The 6th Circuit has issued its en banc opinion in Blewett, reversing a bizarre panel opinion by Judges Merritt, (now-retired) Martin, and with a dissent by Judge Gilman, that held that the Fair Sentencing Act applied retroactively to final sentences.

The En Banc, as is common on the 6th Circuit, is messy. The lead opinion has 9 votes (8 active judges, plus Gilman who is senior but was on the panel), with Judge Moore concurring in judgment.  Seven judges dissented. So in effect, Moore cast the tie-breaking vote. You don’t see that often. (Update: I can’t count. There are 10 judges in the majority, so Moore did not cast the tie-breaking voting).

SUTTON, J., delivered the opinion of the court, in which BATCHELDER, C. J., BOGGS, GILMAN, GIBBONS, COOK, McKEAGUE, GRIFFIN and KETHLEGE, JJ., joined, and MOORE, J., joined in the result. MOORE, J. (pp. 21–33), delivered a separate opinion concurring in the judgment. MERRITT, J. (pp. 34–37), delivered a separate dissenting opinion, in which DONALD J., joined. COLE, J. (pp. 38–43), delivered a separate dissenting opinion. CLAY, J. (pp. 44–58), delivered a separate dissenting opinion, in which DONALD, J., joined. ROGERS, J. (pp. 59–67), delivered a separate dissenting opinion, in which WHITE and STRANCH, JJ., joined, MERRITT, J., joined in part, and COLE, J., joined except for the last paragraph. WHITE, J. (pp. 68–79), delivered a separate dissenting opinion.

Here is the introduction from the lead opinion by Judge Sutton:

SUTTON, Circuit Judge. The Anti-Drug Abuse Act of 1986 established mandatory minimum sentences for possessing crack cocaine with the intent to distribute it: 5 years for possessing 5 grams, 10 years for possessing 50 grams. 100 Stat. 3207. The Fair Sentencing Act of 2010 increased the amount of crack cocaine needed to activate the same mandatory minimums. It now takes 28 grams to trigger the 5-year penalty and 280 grams to trigger the 10-year penalty. 124 Stat. 2372. Through these changes, the Fair Sentencing Act significantly reduced, but did not eliminate, a sentencing disparity between offenses involving crack and powder cocaine. What used to be a 100:1 ratio between the amount of powder and crack needed to trigger the mandatory minimums has become an 18:1 ratio.

At issue in this case is whether the changes created by the Act apply to defendants sentenced five years before the new law took effect. Consistent with a 142- year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. § 109, consistent with the views of all nine Justices and all of the litigants in Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012), consistent with the decisions of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.