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July 9, 2013

After supplemental Blewett briefing, Sixth Circuit panel stands pat

As regular readers likely recall, almost two month ago a split Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect.  And last month, as reported in this post, the Sixth Circuit responded to the Government's en banc petition with a letter to the parties express seeking additional briefing "addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause. "  I reported on the amicus brief covering Eighth Amendment issues that I wrote and filed on behalf of NACDL via this post, and I have been overdue in uploading these supplemental filings sent in by the parties:

Thanks to the fact that I am now in the case via my amicus efforts, I received via the automatic notification system this report on activity in the case this week:

Activity has occurred in the following cases: 12-5226 [USA v. Cornelius Blewett], judge order filed

ORDER filed. The judges of the panel adhere to their respective original opinions. The panel directs that the responses of the parties and the amicus brief of the National Association of Criminal Defense Lawyers be made part of the record in this case. Gilbert S. Merritt, Boyce F. Martin , Jr., and Ronald Lee Gilman, Circuit Judges.

This order is not especially surprising, but it is still noteworthy. And it now puts the onus on other judges of the Sixth Circuit to take up this case en banc within the next month, as the Sixth Circuit rules provides that "[a]ny active judge or any member of the panel whose decision is the subject of the rehearing may request a poll within 14 days from the date of circulation of the petition and the panel's comments. If a poll is requested, 14 days are allowed for voting." In other words, within the next 28 days, we should know for sure if the full Sixth Circuit will rehear the Blewett case or if instead the feds will have to ask SCOTUS to review the consequential work of the Blewett panel. Related posts on Blewett:

July 9, 2013 at 07:00 PM | Permalink

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