« Thoughts and holdings on Blakely retroactivity | Main | When and how will SCOTUS get involved? »

July 14, 2004

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.

July 14, 2004 at 10:01 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference The 6th Circuit Speaks!!:

» 6th Circuit Rules Blakely Invalidates Guidelines from TalkLeft: The Politics of Crime
The Sixth Circuit today ruled that the Supreme Court's Blakely Decision. invalidates the Federal Sentencing Guidelines. Law Prof Doug Berman reports: ,,,,and now in US v. Montgomery, 03-5256 (6th Cir. July 14, 2004), the Sixth Circuit becomes the secon... [Read More]

Tracked on Jul 14, 2004 1:54:20 PM


Two interesting things in this opinion, I think. First, the panel's interpretation of Blakely is much broader than any I have seen before:

"The Court held that 'determinate' or fixed rule-bound sentencing, like the Federal Sentencing Commission's system ... violates the trial-by-jury requirement of the Sixth Amendment. The Court held that a system that automatically calibrates sentences from a grid or table based on various factual elements as found by a judge encroaches on the fact-finding authority of juries under the Sixth Amendment."
(Slip. op. at 5).

I don't recall anything in the majority opinion discussing a "table" or "grid" system. Washington's statutory guidelines system doesn't seem to be in the nature of a "grid" but more of a stairstep system. Notice that the panel does not cite one source for this conclusion--not any particular part of Blakely, not a district court opinion, not even a secondary source article.

The other interesting part of the opinion is that the panel justifies a return to indeterminate sentencing with the Guidelines as "guidelines" as authorized by the Sentencing Reform Act. While I don't have Title 18 memorized, my guess is that there are other piecemeal statutes (like those from the PROTECT Act) that would indicate Congress's intent to have a binding Guidelines system, notwithstanding the "shall consider" language of 18 U.S.C. s. 3553(a).

Judge Merritt was appointed pre-SRA, and Judge Nixon is a district judge appointed pre-SRA. I wonder if that had anything to do with their views on the appropriate post-Blakely remedy. But Judge Daughtrey is a Clinton appointee, so maybe I'm needlessly speculating.

Posted by: District Clerk Battling Blakely | Jul 14, 2004 10:43:39 AM

FYI: Merritt is on record as not a fan for the federal guidelines (cites later), so the decision makes a little more sense when you consider the source.

Posted by: Doug B. | Jul 14, 2004 10:55:13 AM

If the SRA is gone, does that mean parole is back?

Posted by: Jane | Jul 14, 2004 12:15:08 PM

The absence of any citation is consistent with the fact that the Blakely issues in this case were (according to counsel) never briefed or argued, not even in a 28(j) letter. I wonder whether we'll see sua sponte panel reconsideration once the rest of the Sixth Circuit reads what's been done.

Posted by: A government lawyer | Jul 14, 2004 2:08:54 PM

The opinion talks about 3553(a), but what about 3553(b), which says that the district court "shall" impose a sentence in the Guidelines range, except in certain cases. I do not see why the opinion makes it sound as if the Sentencing Commission decided all on its own that the Guidelines would be more than advisory.

Posted by: Andy | Jul 14, 2004 3:15:05 PM

Andy is on the money here, IMHO. While way too casually written, Judge Merritt's opinion, when considered in light of its favorable citation to 3553(a), in legalese seems to (1)declare unconstitutional the mandatory language of 18 USC 3553(b) [which it neglects to reference]; (2) find that provision to be severable from 3553(a) and the balance of the SRA; (3) require resentencing (and future sentencings within the circuit) in the district court's discretion, but *not* full discretion -- rather it is discretion (a) requiring reference to the guidelines [3553(a)(4)]; (b) requiring a specific reason for not sentencing within the guidelines (3553(c)), and (c) allowing appellate review of sentences outside the guidelines to a far greater extent than of those within (3742(a),(b)). So all in all, less freewheeling than it might seem.

Posted by: Peter G | Jul 14, 2004 3:49:17 PM

i think that the guidelines are totally uncalled for. these guidelines give a non-violet, low-level offender more time than what his/her crime actually calls for. thats not justice! noone should have to do more time on their sentence because of their background either. i think thats what should be called double jeopardy! if you have already done time for a crime, why should you have to do more time for something that you have already been punished for?

Posted by: angie | Jul 17, 2004 1:12:13 PM

I have a case on direct appeal in the 6th Circuit. I thought I was "Johnny on the spot" when I filed a motion seeking resentencing in the Sixth Circuit citing Montgomery and Blakely on the afternoon Montgomery was released. Now I feel like a lost puppy on the freeway.
In my case the District Judge even said at sentencing that he felt the application of the guiidelines enhancements were fundamentally unfair but felt he had no discretion. I guess we'll have to wait and see...

Posted by: AD - Defense Attorney | Jul 20, 2004 1:42:44 PM

Fuck the Government

Posted by: No Justice No Peace | Jul 22, 2004 1:33:09 PM

i am the mother of a yonug man awaiting trial, or even to make an appearance in court, in minnesota under federal warrant.

Posted by: Teresa LaDuke | Oct 3, 2004 11:05:27 PM

I wonder whether we'll see sua sponte panel reconsideration once the rest of the Sixth Circuit reads what's been done.

Posted by: Robe de Soirée 2013 | Dec 12, 2012 10:38:21 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