United States v. Montgomery

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 14, 2004
• Docket: 03-5256
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Montgomery No. 03-5256 ELECTRONIC CITATION: 2004 FED App. 0226P (6th Cir.) File Name: 04a0226p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Needum L. Germany, OFFICE OF THE FOR THE SIXTH CIRCUIT FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for _________________ Appellant. Eric H. Jaso, ASSISTANT UNITED STATES ATTORNEY, Newark, New Jersey, for Appellee. UNITED STATES OF AMERICA , X ON BRIEF: Randolph W. Alden, OFFICE OF THE Plaintiff-Appellee, - FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for - Appellant. Eric H. Jaso, ASSISTANT UNITED STATES - No. 03-5256 ATTORNEY, Newark, New Jersey, Carroll L. Andre, III, v. - ASSISTANT UNITED STATES ATTORNEY, Memphis, > Tennessee, for Appellee. , TIFFANY HARRIS - MONTGO MERY , _________________ - Defendant-Appellant. - OPINION - _________________ N Appeal from the United States District Court MERRITT, Circuit Judge. This case raises the question of for the Western District of Tennessee at Memphis. whether the Federal Sentencing Guidelines should be viewed No. 02-20247—Bernice B. Donald, District Judge. as a mandatory constraint on the discretion of federal district judges to fix sentences. The defendant, Mrs. Tiffany Argued: June 10, 2004, Montgomery, pled guilty to one count of bank fraud involving approximately $21,000. At sentencing, the district court Decided and Filed: July 14, 2004 found a total offense level of 10 in Zone B and believed it was constrained by the mandatory nature of the Sentencing Table Before: MERRITT and DAUGHTREY, Circuit Judges; (Chapter 5) and Sections 5B1.1(a)(2) and 5C1.1(c)(2) of the NIXON, District Judge.* Federal Sentencing Guidelines. Zone B, level 10, calibrates to 6-12 months of imprisonment. Section 5B1.1(a)(2) provides: Imposition of a Term of Probation (a) Subject to the statutory restrictions in subsection (b) below, a sentence of probation is authorized if: * ... The Honorable John T. Nixon, United States District Judge for the Midd le District of Tennessee, sitting by designation.

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(2) the applicable guideline range is in Zone B of the imprisonment is not binding on the Bureau, but at the time Sentencing Table and the court imposes a condition Mrs. Montgomery was sentenced, the Bureau had been acting or combination of conditions requiring intermittent under a consistent policy for approximately 15 years whereby confinement, community confinement, or home nonviolent offenders sentenced to short periods of detention as provided in subsection (c) of § 5C1.1 imprisonment would be placed in a community confinement (Imposition of a Term of Imprisonment) center or halfway house for the requisite period of “imprisonment” if the judge had made such a Section 5C1.1(c) provides: recommendation. Imposition of a Term of Imprisonment After the hearing, and just days before judgment was entered, the Department of Justice’s Office of Legal Counsel ... issued a memorandum changing this policy. It informed the Bureau of Prisons that it lacked the general authority to place (c) If the applicable guideline range is in Zone B of the persons who have been sentenced to a short term of Sentencing Table, the minimum term may be satisfied by imprisonment directly in a community confinement center or -- halfway house, or to transfer the person to a halfway house at any time it chooses during the course of the term of (1) a sentence of imprisonment; or imprisonment. (Letter of December 13, 2002, opinion of (2) a sentence of imprisonment that includes a term Office of Legal Counsel, 2002 WL 31940146 (O.L.C.) of supervised release with a condition that (Preliminary Print). The Office of Legal Counsel concluded substitutes community confinement or home that a halfway house or other community confinement center detention according to the schedule in is not “imprisonment” and that the Bureau’s long practice of subsection (e), provided that at least one month using direct placements to halfway houses for sentences of is satisfied by imprisonment . . . . “imprisonment” was contrary to case law and section 5C1.1 of the Sentencing Guidelines. As a result, on January 15, (emphasis added) (footnote omitted). 2003, the Bureau of Prisons assigned Mrs. Montgomery to the West Tennessee Detention Center. At the sentencing hearing, the district court imposed the minimum six-month sentence allowed under the guidelines The defendant filed a motion challenging the Bureau’s new and adopted option 2 of § 5C1.1(c), sentencing Mrs. policy as a violation of “her constitutional and statutory Montgomery to 30 days imprisonment with a rights” and because the new policy frustrates the court’s recommendation that it be served in a halfway house in clearly stated intent, which relied upon a then-existing and Memphis so that she could continue to meet her family long-standing Bureau of Prisons policy. In the motion, obligations. She also received 5 months of home confinement defendant also stated her intent to file a motion to correct the and 3 years of supervised release. sentence under Federal Rule of Civil Procedure 36 and a motion for resentencing under 28 U.S.C. § 2255. The Under 18 U.S.C.§ 3621, Mrs. Montgomery would be defendant also moved to stay the execution of her sentence placed in the custody of the Bureau of Prisons for her term of until the district court could rule on her motion. On “imprisonment.” The judge’s recommendation for place of February 10, 2003, the district court denied defendant’s No. 03-5256 United States v. Montgomery 5 6 United States v. Montgomery No. 03-5256

motion, concluding that it is bound by the Guidelines and that encroaches on the fact-finding authority of juries under the it lacked the authority to modify Mrs. Montgomery’s Sixth Amendment. The Court made it clear that an sentence. The district court did grant the defendant’s motion indeterminate sentencing system administered by judges to stay so that she could pursue her appeal to this court on the whose hands are not tied, as was the case prior to the Bureau’s policy change. imposition of the present system in 1987 by the Federal Sentencing Commission, does not violate the Sixth The district court should be given an opportunity to Amendment: reconsider its sentence under the Federal Sentencing Guidelines for two reasons. First, the intervention of the new First, the Sixth Amendment by its terms is not a Bureau of Prisons policy frustrates the district court’s original limitation on judicial power, but a reservation of jury sentence. During the period since the district court’s order power. It limits judicial power only to the extent that the denied the defendant’s motion, a number of courts have held claimed judicial power infringes on the province of the the policy invalid for a variety of reasons. See Distefino v. jury. Indeterminate sentencing does not do so. It Federal Bureau of Prisons, No. 04 Civ. 0007 RWS, 2004 WL increases judicial discretion, to be sure, but not at the 396999, **4-6 (S.D.N.Y. Mar. 4, 2004); Zucker v. Menifee, expense of the jury's traditional function of finding the No. 03 Civ. 10077 (RJH), 2004 WL 102779, *6 (S.D.N.Y. facts essential to lawful imposition of the penalty. Of Jan. 21, 2004); Colton v. Ashcroft, 299 F. Supp. 2d 681, 684 course indeterminate schemes involve judicial (E.D. Ky. 2004)(collecting cases); Monahan v. Winn, 276 F. factfinding, in that a judge (like a parole board) may Supp. 2d 196, 207-08, 212 (D. Mass. 2003); Ferguson v. implicitly rule on those facts he deems important to the Ashcroft, 248 F. Supp. 2d 547, 572 (M.D. La. 2003); Iacaboni exercise of his sentencing discretion. But the facts do not v. United States, 251 F. Supp. 2d 1015, 1024-29 (D. Mass. pertain to whether the defendant has a legal right to a 2003). The district court should have an opportunity to lesser sentence – and that makes all the difference insofar consider and adjust the sentence in light of the Bureau’s new as judicial impingement upon the traditional role of the confinement policy and these cases and, most importantly, the jury is concerned. Supreme Court’s recent sentencing decision discussed below. Blakely v. Washington, No. 02-1632, 2004 WL 1402697, *7 Second, in Blakely v. Washington, No. 02-1632, decided (June 24, 2004) (emphasis in original). June 24, 2004, the Supreme Court made a sea change in the administration of the Federal Sentencing Guidelines. The Therefore, in order to comply with Blakely and the Sixth court applied Apprendi v. New Jersey, 530 U.S. 466 (2000), Amendment, the mandatory system of fixed rules calibrating to a state sentencing system that allowed a judge to find a fact sentences automatically to facts found by judges must be that increased the federal sentence by 37 months. The Court displaced by an indeterminate system in which the Federal held that “determinate” or fixed rule-bound sentencing, like Sentencing Guidelines in fact become “guidelines’ in the the Federal Sentencing Commission’s system, which dictionary-definition sense (“an indication or outline of future increases sentences based on a requirement of judicial fact- policy,” Webster’s International Dictionary (3d ed. 1963)). finding instead of jury fact-finding, violates the trial-by-jury The “guidelines” will become simply recommendations that requirement of the Sixth Amendment. The Court held that a the judge should seriously consider but may disregard when system that automatically calibrates sentences from a grid or she believes that a different sentence is called for. This table based on various factual elements as found by the judge solution to the immediate problem in federal sentencing is not No. 03-5256 United States v. Montgomery 7 8 United States v. Montgomery No. 03-5256

inconsistent with the alternative position by the Deputy Accordingly, the judgment of the district court is vacated Attorney General in his memo to federal prosecutors, a memo and the case remanded for resentencing in view of the forwarded to the federal judiciary on July 7, 2004. (“In that intervening Bureau of Prisons policy and the principles of event [when the guidelines may not be applied as mandatory indeterminate sentencing as outlined in Blakely v. Washington rules], the government should urge the court to impose and this opinion. sentence, exercising traditional judicial discretion, within the applicable statutory sentence range” with the “recommendation in all such cases . . . that the court exercise its discretion to impose a sentence that conforms to a sentence under the Guidelines....”) The Sentencing Reform Act of 1984, which gave rise to the present determinate sentencing system, does not by its terms require a mandatory, rule-bound system calibrating sentences to judicially-found facts. The statutory language would have allowed the creation of an indeterminate system in which the guidelines are simply considerations for Article III federal judges to access before passing sentence. The most important provision of the statute, section 3553(a) of Title 18, simply says that “the court, in determining the particular sentence to be imposed, shall consider” a large number of listed factors like the “seriousness of the offense” and the “characteristics of the defendant,” only one of which is the “kind of sentence and the sentencing range established” by the Sentencing Commission. In addition to the various factors that a judge should “consider” as listed in Section 3553(a), the next sub- section counsels the judge to consider the “aggravating or mitigating circumstances” of the particular case. The Sentencing Commission itself interpreted the statutory language and converted this advisory language into the kind of mandatory rules of a determinate system of sentencing that the Supreme Court has now invalidated. In light of Blakely, and the language of the enabling act itself, a district judge should no longer view herself as operating a mandatory or determinate sentencing system, but rather should view the guidelines in general as recommendations to be considered and then applied only if the judge believes they are appropriate and in the interests of justice in the particular case.