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August 13, 2004

Interesting insights from Michigan

Only late Thursday night did I have the chance to read a thoughtful opinion sent my way from the chambers of Judge Richard Alan Enslen of the US District Court for the Western District of Michigan. In US v. Hakley, No. 1:02-CR-159 (W.D. Mich. Aug. 12, 2004), Judge Enslen adds himself to the list of jurists finding the federal sentencing guidelines unconstitutional after Blakely, though he does so in the course of a re-sentencing in which this finding allows him to re-impose a sentence that the Sixth Circuit had previously reversed.

In Hakley, Judge Enslen first notes that "some courts have decided to delay sentencings until the status of the Guidelines is determined by the Supreme Court," but then explains that he "finds the need to sentence defendants expeditiously outweighs the benefits of waiting for the Supreme Court to act." He goes on to conclude "that Blakely does apply to the United States Sentencing Guidelines because of the similarities between the federal and Washington state’s sentencing systems, and because of the wording of Blakely itself." In a telling turn of phrase (which the Second Circuit should read closely), Judge Enslen says he "believes Blakely's redefinition of the term 'statutory maximum' has changed the judicial landscape too much for the guidelines to be propped up by mere implication."

Judge Enslen thereafter concludes that "the Guidelines are not severable and that Blakely therefore renders them wholly unconstitutional in all cases." He explains that he "finds that the Guidelines must be struck down in their entirety because severance would frustrate at least two of the three objectives of the Guidelines.... A sentencing system that applies only in certain cases or that allows for decreases but not increases in a defendant’s sentence is neither uniform nor proportional."

Finishing his general analysis with a flourish, Judge Enslen says "the Guidelines should be returned to their originally intended state, a system designed to structure rather than dictate judicial discretion." This can be achieved by regarding the guidelines as non-binding but advisory: "By treating the Guidelines as advisory rather than mandatory, judges will gain the benefits of having a comprehensive set of recommendations available to them while avoiding the drawbacks of being forced to follow those recommendations even when they are clearly inapplicable."

Then, turning to the specific of the case before him, Judge Enslen uses his new sentencing freedom to re-impose a sentence that the Sixth Circuit had reversed (and instructed to be lower) in application of the guidelines. In so doing, Judge Ensler had a few choice words about the "alternative sentencing" approach:

The Court will not issue an alternate sentence at this time. Any pronouncement of an alternate sentence would be mere dicta and of little use to the court. Furthermore, in many cases, courts would have to impose at least three alternative sentences for defendants: one applying the Guidelines in their entirety, one applying all Guidelines except those that enhance a defendant’s sentence, and one non-Guidelines sentence. Finally, the benefits of alternative sentences are unclear given the fact that the alternative sentence could not be imposed without further hearing.

You can download the whole opinion, which is worth a full read, here:
Download US-Hakley-resentencing-revised.wpd

August 13, 2004 at 01:19 AM | Permalink


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Any word on what the Sixth Circuit is going to do with the Koch decision (heard en banc Wednesday afternoon)?

Posted by: Simon | Aug 13, 2004 8:34:34 AM

Doesn't this case raise another Blakely problem that has not gotten much, if any attention? Unconstitutional as the Guidelines may be after Blakely, isn't there an ex post facto problem if the non-Guideline sentence is greater than the Guideline sentence? And in this case, the Sixth Circuit had apparently said that the Guidelines required a *lower* sentence than the district court had imposed the first time around. So what's the authority for the district court to impose the same sentence post-Blakely, if it was too much pre-Blakely?

Posted by: Michael Ausbrook | Aug 13, 2004 3:55:23 PM

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