           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.

                                 1
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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
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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
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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.
