial disparate a show panel. this be overturned and cannot was insuffi- impact of such that evidence discrimina- purposeful “only because cient approach if we But even were scrutiny”). strict tion merits precedent circuit prior no with issue fail us, argument would Blewetts’ mentioning. bind bears point Another 3582(c)(2) a § allows 18 U.S.C. contin- because that majority’s premise basic imprisonment a modify term court to sentencing regime aof ued enforcement if two only already imposed has that cocaine to gram of crack equates one that (1) the defendant’s are met: vio- conditions cocaine powder grams hundred one sentencing range a based on was sentence Clause Equal Protection lates by the been lowered subsequently that has impact. disparate racial a known has Commission, reduc- prob- no' has majority apparently Yet sentence would defendant’s tion Act’s reduc- the Fair lem with state- “policy with so-called consistent ratio. to an 18-to-l disparity tion of ment” found at U.S. Sentencing Guidelines trafficking offenses. But neither Apart § Blewetts, 1B1.10. The however, were nor part C of Amendment 750 includes the sentenced under a mandatory-minimum changes 841(b)(1). § made to Because the statute subsequently amended by Blewetts seek the benefit of a statutory Congress, not a “sentencing range that has amendment that was not incorporated into subsequently been lowered by the Sen- 1B1.10, § USSG they are ineligible for a tencing Commission.” 18 U.S.C. modification of their sentences. See Ham- 3582(c)(2) § added). (emphases mond, 712 F.3d at 335 (holding that the district

In an court did not satisfy effort to have authority first condition reduce of 18 3582(c)(2), § U.S.C. defendant’s sentence under majority 3582(c)(2) notes that “[t]he because the statutory mínimums man- defendant’s are closely datory-minimum integrated into the sentence structure of “was not an guidelines.” revised amendment incorporated Maj. Op. into 492. But the Sentenc- ing why this close integration policy statement”). Commission’s precludes Con- gress from treating the two sentencing The Dorsey decision strongly supports schemes differently is unexplained. See the proposition that the Fair Sentencing Hammond, 712 F.3d at 335 (holding that Act’s amendment of a statutory mandato the defendant’s mandatory-minimum sen- ry-minimum sentence provides no relief to tence not “has subsequently been lowered defendants seeking modification of a sen Sentencing Commission” and there- tence under 3582(c)(2) § 18 U.S.C. fore not qualify could for a modification changes in criminal penalties generally ap 3582(c)(2) (internal § under quotation ply to yet defendants sentenced, not do but omitted)). marks not apply to defendants already sentenced. The Blewetts fare no better under 18 See Dorsey, 132 at S.Ct. proceed 2335. A 3582(c)(2)’s § U.S.C. second condition be- ing 3582(c)(2) § under is a modification of cause only those amendments a previously imposed sentence and is not Guidelines lB1.10(c) § included USSG itself a sentencing or resentencing. Dillon may trigger eligibility for a sentence modi- States, v. United 3582(c)(2). fication § USSG 2690, 177 L.Ed.2d 271 (“By its § 1B1.10, n.l(A) (2012). cmt. Guideline terms, 3582(c)(2) § does not authorize a lB1.10(c) § incorporates Amendment 750 sentencing or resentencing proceeding.”). (parts A only), and C which implemented The Fair Sentencing applies therefore certain aspects the Fair Sentencing Act. not-yet-sentenced defendants such APart amended the Drug Quantity Table in Dorsey, those but does not apply found in USSG § 2D1.1 that is used to already-sentenced defendants, such as the calculate sentencing ranges, part while C Blewetts, 3582(c)(2) § who seek modifica eliminated the § reference in USSG 2D2.1 tions. See Dorsey, (dis to a five-year mandatory-minimum sen- tinguishing the imposition initial of a sen tence for simple possession of more than tence under § 18 U.S.C. 3553 from the grams five of crack cocaine. modification 3582(c) of a § sentence under contrast, the Blewetts asked the dis- and recognizing disparities that “will exist trict court for a sentence modification un- whenever Congress enacts a new law 3582(c)(2) § der 18 U.S.C. based on changing sentences,” but that concluding Fair Sentencing Act’s amendment of 21 the disparity created deci Court’s 841(b)(1), § U.S.C. providing latter sion reflects “the ordinary practice” fed mandatory-minimum sentences drug- eral sentencing); Hammond, see also “Dorsey itself that (noting at 336

F.3d of the application [retroactive disfavors context Sentencing Act] Fair 3582”). that “it contends majority Finally, the race does seriously argued cannot retroactive- the failure to role in a play Maj. Act.” Fair apply the ly failure to contrary, To the Op. apply retroactively interpretation a faithful solely due Act is recognition statutory scheme Congress is of decisis. rule of stare the Fair free to amend course retroactive, but fully Act to make appropri- and not legislative prerogative by decree. simply to do this court ate for above, forth I set of the reasons all For dissent. respectfully COUNCIL DISTRICT INDIANA STATE CARRI AND HOD OF LABORERS AND WELFARE ERS PENSION and all oth FUND, of itself on behalf situated, Plaintiff, similarly ers Combined Local Masons Cement Council Funds; District Laborers Fund, Industry Pension Construction Plaintiffs-Appellants, Gemunder; OMNICARE, INC.; F. Joel Cheryl Froesel, Jr.; D. W. David Hutton; L. Sandra Hodges; Edward Defendants-Appellees. Laney, E. 12-5287.

No. Appeals, Court Circuit. Sixth Jan. 2013. Argued: May 2013. and Filed: Decided En Banc Rehearing Rehearing and July Denied

Case Details

Case Name: United States v. Jarreous Blewitt

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 17, 2013

Citation: 719 F.3d 482

Docket Number: 12-5226, 12-5582

Court Abbreviation: 6th Cir.