Two weeks ago, we gave you the good news that two judges of a three-judge panel of the Sixth Circuit Court of Appeals ruled that the Fair Sentencing Act of 2010 (FSA) is retroactive. People sentenced to the old crack cocaine mandatory minimums before August 3, 2010, in the states the Sixth Circuit covers, could now be eligible for resentencing under the FSA. The case is United States v. Blewett, No. 12-5226 (6th Cir. May 17, 2013). We also cautioned, however, that the Blewett case would most likely be appealed and possibly reversed – meaning that it might not help anyone.
Well, the government filed an appeal on May 31, 2013, asking for what is known as “en banc” review. That means that all the judges of the Sixth Circuit Court of Appeals have been asked to review and reverse Blewett.
We expect that the Sixth Circuit Court of Appeals will decide to review the case. If it does, 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.
We also don’t know what the court will do. But Blewett is facing an uphill battle and is likely to be reversed. This is because, as the government pointed out, Blewett conflicts with decisions in every other court that have held that the Fair Sentencing Act is not retroactive.
Members with incarcerated loved ones should be wary of anyone who promises that they can bring your loved one home sooner because of Blewett. 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 if you have questions, or contact the Federal Public Defender in the district where the person was sentenced. The federal defenders are monitoring the situation closely.
Remember, even if the Blewett decision stands, it 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.
Keep checking our website, famm.org, for updates on the Blewett appeal and outcome.
Even if the Court of Appeals reverses Blewett, we think the FSA should be made retroactive, because getting a fair sentence shouldn’t depend on when you went to court. FAMM wants to see the FSA made retroactive, and we’ll be asking Congress to do just that.
June 3, 2013