As the Sixth Circuit Booker World Turns

Prof. Berman at Sentencing Law and Policy described the Sixth Circuit's application of Booker as resembling a soap opera yesterday.  Today's installment looks promising.  See United States v. McDaniel, Nos. 03-1940/2073. 

Before I get to McDaniel, there is also an unpublished opinion, from Judge Cole, sitting with Judge Cook (whose concurrence in Bruce may have caused it to come out a day later than the Oliver decision) and U.S. District Court Judge Speigel (when's the last time we had three Sixth Circuit judges sitting on one panel?).  See United States v. Fusse, No. 02-6112.  Judge Cole seems to think that the question is decided.  Judge Cole does not tell us where in the Guidelines range the sentence fell, it's enough to know that defendants were convicted of conspiracy to distribute 500+ grams of cocaine, but the judge determined that they were accountable for four kilograms.  Here's the analysis:

Here, the district court erred in applying the sentencing guidelines as mandatory, the error is "plain" at this time, the error affects substantial rights because Fusse arguably received a higher sentence as a result, and an error that leads to a Sixth Amendment violation seriously affects the fairness, integrity, or public reputation of the judicial proceedings. Oliver, __F.3d__, slip op. at 6-8; United States v. Hines, __F.3d __ (6th Cir. 2005), slip op. at 14-17. Consequently, we must remand the case to the district court for re-sentencing consistent with the Supreme Court’s decision in Booker.

Judge Moore in McDaniel felt more analysis was in order, and her opinion is worth reading in full if you follow this stuff.  Note though, that she probably could have gotten by with an opinion like Judge Coles.  I think she said enough with:

in order for us to reach the merits [Doesn't she mean, "remedy the error"?  Step one of Olano addresses the merits, after that the question is whether one gets relief.] of McDaniel’s and Wade’s B ooker claims, we must find that the district court’s "plain errors" affected McDaniel’s and Wade’s substantial rights. See Olano, 507 U.S. at 734. In Oliver, we recognized that:

the district court’s sentencing determination unconstitutionally increased [the defendant]’s sentence beyond that which was supported by the jury verdict and [the defendant]’s criminal history. As a result [the defendant] arguably received a sentence that was longer than his sentence would have been absent a Sixth Amendment violation. We must therefore conclude that this sentencing error affected [the defendant]’s substantial rights.

see Davis, No. 03-4114, slip op. at 10. 2005 WL 233779, at *8;

Judge Moore goes on though:

Having concluded that the district court’s plain error affected McDaniel’s and Wade’s substantial rights, we finally must determine whether the errors below "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings," such that we should exercise our discretion to review McDaniel’s and Wade’s claims. Olano, 507 U.S. at 736 (internal quotation marks and citation omitted). As we explained in Oliver, "A sentencing error that leads to a violation of the Sixth Amendment by imposing a more severe sentence than is supported by the jury verdict would diminish the integrity and public reputation of the judicial system and also would diminish the fairness of the criminal sentencing system." 2005 WL 233779, at *8 (internal quotation marks and citation omitted); see Davis, No. 03-4114, slip op. at 10; accord United States v. Hughes, Nos. 03-1940/2073 United States v. McDaniel et al. — F.3d —, No. 03-4172, 2005 WL 147059, at *5 (4th Cir. Jan. 24, 2005).7 Thus, we exercise our discretion to entertain McDaniel’s and Wade’s Booker claims.

Footnote seven defends Judge Moore's Oliver decision against Bruce: 

After our ruling in Oliver, in the subsequent opinion United States v. Bruce, — F.3d —, No. 03-3110, 2005 WL 241254 (6th Cir. Feb. 3, 2005), another panel of this court declined to exercise its discretion and remand for resentencing a case in which the district court imposed a two-point offense level enhancement under U.S.S.G. § 3C1.1 for obstruction of justice. That panel based its decision on its determination that the evidence supporting the imposition of the obstruction-of-justice enhancement was "‘overwhelming’ and ‘essentially uncontroverted,’" thus "defeat[ing] any claim that these findings ‘seriously affected the fairness, integrity, or public reputation of judicial proceedings.’" Bruce, 2005 WL 241254, at **17-18 (quoting <>United States v. Cotton, 535 U.S. 625, 633 (2002)). We note, however, that such a statement in Bruce is at odds with our prior ruling in Oliver that "even if we conclude that the evidence is overwhelming and essentially uncontroverted we cannot know the length of imprisonment that the district court judge would have imposed pursuant to this evidence following Booker. . . . A failure to remand . . . to the district court for resentencing would therefore seriously affect the fairness and integrity of our judicial proceedings following the Supreme Court’s decision in Booker." United States v. Oliver, — F.3d —, No. 03-2126, 2005 WL 233779, at *8 n.3 (6th Cir. Feb. 2, 2005) (internal quotation marks and citations omitted). Thus, becauseOliver was filed [one day] before Bruce, under our longstanding rules and precedent, Oliver controls. See, e.g., 6th Cir. R. 206(c) ("Reported panel opinions are binding on subsequent panels. Thus, no subsequent panel overrules a published opinion of a previous panel. Court en banc consideration is required to overrule a published opinion of the court."); United States v. Davis, — F.3d —, No. 03-4114, slip op. at 9 n.7 (6th Cir. Feb. 9, 2005); see also Beck v. Haik, 377 F.3d 624, 635 (6th Cir. 2004) ("A panel of this court cannot overrule the decision of another panel.") (internal quotation marks and citation omitted).

Just in case the eventual en banc panel's decision "is at adds with [the] prior ruling in Oliver, Judge Moore adds footnote eight:

We further note that the argument for remand is especially strong in cases such as Wade’s, in which the district judge specifically noted during sentencing his dissatisfaction with the constraints imposed by the Guidelines. J.A. at 203 (Sentencing Hr’g Tr. at 13) ("THE COURT: . . . [A]gain, we’re playing this numerical game, I will call it, of calculating total offense scores based upon the so-called Sentence Reform Act of 1986 which requires the Court to come to certain mathematical calculations, difficult to come to, and somehow try and achieve justice from these mathematical calculations.").

Only now, though, nine pages into this, do we learn that the panel is not going to rule on the sentencing question that was presented to it:

Thus, because the district court will need to consider the Guidelines recommended sentences on remand, we take this opportunity to provide some guidance as to the proper interpretation of the Guidelines provisions whose application was challenged on appeal.

And again on page eleven:

Thus, it appears that the district judge may have misspoken when stating that the amount of loss was $17,538.70 and not $3,639.54, the total of the remaining four checks included in the PSR’s amount-of-loss recommendation.

It seems Judge Gwin could have commented here on the efficiency of remanding a case for resentencing to the district court without a determination of whether the guidelines were properly calculated, leaving the possibility of having the district court impose another sentence, possibly per se unreasonable on the basis of a miscalculated guideline, necessitating a third sentencing when the Sixth Circuit determines that question, followed, of course, by another appeal.  (See his comments in Barnett yesterday). 

I am more hung up though on how this saga illustrates the arbitrary nature of the rule of precedent.  It seems that we buy the line we are fed the line that this effectuates justice without a consideration of other possibilities in the same manner we are told in grade school how wonderful the decimal system is.  When you think about it, it seems that in reality a numerical system based on 8 or 12 might be more easily manipulated in various contexts.  In the same manner, the civil law rule that the actual weight of your logic is what should hold sway, not who published on February 2 vs. February 3, might be more likely to create a just system, rather than who wins the race to pop out the first opinion after Booker, or in the more frequent case, the chance of who sits on the first panel to be presented with a question.  I wonder if the rumored acrimonious atmosphere of the Sixth Circuit would develop anywhere if the judges were involved in a more continual game of shaping the course of law.