« Six-month federal sentence for Elliot Spitzer's "hooker booker" | Main | Off-line while participating in Stanford Law Review symposium about media »

January 30, 2009

Another potent sentencing dissent from the Sixth Circuit's Judge Merritt

Sixth Circuit Judge Gil Merritt should be known as the great sentencing dissenter because he continues to speak forcefully in dissent about the long sentences being affirmed by his colleagues. Today's potent sentencing dissent comes in US v. Young, No. 07-5600 (6th Cir. Jan. 30, 2009) (available here), and it includes a notable prediction about future SCOTUS consideration of acquitted conduct enhancements:

The two first offenders here grew and distributed marijuana off and on over several years and were sentenced to 17 years and 19 years respectively.  In my view this sentence is too long and serves no rational penal purpose.  It is much greater than necessary to adequately deter marijuana growing and distribution.  I would reverse and remand for a further explanation of why such a long sentence is justified, especially in light of the great disparity in sentencing for such relatively minor marijuana crimes between the state and federal courts and among federal judges themselves. These defendants will be over 70 years old when they get out of jail, if they live that long.  The cost of their incarceration, including health care, will be enormous.  The sentences seem irrational to me — too irrational for me to defer.

For reasons stated in my dissenting opinion in United States v. White, No. 05- 6596 (6th Cir. Dec. 24, 2008 (en banc)), I do not agree with the holdings and reasonings of Sections II.D and II.E of the majority opinion upholding the use of acquitted conduct and the judge-found, offense-conduct facts regarding the leadership enhancement.  These sentencing enhancements are unconstitutional in my view.  Although I concur that we must defer to the majority opinion in United States v. White, it is not final for all purposes and is likely to be reversed by the Supreme Court.  These two enhancements are the basis for the long sentences and are inconsistent with the right of trial by jury under the Sixth Amendment, as I explained in White.  Counsel for the defendants should keep the cases open until we find out what happens to the White case in the Supreme Court.

As a critic of acquitted conduct enhancement (and as an amici in White), I sure hope Judge Merritt is looking into an accurate crystal ball when he makes the bold prediction that "White ... is likely to be reversed by the Supreme Court."  At this point, I will be excited if the Supreme Court even takes up White, since it has rejected cert petitions in a number of notable acquitted conduct cases in the past.

January 30, 2009 at 11:46 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e201053703f616970c

Listed below are links to weblogs that reference Another potent sentencing dissent from the Sixth Circuit's Judge Merritt:

Comments

Why is US v. White likely to be overruled by the Supreme Court? Judge Merritt offers nary a reason to support this prediction.

Posted by: Alex | Jan 30, 2009 12:43:15 PM

I do not agree with the holdings and reasonings of Sections II.D and II.E of the majority opinion upholding the use of acquitted conduct and the judge-found, offense-conduct facts regarding the leadership enhancement. These sentencing enhancements are unconstitutional in my view. Although I concur that we must defer to the majority opinion in United States v. White, it is not final for all purposes and is likely to be reversed by the Supreme Court.

Posted by: Acai | Jan 30, 2009 1:11:16 PM

While I don't like it, I do believe SCOTUS will approve of aquittted conduct sentencing. Especially after Ice. I doubt even Scalia would voice a problem with AC sentences given his statements that conviction puts the offender in jeopardy of the entire sentencing range allowed for that offense and that only the grace of the judge prevents such harsh treatment.

Posted by: Soronel Haetir | Jan 30, 2009 1:13:41 PM

What is a definition of "acquitted conduct". Obviously, in the context of drug amounts, it's easy. I am guessing that there are a lot of other factual scenarios where determining the precise scope of "acquitted conduct" ain't so easy.

Doug, your cheerleading for this lawless judge is a bit over the top. Merritt was the judge who held an ex parte hearing in his home in order to stop an execution and who penned the god-awful dissent in Getsy. He's not a great judge. He just arrives at conclusions you like. You sound a lot like liberals falling over themselves to praise Judge Anna Diggs Taylor for her decision on surveillance, despite the fact that the opinion was embarassingly bad.

Posted by: federalist | Jan 30, 2009 1:23:59 PM

Regarding Judge Merritt and the alleged "ex parte hearing" in a capital case, federalist's view is unsurprisingly based on ignorance of both facts and law.

Posted by: DK | Jan 31, 2009 5:57:06 PM

DK, when attorneys show up at the judge's house and give extremely short notice to the other side for stay request, the state's attorneys are put in a bind--show up to the hearing and you may get railroaded; don't show up and you might be bound. So let's see, defense lawyers show up at judge's house--judge and defense lawyers craft up some BS hearing in the judge's house. And they notice the state so as to give cover to what Merritt already was going to do. I'd say "ex parte" covers that. It was a garbage decision by a lawless judge. The stunt he pulled was appallingly cruel to the victim's family members.

But of course, DK, you don't care about any of that. "Rule of law"; "integrity of the process" etc. mean absolutely nothing to you--after all, there's a murderer's life at stake.

Posted by: federalist | Feb 1, 2009 10:34:20 AM

Federalist, you don't know what you're talking about. As explained in the link I provided by a law clerk of a judge in that Circuit (a pro-death penalty clerk who did not clerk for Judge Merritt), the only procedural irregularity that occurred that evening was on the part of the judges who lifted the stay Judge Merritt had properly entered. If you are ignorant enough of the law, it is possible to accuse anybody of ignoring the "rule of law." This is exemplified by your apparent belief that judges have obligations towards "victim's family members." What utter nonsense.

And, for the love of God, please stop exploiting crime victims to advance your political agenda. It's disgusting.

Posted by: DK | Feb 1, 2009 12:47:20 PM

DK-speak:

1. Last-minute stay granted on last-minute application with, ahem, irregularities equals the rule of law.

2. Putting an end to the nonsense: a procedural irregularity.

Posted by: federalist | Feb 1, 2009 1:57:57 PM

If SCOTUS, takes up White, you can bet your Ice that it will be affirmed.

Posted by: Jacob Berlove | Feb 1, 2009 4:52:25 PM

Judge Merritt thinks he's Congress. He should resign as a judge and run for Congress. His judicial opinions are, by and large, inappropriate and show no respect for separation of powers.

Posted by: Mark | Feb 2, 2009 12:53:35 PM

"Judge Merritt is, in my opinion, the consummate appellate judge."

Posted by: DK | Feb 2, 2009 10:08:05 PM

DK, if you can't see why the one-judge stay issued from his house was ridiculous, then, well, I can't help you.

Posted by: federalist | Feb 3, 2009 10:15:08 AM

Federalist, there is nothing ridiculous about a judge acting within the authority granted to him by the constitution and laws of Congress. (Really, where do you get this notion that judges have to be in courthouses to lawfully exercise their power?) I can't help that you don't know what you're talking about as a legal matter. Lord knows, if it were easy to make educated but wilfully ignorant people understand very simple, straightforward things (as, e.g., explained thoughtfully by a clerk of that court in the link I provided), this country would be much better off. But, for a reason I have not ever figured out, it isn't.

Posted by: DK | Feb 4, 2009 12:37:07 AM

You link to some hack who wants to gussy up this nonsense? Come on. Let's not forget what the panel said about the irregularity here.

Personally, I think the state should have ignored the order.

Posted by: federalist | Feb 4, 2009 12:30:00 PM

if it were easy to make educated but wilfully ignorant people understand very simple, straightforward things (as, e.g., explained thoughtfully by a clerk of that court in the link I provided), this country would be much better off.

Posted by: Acai | Aug 5, 2009 4:01:54 PM

it is easy to blame other sfor ones own mistakes that part of the maturing process

Posted by: magnaflow 15741 | Nov 20, 2009 1:10:22 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB