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August 26, 2004

Interesting facets of the Koch dissent

Of course, the big news from the Sixth Circuit's Koch decision (details here) is Judge Jeffrey Sutton's majority opinion, which makes a spirited defense of the federal guidelines in the face of Blakely (and makes no defense of the Sixth Circuit's curious order in Koch recommending the announcement of alternative sentences). But the dissent, authored by Judge Boyce Martin and joined by Judges Daughtrey, Moore, Cole, and Clay, has a number of interesting and noteworthy facets. Here are just a few of many possible observations on this front:

1. Politics as usual? Unlike the unusual coalitions of Justices in Blakely, the decision in Koch nearly reflects the judicial equivalent of a "party-line vote." If my calculations are correct, all five judges joining the Koch dissent were appointed by Democratic Presidents, while seven of eight judges in the Koch majority were appointed by Republican Presidents(Judge Gilson is the exception).

2. Surprising civility? For a court which has made headlines for its infighting (details here and here), the tone and the language of the dissent is more civil than I might have expected.

3. Can a dissent have dicta? Interestingly, the last three pages of the dissent address whether a Blakely claim can qualify as plain error. Though it is said that history is written by the winners, apparently the Koch dissenters hope that plain error doctrine can be written by the losers.

4. Better not to decide? Amusingly, before reaching out to address plain error, the dissent makes a spirited argument that "the most appropriate course of action would be to withhold our decision until the Supreme Court has spoken." Indeed, the harshest words in the dissent are at the outset when Judge Martin asserts that the "majority’s opinion in this case amounts to nothing more than an exercise in futility and a waste of time and resources, in light of the Supreme Court’s grant of certiorari" in Booker and Fanfan.

5. The duties of lower court judges? Though necessarily a secondary issue to the merits, so much of the post-Blakely, pre-Booker/Fanfan jurisprudence wonderfully spotlights the challenges for lower court judges. As noted before, Judge Sutton invokes Learned Hand for the proposition that circuit courts ought not anticipate the overruling of Supreme Court precedents. But Judge Martin responds by asserting that, in Koch, "the majority ignores our very duties as United States Circuit Judges:"

Having insisted upon declaring its view regarding the applicability of Blakely to the Guidelines, rather than – as I would do – awaiting the Supreme Court's impending resolution of the issue, the majority is obligated, as we all are, to interpret and apply Supreme Court precedent to the facts of this case, regardless of whether its analysis leads to a result that it does not like.

August 26, 2004 at 02:41 PM | Permalink


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Just a few comments on Koch. I find myself in agreement with the majority on one issue and the dissent on the merits.
First, the dissent laments that the decision is unnecessary given the grant of cert in Booker and Fanfan. That may be true in a sense, but it fails to take into consideration that the district courts in the Sixth Circuit do not have the until Thanksgiving or Christmas to deal with the aftermath of Blakely. There is a thing called the Speedy Trial Act and the clock is running on many cases. One might also say since the court had already told the District Courts to proceed with business as usual, it owed n explanation of how it got there, i.e., was it a deliberated decision or simply, as many surmised, a holding one's cards close to the vest to see where the Supreme Court went?
On the merits, tha main points relied on by the majority simply do not hold water.
1. As the dissent points out U.S. v. Edwards specifically declined to rule on the 6th Amendment challenge. On that basis it can hardly be said, as the majority seems to believe, that the USSG withstood a 6th amendment challenge. [I also note that in both Apprendi and Blakely the consitutionaliy of the USSG under the 6th Amendment was not even before the court!]
2. That Blakely did not discuss the USSG is totally irrelevant. For one thing, the Supreme Court, as do the lower courts, abstains from deciding issues that are not before it. As the majority noted, Apprendi likewise declined to express a view as to the impact on teh USSG. Apprendi also did not involve a federal statute. However, no Circuit Court, including the Sixth Circuit, declined to apply Apprendi to federal statutes. Nor has any court failed to apply Apprendi to state statutes other thann those in New Jersey, or any other NJ statute, even though none of those were before the Supreme Court and decided by it in Apprendi.
3. That the USSG are a product of a commission not Congress is, as the dissent so ably notes, a distinction without a difference. First, the control by Congress is absolute, e.g., numerous parts of the USSG are direct enactments by Congress overruling the USSC. The statement that the commission being part of the judiciary is only doing what judges have historically done may possibly have been true when Misretta was decided, but can not be seriously advanced at this point. The Feny Amendment stripped the USSC of its "judicial flavor" by limiting the judicial membership to 3 of the 7. Judges can no longer be the majority; consequently how can one logically state that the USSC is a judicial body carrying out the judicial function of imposing sentences. It is now, even more so than it was at its inception, another independent agency carrying out the will of Congress, either on its own or, if it does not, being overruled by Congress. The fact that Congress placed the USSC in the judicial branch no more makes it a judicial body than any executive agency that Congress by its whim should place in the judicial branch.
Finally, on the merits, I fear that if the Supreme Court should for some reason follow the reasoning of the majority in Koch (and the cases it follows), the public perception of the inherent fairness and inviolate nature of the right to a jury trial will be serious undermined. It would seem incongruous to this member of the unnamed generation that preceded the baby boomers (read I have passed 60), for the Supreme Court to say that the 6th Amendment, which was not intended to apply to the states (see CJ Marshall's opinion in the 1830's City of Baltimore case)can invalidate a statute enacted by a state legislature but not laws having the same effect simply because Congress delegated (well, sort of, with not just strings but very strong cables attached) a part of its function to an independent agency it by its whim placed in the judcial branch but of whom a majority are not part of the judciary.

Posted by: Thomas J. Yerbich | Aug 26, 2004 5:16:37 PM

Thanks for your thoughtful and insightful comments. I may post more later about the distinction the majority is emphasizing.

Thanks again.

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