The Sixth Sense

M. Night Shyamalan has a new movie due out later this month, but I have come to read the Sixth Circuit’s decision in Montgomery (background here) as something of a revival of his modern classic The Sixth Sense.

First, I would bet the Montgomery decision is already giving prosecutors (and perhaps other Sixth Circuit judges) nightmares. Plus, in a case apparently without upward enhancements at issue and in which Blakely was neither briefed or argued, the decision to declare the guideline only advisory in Montgomery sure was a surprise ending. And, in the end, the bold and opaque decision will likely have an effect that might even be called brooding. Here’s an article discussing fallout from Blakely and Montgomery in the Sixth CIrcuit. It notes that:

Federal judges in southern Ohio were so worried about the impact of the [Blakely] decision that they declared a 30-day moratorium last week on all sentences that could be affected by the Blakely decision. Court officials say at least 100 cases have been put on hold. “There’s just a lot of confusion because no one really knows what the impact will be,” said Jim Higgins, executive of the 6th Circuit. “Clearly, people are searching for answers.”

Second, the mantra for the Montgomery decision should be “I see dead cases.” In Montgomery, Judge Gilbert Merritt places heavy relaince on 18 U.S.C. § 3553(a) when declaring the guidelines only advisory as a result of Blakely. But, over a decade ago, in US v. Davern, 937 F.2d 1041 (6th Cir. 1991), Judge Merritt forcefully argued that § 3553(a) justifies approaching the guidelines as “general principles of sentencing” in order to “transform mandatory rules into the more modest name guidelines.” But his collegues before long made his ruling a dead letter by taking the case en banc and reversing it. US v. Davern, 970 F.2d 1490 (6th Cir. 1992).