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July 15, 2004

The Sixth Sense

M. Night Shyamalan has a new movie due out later this month, but I have come to read the Sixth Circuit's decision in Montgomery (background here) as something of a revival of his modern classic The Sixth Sense.

First, I would bet the Montgomery decision is already giving prosecutors (and perhaps other Sixth Circuit judges) nightmares. Plus, in a case apparently without upward enhancements at issue and in which Blakely was neither briefed or argued, the decision to declare the guideline only advisory in Montgomery sure was a surprise ending. And, in the end, the bold and opaque decision will likely have an effect that might even be called brooding. Here's an article discussing fallout from Blakely and Montgomery in the Sixth CIrcuit. It notes that:

Federal judges in southern Ohio were so worried about the impact of the [Blakely] decision that they declared a 30-day moratorium last week on all sentences that could be affected by the Blakely decision. Court officials say at least 100 cases have been put on hold. "There's just a lot of confusion because no one really knows what the impact will be," said Jim Higgins, executive of the 6th Circuit. "Clearly, people are searching for answers."

Second, the mantra for the Montgomery decision should be "I see dead cases." In Montgomery, Judge Gilbert Merritt places heavy relaince on 18 U.S.C. § 3553(a) when declaring the guidelines only advisory as a result of Blakely. But, over a decade ago, in US v. Davern, 937 F.2d 1041 (6th Cir. 1991), Judge Merritt forcefully argued that § 3553(a) justifies approaching the guidelines as "general principles of sentencing" in order to "transform mandatory rules into the more modest name guidelines." But his collegues before long made his ruling a dead letter by taking the case en banc and reversing it. US v. Davern, 970 F.2d 1490 (6th Cir. 1992).

July 15, 2004 at 02:14 AM | Permalink


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The Sixth Sense is a good analogy, but what about a David Lynch movie-- say, Mulholland Drive? You know, a strage, opaque story that's more like a series of dream sequences than reality.
One of the plot descriptions available at the Internet Movie Database (www.imdb.com) describes the movie this way :

Ater a brutal car accident in Los Angeles, California, Rita (Laura Elena Herring) is the sole survivor but suffers mass amnesia. Wandering into a strangers apartment downtown, her story strangely entertwines with Betty Elms (Naomi Watts), a perky young woman in search of stardom. However, Betty is intrigued by Rita's situation and is willing to put aside her dreams to pursue this mystery. The two women soon discover that nothing is as it seems in the city of dreams.


There certainly has been a brutal accident in the world of sentencing, Judge Merritt seems to have mass amnesia, pursuing the mystery of sentencing before the Guidelines. And I think in the future, the Sixth Circuit will discover that nothing is as it seems in the sentencing regime of dreams....

Posted by: District Clerk Battling Blakely | Jul 15, 2004 9:51:29 AM

Yeah, judges get into wacky territory when they decide issues that aren't briefed and don't have all of the relevant law before them.

See Thomas v. Crosby, 371 F.2d 782 (11th Cir. 2004)(Tjoflat, J., specially concurring), citing Adam A. Milani & Michael R. Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate Courts, 69 Tenn. L. Rev. 245, 252-53 (2002); Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard, 39 San Diego L. Rev. 1253, 1310 (2002).

Posted by: prosecutor | Jul 15, 2004 10:55:07 AM

Loved Mulholland Drive, and of course the all-time classic Twin Peaks from David Lynch. Maybe we should also throw Momento and Adaptation into the mix to have a grand slam of mobious strip movie analogies. Thanks for the great comments.

Posted by: Doug B. | Jul 15, 2004 11:19:18 AM

Judge Merritt got the construction of the Sentencing Reform Act right in Davern, over 12 years ago, and the rest of the federal courts should have listened. That interpretation (resolving the ambiguity created by the contradiction between sec 3553(a) [guidelines advisory] and sec 3553(b) [guidelines mandatory]) would have fully avoided the constitutional problem that has now arisen. And now he's right again (or should I say still); 3553(b) is unconstitutional under Blakely, but may well be severable from 3553(a), as well as from 3553(c) and 3742. That's the quite defensible holding of Montgomery. A lot fewer unjust sentences would have been meted out, our federal prisons would not have doubled and tripled in size, and we would have no more crime than we now have (and a lot more federal money to spend on drug treatment, education, child welfare, and health care), had his colleagues listened to Judge Merritt in 1991.

Posted by: Peter G | Jul 15, 2004 10:14:10 PM

And I think in the future, the Sixth Circuit will discover that nothing is as it seems in the sentencing regime of dreams....

Posted by: Robe de Soirée 2013 | Dec 13, 2012 12:12:10 AM

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