Another potent sentencing dissent from the Sixth Circuit’s Judge Merritt

Sixth Circuit Judge Gil Merritt should be known as the great sentencing dissenter because he continues to speak forcefully in dissent about the long sentences being affirmed by his colleagues. Today’s potent sentencing dissent comes in US v. Young, No. 07-5600 (6th Cir. Jan. 30, 2009) (available here), and it includes a notable prediction about future SCOTUS consideration of acquitted conduct enhancements:

The two first offenders here grew and distributed marijuana off and on over several years and were sentenced to 17 years and 19 years respectively.  In my view this sentence is too long and serves no rational penal purpose.  It is much greater than necessary to adequately deter marijuana growing and distribution.  I would reverse and remand for a further explanation of why such a long sentence is justified, especially in light of the great disparity in sentencing for such relatively minor marijuana crimes between the state and federal courts and among federal judges themselves. These defendants will be over 70 years old when they get out of jail, if they live that long.  The cost of their incarceration, including health care, will be enormous.  The sentences seem irrational to me — too irrational for me to defer.

For reasons stated in my dissenting opinion in United States v. White, No. 05- 6596 (6th Cir. Dec. 24, 2008 (en banc)), I do not agree with the holdings and reasonings of Sections II.D and II.E of the majority opinion upholding the use of acquitted conduct and the judge-found, offense-conduct facts regarding the leadership enhancement.  These sentencing enhancements are unconstitutional in my view.  Although I concur that we must defer to the majority opinion in United States v. White, it is not final for all purposes and is likely to be reversed by the Supreme Court.  These two enhancements are the basis for the long sentences and are inconsistent with the right of trial by jury under the Sixth Amendment, as I explained in White.  Counsel for the defendants should keep the cases open until we find out what happens to the White case in the Supreme Court.

As a critic of acquitted conduct enhancement (and as an amici in White), I sure hope Judge Merritt is looking into an accurate crystal ball when he makes the bold prediction that “White … is likely to be reversed by the Supreme Court.”  At this point, I will be excited if the Supreme Court even takes up White, since it has rejected cert petitions in a number of notable acquitted conduct cases in the past.