I’m home . . . and grumpy about the Sixth Circuit

Though I am very happy to be home and lucky to have dodged two hurricanes, I am very grumpy to find out that the Sixth Circuit in US v. Koch, No. 02-6278 (6th Cir. Aug. 13, 2004), yesterday “pulled a Hammoud” — i.e., they mimicked the work of the Fourth Circuit in US v. Hammoud (background here) by affirming en banc a guideline sentence while entering this order:

We hold, with a formal opinion and dissenting opinion to follow, that the decision of the U.S. Supreme Court in Blakely V. Washington, 124 S. Ct. 2531(2004), does not invalidate the appellant’s sentence under the federal Sentencing Guidelines. Accordingly, the district courts within the Sixth Circuit are hereby instructed to continue sentencing defendants in accordance with the Guidelines, as they did prior to Blakely. In the interest of judicial economy, and pending a definitive ruling by the Supreme Court, we recommend that the district courts within this circuit also announce at the time of sentencing a sentence pursuant to 18 U.S.C.A. Sec.3553(a) (West 2000 & Supp.2004), treating the Guidelines as advisory only.

That my adopted home circuit has gone this route is troubling for a number of reasons: (1) we now have a fourth circuit essentially copping out by refusing to explore what Blakely could really mean for federal guideline sentencing (see concerns herehere and here), and (3) the practice of issuing an important order without supporting opinions seems to foster confusion and uncertainty, and also is at least a partial abdication of a judicial commitment to provide a fully reasoned explanation for all decisions.

I guess I should not be too upset with the Sixth Circuit for following the Fourth Circuit’s lead in Hammoud, since that decision nearly two weeks ago was so compellingly justified in the Fourth Circuit’s written opinions. Oh, wait, my mistake — we still have not heard why or how the Fourth Circuit reached its conclusion in HammoudHammoud. Hmmm…. I guess the Fourth Circuit’s complete silence is more persuasive to the Sixth Circuit than all the thoughtful district court opinions which have found that guidelines constitutionally problematic after Blakely (details here).

Finally, there is a great bit of irony in the Koch ruling: the Sixth Circuit is now recommending the announcement of an alternative sentence following the logic of the original Sixth Circuit panel decision in Montgomery (background here). The Sixth Circuit might have saved a lot of time and energy — and also, in my view, have been far more jurisprudentially honest — if it had simply left the Montgomery decision in place, and then simply “recommended” that district courts also announce a guideline sentence at the time of sentencing.