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November 10, 2009

Brief Sixth Circuit opinion rejects Blakely challenge to Michigan sentencing system

This morning the Sixth Circuit issued a short opinion in Chontos v. Berguis, No. 08-1031 (6th Cir. Nov. 10, 2009) (available here), in which the panel concludes that Michigan's distinctive structured sentencing scheme does not have a Blakely problem.  I have taken the liberty of reprinting some critical comments about this ruling from an e-mail sent my way by a helpful reader:

As detailed in this article appearing now as Mandatory Sentencing Guidelines by Any Other Name: When 'Indeterminate Structured Sentencing' Violates Blakely v. Washington, 57 Drake L. Rev. 643 (2009), the issue is a lot more complicated than the Sixth Circuit panel assumed today, and deserves a lot more attention.  Michigan does not have an "indeterminate" sentencing scheme, at least not as the Supreme Court has used that term.  Further, Harris does not save the Michigan scheme because Michigan's mandatory guidelines regularly raise the ceiling on judges' discretion, not just the floor.  In short, Michigan's scheme doesn't deserve the free pass that the Sixth Circuit just handed out.

November 10, 2009 at 12:12 PM | Permalink


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It should be noted that it appears there has been no ruling, in U.S. District Courts located in Michigan or the Sixth Circuit, regarding the constitutionality of judicial fact-finding which takes the MAXIMUM sentence in Michigan from 1 year or less of county jail (this is flat, determinate time)to a much longer maximum sentence in the MDOC (where there is a minimum and maximum sentence). In the lowest guidelines ranges for some crimes in Michigan, without any judicial fact-finding, the maximum sentence must be one year or less. It does not appear that the habeas petitioner in this case was able to make that argument. Note that, with more severe crimes in Michigan, the maximum sentence starts out in MDOC territory without any judicial fact-finding.

Posted by: Tim Holloway | Nov 10, 2009 1:33:17 PM

Also, note that, as indicated by Prof. Berman a few weeks ago, Harris v United States, which was the basis for the Sixth Circuit's decision to uphold increases in the MINIMUM part of a Michigan sentence, may be open to reassessment by the U.S. Court. See Berman's posting on this blog regarding 08-1569, United States v O’Brien and Burgess. I think there have been some questions, for a few years, whether Harris is consistent with Booker. Also, see Breyer's concurrence in Harris. Note that Part III of Harris involved a plurality opinions. I believe Part III of Harris is the most important part of the opinion in regard to this Sixth Circuit habeas case.

Posted by: Tim Holloway | Nov 10, 2009 1:43:03 PM

So what. I sounds like the MI system does not offend Blakely, at least for the more severe crimes. That is may not make logical sense is the fault of Blakely's formalistic reasoning, not Michigan's legal structure. If the system needs to be improved, improve it on the merits. Stop looking for hidden constitutional problems that really don't exist or can be so easily evaded (ie Booker).

Posted by: So What? | Nov 10, 2009 4:52:49 PM

MDOC is a term I am not familiar with. As for the rest, unless something was left out of the opinion to make it look better (a practice I am not discounting here) I don't see any problems with Michigan's sentencing scheme so long as Harris remains good law.

Posted by: Soronel Haetir | Nov 10, 2009 5:31:42 PM

Absolutely. Soronel is right. Harris may not be terrific but it is still good law. The author of the Drake law review should live in the world as we find it, not in the world as he or she would want it to be.

Posted by: Absolutely | Nov 10, 2009 6:04:07 PM

MDOC = Michigan Department of Corrections. For some Michigan offenses, judicial fact-finding does in fact increase the MAXIMUM sentence. In Michigan, one cannot currently be sentenced to the county jail for more than one year (which is flat determinate time). A MDOC sentence consists of a minimum (when one becomes eligible for parole) and a maximum (when one must be released when parole has not been granted). MDOC maximums are dictated by statute and range from 2 years to much longer periods, depending on the offense. For some offenses, judicial fact-finding increases the maximum sentence from county jail (1 year max, at most)to a MDOC maximum sentence. I do not believe any federal court has yet addressed a case where the maximum sentence was increased from county jail time to MDOC time.

Posted by: Tim Holloway | Nov 11, 2009 10:59:08 AM

In other words, Harris is irrelevant to increases to the maximum sentence from 1 year to a much longer period of time. “‘The relevant “statutory maximum,”’ this Court has clarified ‘”is not the maximum sentence a judge may impose after finding additional facts, but the maximum, he may impose without any additional findings.”’” Cunningham v California, 127 SCt 856, 860, 166 LEd2d 856, 865 (2007) (emphasis in original) quoting Blakely v Washington, 542 US 296, 303-304, 124 SCt 2531, 159 LEd2d 403 (2004).

Posted by: Tim Holloway | Nov 11, 2009 11:03:39 AM

In my case, MSC#134774, COA#278462, i argued that the court violated Blakely when i received a 15-48 month prison sentence when my guidelines were scored 0-9 months, which calls for a determinate jail sentence...to no avail and no leave granted. I ended up doing 44 months on the porn charge, but the judge's substantial and compelling reasons to send me to prison were not found by a jury, nor admitted by me. He decided on his own determination that i committed numerous crimes against a person in a cyberstalking allegation, unrelated to the porn charge. I did not take the issue to the US Supreme Court 'cause a 6500 was still in order. The porn charge dealt with ONE video originating from the internet and I recently affirmed the female in the video was 18 years old at the time it was recorded. Now i will challenge the conviction, not the sentence as that has been exhausted in the State appellate courts.

Posted by: Rob | Jun 5, 2012 7:28:26 PM

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