Sixth Circuit: a case study of Blakely chaos

Last week’s Senate hearings (some background here and here), as well as quotes in newspaper stories and on-line commentary (e.g., my duel of metaphors with Dahlia Lithwick) highlight that there is an on-going interesting and nuanced debate about whether there is, in fact, a crisis in federal sentencing. Of course, without some sort of standard “crisis” metric, no one can conclusively declare a winner in this debate.

What can be done, however, is to examine the chaos that Blakely is causing in particular jurisdictions. The District of Utah might be viewed as an epicenter of such chaos because four different judges (in the same building?) have apparently come to four different conclusions about what Blakely means for federal sentencing. Or perhaps Florida would serve as a useful case study because, as this recent post highlights, federal sentencing practices in Florida’s Southern and Middle Districts have been dramatically (and inconsistently) altered by Blakely.

But I am inclined to focus on the chaotic gyrations in my home Sixth Circuit. This newspaper article describes (with a few legal inaccuracies) some of the turmoil caused by the bold panel decision in Montgomery (background here and here), and the subsequent decision by the full court to vacate the panel decision and hear the case en banc (details here).

Simply following the bouncing Montgomery ball is challenging enough, but consider the impact on other cases. Though I know some Ohio courts have postponed sentencings while all this is worked out, it seems plausible that prosecutors and defense attorneys might have made some strategic decisions during the days when Montgomery was binding circuit law. In addition, though the Sixth Circuit has sought quick Blakely briefing in Montgomery (as well as in at least one other case which might augur a consolidated ruling), a decision from the en banc court seems unlikely before at least mid-August. (Briefing was due July 28, and last I heard oral argument had not yet been scheduled.)

What should be done “on the ground” during this period? Should every district judge in the four Sixth Circuit states postpone all sentencing decisions until the Sixth Circuit rules en banc? Should Sixth Circuit panels considering pending sentencing appeals also delay decisions until en banc guidance is rendered? Should prosecutors Blakely-ize indictments and/or seek express Blakely waivers while we are waiting? (I was quite intrigued to learn from some Ohio prosecutors last week that Montgomery in some ways actually made their lives easier: ironically, a ruling that the guidelines are wholly advisory allows federal criminal practice to return at the indictment stage to “business as usual,” but a ruling that the guidelines are partially operative might require major changes and additions to existing and future indictments.)