In a high profile criminal sentencing case, the Sixth Circuit yesterday refused to grant retroactive effect to the Fair Sentencing Act of 2010 concerning the disparity between crack and powder cocaine.  United States v. Blewett.  Ten judges joined the majority result with seven judges dissenting in four separate opinions.  (Although the Sixth Circuit only has fifteen active judges, two senior judges sat on the en banc court presumably because they were members of the original panel that heard this case.).

According to the majority, its ruling comports with every other circuit in the country.  Consistent with that case law as well as precedent from the Sixth Circuit, the majority could divine no basis in the Fair Sentencing Act to suggest that Congress intended a retroactive effect.  Judge Rogers, offering what the majority references as the “lead” dissent, focuses on the anomalous distinction about retroactivity when arising from a sentencing guideline versus a statutory minimum.  Judge Rogers dismissed contrary authority from other circuits as well as prior panels at the Sixth Circuit as “not binding” and instead engaged in the basic statutory analysis.

The result here is interesting both in terms of the alignment of the judges as well as the number and differing perspectives of the dissents.  One might expect that with nearly all circuits taking a uniform approach on the question, this case would be an easy one for the Court.  But that certainly was not the case, as it spawned nearly 80 pages of opinions.  What appears to be driving the overall analyses, apart from statutory text, is basic concerns about fairness (it is, after all the Fair Sentencing Act).  It is unlikely that this opinion, even as splintered as it is, will attract attention from the Supreme Court in light of the lack of a clear circuit split.  However, several of the judges made pleas for congressional intervention, but it will remain to be seen whether Congress will heed that call.