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May 30, 2013

Two weeks later, has there been any significant and noteworthy Blewett blowback?

As first discussed in this post and further here and here, a split panel of the Sixth Circuit two weeks ago 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 means that still-imprisoned crack defendants sentenced in the two decades before the FSA can 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.

Right after the ruling there was reasonable and justified speculation that the federal prosecutors would quickly move for the full Sixth Circuit to review and reverse the Blewett decision en banc.  Indeed, I expected that we a petition for rehearing en banc would be filed within a matter of days.  But here it is nearly two weeks later, and I am still awaiting any report of a DOJ en banc filing in response to Blewett.  I believe it is still likely that such a petition will be coming down the pike very soon, but the delay so far now has me wondering and speculating as to whether the feds might just decide to seek summary reversal of Blewett in the US Supreme Court rather than just fight this consequential fight in the Sixth Circuit.

Meanwhile, though I predicted in this post that there could be hundreds, if not thousand, of Blewett claims brought by incarcerated federal crack offenders convicted within the Sixth Circuit, as of this writing I have not seen any reports or evidence of significant efforts by significant numbers of defendants to get some relief from Blewett.  I did find, thanks to Westlaw, a notable ruling by Judge Tarnow in the Eastern District of Michigan granting relief to a defendant based on Blewett in US v. Frost, No. 08–20537–4, 2013 WL 2250768 (ED Mich May 22, 2013), noting that Cecil Frost only now can get resentenced "because the Sixth Circuit Court's ruling in Blewett cures [the] unjust outcome" that precluded his resentencing because he had been sentenced before the effective date of the FSA.

It is hard to assess at this stage whether Frost represents the tip of a large Blewett-resentencing ice berg, or instead that Frost is a rare case involving a defendant and a district judge eager and able to operationalize Blewett quickly.  The question in the title of this post is an effort to seek help from practioners and others to figure out whether and how Blewett blowback might be brewing.

Related posts on Blewett:

May 30, 2013 at 07:59 AM | Permalink

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Comments

I appreciate the update! Blewett was certainly an interesting decision by the COA, and I'm very interested to see how the government responds.

Posted by: Ryan | May 30, 2013 10:53:02 AM

"Meanwhile, though I predicted in this post that there could be hundreds, if not thousand, of Blewett claims brought by incarcerated federal crack offenders convicted within the Sixth Circuit, as of this writing I have not seen any reports or evidence of significant efforts by significant numbers of defendants to get some relief from Blewett."

Not surprising, since the prediction of hundreds or thousands of resentencings was silly wishcasting. The government has 45 days, or until July 1, to petition for rehearing. It will, and when it does, it's just a matter of time until the results in Blewett, Frost, and any other similar lower court cases are wiped from the books.

Posted by: Anon | May 30, 2013 1:01:02 PM

Not sure how many federal defendants are potentially affected by Blewett, but:

1) It is unlikely that Blewett claims will only be filed in the Sixth Circuit. Inmates tend not to make the fine distinction of whcih court decided their way and will press other courts to follow Blewett. They also tend to not note the fine legal distinctions in cases and will try to apply Blewett to other cases.

2) It does take some time for the information about new decisions to work its way through the inmate grapevine, for the inmates to prepare their motions, and for district courts to rule on those motions. So am not shocked by a small number of Blewett motions and decisions so far. On the other hand, I would not be shocked to see hundreds of Blewett motions by the end of the year including scores in other circuits and in non-crack cases. I can even see the possibility of some claiming that Blewett establishes a constitutional rule to be applied to state cases.

Posted by: tmm | May 30, 2013 2:29:33 PM

Although I don't agree, one experienced Federal criminal defense lawyer in Lexington, Ky. (where I live) is already theorizing that the Department of Justice will not seek further review of the Sixth circuit's opinion, because they agree with the result and want to reduce the crack headcount in Federal prisons. Time will tell!

Posted by: Jim Gormley | May 30, 2013 3:09:19 PM

I don't think the government has 45 days. This looks like the defendant filed a motion in his original criminal case in district court (as opposed to filing a 2255), so there should be only 14 days to seek rehearing (or ask for an extension).

Posted by: Jay | May 30, 2013 3:17:11 PM

I did not predict, Anon, "hundreds or thousands of resentencings," but rather that there could be hundreds, if not thousand, of **Blewett claims** brought by incarcerated federal crack offenders convicted within the Sixth Circuit. I think it unlikely that so many folks will get resentencings anytime soon --- indeed, Blewett is unclear about whether defendants get full resentencings or just sentencing modification opportunities.

Key point is that I am NOT predicting lots and lots of pre-FSA crack defendants will get relief, but rather that lots and lots of pre-FSA defendants may (reasonably) think Blewett gives them new grounds for relief, and that they ought to be quickly seeking to pursue and preserve Blewett claims ASAP.

Posted by: Doug B. | May 30, 2013 4:06:53 PM

Prof. Berman: your May 19 post references defendants who are now "entitled to resentencing" because of Blewett, and this very post queries whether we are now on "the tip of a large Blewett-resentencing ice berg." I don't think it was unreasonable to infer from those comments that you actually thought defendants would be resentenced under Blewett, but if your position is that that's "unlikely," I apologize for misinterpreting you.

Posted by: Anon | May 31, 2013 11:05:21 AM

The US Attorney's Office filed a petition for rehearing en banc this afternoon. Available on PACER.

Posted by: Jay | May 31, 2013 10:38:37 PM

Jay --

Ooooops.

Anyone wanna bet on whether the panel opinion survives?

Posted by: Bill Otis | Jun 2, 2013 1:48:48 PM

I am sorry, Anon, for any confusion. My point in all these posts was that lots and lots of imprisoned defendants could and should now reasonably believe they could get their sentences modified due to Blewett. And I also want to urge/ensure that these defendants not sleep on their *Blewett claims*, even though it is quite possible (perhaps quite likely) that very few defendants will get any sort of *Blewett relief*. I am sorry if my phrasing suggested I believed it likely that lots of defendants would succeed (even though I personally hope they will to get a chance to prove to district judges that public safety does not demand further incarceration according to the old 100-1 mandatory minimums).

Notable, the government in its en banc petition on Friday 5/31/13 echoes my prediction that lots of defendants could have Blewett claims when it states: "the effect of the decision [in Blewett] will be widespread if it is allowed to stand." In short, I just meant to assert that the panel ruling Blewett is a very big deal, and federal prosecutors clearly agree.

As for that petition, I discuss it in this new post:
http://sentencing.typepad.com/sentencing_law_and_policy/2013/06/as-expected-feds-ask-full-sixth-circuit-to-review-and-reverse-blewett-crack-retroactivity-ruling.html

And Bill, what kinds of odds would you give me for the (long-shot) idea that the holding (but not the rationale) of Blewett survives? I will only take this bet if I get the right odds and/or stakes.

Posted by: Doug B. | Jun 3, 2013 8:55:03 AM

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