        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206           2    United States v. Koch                      No. 02-6278
    ELECTRONIC CITATION: 2004 FED App. 0284P (6th Cir.)
                File Name: 04a0284p.06                    ON BRIEF: H. Louis Sirkin, Jennifer M. Kinsley, SIRKIN,
                                                          PINALES, MEZIBOV & SCHWARTZ, Cincinnati, Ohio, for
                                                          Appellant.    Steven L. Lane, UNITED STATES
UNITED STATES COURT OF APPEALS                            DEPARTMENT OF JUSTICE, CRIMINAL DIVISION,
                                                          Washington, D.C., Charles P. Wisdom, Jr., ASSISTANT
               FOR THE SIXTH CIRCUIT                      UNITED STATES ATTORNEY, Lexington, Kentucky,
                 _________________                        Laura K. Voorhees, ASSISTANT UNITED STATES
                                                          ATTORNEY, Covington, Kentucky, for Appellee.
 UNITED STATES OF AMERICA , X
             Plaintiff-Appellee, -                          SUTTON, J., delivered the opinion of the court, in which
                                   -                      BOGGS, C. J., GUY, BATCHELDER, GILMAN,
                                   -   No. 02-6278        GIBBONS, ROGERS, SUTTON, and COOK, JJ., joined.
            v.                     -                      MARTIN, J. (pp. 14-24), delivered a separate dissenting
                                    >                     opinion, in which DAUGHTREY, MOORE, COLE, and
                                   ,
 ROBERT KOCH ,                     -                      CLAY, JJ., joined.
          Defendant-Appellant. -
                                                                             _________________
                                  N
       Appeal from the United States District Court                              OPINION
    for the Eastern District of Kentucky at Covington.                       _________________
     No. 01-00083—Joseph M. Hood, District Judge.
                                                            SUTTON, Circuit Judge. This court granted en banc
                Argued: August 11, 2004                   review of United States v. Koch, 373 F.3d 775 (6th Cir.
                                                          2004), to consider whether Blakely v. Washington, 124 S. Ct.
          Decided and Filed: August 26, 2004              2531 (2004), requires us to invalidate the United States
                                                          Sentencing Guidelines on Sixth Amendment grounds.
    Before: BOGGS, Chief Judge; MARTIN, GUY,              Concluding that it does not, we reinstate the judgment of the
   BATCHELDER, DAUGHTREY, MOORE, COLE,                    panel in this case, adopt the panel’s opinion as our own and
 CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and               add this opinion regarding the current validity of the
              COOK, Circuit Judges.                       Sentencing Guidelines.

                  _________________                                                    I.

                       COUNSEL                              Briefly summarized, the facts are these. In 2001, Robert
                                                          Koch bought large amounts of marijuana in Arizona to sell in
ARGUED: H. Louis Sirkin, SIRKIN, PINALES, MEZIBOV         Kentucky. To further his scheme, he asked Justin Davis to act
& SCHWARTZ, Cincinnati, Ohio, for Appellant. Steven L.    as a “frontman” who would sell drugs on Koch’s behalf.
Lane, UNITED STATES DEPARTMENT OF JUSTICE,                Koch supplied Davis with five pounds of marijuana on credit,
CRIMINAL DIVISION, Washington, D.C., for Appellee.        and Davis promised to repay Koch $5,000 once he had sold

                            1
No. 02-6278                       United States v. Koch       3    4    United States v. Koch                        No. 02-6278

the drugs. Davis, however, failed to repay the $5,000,             requiring an enhanced base-offense level of 30 under
claiming in his defense that the drugs had been stolen.            U.S.S.G. § 2D1.1; (2) Koch had obstructed justice (by
Apparently suspicious of Davis’s explanation, Koch took            threatening a witness), thereby requiring a two-level
matters into his own hands.                                        enhancement under U.S.S.G. § 3C1.1; and (3) Koch had
                                                                   possessed a dangerous weapon, thereby requiring a two-level
  In the early morning of April 27, 2001, Koch went to             enhancement under U.S.S.G. § 2D1.1(b)(1). All adjustments
Davis’s home with Patrick O’Brien, Robert Gibson and Joe           considered, Koch faced a base-offense level of 34, which,
Shukler. Koch and Gibson were carrying guns. Koch and              when combined with his criminal history category (I),
Gibson knocked on the door, which Davis’s roommate, Luke           resulted in a sentencing range of 151-188 months. Despite
Hitchner, answered. Although witness accounts differ over          this sentencing range, the court sentenced Koch to concurrent
what happened next, it is clear that before long a shoot-out       60-month sentences on Counts 1, 3, 4 and 6 because it
began between Koch and his compatriots on the one hand and         believed (mistakenly, it turns out) that this was the applicable
Davis and Hitchner on the other. During the shoot-out,             statutory maximum. With respect to Count 2, the district
Gibson was killed and O’Brien was permanently injured.             court started with the mandatory minimum sentence of 120
                                                                   months, then departed upward six levels to 188 months
  Koch fled the scene and was not immediately apprehended.         because it found that Koch’s conduct had resulted in death (to
After police learned about his drug-dealing activities and the     Gibson) and significant physical injury (to O’Brien).
shoot-out, they executed a search warrant at his home. There,      See U.S.S.G. §§ 5K2.1 & 5K2.2. In view of the statutory
they discovered a Beretta handgun, 31 rounds of ammunition,        requirement that his sentence on Count 2 run consecutively to
over $1,000 in cash, 421.5 grams of marijuana and marijuana-       his other sentences, Koch received a cumulative sentence of
cultivating equipment.                                             248 months. Each of Koch’s sentences in the end fell below
                                                                   the (congressional) statutory maximum.
   A federal grand jury indicted Koch on six counts stemming
from his drug-dealing and the shoot-out: (1) conspiring to           Koch appealed his sentence. He argued that the district
possess and distribute marijuana in violation of 21 U.S.C.         court’s finding that the conspiracy involved 907 kilograms of
§§ 846 and 841(a)(1); (2) using a firearm in relation to a drug-   marijuana was not supported by the evidence. He argued that
trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(iii);   the district court committed a “double-counting” error by
(3) being an unlawful user of a controlled substance in            adding two levels for his possession of a weapon. And he
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(3)     challenged the court’s six-level upward departure on his
& 924(a)(2); (4) possessing with intent to distribute marijuana    sentence for Count 2 on numerous grounds. A panel of this
in violation of 21 U.S.C. § 841(a)(1); (5) possessing a firearm    Court rejected each argument and affirmed his sentence. 373
in furtherance of a drug trafficking crime in violation of         F.3d 775.
18 U.S.C. § 924(c)(1)(C)(i); and (6) being an unlawful user of
marijuana in possession of a firearm in violation of 18 U.S.C.       Koch filed a petition for rehearing en banc, arguing that the
§§ 922(g)(3) & 924(a)(2).                                          enhancement provisions of the Sentencing Guidelines violate
                                                                   the Sixth Amendment as construed in Blakely v. Washington,
  A jury convicted Koch on each count but the fifth one. At        124 S. Ct. 2531 (2004), and that two of his sentencing
sentencing, the district court found that (1) Koch’s drug          enhancements (the two-level increase based on drug quantity
conspiracy involved 907 kilograms of marijuana, thereby            and the six-level upward departure based on injury and death)
No. 02-6278                         United States v. Koch    5    6    United States v. Koch                        No. 02-6278

should be reversed. We need not decide whether Koch               contrary view.” Spector Motor Serv. v. Walsh, 139 F.2d 809,
properly preserved these issues or whether the alleged error      823 (2d Cir. 1943) (L. Hand, J., dissenting), vacated sub nom.
was harmless or plain because we conclude that Blakely does       Spector Motor Serv. v. McLaughlin, 323 U.S. 101 (1944).
not require us to invalidate the Guidelines.                      But the “exhilarating opportunity” to anticipate the overruling
                                                                  of Supreme Court precedent should be resisted, id., because
                              II.                                 the Court generally bears responsibility for determining when
                                                                  its own cases have been overruled by later decisions. See
  We are not the first court to consider this question and we     generally Agostini v. Felton, 521 U.S. 203 (1997).
will not be the last, as the Supreme Court has scheduled oral
arguments on this question for October 4, 2004. See United          Since 1987, when the Sentencing Guidelines were
States v. Booker, 2004 WL 1713654 (Aug. 2, 2004); United          promulgated, the Supreme Court has considered numerous
States v. Fanfan, 2004 WL 1713655 (Aug. 2, 2004). Because         constitutional challenges to them, not one of which suggested
we cannot expect a final answer from the Court for several        their eventual demise and at least one of which gave the back
months and because the judges in this Circuit deserve             of the hand to the kind of challenge raised here. To our
guidance in the interim, we granted Koch’s en banc petition.      knowledge, not one Justice has opined that the sentencing-
We now join our colleagues in the Second and Fifth Circuits,      enhancement provisions of the Guidelines violate the Sixth
see United States v. Mincey, – F.3d – , 2004 WL 1794717 (2d       Amendment.
Cir. 2004); United States v. Pineiro, – F.3d – , 2004 WL
1543170 (5th Cir. 2004), a majority of our en banc colleagues       In 1989, the Court rejected an across-the-board challenge
in the Fourth Circuit, see United States v. Hammoud, – F.3d       to the constitutionality of the Guidelines and to the
–, 2004 WL 1730309 (4th Cir. 2004), and some of our               Sentencing Commission on non-delegation and separation-of-
colleagues in the Seventh and Ninth Circuits, see United          powers grounds. Mistretta v. United States, 488 U.S. 361,
States v. Booker, 375 F.3d 508, 515 (7th Cir. 2004)               412 (1989). Since Mistretta, the Court has rejected a variety
(Easterbrook, J., dissenting); United States v. Ameline, – F.3d   of constitutional challenges to sentencing enhancements
–, 2004 WL 1635808, at *14 (9th Cir. 2004) (Gould, J.,            under the Guidelines (1) that turned on facts not alleged in the
dissenting), in determining that Blakely does not compel the      indictment, (2) that were based on judicial findings of fact and
conclusion that the Federal Sentencing Guidelines violate the     (3) that required proof only by a preponderance of the
Sixth Amendment. As several of these opinions convincingly        evidence. In 1993, the Court rejected the claim that Guideline
explain why Blakely does not resolve the issue and as the         § 3C1.1, which permits courts to enhance a sentence for
Court soon will give us the final word, we write briefly to       perjury committed at the trial from which the conviction
emphasize three reasons for our decision.                         arose, violates the defendant’s right to testify on his own
                                                                  behalf. See United States v. Dunnigan, 507 U.S. 87, 96. In
  First, in responding to a request that we invalidate the        1995, the Court rejected a double-jeopardy challenge to the
Sentencing Guidelines, we agree with Judge Easterbrook that       “relevant conduct” provisions of the Guidelines, which permit
“[t]his is the wrong forum for such a conclusion.” Booker,        courts to enhance a sentence based on uncharged conduct,
375 F.3d at 515. “It is always embarrassing for a lower court     because the higher sentencing range “still falls within the
to say whether the time has come to disregard decisions of a      scope of the legislatively authorized penalty.” Witte v. United
higher court, not yet explicitly overruled, because they          States, 515 U.S. 389, 399–400. And in 1997, the Court
parallel others in which the higher court has expressed a         turned back similar challenges to the “relevant conduct”
No. 02-6278                       United States v. Koch       7    8      United States v. Koch                      No. 02-6278

Guidelines provisions even when (as in that case) the jury had     overrules it. And instead of marginalizing Edwards, Apprendi
acquitted the defendant on a charge related to that very           inflates its significance by saying the following:
conduct. See United States v. Watts, 519 U.S. 148, 156–57.
                                                                       The Guidelines are, of course, not before the Court. We
  In all of these cases, the Court did not characterize the            therefore express no view on the subject beyond what
Guidelines themselves as a source of “statutory maximums.”             this Court has already held. See, e.g., Edwards v. United
And in each of the post-Mistretta cases, the Court addressed           States, 523 U.S. 511, 515 (1998) (opinion of BREYER,
a question not dissimilar to the one presented here: May               J., for a unanimous court) (noting that “[o]f course,
federal judges find facts under the preponderance standard             petitioners’ statutory and constitutional claims would
that increase a sentence beyond the facts found by the jury            make a difference if it were possible to argue, say, that
under the beyond-a-reasonable-doubt standard? Because the              the sentences imposed exceeded the maximum that the
Court said “yes” in each case, this line of authority by itself        statutes permit for a cocaine-only conspiracy. That is
suggests that a lower court should be skeptical about                  because a maximum sentence set by statute trumps a
concluding that Blakely’s invalidation of a state-sentencing           higher sentence set forth in the Guidelines.”).
scheme suddenly dooms the Federal Sentencing Guidelines.
                                                                   530 U.S. at 497 n. 21 (emphasis added).
   But in Edwards v. United States, 523 U.S. 511 (1998), the
Court went one step further: It not only rejected a challenge         Faced with this line of authority, our Circuit has
to enhancements based on judge-made findings, but it also did      consistently turned back Sixth Amendment challenges to
so in the context of a Sixth Amendment challenge. In               Guideline enhancements so long as the resulting sentence
Edwards, the jury convicted the petitioner of conspiring to        falls below the congressionally-prescribed statutory
possess powder cocaine or crack cocaine under 21 U.S.C. §          maximum. See United States v. Lawrence, 308 F.3d 623, 634
846. When the judge sentenced him on the basis of both             (6th Cir. 2002) (noting that Apprendi “applies only where the
substances, Edwards argued that § 846 should not be                finding ‘increases the penalty . . . beyond the prescribed
interpreted to allow sentences based “on the most severe           statutory maximum” and does not apply to the Guidelines);
interpretation of the verdict, carrying the highest range of       United States v. Garcia, 252 F.3d 838, 843 (6th Cir. 2001);
statutory penalties” in the absence of a jury finding to support   see also United States v. DeJohn, 368 F.3d 533, 546 (6th Cir.
the more severe penalty. Br. for Pet’r, 1997 WL 793079, at         2004); United States v. Helton, 349 F.3d 295, 299 (6th Cir.
*7. Otherwise, he argued, his Sixth Amendment rights               2003); United States v. Solorio, 337 F.3d 580, 597 (6th Cir.
(among other constitutional rights) would be violated. Id. at      2003). And, in doing so, we have relied on Edwards, among
*30–32. The Supreme Court rejected Edwards’ claim                  other cases. United States v. Pritchett, 40 Fed. Appx. 901,
because the judge’s finding that the conspiracy involved both      908 (6th Cir. 2002); United States v. Martin, 40 Fed. Appx.
cocaine and crack did not increase his sentence beyond the         177, 186 (6th Cir. 2002); United States v. Boucha, 236 F.3d
maximum sentence permitted by statute for a cocaine-only           768, 770 n.1 (6th Cir. 2001).
conspiracy. 523 U.S. at 515.
                                                                     Instead of criticizing its own cases or lower court cases that
  Edwards, to be sure, is a pre-Blakely and a pre-Apprendi         have reached similar conclusions, the Supreme Court said in
decision. But Blakely never mentions the decision, much less       Blakely that “[t]he Federal Guidelines are not before us, and
                                                                   we express no opinion on them.” Blakely, 124 S. Ct. at 2538
No. 02-6278                       United States v. Koch          9   10   United States v. Koch                        No. 02-6278

n.9. And it said the same thing in Apprendi, 530 U.S. at 497         v. United States, 508 U.S. 36, 42 (1993), the Guidelines are
n.21. The Court thus has not given us the authority to               agency-promulgated rules enacted by the Sentencing
invalidate the Guidelines, it has not given us the authority to      Commission—a non-elected body that finds its home within
ignore Edwards and it has not given us a sufficient reason to        the Judicial Branch, the very branch of government in which
ignore our own decisions upholding the Guidelines. We                sentencing discretion has traditionally been vested. See
ought to take the Court at its word.                                 Mistretta, 488 U.S. at 396 (the Guidelines do not “vest in the
                                                                     Judicial Branch the legislative responsibility for establishing
   Second, differences between the sentencing provisions at          minimum and maximum penalties for every crime. They do
issue in Blakely and the Federal Sentencing Guidelines may           no more than fetter the discretion of sentencing judges to do
well have constitutional significance. According to Apprendi,        what they have done for generations—impose sentences
the Sixth Amendment contains the following requirement:              within the broad limits established by Congress.”). This
“Other than the fact of a prior conviction, any fact that            precise distinction, notably, was central to Mistretta’s
increases the penalty for a crime beyond the prescribed              decision to uphold the Guidelines in the first instance. Id. at
statutory maximum must be submitted to a jury, and proved            396–97.
beyond a reasonable doubt.” 530 U.S. at 490. Blakely
proceeds to define “statutory maximum” as follows:                      Whether this distinction will carry the day in Booker and
                                                                     Fanfan remains to be seen, but it at least undermines the view
  [T]he “statutory maximum” for Apprendi purposes is the             that Blakely compels us to invalidate the Sentencing
  maximum sentence a judge may impose solely on the                  Guidelines. Blakely did not hold—because it could not
  basis of the facts reflected in the jury verdict or admitted       hold—that agency-promulgated sentencing rules must be
  by the defendant. . . . In other words, the relevant               treated as creating “statutory maximums.” The issue was not
  “statutory maximum” is not the maximum sentence a                  before the Court. And indeed Blakely’s counsel advanced the
  judge may impose after finding additional facts, but the           very distinction we have drawn, arguing that Washington’s
  maximum he may impose without any additional                       standard “sentencing ranges” as “prescribed by the
  findings.                                                          legislature” differ materially from the “federal sentencing grid
                                                                     [which] is promulgated by a Sentencing Commission that
124 S. Ct. at 2537.                                                  resides in the Judicial Branch.” Br. for Pet’r, 2003 WL
                                                                     22970606, at *23 n.6. “Apprendi’s prohibition,” he
  Relying on this passage, Koch argues that, for federal             continued, “against exceeding the ‘statutory’ maximum based
sentencing purposes, the “statutory maximum” is no longer            on facts that were not submitted to the jury or proved beyond
the sentencing range enacted by Congress but the sentencing          a reasonable doubt arguably pertains only [to] sentencing
range promulgated by the Sentencing Commission. The logic            limits set by legislatures.” Id.
of this argument has some force because the Guidelines
require federal judges to find facts that will indeed increase          The distinction seems significant in another sense. While
individual sentences. The argument is not conclusive,                it may be true that agencies are no less capable of violating
however, because the “statutory maximum” at issue in                 the Sixth Amendment than legislatures, the Guidelines come
Blakely arose from a statute, and the Sentencing Guidelines          from the very branch of government that all nine Justices of
are not statutes. While sentencing statutes and the Guidelines       the Court agree has long exercised considerable discretion
both have the force of law and both bind courts, see Stinson         over sentencing determinations based on the same kinds of
No. 02-6278                       United States v. Koch      11    12    United States v. Koch                        No. 02-6278

factual determinations that the Guidelines ask federal courts      (2002), the Court held that judges may find facts that compel
to make. Blakely, 124 S. Ct. at 2538, 2540; id. at 2553            a mandatory minimum sentence and that necessarily will
(O’Connor, J., dissenting). If federal judges, in other words,     increase some defendants’ sentences. In Almendarez-Torres
may consider facts that increase sentences in an indeterminate     v. United States, 523 U.S. 224, 226 (1998), the Court held
sentencing regime, is it not permissible for this branch of        that the Government need not include the fact of a prior
government collectively to channel the consequences of these       conviction in an indictment (and prove it to a jury beyond a
facts based on their group experience? Maybe the Court will        reasonable doubt) because it is not an “element” of the
find the distinction consequential; maybe it will not. But the     offense, even though it may increase the defendant’s
difference is enough to counsel restraint on the part of a lower   punishment. In Jones v. United States, 526 U.S. 227, 248
court asked to invalidate the entire regime.                       (1999), the Court said that “[i]t is not, of course, that anyone
                                                                   today would claim that every fact with a bearing on
  Unlike the sentencing statute in Blakely, finally, it remains    sentencing must be found by a jury; we have resolved that
unclear how a rule that turns on the “statutory maximum” or        general issue and have no intention of questioning its
the “maximum sentence” would apply to the Sentencing               resolution.” And in Patterson v. United States, 432 U.S. 197
Guidelines. The Guidelines do not supply a clear “standard         (1977), the Court held that legislatures have wide latitude in
sentencing range” for each defendant and indeed represent a        defining the elements of a crime that must be proved to a jury
form of indeterminate-determinate sentencing because even          beyond a reasonable doubt. See id. at 210; see McMillan, 477
after application of the hundreds of pages of the Guidelines       U.S. at 84 (“Patterson . . . rejected the claim that whenever a
Manual, to say nothing of relevant case law, to each               State links the severity of punishment to the presence or
individual defendant’s sentence, judges still may increase (or     absence of an identified fact the State must prove that fact
decrease) sentences based on factors not addressed in the          beyond a reasonable doubt.”) (quotation omitted).
Guidelines. See 18 U.S.C. § 3553(b)(1); U.S.S.G. § 5K2.0.
No “standard” sentence for categories of defendants thus             In the face of these decisions, Blakely presents a lower
emerges from the Guidelines in the same way that it does for       court with stark alternatives for explaining why the
the two-factor sentencing grid that Washington’s legislature       Guidelines must be invalidated. One possibility: Blakely
adopted.                                                           means that judges may never make findings of fact that
                                                                   increase an individual’s sentence. No doubt this theory would
  Third, in asking us to invalidate the Guidelines, Koch asks      invalidate the Guidelines, but it also would create tension
us to embrace a reading of Blakely—any fact that increases a       with the Court’s other decisions giving legislatures wide berth
defendant’s punishment must be submitted to a jury—that not        in distinguishing between sentencing facts and elements-of-
only would extinguish the Guidelines but also would create         the crime facts. The other possibility: Blakely means that
tension with other Court precedents.                               “Other than the fact of a prior conviction, other than facts that
                                                                   compel mandatory minimum sentences and other than (still
  It has long been true that legislatures may treat some facts     other) facts not traditionally treated as elements of a crime,
as “sentencing factors” that need not be submitted to a jury       any fact that increases the penalty for a crime must be
and other facts as “elements” of the crime that must be            submitted to a jury.” This theory might eliminate the
submitted to a jury and (in the federal system) included in the    Guidelines; it might not. Under either theory, however, the
indictment. In McMillan v. Pennsylvania, 477 U.S. 79, 91-92        critical point is that only a master tailor could invalidate the
(1986), and Harris v. United States, 536 U.S. 545, 558
No. 02-6278                      United States v. Koch     13    14   United States v. Koch                        No. 02-6278

Guidelines without unraveling the fabric of these other                                ______________
rulings.
                                                                                          DISSENT
   All of which brings us back to our central concern. It may                          ______________
be that the trajectory of Apprendi, Ring and Blakely will end
with a nullification of the Guidelines. But, in the face of
these relevant precedents, it is not for us to make that           BOYCE F. MARTIN, JR., Circuit Judge, dissenting, joined
prediction or to act upon it. Not only would such a ruling be    by DAUGHTREY, MOORE, COLE, and CLAY, Circuit
of some consequence to the Guidelines, but it also would be      Judges. The majority’s opinion in this case amounts to
in tension with whole bodies of law that the lower courts long   nothing more than an exercise in futility and a waste of time
have been obliged to follow.                                     and resources, in light of the Supreme Court’s grant of
                                                                 certiorari in United States v. Booker, No. 04-104, 2004 WL
                                                                 1713654 (Aug. 2, 2004), and United States v. Fanfan, No. 04-
                                                                 105, 2004 WL 1713655 (Aug. 2, 2004). Both cases present
                                                                 the question of the impact of Blakely v. Washington, 124 S.
                                                                 Ct. 2531 (2004), on the United States Sentencing Guidelines,
                                                                 and both are scheduled for oral argument in just over a month,
                                                                 on October 4. Given that the Supreme Court’s impending
                                                                 resolution of Booker and/or Fanfan will likely resolve the
                                                                 primary issue in this case, I believe that the most appropriate
                                                                 course of action would be to withhold our decision until the
                                                                 Supreme Court has spoken.
                                                                   Nevertheless, because the majority has taken this
                                                                 opportunity to state its position, I feel compelled to explain
                                                                 why I disagree. For the reasons discussed below, I believe
                                                                 that the Guidelines are invalid under Blakely to the extent that
                                                                 they compel a trial judge to impose a sentence that exceeds
                                                                 the maximum sentence that is authorized “solely on the basis
                                                                 of the facts reflected in the jury verdict or admitted by the
                                                                 defendant.” Blakely, 124 S. Ct. at 2536 (emphasis in
                                                                 original). This is the same view espoused by the Seventh
                                                                 Circuit, see United States v. Booker, 375 F.3d 508 (7th Cir.
                                                                 2004), the Eighth Circuit, see United States v. Mooney, No.
                                                                 02-3388, 2004 WL 1636960 (8th Cir. July 23, 2004), vacated
                                                                 on grant of reh’g en banc, Aug. 6, 2004, and the Ninth
                                                                 Circuit, see United States v. Ameline, No. 02-30326, 2004
                                                                 WL 1635808 (9th Cir. July 21, 2004), as well as by United
                                                                 States District Judges such as Judge D. Brock Hornby, whose
No. 02-6278                       United States v. Koch     15    16   United States v. Koch                       No. 02-6278

oral decision in United States v. Fanfan, No. 03-47-P-H (D.         “which the law makes essential to the punishment,” and
Me. June 28, 2004), will be reviewed by the Supreme Court           the judge exceeds his proper authority.
in October, and by the panel of our Court that decided United
States v. Montgomery, No. 03-5256, 2004 WL 1562904 (6th           Blakely, 124 S. Ct. at 2537 (citations omitted) (emphasis in
Cir. July 14, 2004), vacated on grant of reh’g en banc, July      original).
19, 2004, appeal dismissed, July 23, 2004.
                                                                    Blakely involved the constitutionality of the sentencing
   The seeds of Blakely were sown in Apprendi v. New Jersey,      scheme employed by the State of Washington, which was
in which the Supreme Court held that “[o]ther than the fact of    composed of two statutes. The first statute prescribed the
a prior conviction, any fact that increases the penalty for a     sentence ranges for each class of felony offenses. Blakely
crime beyond the prescribed statutory maximum must be             was convicted of second-degree kidnaping, for which the
submitted to a jury, and proved beyond a reasonable doubt.”       statute provided a maximum sentence of ten years
530 U.S. 466, 490 (2000). The Court applied this rule to          imprisonment. WASH . REV . CODE ANN . § 9A.20.021(1)(b).
strike down a New Jersey hate crime statute that authorized a     The second statute, called the Sentencing Reform Act,
judge to impose a twenty-year sentence, despite the usual ten-    specified more limited standard sentence ranges for particular
year maximum, if the judge found that the crime was               offenses; for Blakely’s offense, it set a range of 49-53 months
committed “‘with a purpose to intimidate . . . because of race,   imprisonment. Id. § 9.94A.320. A Washington trial court
color, gender, handicap, religion, sexual orientation or          could impose a sentence that exceeded this standard range
ethnicity.’” Id. at 468-69 (quoting N.J. STAT . ANN . § 2C:44-    only if it found a “substantial and compelling reason
3(e) (West Supp. 1999-2000)). Two years later, in Ring v.         justifying an exceptional sentence.” Blakely, 124 S. Ct. at
Arizona, the Supreme Court applied the same rule to               2535. The Sentencing Reform Act specified several factors
invalidate an Arizona law authorizing the death penalty if the    that would justify a trial judge’s decision to impose an
judge found one of ten aggravating factors. 536 U.S. 603-09       exceptional sentence. Id. The trial judge in Blakely found
(2002).                                                           that the defendant had acted with “deliberate cruelty,” one of
                                                                  the listed factors, and, accordingly, increased his sentence to
  In Blakely, the Court built upon and clarified the rule         90 months. Id. at 2537. The Supreme Court held that the fact
announced in Apprendi, holding that:                              that Blakely’s sentence was increased above the Sentencing
                                                                  Reform Act’s standard range of 49-53 months based upon
  Our precedent make clear . . . that the “statutory              facts neither found by a jury nor admitted by Blakely was a
  maximum” for Apprendi purposes is the maximum                   violation of Apprendi. Id. at 2537-38.
  sentence a judge may impose solely on the basis of the
  facts reflected in the jury verdict or admitted by the             As the majority acknowledges, in determining what the
  defendant. In other words, the relevant “statutory              statutory maximum was for purposes of Apprendi, the Blakely
  maximum” is not the maximum sentence a judge may                Court looked to the standard sentence range for second-degree
  impose after finding additional facts, but the maximum          kidnaping that was set by the Sentencing Reform Act, not to
  he may impose without any additional findings. When a           the broader sentence range provided in the other statute. Id.
  judge inflicts punishment that the jury’s verdict alone         As a logical consequence, the statutory maximum in this case
  does not allow, the jury has not found all the facts            is provided in the Guidelines, rather than in the substantive
                                                                  criminal statutes that Koch was convicted of violating. Both
No. 02-6278                       United States v. Koch     17    18   United States v. Koch                       No. 02-6278

the Guidelines and the Washington Sentencing Reform Act           were the challenged provisions of the Guidelines enacted by
were designed to narrow the extremely wide sentence ranges        Congress in the first instance, they would be unconstitutional
within which a defendant could be sentenced for any               under the rule announced in Blakely. I fail to see how the fact
particular offense. Compare U.S. SENTENCING GUIDELINES            that Congress delegated its authority to the Sentencing
MANUAL ch. 1, pt. A, Introduction (2003) (explaining that the     Commission to set presumptive sentencing ranges saves the
Guidelines were designed to “narrow[]” the wide sentence          federal scheme from constitutional attack. The majority’s
ranges that applied to “similar criminal offenses committed       holding contravenes and undermines Blakely by allowing
by similar offenders”) with WASH . REV . CODE ANN . §             Congress to accomplish indirectly – by delegating authority
9.94A.010 (explaining that the Washington Sentencing              to the Commission – precisely what we now know the Sixth
Reform Act was designed to “structure[] . . . discretionary       Amendment prohibits it from doing directly.
decisions affecting sentences” and “[e]nsure that the
punishment for a criminal offense is proportionate to the            The congressional delegation of power to the Sentencing
seriousness of the offense and the offender’s criminal            Commission does not affect Congress’s authority – and,
history”). Just as it was the narrower sentence range under       indeed, its obligation – to ratify the Guidelines. See Ameline,
the Washington Sentencing Reform Act that provided the            2004 WL 1635808, at *7. Congress must ratify each
“statutory maximum” in Blakely, the narrower sentence range       Sentencing Guideline promulgated by the Commission, and
under the Guidelines provides the “statutory maximum” in          it retains the power to “revoke or amend any or all of the
this case.                                                        Guidelines as it sees fit either within the 180-day waiting
                                                                  period or at any time.” Mistretta v. United States, 488 U.S.
  Both the Guidelines and the Washington Sentencing               361, 393-94 (1989); 28 U.S.C. § 994(p). It is well-established
Reform Act provide for an increase in a defendant’s sentence      that the Guidelines have the force of law, Stinson v. United
beyond that which is authorized by the jury’s verdict or the      States, 508 U.S. 36, 45 (1993), and “bind judges and courts in
defendant’s admissions, based upon facts neither found by a       the exercise of their uncontested responsibility to pass
jury beyond a reasonable doubt nor admitted by the                sentence in criminal cases,” Mistretta, 488 U.S. at 391.
defendant, but rather found by a judge under the much lower
civil burden of proof. In this case, it is undisputed that           Furthermore, and perhaps more to the point, neither the
Koch’s sentence was increased, solely on the basis of facts       outcome nor the reasoning in Blakely turned upon the fact that
found by the district judge, to an amount that exceeded the       the Washington Sentencing Reform Act was enacted in the
sentence that was authorized under the Guidelines in light of     first instance by the state legislature. As Justice O’Connor
the jury’s verdict. This is precisely what Blakely condemns.      recognized in her dissenting opinion in Blakely:
Although Blakely addresses only the Washington sentencing
scheme, its holding applies with equal force to the Guidelines.     It is no answer to say that today’s opinion impacts only
                                                                    Washington’s scheme and not others, such as, for
  The majority concedes that “[t]he logic of this argument          example, the Federal Sentencing Guidelines. The fact
has some force,” but ultimately finds the argument “not             that the Federal Sentencing Guidelines are promulgated
conclusive . . . because the ‘statutory maximum’ at issue in        by an administrative agency nominally located in the
Blakely arose from a statute, and the Sentencing Guidelines         Judicial Branch is irrelevant to the majority’s reasoning.
are not statutes.” Maj. Op. at 9. That is a distinction without     The Guidelines have the force of law, and Congress has
a difference. I presume that the majority would agree that
No. 02-6278                             United States v. Koch            19   20     United States v. Koch                           No. 02-6278

  unfettered control to reject or accept any particular                          I am also unpersuaded by the majority’s reliance upon cases
  guideline.                                                                  that uphold sentences imposed under the Guidelines against
                                                                              various constitutional challenges. The majority assumes that
Blakely, 124 S. Ct. at 2549-50 (O’Connor, J., dissenting, Part                finding in Koch’s favor would necessarily require us to
IV.A., joined by Breyer, J.) Justice Breyer’s dissenting                      “anticipate the overruling of Supreme Court precedent,” but
opinion expressed a similar view. Id. at 2561 (Breyer, J.,                    that assumption is erroneous. The Supreme Court has never
dissenting) (“Perhaps the Court will distinguish the Federal                  decided the issue presented in this case.
Sentencing Guidelines, but I am uncertain how.”). The
demise of the Guidelines was forecast more explicitly in                         Among the cases cited by the majority, particular emphasis
Justice Breyer’s dissenting opinion in Apprendi, in which he                  is placed upon Edwards v. United States, 523 U.S. 511
wrote:                                                                        (1998), a case that the majority says “rejected a challenge to
                                                                              enhancements based on judge-made findings . . . in the
  The actual principle underlying the Court's [Apprendi]                      context of a Sixth Amendment challenge.” Maj. Op. at 7. In
  decision may be that any fact (other than prior                             reality, however, the Edwards Court expressly declined to
  conviction) that has the effect, in real terms, of                          consider the petitioners’ Sixth Amendment claim. See
  increasing the maximum punishment beyond an                                 Edwards, 523 U.S. at 516 (proclaiming that “we need not, and
  otherwise applicable range must be submitted to a jury                      we do not, consider the merits of petitioners’ statutory and
  and proved beyond a reasonable doubt. See [Apprendi,                        constitutional claims”). Moreover, the Sixth Amendment
  530 U.S. at 494] ("[T]he relevant inquiry is one not of                     claim that the Edwards petitioners had advanced did not
  form, but of effect—does the required finding expose the                    challenge the validity of the Guidelines. Rather, the
  defendant to a greater punishment than that authorized by                   petitioners argued that the district court erred in determining
  the jury's guilty verdict?"). The principle thus would                      whether the drug conspiracy involved cocaine or cocaine base
  apply . . . to all determinate-sentencing schemes in which                  when the jury’s general verdict was ambiguous as to the drug
  the length of a defendant's sentence within the statutory                   involved. See Petitioners’ Br., 1997 WL 793079, at *30-31
  range turns on specific factual determinations (e.g., the                   (“Petitioners are entitled to have the jury determine what
  federal Sentencing Guidelines). Justice Thomas                              illegal agreement the Petitioners formed and agreed to
  essentially concedes that the rule outlined in his                          participate in.”). This argument concerns the effect of the
  concurring opinion would require the invalidation of the                    Sixth Amendment on 21 U.S.C. § 846, not on the Guidelines.
  Sentencing Guidelines. [Id. at 523], n. 11.                                 As the Seventh and Ninth Circuits have stated:
Apprendi, 530 U.S. at 543-44 (Breyer, J., dissenting).1                         The Court did not opine on the guidelines’ consistency
                                                                                with the amendment because that consistency was not
                                                                                challenged. It did not rebuff a Sixth Amendment
    1
      The footnote in Justice Thomas’s dissenting opinion to which
Justice Breyer refers read s as follows:

    It is likewise unnecessary to consider whether (and, if so, how)               “have the force and effect of laws.”
    the rule regarding elements ap plies to the Sentencing Guidelines,
    given the unique status that they have under [Mistre tta]. But it         Id. at 523, n.11 (Thom as, J., dissenting) (citation omitted) (quoting
    may be that this status is irrelevant, because the Guidelines             Mistre tta, 488 U.S. at 413 (Scalia, J., dissenting)).
No. 02-6278                       United States v. Koch      21    22    United States v. Koch                         No. 02-6278

  challenge to the guidelines because there was no Sixth           same time waiting for the Supreme Court to decide the issue
  Amendment challenge to the guidelines.                           before fully examining Blakely’s application to the
                                                                   Guidelines, it would not, one hopes, be releasing opinions
Booker, 375 F.3d at 514; Ameline, 2004 WL 1635808, at *8.          possibly affected by Blakely in the meantime.
For these reasons, Edwards is inapposite.
                                                                      The question remains whether the unconstitutional aspects
   The majority’s reliance upon our Court’s post-Apprendi          of the Guidelines are severable from the rest of the
cases is similarly misplaced. Those cases are simply               Guidelines, an issue on which courts have reached differing
irrelevant here in light of the Supreme Court’s intervening        results. Just as I would have withheld our decision in this
decision in Blakely, which undermines our prior holdings.          case pending the Supreme Court’s resolution of the
See Salmi v. Sec’y of Health and Human Servs., 774 F.2d 685,       applicability of Blakely to the Guidelines, I believe that the
689 (6th Cir. 1985) (holding that a prior decision is not          decision of whether and to what extent the Guidelines are
“controlling authority” if it is “inconsistent” with an            severable is better left to the Supreme Court. Notably, the
intervening Supreme Court decision).                               issue need not be resolved at all if the Court finds that the
                                                                   Guidelines are unaffected by Blakely.
   Finally, the majority states that “in responding to a request
that we invalidate the Sentencing Guidelines, we agree with           There is one procedural complication in this case that also
Judge Easterbrook that ‘[t]his is the wrong forum for such a       must be addressed. The United States argues that Koch
conclusion.’” Maj. Op. at 5 (quoting Booker, 375 F.3d at 515       forfeited this claim of error by failing to object to his sentence
(Easterbrook, J., dissenting)). Notwithstanding the fact that      on Apprendi grounds. Accordingly, it argues, we are limited
Koch has made no “request” that the Guidelines be                  to reviewing the claim for plain error. FED . R. CRIM . P. 52(b)
invalidated (counsel for Koch explicitly stated in oral            (“Plain errors or defects affecting substantial rights may be
argument that he was not asking the Court to invalidate the        noticed although they were not brought to the attention of the
Guidelines and, indeed, argued that our decision in this case      court.”). See also United States v. Cotton, 535 U.S. 625, 628-
should await the Supreme Court’s resolution of Booker and/or       29 (2002). We have indicated, however, that where a
Fanfan), the majority ignores our very duties as United States     defendant has objected to the factual findings that underlie his
Circuit Judges. Having insisted upon declaring its view            sentence, he has preserved for de novo review on appeal a
regarding the applicability of Blakely to the Guidelines, rather   constitutional objection based on a rule of law announced
than – as I would do – awaiting the Supreme Court’s                subsequent to his trial. See United States v. Strayhorn, 250
impending resolution of the issue, the majority is obligated,      F.3d 462, 467 (6th Cir. 2001), overruled in part by Harris v.
as we all are, to interpret and apply Supreme Court precedent      United States, 536 U.S. 545 (2002). I reserve judgment as to
to the facts of this case, regardless of whether its analysis      whether the principle announced in Strayhorn applies to this
leads to a result that it does not like. As I have explained,      case because I believe that the error present in Koch’s
Blakely’s holding logically controls the outcome of this case,     sentence is cognizable under plain error review, which is the
and the majority errs in concluding otherwise. The majority        least rigorous standard suggested by the parties.
simultaneously abdicates its responsibility to decide this issue
in a reasoned manner and insists upon “deciding” this issue as       Plain error exists where there is “1) error, 2) that is plain,
quickly as possible. If the majority truly wished merely to        and 3) that affects substantial rights. If all three conditions
provide interim guidance for the district courts while at the      are met, [we] then exercise [our] discretion to notice a
No. 02-6278                       United States v. Koch      23    24   United States v. Koch                       No. 02-6278

forfeited error, but only if 4) the error seriously affects the      Finally, the error affected the fairness of the proceedings.
fairness, integrity, or public reputation of the judicial          Koch suffered at least the same unfairness that Blakely
proceedings.” Johnson v. United States, 520 U.S. 461, 466-         suffered, for which the Supreme Court had this to say:
67 (1997).
                                                                     Any evaluation of Apprendi’s fairness to criminal
  First, by imposing a sentence that exceeded the maximum            defendants must compare it with the regime it replaced,
sentence available under the Guidelines in light of the jury’s       in which a defendant, with no warning in either his
verdict, based upon facts neither found by a jury nor admitted       indictment or plea, would routinely see his maximum
by Koch, the district court deviated from the holding of             potential sentence balloon from as little as five years to
Blakely. “Deviation from a legal rule is ‘error’ unless the rule     as much as life imprisonment, see 21 U.S.C.
has been waived.” United States v. Olano, 507 U.S. 725,              §§ 841(b)(1)(A), (D), based not on facts proved to his
732-33 (1993).                                                       peers beyond a reasonable doubt, but on facts extracted
                                                                     after trial . . . .
   With respect to the second and third prongs, we have held
that both “are satisfied when the defendant’s total sentence       Blakely, 124 S. Ct. at 2542. Because the district court’s
exceeds the maximum sentence that could lawfully be                imposition of Koch’s sentence was plain error, I would
imposed based upon the jury’s verdict as to all counts of          remand for resentencing in light of Blakely.
conviction.” United States v. Graham, 275 F.3d 490, 523
(6th Cir. 2001) (citations omitted). This is precisely what          For these reasons, I respectfully dissent.
happened in this case, and it is now “plain” that this is
precisely what Blakely prohibits. See Johnson, 520 U.S. at
468 (“Where the law at the time of trial was settled and
clearly contrary to the law at the time of appeal it is enough
that an error be ‘plain’ at the time of appellate
consideration.”) The district judge’s application of the
preponderance of the evidence standard to the facts presented
at the sentencing hearing certainly affected Koch’s ultimate
sentence. See Olano, 507 U.S. at 734 (holding that an error
affects “substantial rights” where it has “affected the outcome
of the district court proceedings”). The judge imposed
several sentencing enhancements, and found that the
conspiracy involved 907 kilograms of marijuana (as
compared to the probation officer’s estimate of 38.977
kilograms), based upon relatively weak evidence, much of
which was never presented at trial. Cf. Ameline, 2004 WL
1635808, at *9.
