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August 26, 2004

The 6th Circuit Speaks!!

Making me proud of my home circuit, at least for its timing if not the specifics its opinion, the Sixth Circuit has today beaten the Fourth Circuit to the punch and has released its opinion in US v. Koch, which can be accessed here.

Here's the line up of the judges: Sutton, J., delivered the opinion of the court, in which Boggs, C. J., Guy, Batchelder, Gilman, Gibbons, Rogers, and Cook, JJ., joined. Martin, J. delivered a separate dissenting opinion, in which Daughtrey, Moore, Cole, and Clay, JJ., joined.

Analysis about this major development to come soon.

UPDATE: I am just getting started on the opinion, but it seems that the underlying case involves intricate facts in which the defendant was sentenced for a killing that was never charged nor considered by the jury. Also, I am already proud that (OSU alum) Judge Jeffrey Sutton starts his substantive analysis with a quote from Judge Learned Hand. It looks like this opinion was worth the wait.

Here are just a few of the many choice quotes from the majority opinion:

in each of the post-Mistretta cases, the Court addressed a question not dissimilar to the one presented here: May federal judges find facts under the preponderance standard that increase a sentence beyond the facts found by the jury under the beyond-a-reasonable-doubt standard? Because the Court said “yes” in each case, this line of authority by itself suggests that a lower court should be skeptical about concluding that Blakely’s invalidation of a state-sentencing scheme suddenly dooms the Federal Sentencing Guidelines....

While sentencing statutes and the Guidelines both have the force of law and both bind courts, the Guidelines are agency-promulgated rules enacted by the Sentencing Commission — a non-elected body that finds its home within the Judicial Branch, the very branch of government in which sentencing discretion has traditionally been vested.... This precise distinction, notably, was central to Mistretta’s decision to uphold the Guidelines in the first instance.

Whether this distinction will carry the day in Booker and Fanfan remains to be seen, but it at least undermines the view that Blakely compels us to invalidate the Sentencing Guidelines....

All of which brings us back to our central concern. It may be that the trajectory of Apprendi, Ring and Blakely will end with a nullification of the Guidelines. But, in the face of these relevant precedents, it is not for us to make that prediction or to act upon it. Not only would such a ruling be of some consequence to the Guidelines, but it also would be in tension with whole bodies of law that the lower courts long have been obliged to follow.

Partial Analysis of Majority Opinion: Indeed making me proud to be a Buckeye, Jeff Sutton has penned a wonderfully written defense of the federal sentencing system in the face of Blakely; in my view, this is the best defense of the federal system "on the merits" to date (with apologies, of course, to Judge Easterbrook). We will find out before too long whether Judge Sutton's former boss, Justice Scalia, may find this defense convincing.

Though I will have more commentary on the substance of the majority's opinion later today in a separate post (as well as a separate post about the dissent), I have to comment now about the curious absence of a single mention, let alone any defense, of the Sixth Circuit's prior recommendation that its district courts issue alternative sentences (background here).

Has the curious alternative sentencing recommendation been (officially or unofficially) withdrawn? Upon reflection, did the Sixth Circuit agree with Judge Goodwin that alternative sentencing is inappropriate (details here)? Inquiring minds want to know. And, as my colleague Marc Spindelman suitably added, criminal defendants in the Sixth Circuit deserve to know.

August 26, 2004 at 11:50 AM | Permalink


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