                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                 File Name: 13a0141p.06

              UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                            X
                        Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                             -
                                             -
                                             -
                                                          Nos. 12-5226/5582
          v.
                                             ,
                                              >
                                             -
                                             -
 CORNELIUS DEMORRIS BLEWETT (12-5226)

                    Defendants-Appellants. N-
 and JARREOUS JAMONE BLEWITT (12-5582),


                    Appeal from the United States District Court
              for the Western District of Kentucky at Bowling Green.
           No. 1:04-cr-36—Joseph H. McKinley, Jr., Chief District Judge.
                          Decided and Filed: May 17, 2013
            Before: MERRITT, MARTIN, and GILMAN, Circuit Judges.

                                 _________________

                                      COUNSEL
ON BRIEF: Jamie L. Haworth, Frank W. Heft, Jr., OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Louisville, Kentucky, for Appellant in 12-5226. Laura R.
Wyrosdick, Frank W. Heft, Jr., OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Louisville, Kentucky, for Appellant in 12-5582. Candace G. Hill, UNITED STATES
ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee.
     MERRITT, J., delivered the opinion of the court in which MARTIN, J., joined.
GILMAN, J. (pp. 18–23), delivered a separate dissent.
                                 _________________

                                      OPINION
                                 _________________

       MERRITT, Circuit Judge. This is a crack cocaine case brought by two currently
incarcerated defendants seeking retroactive relief from racially discriminatory mandatory
minimum sentences imposed on them in 2005. The Fair Sentencing Act was passed in
August 2010 to “restore fairness to Federal cocaine sentencing” laws that had unfairly



                                           1
Nos. 12-5226/5582            United States v. Blewett, et al.                        Page 2


impacted blacks for almost 25 years. The Fair Sentencing Act repealed portions of the
Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder
cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for
sentencing purposes. The 100-to-1 ratio had long been acknowledged by many in the
legal system to be unjustified and adopted without empirical support. The Fair
Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio. However, thousands
of inmates, most black, languish in prison under the old, discredited ratio because the
Fair Sentencing Act was not made explicitly retroactive by Congress.

          In this case, we hold, inter alia, that the federal judicial perpetuation of the
racially discriminatory mandatory minimum crack sentences for those defendants
sentenced under the old crack sentencing law, as the government advocates, would
violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the
doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal
racial discrimination in the same way as the Fourteenth Amendment forbids state racial
discrimination). As Professor William J. Stuntz, the late Harvard criminal law professor,
has observed, “persistent bias occurred with respect to the contemporary enforcement
of drug laws where, in the 1990s and early 2000s, blacks constituted a minority of
regular users of crack cocaine but more than 80 percent of crack defendants.” The
Collapse of American Criminal Justice 184 (2011). He recommended that we “redress
that discrimination” with “the underused concept of ‘equal protection of the laws.’” Id.
at 297.

          In this opinion, we will set out both the constitutional and statutory reasons the
old, racially discriminatory crack sentencing law must now be set aside in favor of the
new sentencing law enacted by Congress as the Fair Sentencing Act of 2010. The Act
should apply to all defendants, including those sentenced prior to its passage. We
therefore reverse the judgment of the district court and remand for resentencing.
Nos. 12-5226/5582                 United States v. Blewett, et al.                                      Page 3


                                                     I.

         The district court judge, bound by unavoidable mandatory minimums, sentenced
the Blewett1 cousins in 2005 to a mandatory minimum of ten years each under the old
100-to-1 crack cocaine law, sentences based on the quantity of crack cocaine possessed.
The Blewetts seek retroactive resentencing under 18 U.S.C § 3582(c)(2)2 and 28 U.S.C.
§ 994(u)3 because the Fair Sentencing Act of 2010, P.L. No. 111-220, 124 Stat. 2372,
as implemented by new sentencing guidelines, has substantially reduced crack cocaine
sentences, including the mandatory minimum sentences imposed in this case. See
21 U.S.C. § 841(b) (increasing the amount of crack from 50 grams to 280 grams to
trigger the 10-year mandatory minimum and from 5 grams to 28 grams to trigger the
five-year mandatory minimum). If the Blewetts were sentenced today under the revised
crack law, they would not be subject to a statutory minimum because the quantity of
crack involved falls below the threshold for any statutory minimum.

         The old 100-to-1 crack cocaine ratio has led to the mass incarceration of
thousands of nonviolent prisoners under a law widely acknowledged as racially
discriminatory. There were approximately 30,000 federal prisoners (about 15 percent
of all federal prisoners) serving crack cocaine sentences in 2011. United States Sent’g
Comm’n, Analysis of the Impact of Guideline Implementation of the Fair Sentencing




         1
           Although Cornelius and Jarreous spell their last names differently, we will use the “Blewett”
spelling in this opinion for ease of reference.
         2
             18 U.S.C. § 3582(c)(2) provides in relevant part:
         in the case of a defendant who has been sentenced to a term of imprisonment based on
         a sentencing range that has subsequently been lowered by the Sentencing Commission
         pursuant to 28 U.S.C. 994(o), . . . the court may reduce the term of imprisonment, after
         considering the factors set forth in section 3553(a) to the extent that they are applicable,
         if such a reduction is consistent with applicable policy statements issued by the
         Sentencing Commission.
         3
             This statute provides:
         If the Commission reduces the term of imprisonment recommended in the guidelines
         applicable to a particular offense or category of offenses, it shall specify in what
         circumstances and by what amount the sentences of prisoners serving terms of
         imprisonment for the offense may be reduced.
Nos. 12-5226/5582              United States v. Blewett, et al.                                    Page 4


Act of 2010 if the Amendment Were Applied Retroactively, at 12 (May 2011).4
Thousands of these prisoners are incarcerated for life or for 20, 10, or 5 years under
mandatory minimum crack cocaine sentences imposed prior to the passage of the Fair
Sentencing Act. More than 80 percent of federal prisoners serving crack cocaine
sentences are black. See, e.g., United States Sent’g Comm’n, Annual Report 2011 at 37
(83%); United States Sent’g Comm’n, 1996 Sourcebook of Federal Sentencing Statistics
tbl.29, at 47 (85.8%). In fiscal year 2010, before the passage of the Fair Sentencing Act,
almost 4,000 defendants, mainly black, received mandatory minimum sentences for
crack cocaine. United States Sent’g Comm’n, 2010 Sourcebook of Federal Sentencing
Statistics tbl.43.

        In 2010, recognizing the statistical evidence of widespread racial discrimination
based on empirical studies, Congress passed the Fair Sentencing Act. The preamble to
the Fair Sentencing Act, recognizing racial injustice, states that it is designed “to restore
fairness to Federal cocaine sentencing.” Justice Breyer’s majority opinion in Dorsey v.
United States, 132 S. Ct. 2321, 2328 (2012), states that the new law was adopted
“because the public had come to understand sentences embodying the 100-to-1 ratio
as reflecting unjustified race-based differences.” The Chairman of the Judiciary
Committee, Senator Patrick Leahy, reflecting on the purpose of the new Act, stated that
the former 100-to-1 ratio law is “one of the most notorious symbols of racial
discrimination in the modern criminal justice system.” 156 Cong. Rec. S1683 (daily ed.
Mar. 17, 2010). Many members of Congress stated that the old law should be changed
because it was racially discriminatory and not based on any coherent rationale.5


        4
          All the Sentencing Commission publications cited herein are available on the Commission’s
website (www.ussc.gov).
        5
           Here is a representative sample of statements by members of Congress concerning the purpose
of the Fair Sentencing Act:
        155 Cong. Rec. S10491 (daily ed. Oct. 15, 2009) (statement of Sen. Dick Durbin,
        Assistant Senate Majority Leader) (“Vice President Joe Biden, one of the authors of the
        legislation creating this disparity in sentencing, has said: ‘Each of the myths upon
        which we based the disparity has since been dispelled or altered.’”); 156 Cong. Rec.
        H6202 (daily ed. July 28, 2010) (statement of Rep. Robert C. “Bobby” Scott, Chairman
        of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security)
        (“We are not blaming anybody for what happened in 1986, but we have had years of
        experience and have determined that there is no justification for the 100-to-1 ratio.”);
Nos. 12-5226/5582             United States v. Blewett, et al.                                     Page 5


       Yet, despite the passage of the Act and the Supreme Court’s condemnation of the
100-to-1 ratio in Dorsey, more than 17,000 such crack prisoners sentenced under the old,
racially discriminatory law are not eligible for resentencing. The majority of these
people, the government claims, cannot benefit from the new law because they received
a sentence under the old mandatory minimums or received a career offender designation
(requiring two previous drug convictions). So according to figures supplied by the
Sentencing Commission, less than one-half of those given excessive, racially
discriminatory sentences, like the ones imposed on the Blewetts, are eligible for relief.
United States Sent’g Comm’n, Analysis of the Impact of Guideline Implementation of
the Fair Sentencing Act of 2010 if the Amendment Were Applied Retroactively, at 12
(May 2011).

       Congress, as Justice Breyer’s opinion in Dorsey confirmed, intended in the Fair
Sentencing Act to repeal and redress the wrongs of the older crack sentencing statute that
Congress believed had proven itself to be arbitrary, irrational, and racially
discriminatory. The status quo has now been overturned. The question remaining is:
how retroactive is the new law? Fully? Or only partially, just covering a minority of
those wrongly sentenced?

       The answer to the question turns on our interpretation of principles of equal
protection and several interlocking rules, provisions of sentencing law, including
background canons of statutory interpretation, the Fair Sentencing Act, the previous
statutes it repealed or modified, and the sentencing guideline provisions propagated
pursuant to it. We regard as the most important consideration the clear congressional


       156 Cong. Rec. H6202 (daily ed. July 28, 2010) (Statement of Rep. Daniel E. Lungren)
       (“We initially came out of committee with a 20-to-1 ratio. By the time we finished on
       the floor, it was 100-to-1. We didn’t really have an evidentiary basis for it, but that’s
       what we did, thinking we were doing the right thing at the time.”);156 Cong. Rec.
       S1682 (daily ed. Mar. 17, 2010) (statement of Sen. Patrick Leahy) (“The racial
       imbalance that has resulted from the cocaine sentencing disparity disparages the
       Constitution’s promise of equal treatment for all Americans.”); 156 Cong. Rec. H6198
       (daily ed. July 28, 2010) (statement of Rep. James E. Clyburn, House Majority Whip)
       (“The current drug sentencing policy is the single greatest cause of the record levels of
       incarceration in our country. One in every 31 Americans is in prison or on parole or on
       probation, including one in 11 African Americans. This is unjust and runs contrary to
       our fundamental principles of equal protection under the law.”); 156 Cong. Rec. H6203
       (daily ed. July 28, 2010) (statement of Rep. Steny Hoyer) (“The 100-to-1 disparity is
       counterproductive and unjust.”).
Nos. 12-5226/5582                United States v. Blewett, et al.                                    Page 6


purpose to end the long, racially discriminatory sentences imposed in crack cocaine
cases over the past 25 years and the fact that the perpetuation of such sentences is
unconstitutional.6

                                                     II.

         We readily acknowledge that no party challenges the constitutionality of denying
retroactive application of the Fair Sentencing Act to people who were sentenced under
the old regime. That does not mean, however, that the constitutional question is
irrelevant as we determine whether the Blewetts are entitled to a sentence reduction.
That is because we are constrained to interpret statutes and sentencing guidelines so as
to avoid potential conflict with the Constitution. The constitutional-doubt canon means
that a statute or other authoritative text should be interpreted in a way that avoids
creating an unconstitutional law or placing its constitutionality in doubt. The most
recent treatise on the subject of canons of construction quotes a statement defining the
meaning of the constitutional-doubt canon found in United States ex rel. Attorney
General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909): “[W]here a statute is
susceptible of two constructions, by one of which grave and doubtful constitutional
questions arise and by the other of which such questions are avoided, our duty is to adopt
the latter.” Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal
Texts 247 (2012). The interpretation the government puts forth to deny retroactive
application of the Fair Sentencing Act would result in a violation of equal protection.




         6
           Like passing a foreign ship at night with an “ahoy,” our dissenting colleague starts with a poetic
metaphor about “setting sail . . . without any legal ballast.” The dissent then refuses to acknowledge, come
to grips with or rebut the equal protection argument in this case. The dissent fails even to acknowledge
the language of the Supreme Court in Dorsey stating that Congress found the old 100-to-1 ratio to be
racially discriminatory and therefore reduced the penalty to 18-to-1. Nor does the dissent acknowledge
or rebut the many legislative history statements that the law the dissent would continue to apply is blatantly
racially discriminatory. The dissent only cites United States v. Hammond, No. 12-5522, 2013 WL
1363908 (6th Cir. Apr. 5, 2013), as authority. The Hammond case does not purport to deal with the equal
protection problem. A dissent that refuses to acknowledge the main problem in a case and then relies
primarily on a case that does not mention the problem is not responsive or relevant. In order to be
responsive, disagreement at least requires a discussion about why we should continue to hold thousands
of people in jail who are there because of a law that is acknowledged to be racially discriminatory by a
majority of the Supreme Court and by the vote of a large majority of the Congress of the United States.
Congress does not often acknowledge that it passed a racially discriminatory law and then try to redress
its own prior mistake. To be relevant, a dissent must at least try to deal with that issue.
Nos. 12-5226/5582          United States v. Blewett, et al.                        Page 7


       Quite apart from the legal doctrine that guides the Equal Protection Clause (as
incorporated into the Due Process Clause of the Fifth Amendment), the discriminatory
nature of prior crack sentences is no longer a point of legitimate debate. The racially
discriminatory impact of the 100:1 sentencing scheme surfaced early on when statistics
showed that nearly one hundred percent of all crack defendants were non-white. See
United States Sent’g Comm’n, 2011 Sourcebook of Federal Sentencing Statistics tbl.34
(94% nonwhite); LaJuana Davis, Rock, Powder, Sentencing—Making Disparate Impact
Evidence Relevant in Crack Cocaine Sentencing, 14 J. Gender Race & Just. 375, 386-88
& n.68 (2011). From 1988 to 1995, federal prosecutors prosecuted no whites under the
crack provisions in 17 states, including major cities such as Boston, Denver, Chicago,
Miami, Dallas, and Los Angeles. Dan Weikel, War on Crack Targets Minorities over
Whites, L.A. Times, May 21, 1995, http://articles.latimes.com/1995-05-21/news/mn-
4468_1_crack-cocaine. These alarming numbers are not unlike the Supreme Court’s
early cases of facially neutral laws creating an overwhelmingly disparate result. See Yick
Wo v. Hopkins, 118 U.S. 356 (1886).

       The Sentencing Commission and the Supreme Court recognized the disparity as
well. In the 1990s, the Supreme Court first recognized the discriminatory impact of the
100:1 ratio. United States v. Armstrong, 517 U.S. 456, 479 (1996) (Stevens, J.,
dissenting) (“[I]t is undisputed that the brunt of the elevated federal penalties falls
heavily on blacks.”). In a 1995 report to Congress, the Sentencing Commission said,
“The 100-to-1 crack cocaine to powder cocaine quantity ratio is a primary cause of the
growing disparity between sentences for Black and White federal defendants.” United
States Sent’g Comm’n, Special Report to the Congress: Cocaine and Federal Sentencing
Policy, at Chapter 7D (Feb. 1995). In 1995, the Commission submitted to Congress an
amendment to the sentencing guidelines that would have equalized penalties between
crack and powder cocaine. Congress rejected the recommendation. In 1997, the
Commission unanimously recommended that Congress lower the 100-to 1 ratio and gave
Congress several options to adjust the disparity between crack and powder cocaine
penalties. See United States Sent’g Comm’n, Special Report to the Congress: Cocaine
and Federal Sentencing Policy (Apr. 1997).            Congress took no action on the
Nos. 12-5226/5582          United States v. Blewett, et al.                          Page 8


recommendations.       In 2002, the Commission again “unanimously and firmly”
recommended to Congress that the drug quantity ratio between crack and powder
cocaine be reduced. United States Sent’g Comm’n, Report to the Congress: Cocaine and
Federal Sentencing Policy viii (May 2002). While the Sentencing Commission adjusted
the guideline ranges for crack cocaine in 2007 in Amendment 706 to decrease the length
of sentences, Congress made no changes to the 100-to-1 ratio to adjust the mandatory
minimums for crack cocaine until it passed the Fair Sentencing Act in 2010. Hence
thousands of black defendants now remain in federal prisons under long sentences, some
for life.

        In view of the statistical facts and the widespread congressional consensus
leading to the adoption of the Fair Sentencing Act’s remedial provisions, there can be
no doubt that the old crack law was racially discriminatory in effect. As a matter of legal
doctrine, there is no equal protection violation without discriminatory intent. See
Washington v. Davis, 426 U.S. 229 (1976). When the old 100-to-1 crack cocaine statute
was adopted, it presumably did not violate the Equal Protection Clause because there
was no intent or design to discriminate on a racial basis. Its adoption was simply a
mistake.    Since 1986, however, we have gained knowledge of the old statute’s
devastating effect on blacks. Congress itself acknowledged this problem by enacting the
Fair Sentencing Act.

        The Fair Sentencing Act was a step forward, but it did not finish the job. The
racial discrimination continues by virtue of a web of statutes, sentencing guidelines, and
court cases that maintain the harsh provisions for those defendants sentenced before the
Fair Sentencing Act. If we continue now with a construction of the statute that
perpetuates the discrimination, there is no longer any defense that the discrimination is
unintentional. The discriminatory nature of the old sentencing regime is so obvious that
it cannot seriously be argued that race does not play a role in the failure to retroactively
apply the Fair Sentencing Act. A “disparate impact” case now becomes an intentional
subjugation or discriminatory purpose case. Like slavery and Jim Crow laws, the
intentional maintenance of discriminatory sentences is a denial of equal protection.
Nos. 12-5226/5582          United States v. Blewett, et al.                         Page 9


       This analysis is undermined by neither McCleskey v. Kemp, 481 U.S. 279 (1987),
nor Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979), two cases
that on first glance might appear to sanction the discrimination at issue here. In
McCleskey, the Supreme Court held that a detailed study showing racial disparity in the
application of Georgia’s death penalty could not make out intentional discrimination.
Statistical proof of discriminatory application was not enough; McCleskey was required
to “prove that the Georgia Legislature enacted or maintained the death penalty statute
because of an anticipated racially discriminatory effect.” McCleskey, 481 U.S. at 298.
Here Congress enacted the new law to remedy racial discrimination. McCleskey’s
disapproval of statistical evidence is also distinguishable. McCleskey was obviously
concerned to preserve a system of criminal enforcement where multiple decisionmakers
were involved and where each decision to impose the death penalty required assessment
of the individual defendant’s unique personal, mitigating characteristics. See id. at
292–97. But in the context of crack cocaine sentencing, the defendant’s independent
characteristics do not factor into the equation, and the decisionmaker’s choice is a
discretionless mandatory minimum. In the general course of things, the prosecutor will
charge based on an objectively verifiable quantity of crack, and the court will impose a
sentence no lower than that mandated by Congress. See David A. Sklansky, Cocaine,
Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1316-18 (1995).

       Feeney dealt with a state law that gave hiring preference in civil service positions
to veterans. Because the overwhelming majority of veterans were male, the practical
effect of the law was to deprive better qualified women of job opportunities. The Court
found that the plaintiff had not shown any purpose to discriminate against women.
Discriminatory purpose, it was held, “implies more than intent as volition or intent as
awareness of consequences. It implies that the decisionmaker, in this case a state
legislature, selected or reaffirmed a particular course of action at least in part ‘because
of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”
Feeney, 442 U.S. at 279 (citation omitted). Feeney, however, makes it clear that racial
discrimination, “regardless of purported motivation, is presumptively invalid and can be
upheld only upon an extraordinary justification.” Id. at 272. There is overwhelming and
Nos. 12-5226/5582              United States v. Blewett, et al.                               Page 10


unavoidable proof that the continued application of the old crack law keeps blacks in jail
at a discriminatory rate. This proof supports an inference that the old crack laws have
been maintained at least in part because of their discriminatory effects. The Supreme
Court in Dorsey,7 the legislative history of the Fair Sentencing Act, and the United
States Sentencing Commission in various special reports to Congress have all explicitly
advised that the old mandatory minimums are racially discriminatory. Obviously, this
court should not place a meaning on the new statute and guidelines that would perpetuate
proven racial discrimination and thereby violate equal protection. There is no excuse
for judges to engage in perpetuating such discrimination or to sanction it by refusing to
correct it.

         The role of the judge is especially important here. A host of precedents, from
1880 forward, forbid judicial perpetuation of racial discrimination. In striking down the
behavior of a Virginia judge in refusing to call blacks as grand or petit jurors in 1878,
the Supreme Court denied the plea of the attorney general of Virginia to allow such
judicial conduct. Relying on the Fourteenth Amendment, as well as an act of Congress
prohibiting such discrimination, the court refused to permit this practice. “It is idle,” the
Court said, “to say that the act of Congress is unconstitutional because it inflicts
penalties upon State judges for their judicial action.” Ex parte Virginia, 100 U.S. 339,
348-49 (1880). Judges, both state and federal, must comply with the principles of equal
protection found in the Fourteenth Amendment. Likewise, in striking down racially
restrictive covenants judicially enforced by courts, the Supreme Court explained that
judicial perpetuation of discrimination is not immunized from equal protection
principles:

         The difference between judicial enforcement and non-enforcement of the
         restrictive covenants is the difference to petitioners between being denied
         rights of property available to other members of the community and
         being accorded full enjoyment of those rights on an equal footing



         7
          See 132 S. Ct. 2321, 2328 (2012) (stating that the new law was adopted “because the public had
come to understand sentences embodying the 100-to-1 ratio as reflecting unjustified race-based
differences”).
Nos. 12-5226/5582           United States v. Blewett, et al.                        Page 11


        . . . . State action, as that phrase is understood for the purposes of the
        Fourteenth Amendment, refers to exertions of state power in all forms.

Shelly v. Kraemer, 334 U.S. 1, 19-20 (1948). The Supreme Court has invalidated the
judicial perpetuation of racial discrimination through the failure of courts to allow
custody awards of white children to mixed-race parents. See Palmore v. Sidoti, 466 U.S.
429, 433 (1984) (“The Constitution cannot control such prejudices but neither can it
tolerate them. Private biases may be outside the reach of the law, but the law cannot,
directly or indirectly, give them effect.”). The entire body of school desegregation cases
condemning as discriminatory the perpetuation of racial segregation in the assignment
of students or teachers leads us to the same conclusion about the judge’s role. See, e.g.,
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15–16 (1971) (“[A] school
desegregation case does not differ fundamentally from other cases involving the framing
of equitable remedies to repair the denial of a constitutional right. The task is to correct,
by a balancing of the individual and collective interests, the condition that offends the
Constitution.”). In short, the principle that judges may not enforce obvious racial
discrimination—and indeed, are duty-bound within their powers to ensure that it does
not occur—is time-honored in our law.

        The remedy is straightforward and relatively simple. The Fair Sentencing Act
and the new retroactive Sentencing Guidelines subsequently adopted by the Sentencing
Commission can and should be interpreted to replace retroactively the old,
discriminatory mandatory minimums with the new, more lenient minimums. It is our
duty under the constitutional-doubt canon of statutory construction.             The Equal
Protection Clause requires us to alter what Senator Leahy called “one of the most
notorious symbols of racial discrimination in the modern criminal justice system” and
an “imbalance that . . . disparages the Constitution’s promise of equal treatment for all
Americans.” See supra, at 5 & n.5. In light of our new knowledge about the racial
discrimination inherent in the old law, inertia and judicial instinct to avoid change and
maintain the status quo should no longer protect the old sentences. We should not allow
Nos. 12-5226/5582                United States v. Blewett, et al.                                  Page 12


the government’s legalisms to undermine the purpose of the Fair Sentencing Act and its
more lenient punishment system for crack cocaine.8

                                                    III.

         Laying aside the equal protection basis for revising the old mandatory
minimums, the Sentencing Guidelines themselves call for such a construction.

         The government, ignoring the equal protection violation, relies on a purely
technical argument. The government provides no convincing reason why ordinary
guideline sentences and “mandatory minimum” sentences should be treated differently.9
The government’s argument is that mandatory minimum sentences are “final” and
should not be disturbed or set aside under § 3582(c)(2), even though the Sentencing
Commission has retroactively changed other crack sentences under the old 100-to-1
ratio. It claims that the Sentencing Commission itself has made a distinction between
long mandatory minimum sentences, which it wishes to retain, and other crack
sentences.

         The mechanism by which Congress sought to reduce crack cocaine sentences was
simply to reduce the excessive 100-to-1 ratio it had spelled out in earlier drug statutes,
a method recommended by the Sentencing Commission. The Supreme Court in Dorsey
explains the process:

         In 2010, Congress accepted the Commission’s recommendations . . . and
         enacted the Fair Sentencing Act into law. The Act increased the drug
         amounts triggering mandatory minimums for crack trafficking offenses
         from 5 grams to 28 grams in respect to the 5-year minimum and from

         8
           Other canons of statutory construction support retroactivity of the mandatory minimums as well.
The Fair Sentencing Act is clearly a remedial statute and should therefore be liberally construed. Chisholm
v. Georgia, 2 U.S. (2 Dall.) 419, 476 (1793) (Jay, C.J.). Further, if there is a doubt under the interlocking
texts of the statutory and guideline provisions or under the application notes or any amendment to the
guidelines, the rule of lenity should apply. Under that rule, ambiguity should be resolved in the
defendant’s favor. See United States v. Granderson, 511 U.S. 39, 47-54 (1994); Williams v. United States,
458 U.S. 279, 290 (1982); Bifulco v. United States, 447 U.S. 381, 387 (1980).
         9
            Mandatory minimum sentences generally remain widely criticized by the criminal justice
literature, the federal judiciary, and the Sentencing Commission. The Commission identified mandatory
minimums for drug offenses and the corresponding guidelines as “a primary cause of a widening gap
between the average sentences of Black, White, and Hispanic offenders” in the guidelines era. United
States Sent’g Comm’n, Fifteen Years of Guidelines Sentencing (2004).
Nos. 12-5226/5582              United States v. Blewett, et al.                         Page 13


       50 grams to 280 grams in respect to the 10-year minimum (while leaving
       powder at 500 grams and 5,000 grams respectively). The change had the
       effect of lowering the 100-to-1 crack-to-powder ratio to 18-to-1.

132 S. Ct. at 2329 (citations omitted). The Sentencing Commission incorporated and
integrated the new statutory minimums into its system by attempting to harmonize the
new crack guidelines with the new mandatory minimums.

       The government argues that the Fair Sentencing Act did not give retroactive
effect to the old mandatory minimums like those imposed on the Blewetts because a
mandatory minimum does not fit the language—“sentencing range that has subsequently
been lowered by the Sentencing Commission”—used by Section 3582(c)(2). The
government ignores the fact, however, that the guidelines range is entirely dependent on,
not independent of, a statutory mandatory minimum or maximum. The mandatory
minimums and maximums are an integral part of and gave rise to the sentencing
guideline ranges. They are the most significant part because they provide the bookends:
The mandatory minimum provides the floor of the range and the mandatory maximum
provides the ceiling if a certain threshold quantity of crack is involved. The Sentencing
Commission itself instructs judges to use the mandatory minimums in this manner. See
§ 5G1.1(b) (“the statutorily required minimum sentence shall be the guideline
sentence”).10 For example, if a defendant’s guideline range is 50-70 months with a
statutory mandatory minimum of 60 months, the floor of the guideline range then
elevates to 60 and the resulting guideline range is 60-70 months. The entire system of
revised crack guidelines is therefore driven by the new mandatory minimums.

       The Commission uses the new statutory minimums as the gravitational force
around which the new system revolves. The statutory minimums are closely integrated
into the structure of the revised guidelines. When the entire retroactive guideline process
is based on the new congressional minimums, it makes no sense for the government to

       10
            § 5G1.1(b) provides:
       (b)        Where a statutorily required minimum sentence is greater than the
                  maximum of the applicable guideline range, the statutorily required
                  minimum sentence shall be the guideline sentence. (Emphasis
                  added.)
Nos. 12-5226/5582               United States v. Blewett, et al.                    Page 14


argue that prisoners sentenced under the old crack guidelines should have their ordinary
guideline sentences revised sharply downward retroactively to reflect the 18-to-1 ratio
while leaving the prisoners sentenced under the old, now-repealed, statutory minimums
languishing in prison under the 100-to-1 ratio. The new minimums ordered by the Fair
Sentencing Act to be incorporated by the guidelines are no longer “statutory” only.
They are just as much a part of the retroactive guidelines as other guidelines because
they have been incorporated in the retroactive system. As the Third Circuit has
observed, a contrary result “would not make sense” because the old minimums would
“always trump the new Guidelines for the large number of defendants whose Guidelines
ranges are [now] below the mandatory minimum,” as in this case. United States v.
Dixon, 648 F.3d 195, 201 (3d Cir. 2011) (defendant’s offense committed prior to the
Act, but sentenced after passage of the Act). Consistent policy requires that the new
statutory minimums also be given retroactive effect.

        The government’s argument leads to the absurd result that the Blewetts would
remain in prison for ten years when under the revised guidelines they are now subject
to no minimum at all. Also absurd, the government’s view of retroactivity would give
major kingpins the greatest benefit of retroactivity because their amended guideline
range is above the mandatory minimum while hundreds of more petty, less culpable
offenders like the Blewetts remain in prison without any benefit of the revised law. This
result perpetuates racial discrimination, defies the goal of consistency, creates a huge
sentencing disparity in violation of the purpose of the Sentencing Reform Act of 1984,
and does not eliminate the unfairness that Congress had in mind and that Dorsey points
out as the reason the new guidelines are given retroactive treatment.

       Further, section 3582(c)(2) on retroactivity dovetails with § 1B1.10 of the
guidelines, which is called a “policy statement” covering “Reduction in Term of
Imprisonment as a Result of Amended Guideline Range.”11 The government argues


       11
            This entire guideline provides as follows:
                  §1B1.10. Reduction in Term of Imprisonment as a Result of Amended Guideline
                  Range (Policy Statement)
Nos. 12-5226/5582             United States v. Blewett, et al.                                Page 15


against providing redress by pointing not to the language of this guideline provision but
to an “Application Note” on “Eligibility.” The government makes this argument in the
face of the fact that the Sentencing Commission itself pointed out to Congress the racial
discrimination that led to the change in the law. The meaning of the Application Note
is ambiguous:


       (a) Authority. –
       (1) In General. – In a case in which a defendant is serving a term of imprisonment, and the
       guideline range applicable to that defendant has subsequently been lowered as a result of an
       amendment to the Guidelines Manual listed in subsection (c) below, the court may reduce the
       defendant’s term of imprisonment as provided by 18 U.S.C. 3582(c)(2). As required by 18
       U.S.C. 3582(c)(2), any such reduction in the defendant's term of imprisonment shall be consistent
       with this policy statement.
       (2) Exclusions. – A reduction in the defendant's term of imprisonment is not consistent with this
       policy statement and therefore is not authorized under 18 U.S.C. 3582(c)(2) if –

       (A) None of the amendments listed in subsection (c) is applicable to the defendant; or
       (B) An amendment listed in subsection (c) does not have the effect of lowering the defendant's
       applicable guideline range.
       (3) Limitation. – Consistent with subsection (b), proceedings under 18 U.S.C. 3582(c)(2) and this
       policy statement do not constitute a full resentencing of the defendant.

       (b) Determination of Reduction in Term of Imprisonment.–
       (1) In General. – In determining whether, and to what extent, a reduction in the defendant's term
       of imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement is warranted, the court
       shall determine the amended guideline range that would have been applicable to the defendant
       if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the
       defendant was sentenced. In making such determination, the court shall substitute only the
       amendments listed in subsection (c) for the corresponding guideline provisions that were applied
       when the defendant was sentenced and shall leave all other guideline application decisions
       unaffected.
       (2) Limitation and Prohibition on Extent of Reduction.–
       (A) Limitation. – Except as provided in subdivision (B), the court shall not reduce the
       defendant's term of imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement to a term
       that is less than the minimum of the amended guideline range determined under subdivision (1) of
       this subsection.
       (B) Exception for Substantial Assistance. – If the term of imprisonment imposed was less than
       the term of imprisonment provided by the guideline range applicable to the defendant at the time
       of sentencing pursuant to a government motion to reflect the defendant’s substantial assistance
       to authorities, a reduction comparably less than the amended guideline range determined under
       subdivision (1) of this subsection may be appropriate.
       (C) Prohibition. – In no event may the reduced term of imprisonment be less than the term of
       imprisonment the defendant has already served.
       (c) Covered Amendments.—Amendments covered by this policy statement are listed in
       Appendix C as follows: 126, 130, 156, 176, 269, 329, 341, 371, 379, 380, 433,454, 461, 484, 488,
       490, 499, 505, 506, 516, 591, 599, 606, 657, 702, 706 as amended by 711, 715, and 750 (parts
       A and C only).
Nos. 12-5226/5582          United States v. Blewett, et al.                       Page 16


       (A)     Eligibility. — Eligibility for consideration under 18 U.S.C.
               § 3582(c)(2) is triggered only by an amendment listed in
               subsection (c) that lowers the applicable guideline range (i.e., the
               guideline range that corresponds to the offense level and criminal
               history category determined pursuant to § 1B1.1(a), which is
               determined before consideration of any departure provision in the
               Guidelines Manual or any variance). Accordingly, a reduction in
               defendant’s term of imprisonment is not authorized under 18
               U.S.C. § 3582(c)(2) and is not consistent with this policy
               statement if: (i) none of the amendments listed in subsection (c)
               is applicable to the defendant; or (ii) an amendment listed in
               subsection (c) is applicable to the defendant but the amendment
               does not have the effect of lowering the defendant’s applicable
               guideline range because of the operation of another guideline or
               statutory provision (e.g., a statutory mandatory minimum term of
               imprisonment).

(Emphasis added.) The government argues that the old statutory minimums still
“operate” as “another guideline or statutory provision” to prevent the lowering of the
“applicable guideline range,” even though these minimums have been repealed and the
new minimums have been incorporated into the Commission’s new crack guidelines.
Why does the parenthetical phrase at the end of the Note — “e.g., a statutory mandatory
minimum term of imprisonment” — refer to the old, discriminatory minimums instead
of the new, more lenient ones that presumably are not racially discriminatory? The
statutory minimums have been reduced and incorporated into the guidelines by the
Sentencing Commission. The old, repealed discriminatory minimums are no longer a
part “of the operation of” the sentencing system. They should not be used to foreclose
“lowering the defendant’s applicable guideline range.” We should not presume that the
Sentencing Commission would point out to Congress the racially discriminatory nature
of the old crack guidelines, and request new mandatory minimums around which to
rebuild the new retroactive guidelines, and then decide to retain the old crack minimums
as the “guideline sentence” under §5G1.1(b).

                                    IV. Conclusion

       The old crack cocaine statutory minimums are racially discriminatory as the
legislative history of the Fair Sentencing Act makes clear, as the Dorsey case states, and
Nos. 12-5226/5582          United States v. Blewett, et al.                       Page 17


as the Sentencing Commission reports to Congress advise. Perpetuation of such racially
discriminatory sentences by federal courts is unconstitutional and therefore the
sentencing guidelines must be interpreted to eliminate such a result. Accordingly, the
judgment of the district court is reversed and remanded for the resentencing of plaintiffs
in accordance with this opinion.
Nos. 12-5226/5582          United States v. Blewett, et al.                        Page 18


                                 __________________

                                      DISSENT
                                 __________________

        RONALD LEE GILMAN, Circuit Judge, dissenting. I fear that my panel
colleagues have sua sponte set sail into the constitutional sea of equal protection without
any legal ballast to keep their analysis afloat. To start with, they “readily acknowledge
that no party challenges the constitutionality of denying retroactive application of the
Fair Sentencing Act to people who were sentenced under the old regime.” Maj. Op. 6.
Opining on this unbriefed and unargued issue is thus fraught with the likelihood of
running aground on the shoals of uncharted territory.

        They further concede that the law establishing the 100-to-1 ratio between powder
cocaine and crack cocaine for sentencing purposes was constitutional when enacted:

        When the old 100-to-1 crack cocaine statute was adopted, it presumably
        did not violate the Equal Protection Clause because there was no intent
        or design to discriminate on a racial basis. Its adoption was simply a
        mistake.

Maj. Op. 8.

        So far, so good. But then the majority veers off into the abyss with the following
analysis:

        Since 1986, however, we have gained knowledge of the old statute’s
        devastating effect on blacks. . . . The discriminatory nature of the old
        sentencing regime is so obvious that it cannot seriously be argued that
        race does not play a role in the failure to retroactively apply the Fair
        Sentencing Act. A “disparate impact” case now becomes an intentional
        subjugation or discriminatory purpose case. Like slavery and Jim Crow
        laws, the intentional maintenance of discriminatory sentences is a denial
        of equal protection.

Id. at 8-9.

        The majority reaches this conclusion without citing a single case in support. This
is not due to a lack of diligent research; it is due to the lack of any such cases. The best
Nos. 12-5226/5582          United States v. Blewett, et al.                       Page 19


the majority can do is try to distinguish two Supreme Court decisions (McCleskey v.
Kemp, 481 U.S. 279 (1987), and Personnel Administrator of Massachusetts v. Feeney,
442 U.S. 256 (1979)) that even the majority concedes “on first glance might appear to
sanction the discrimination at issue here.” Maj. Op. 9. Those efforts at distinguishing
McCleskey and Feeney are in vain, however, because binding Sixth Circuit precedent has
already foreclosed the majority’s constitutional argument.

       The majority reaches the issue of equal protection not directly, but through
applying the “constitutional-doubt canon” of statutory construction (also known as
“constitutional avoidance,” see Clark v. Martinez, 543 U.S. 371, 384 (2005)). Maj. Op.
6. Two conditions are necessary before a court may invoke this interpretative canon:
(1) the statute in question must be “susceptible of two constructions,” and (2) one
construction raises “grave and doubtful constitutional questions” that the other
construction avoids. Id. (internal quotation marks omitted). The present case meets
neither condition.

       I start with the first condition. This court has already interpreted the Fair
Sentencing Act as applied to dozens of defendants who, like the Blewetts, were
convicted and sentenced prior to the effective date of the Act. See, e.g., United States
v. Hammond, — F.3d —, No. 12-5522, 2013 WL 1363908 (6th Cir. Apr. 5, 2013);
United States v. Hollins, No. 12-5182, 2012 WL 5477119 (6th Cir. Nov. 13, 2012);
United States v. Downs, 487 F. App’x 286 (6th Cir. 2012). In each of these decisions,
this court has held that the Act is not retroactive to defendants who were convicted and
sentenced before its effective date.

       The majority therefore errs in employing the constitutional-avoidance canon to
select a construction of the Act that is favorable to the Blewetts when this court has
already chosen the contrary construction. See Clark, 543 U.S. at 385 (“The canon of
constitutional avoidance comes into play only when, after the application of ordinary
textual analysis, the statute is found to be susceptible of more than one construction; and
the canon functions as a means of choosing between them.” (emphasis in original)). We
are instead bound by Hammond, a prior reported decision that interprets the same statute
Nos. 12-5226/5582          United States v. Blewett, et al.                       Page 20


under the same factual circumstances as the present case. See, e.g., Salmi v. Sec’y of
Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“A panel of this Court
cannot overrule the decision of another panel. The prior decision remains controlling
authority unless an inconsistent decision of the United States Supreme Court requires
modification of the decision or this Court sitting en banc overrules the prior decision.”
(internal quotation marks omitted)).

       And even if Hammond were not fatal to the cause taken up by my colleagues,
their resort to the constitutional-avoidance canon would still be flawed because this court
has already answered any “grave and doubtful constitutional questions” raised by the
continued application of the old crack-cocaine/powder-cocaine sentencing disparity.
Over 20 years ago, this court held that “the one to one hundred ratio of crack to cocaine
does not violate Equal Protection Standards.” United States v. Williams, 962 F.2d 1218,
1227 (6th Cir. 1992).

       Subsequent equal protection attacks on the crack/powder ratio have likewise been
rejected. See, e.g., United States v. Reece, 994 F.2d 277, 278 (6th Cir. 1993) (holding
that the ratio’s disparate impact “may not alone support a finding of invidious
discrimination in a facially neutral law”); United States v. Muse, 250 F. App’x 700, 701-
02 (6th Cir. 2007) (noting that the Sixth Circuit has already rejected equal protection
arguments for invalidating the 100-to-1 ratio and that “[e]very court of appeals to
address the issue has upheld the ratio in the face of similar constitutional challenges”).
Just as Hammond resolves any doubt of statutory interpretation regarding the limited
retroactivity of the Fair Sentencing Act, so do Reece and Williams resolve any doubt
regarding the constitutionality of pre-Act sentences that the Act leaves intact. Moreover,
knowledge of the ratio’s disparate racial impact—which is the majority’s rationale for
distinguishing the constitutional validity of the ratio’s initial enactment from the
constitutional invalidity of its continued enforcement—was recognized and rejected as
the basis of the equal protection challenge in Reece. See 994 F.2d at 278 (noting the
defendant’s use of statistics to show a disparate racial impact, but holding that evidence
Nos. 12-5226/5582          United States v. Blewett, et al.                       Page 21


of such impact was insufficient because “only purposeful discrimination merits strict
scrutiny”).

       Another point bears mentioning. The majority’s basic premise is that the
continued enforcement of a sentencing regime that equates one gram of crack cocaine
to one hundred grams of powder cocaine violates the Equal Protection Clause because
it has a known disparate racial impact. Yet the majority apparently has no problem with
the Fair Sentencing Act’s reduction of that disparity to an 18-to-1 ratio. Why, however,
is a 100-to-1 ratio—but not an 18-to-1 ratio—an equal protection violation? In my
opinion, the lack of any constitutionally relevant distinction between the old ratio and
the new ratio further undermines the majority’s equal protection rationale.

       Having addressed the shortcomings of the majority’s sua sponte constitutional
argument, I turn now to the argument that the Blewetts actually presented: i.e., that the
Supreme Court’s interpretation of the Fair Sentencing Act in Dorsey v. United States,
132 S. Ct. 2321 (2012), makes the Act fully retroactive as applied to defendants seeking
modification of a mandatory-minimum sentence in a proceeding under 18 U.S.C.
§ 3582(c)(2). As noted above, however, the Hammond decision has already rejected the
Blewetts’ proposed reading of the Fair Sentencing Act, and it did so “in light of Dorsey.”
Hammond, 2013 WL 1363908, at *2. My colleagues in the majority, moreover, have
previously joined in unpublished decisions that reached the same conclusion as set forth
in Hammond. See United States v. Mundy, 486 F. App’x 598, 598-99 (6th Cir. 2012)
(per curiam decision joined by Judge Martin); United States v. Stanley, No. 11-4423,
2012 WL 4014932, at *3 (6th Cir. Sept. 12, 2012) (opinion joined by Judge Merritt).
In short, Hammond is the law of this circuit and cannot be overturned by this panel.

       But even if we were to approach this issue with no prior circuit precedent to bind
us, the Blewetts’ argument would fail because 18 U.S.C. § 3582(c)(2) allows a court to
modify a term of imprisonment that has already been imposed only if two conditions are
met:   (1)    the defendant’s sentence was based on a sentencing range that has
subsequently been lowered by the Sentencing Commission, and (2) a reduction in the
defendant’s sentence would be consistent with the so-called “policy statement” found
Nos. 12-5226/5582         United States v. Blewett, et al.                       Page 22


at U.S. Sentencing Guidelines § 1B1.10. The Blewetts, however, were sentenced under
a mandatory-minimum statute that was subsequently amended by Congress, not a
“sentencing range that has subsequently been lowered by the Sentencing Commission.”
18 U.S.C. § 3582(c)(2) (emphases added).

       In an effort to satisfy the first condition of 18 U.S.C. § 3582(c)(2), the majority
notes that “[t]he statutory minimums are closely integrated into the structure of the
revised guidelines.” Maj. Op. 13-14. But why this close integration precludes Congress
from treating the two sentencing schemes differently is unexplained. See Hammond,
2013 WL 1363908, at *2 (holding that the defendant’s mandatory-minimum sentence
“has not subsequently been lowered by the Sentencing Commission” and therefore could
not qualify for a modification under § 3582(c)(2) (internal quotation marks omitted)).

       The Blewetts fare no better under 18 U.S.C. § 3582(c)(2)’s second condition
because only those amendments to the Guidelines included in USSG § 1B1.10(c) may
trigger eligibility for a sentence modification under § 3582(c)(2). USSG § 1B1.10, cmt.
n.1(A) (2012). Guideline § 1B1.10(c) incorporates Amendment 750 (parts A and C
only), which implemented certain aspects of the Fair Sentencing Act. Part A amended
the Drug Quantity Table found in USSG § 2D1.1 that is used to calculate sentencing
ranges, while part C eliminated the reference in USSG § 2D2.1 to a five-year mandatory-
minimum sentence for simple possession of more than five grams of crack cocaine.

       In contrast, the Blewetts asked the district court for a sentence modification
under 18 U.S.C. § 3582(c)(2) based on the Fair Sentencing Act’s amendment of 21
U.S.C. § 841(b)(1), the latter providing the mandatory-minimum sentences for drug-
trafficking offenses. But neither part A nor part C of Amendment 750 includes the
changes made to § 841(b)(1). Because the Blewetts seek the benefit of a statutory
amendment that was not incorporated into USSG § 1B1.10, they are ineligible for a
modification of their sentences. See Hammond, 2013 WL 1363908, at *2 (holding that
the district court did not have authority to reduce a defendant’s sentence under
§ 3582(c)(2) because the defendant’s mandatory-minimum sentence “was not an
amendment incorporated into the Sentencing Commission’s policy statement”).
Nos. 12-5226/5582          United States v. Blewett, et al.                       Page 23


       The Dorsey decision strongly supports the proposition that the Fair Sentencing
Act’s amendment of a statutory mandatory-minimum sentence provides no relief to
defendants seeking modification of a sentence under 18 U.S.C. § 3582(c)(2) because
changes in criminal penalties generally apply to defendants not yet sentenced, but do not
apply to defendants already sentenced. See Dorsey, 132 S. Ct. at 2335. A proceeding
under § 3582(c)(2) is a modification of a previously imposed sentence and is not itself
a sentencing or resentencing. Dillon v. United States, 130 S. Ct. 2683, 2690 (2010) (“By
its terms, § 3582(c)(2) does not authorize a sentencing or resentencing proceeding.”).
The Fair Sentencing Act therefore applies to not-yet-sentenced defendants such as those
in Dorsey, but does not apply to already-sentenced defendants, such as the Blewetts, who
seek § 3582(c)(2) modifications. See Dorsey, 132 S.Ct. at 2335 (distinguishing the
initial imposition of a sentence under 18 U.S.C. § 3553 from the modification of a
sentence under § 3582(c) and recognizing that disparities “will exist whenever Congress
enacts a new law changing sentences,” but concluding that the disparity created by the
Court’s decision reflects “the ordinary practice” in federal sentencing); see also
Hammond, 2013 WL 1363908, at *2 (noting that “Dorsey itself disfavors [retroactive
application of the Fair Sentencing Act] in the context of § 3582”).

       Finally, the majority contends that “it cannot seriously be argued that race does
not play a role in the failure to retroactively apply the Fair Sentencing Act.” Maj. Op.
8. To the contrary, the failure to retroactively apply the Fair Sentencing Act is solely
due to a faithful interpretation of the statutory scheme and a recognition of the rule of
stare decisis. Congress is of course free to amend the Fair Sentencing Act to make it
fully retroactive, but that is a legislative prerogative and not appropriate for this court
to do simply by decree.

       For all of the reasons set forth above, I respectfully dissent.
