The 6th Circuit Speaks!!

I had heard rumors that other circuits were soon to join the fray, and now in US v. Montgomery, 03-5256 (6th Cir. July 14, 2004), the Sixth Circuit becomes the second federal circuit court to hold that Blakely invalidates the federal guidelines. Here's the key language from the opinion, authored by Circuit Judge Gilbert Merritt with Judges Martha Daughtrey and John Nixon (sitting by designation) in the unanimous panel, which has my brain racing (see extended commentary below):

[I]n order to comply with Blakely and the Sixth Amendment, the mandatory system of fixed rules calibrating sentences automatically to facts found by judges must be displaced by an indeterminate system in which the Federal Sentencing Guidelines in fact become "guidelines" in the dictionary-definition sense ("an indication or outline of future policy," Webster's International Dictionary (3d ed. 1963)). The "guidelines" will become simply recommendations that the judge should seriously consider but may disregard when she believes that a different sentence is called for....

The Sentencing Reform Act of 1984, which gave rise to the present determinate sentencing system, does not by its terms require a mandatory, rule-bound system calibrating sentences to judicially-found facts. The statutory language would have allowed the creation of an indeterminate system in which the guidelines are simply considerations for Article III federal judges to access before passing sentence. The most important provision of the statute, section 3553(a) of Title 18, simply says that "the court, in determining the particular sentence to be imposed, shall consider" a large number of listed factors like the "seriousness of the offense" and the "characteristics of the defendant," only one of which is the "kind of sentence and the sentencing range established" by the Sentencing Commission. In addition to the various factors that a judge should "consider" as listed in Section 3553(a), the next sub-section counsels the judge to consider the "aggravating or mitigating circumstances" of the particular case. The Sentencing Commission itself interpreted the statutory language and converted this advisory language into the kind of mandatory rules of a determinate system of sentencing that the Supreme Court has now invalidated. In light of Blakely, and the language of the enabling act itself, a district judge should no longer view herself as operating a mandatory or determinate sentencing system, but rather should view the guidelines in general as recommendations to be considered and then applied only if the judge believes they are appropriate and in the interests of justice in the particular case.

More huge news and more commentary when I can digest it all.

UPDATE: Like Blakely itself, this brief decision creates, at least for me, a lot more questions than it answers. My quick reaction is that the Sixth Circuit is ruling that the Commission-created administrative guidelines are unconstitutional (as applied?) because they require impermissible judge fact-finding, but that the Sentencing Reform Act as a whole survives Blakely because the statute itself does not require judge fact-finding. (Of course, the shrewd reader might notice this is an inverted perspective on why Easterbrook and the Fifth Circuit think the Commission's guidelines remain constitutional!) The result, then, is to convert the guidelines into just advisory recommendations to the judge. Neat result, but a head-scratcher for a number of reasons:

First, the legislative history of the SRA shows that Congress contemplated and rejected the creation of merely "voluntary" guidelines. See Mistretta, 488 U.S. at 367 (noting that the "Judiciary Committee rejected a proposal that would have made the sentencing guidelines only advisory and citing S.Rep. No. 98-225 (1983) at p. 79). Ergo, I do not see how the Sixth Circuit's reading of the SRA fits with its legislative history. UPDATE ON THIS POINT: A wise colleague noted that there is support in the House version of legislative history of the SRA for making the guidelines more advisory and less presumptive, and thus it might be arguable that you are in fact being faithful to the SRA to conclude, after Blakely knocks out the mandates, that an advisory system should be left standing.

Second, the Sixth Circuit asserts:

"This solution to the immediate problem in federal sentencing is not inconsistent with the alternative position by the Deputy Attorney General in his memo to federal prosecutors, a memo forwarded to the federal judiciary on July 7, 2004. ("In that event [when the guidelines may not be applied as mandatory rules], the government should urge the court to impose sentence, exercising traditional judicial discretion, within the applicable statutory sentence range" with the "recommendation in all such cases ... that the court exercise its discretion to impose a sentence that conforms to a sentence under the Guidelines....")"

But I think the effect, if not the intent, of the Sixth Circuit's ruling is that the federal guidelines CANNOT BE IMPOSED IN ANY CASE in the Sixth Circuit, even if the case raises no Blakely problems or the defendant waives his Blakely rights! I am certain this is not DOJ's view of the impact of Blakely. UPDATE ON THIS POINT: On a second read, I think it is arguable that this opinion is only meant to apply Blakely-problematic cases, but who knows.

FINAL POINTS FOR NOW: This was a very peculiar factual setting for making a big Blakely ruling, not to mention a panel which is, I think it is fair to say, not wholly represenative of the Circuit as a whole. I think the spelling in the Sixth Circuit is "en banc," no?

This is still a very quick reaction to a very opaque case. But I am starting to think the post-Blakely world actually looks a lot like an M.C. Escher painting.