What is it about the even circuits?

Perhaps it is something in the coffee, but it seems that the “even” circuits keep acting odd in our new Blakely world. The Second Circuit has been curious and clever through its recent order trying to freeze Blakely cases (details here), following up its prior efforts to certify Blakely questions to the Supreme Court (details here). The Fourth Circuit has now kept us waiting a week for opinions to explain and support its opaque order in Hammoud recommending “alternative” sentencing (background here and commentary here). And the action in the Eighth Circuit has been fast and furious and often hard to completely fathom (latest news with links to all the action here).

Of course, the Sixth Circuit has also had its role in this story, with an initial panel decision declaring the guidelines wholly unconstitutional (details here) that was then vacated en banc only five days later (details here). And I expected the Sixth Circuit to get back in the action this week with a scheduled en banc hearing planned for Wednesday.

But I was surprised to just discover that the Sixth Circuit in fact got back into the action, indirectly, through an unpublished opinion handed down last week in US v. Springs, 2004 U.S. App. LEXIS 16265 (6th Cir. Aug. 4, 2004). Though the opinion for the court in Springs never even mentions Blakely, the court affirms a sentence imposed under the federal guidelines that depended greatly on (contestable) judicial factfinding. Especially because the Springs opinion is unpublished, it should not be read as a definitive ruling on the post-Blakely status of the federal guidelines in the Sixth Circuit. Nevertheless, it is both interesting and a bit disconcerting that the Sixth Circuit is issuing an opinion which reads as if Blakely never happened — though Judge Moore, dissenting in part, does obliquely note that the case was argued before Blakely and that the “parties may wish to explore what effect, if any, that decision has on the instant case.”