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May 19, 2013

How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?

As first discussed in this post and further here, a split panel of the Sixth Circuit on Friday handed down a significant (and questionable) ruling in US v. Blewett declaring that the reduced mandatory minimum crack sentences set out in the Fair Sentencing Act of 2010 must be applied even to those offenders sentenced before the Act’s effective date.  This ruling could means still-imprisoned crack defendants sentenced in the two decades before the FSA could now seek a reduction in their mandatory minimum sentences under the FSA's new terms, at least if they were originally sentenced in the Sixth Circuit.

Though this ruling seems very likely to be appealed by the Justice Department, right now it is the law of the (Sixth Circuit) land. Notable, the folks at FAMM have already created this webpage with a basic explanation about what Blewett means and does not mean.  Here is part of what it says:

Blewett can only help federal (not state) prisoners who (1) were convicted in a federal court in Michigan, Kentucky, Ohio, or Tennessee, AND (2) received a mandatory minimum sentence for a crack cocaine offense, AND (3) were sentenced before August 3, 2010.  The case cannot help people convicted in state courts or federal prisoners whose cases did not involve crack cocaine....

We expect that the government will ask the entire Sixth Circuit Court of Appeals to review this opinion.  If it does, and the full appeals court agrees to the review, we expect the Blewett decision to be stayed until the full court hears it.  This means that courts will not be allowed to resentence anyone using the Blewett opinion unless and until it is affirmed. We do not know how long the appeal will take, how soon it will happen, or what the outcome will be.  This opinion could be reversed, in which case it would not help anyone....

If you or a loved one are a federal prisoner serving a pre-FSA crack cocaine mandatory minimum sentence, and you were sentenced in federal court before August 3, 2010, in Michigan, Kentucky, Ohio, or Tennessee, call your attorney and ask them if Blewett could help you.  FAMM cannot tell you if you might benefit if the Blewett decision stands, and we cannot give you legal help or advice. You and your loved ones should talk to your attorneys.

A little bit of very rough data analysis from a variety of US Sentencing Commission publications indicates that there may still be as many as 20,000 federal prisoners currently in BOP custody serving pre-FSA mandatory minimum crack sentences, and that the Sixth Circuit has historically been responsible for about 10% of nationwide crack sentences.  That means that perhaps two thousand or more imprisoned federal defendants might reasonably file what I will can a "Blewett claim" in the district courts of the Sixth Circuit. 

Even if my data estimates are off somewhat, there are certainly many hundreds now imprisoned federal defendants, persons who were sentenced to mandatory minimum crack terms in the Sixth Circuit before August 2010, who could (and I think should) file claims ASAP that they are now entitled to resentencing under the terms of the FSA due to the Blewett ruling. I suspect that not all that many defendants or lawyers were busy drafting Blewett claims this weekend, but I also suspect that time may be of the essence for defendants eager to take advantage of this ruling while it is still good law.

Related posts on Blewett:

May 19, 2013 at 10:11 PM | Permalink

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The district judge who views his job as getting it right rather than beating the clock would defer consideration of any resentencing motion for the very modest amount of time needed for the government to have the opportunity to file, and the Sixth Cirucit the opportunity to grant or deny, a petition for re-hearing en banc.

As a practical matter, this is going to happen anyway, because the district judge would have to give the opposing party (the government) a fair opportunity to respond to the resentencing motion. By the time that happens, the USAO involved in the Blewett case will certainly have filed for rehearing en banc, and that filing AUTOMATICALLY stays the Blewett mandate under Rule 41.

What the FAMM advice portrays is obvious: the FAMM lawyers looked at Blewett, understood straight away that it's toast as soon as it gets before the en banc court or SCOTUS, and is urging defendants to exploit an erroneous ruling before it goes bye-bye.

If the USAO pulled an analogous stunt it would get criticized to high heaven, and rightly so.

Posted by: Bill Otis | May 19, 2013 11:27:30 PM

Actually, Bill, thanks to you, most USAO insulate lots of sentencing rulings from review by demanding appeal waivers in most plea agreements. And to my chagrin, the waivers are rarely criticized even to low heaven.

Posted by: Doug B. | May 20, 2013 12:09:13 AM

Bill, staying the mandate does not stay the effect of the decision. The case itself does stay parked in the court of appeals until the mandate issues. But that only matters to the defendant in the case. Unless and until the 6th Circuit takes the case up en banc, the case is the law of the land for the Sixth Circuit.

Posted by: Mandate | May 20, 2013 8:10:11 AM

Doug --

"Actually, Bill, thanks to you, most USAO insulate lots of sentencing rulings from review by demanding appeal waivers in most plea agreements."

The USAO is not in a position effectively to "demand" anything. If the appeal waiver, or any other part of the proffered agreement, is not to the defendant's liking, he is free to tell the government to get lost, and "I'll see you in court."

"And to my chagrin, the waivers are rarely criticized even to low heaven."

Actually, they get criticized right on this blog. But I agree that the criticism is, at this point, anachronistic, since the waiver has long ago been explicitly approved in all 12 circuits.

I have never really understood what all the angst was about. If a defendant can waive his Constitutional right to a trial -- which is well established and accepted -- a fortiori he can waive his mere statutory right to an appeal. And if the response is that the government has superior bargaining leverage, I guess the answer is: One would hope. When the defendant is on tape sticking a revolver in the bank teller's ear, then, yes, the government is going to have better leverage.

Finally, if anyone is waiting for me to feel guilty about creating a device that saves my (former) client a boatload of money, improves finality of judgment, relieves the appellate courts from at least part of an overcrowded docket, and is perfectly legal, all I can say is that they'll be waiting a long time.

Posted by: Bill Otis | May 20, 2013 9:25:47 AM

Mandate --

Everyone knows the government is highly likely to seek rehearing en banc and a better than even shot to get it. Given that, do you think the judicious and fair-minded thing for district judges to do is rush through motions for re-sentencing, or to defer such motions for a reasonable (and certain to be short) time until the Sixth Circuit as a whole has the chance to act?

What would you think if the government tried to exploit a very questionable ruling in its favor in the sneaky-quick manner FAMM is suggesting?

Posted by: Bill Otis | May 20, 2013 9:34:42 AM

Bill, that's a different point than the legal point that staying the mandate stays the decision. The prudential point is independent of anything to do with the mandate.

Posted by: Mandate | May 20, 2013 9:43:06 AM

Mandate --

That's right, it is a different point. But what is your answer to it?

Posted by: Bill Otis | May 20, 2013 9:53:44 AM

Bill stated: "Finally, if anyone is waiting for me to feel guilty about creating a device that saves my (former) client a boatload of money, improves finality of judgment, relieves the appellate courts from at least part of an overcrowded docket, and is perfectly legal, all I can say is that they'll be waiting a long time."

And therein is the problem for most of the defense bar. Fewer appeals=fewer billable hours.

Is there ANY larger waste of taxpayer money than boatloads of appeals after the defendant pled guilty?

Posted by: TarlsQtr1 | May 20, 2013 10:02:35 AM

Its a shame that this is Federal, which is supposed to be uniformly applied across the land... But only defendents in the 6th cirt can apply...
I understand the case was ruled only in the 6th circuit....But what about OWI as a crime of violence...That was ruled in the 8th circuit I believe and it became the law of the land till Scotus over ruled.... What makes this different.

Similarly, is it the 10th circuit (I'm wrong I think) that defendents can have a violent crime and still be eligible for the RDAP
1 yrearly out.....Why do certain cricuits prevail, if its case law and federal, it should apply across the board...Shouldn't it..

Puzzled......

Posted by: MidWest Guy | May 20, 2013 12:27:08 PM

As for the argument that there is a difference between the mandate issuing and the law of the circuit I was under the impression that until the mandate issued that the opinion was not published in an official sense. Somewhat like how various items only become official when they are actually published in the Federal Register, regardless of when the responsible agency made the underlying decision.

If this understanding is correct then as soon as DoJ gets its automatic stay of the mandate then it would be like this opinion had yet to come out. I suppose district court judges could rely on it in the meantime if they thought it were persuasive, but I don't see that happening in very many courtrooms. And even if it did I suspect that the government would be able to get stays of those decisions as well.

Posted by: Soronel Haetir | May 20, 2013 3:36:49 PM

Like I always say--what is it about Democrat judges and criminals? Do they just have a soft spot for them? Maybe it's that they want them out of jail so they can vote for Democrats. Maybe they just emulate our patriotic president who likes to release war criminals who torture and murder five American soldiers. I really don't understand it at all. Do they just like seeing more crime on the street?

Posted by: federalist | May 21, 2013 1:36:23 AM

"Actually, Bill, thanks to you, most USAO insulate lots of sentencing rulings from review by demanding appeal waivers in most plea agreements. And to my chagrin, the waivers are rarely criticized even to low heaven."

A bit tendentious, aren't we Doug? Take it from me---when you want to be tendentious, you should back it up with more than snippiness. Take a look at my post--ya see, I've identified two problem children on the Sixth Circuit, noted their party, asked a question and linked it to our patriot president letting Ali Musa Daqduq free. Now some liberal could take me on--but they won't because it's a losing battle. There's no serious defense of the Democrat judges' decision and there's no defense to the patriot releasing a terrorist war criminal. You, on the other hand, just got your teeth kicked in (rhetorically).

Personally, I don't have a problem with run of the mill appeal waivers, but where the issue is weighty enough, my guess is that the DOJ should allow appeals. instead of arguing along those lines, you lead with your chin, and Bill's rhetorical right hand put you down for the count.

Posted by: federalist | May 21, 2013 1:59:08 AM

well personally Soronel i think this

"As for the argument that there is a difference between the mandate issuing and the law of the circuit I was under the impression that until the mandate issued that the opinion was not published in an official sense. Somewhat like how various items only become official when they are actually published in the Federal Register, regardless of when the responsible agency made the underlying decision."

is a crime. If you have rendered a decsion you have a duty to publish it then. not two years down the road or never like the ones that come up called "unpublished decison"

many of which have no names at the bottom like the little chicken shits are afraid to back up their words with their asses.

Posted by: rodsmith | May 21, 2013 3:29:34 AM

@Bill Otis
You will know this one...How come like the case on this thread, when it becomes case law in the 6th circuit its not law through out the land..
I rather thought thats the purpose of federal law, standard across the USA....Even playing field through out..

I've always wondered and maybe I can get some insight into this one now... Appreciate any input....
Thanks..

Posted by: MidWest Guy | May 21, 2013 9:32:18 AM

MidWestGuy --

Federal statutory law applies nationwide, as does Supreme Court law when it establishes a general principle.

Below the Supreme Court, there are 12 federal circuit courts of appeals, each of which has jurisdiction over a few states (except for the DC Circuit, which has jurisdiction only over DC, plus some administrative agencies as designated by Congress). These courts are of equal rank. What that means is that the ruling of any particular one of them is binding in the states and the federal trial courts within that circuit, but not in any other circuit. A different circuit may look upon the ruling as persuasive, and they often do, but they are not required to follow it.

One of the main reasons the Supreme Court will agree to hear a case is if the federal circuit courts have reached different conclusions about the same legal issue.

Hope this helps.

Posted by: Bill Otis | May 21, 2013 5:16:13 PM

@Bill Otis
Thank you very much Bill...I didn't realize that a circuits rulings were binding for just the states within...
Thats the piece I was missing..Some how a different circuit can follow the findings a sister circuit..
How is that done, next case in line, they rule based on the sister circuit or do they file a follow them type doctrine?
Hmm...

I agree when circuits disagree Scotus should make the ruling...If Wcotus does, then obviously thats the law of the land for all..

At times, when I dom see Scotus in action, it appears it is painful for them to extrapulate the info walk thru the facts
and make a decision.....But I guess it should, they are the last rest area before the desert...

Thanks again Bill, appreciate your efforts..

Posted by: MidWest Guy | May 22, 2013 10:01:25 AM

"A bit tendentious, aren't we Doug?"

This from the guy who one comment earlier wrote (for the umpteenth time): "Like I always say--what is it about Democrat judges and criminals? Do they just have a soft spot for them?"

Better trolling, please.

Posted by: Michael Drake | May 23, 2013 1:55:28 PM

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