U.S. v. Johnson, CR.A. 6:04-00042.

• Decision Date: 13 August 2004
• Docket Number: No. CR.A. 6:04-00042.,CR.A. 6:04-00042.
• Citation: 333 F.Supp.2d 573
• Parties: UNITED STATES of America, Plaintiff, v. William H. JOHNSON, Defendant.
• Court: U.S. District Court — Southern District of West Virginia

333 F.Supp.2d 573

UNITED STATES of America, Plaintiff, v. William H. JOHNSON, Defendant.

No. CR.A. 6:04-00042.

United States District Court, S.D. West Virginia.

August 13, 2004.

Lisa G. Johnston, U.S. Attorney's Office, Charleston, for the United States.

Edward H. Weis, Federal Public Defender's Office, Charleston, for the Defendant.

MEMORANDUM OPINION

GOODWIN, District Judge.

The defendant, William H. Johnson, pleaded guilty to violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2), which prohibit the possession of a firearm by a convicted felon. On August 12, 2004, the defendant appeared before the court for sentencing. Pursuant to United States Sentencing Guidelines (the Guidelines), the base offense level for this crime is 14. U.S. Sentencing Guidelines Manual § 2K2.1(a)(6)(A) (2003). The pre-sentence report recommended a two-point enhancement because the defendant had stolen the gun involved in the offense from his brother's home. Id. at § 2K2.1(b)(4). The total offense level recommended by the probation officer was therefore 16. After a three-point reduction for acceptance of responsibility, the offense level was 13. Id. at § 3E1.1(a). The probation officer attributed four criminal history points to the defendant, placing him in criminal history category III. Id. at § 5A. Based on a total offense level of 13 and a criminal history category of III, the recommended sentencing range was 18-24 months. Id.

The defendant objected to the pre-sentence report. He argued that Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), as interpreted by this court in United States v. Shamblin, 323 F.Supp.2d 757 (S.D.W.Va.2004), prohibits the court from relying on the stolen gun enhancement or prior convictions to increase his sentence. The court overruled the defendant's objections to the pre-sentence report because the Fourth Circuit has recently held that Blakely does not invalidate the United States Sentencing Guidelines. See U.S. v. Hammoud, 378 F.3d 426 (4th Cir.2004). Accordingly, the court sentenced the defendant within the Guideline range to a term of imprisonment of eighteen months.

In Hammoud, the Fourth Circuit recommended that "in the interests of judicial economy ... district courts within the Fourth Circuit also announce, at the time of sentencing, a sentence pursuant to 18 U.S.C. § 3553(a), treating the guidelines as advisory only." The defendant objected to imposition of an alternative sentence, and I sustained that objection. I write to explain my reasons for failing to follow our appellate court's recommendation to impose an alternative sentence in this case.

To deal with uncertainty wrought by Blakely, a few courts have suggested that imposing alternative sentences may prevent further disarray once Blakely's effect on the Guidelines is more clearly established.¹ These courts cite no authority for the proposition that a court may impose an alternative sentence.² Presumably, the validity of these alternative sentences depends upon some inherent power of the sentencing court to act in the interests of judicial economy.

Although preserving judicial resources is a worthy goal, it is not equal to the goal of maintaining confidence in our justice system. People must believe — and courts must assure — that judgments depriving citizens of their liberty are required by law and lack neither finality nor certainty. Confidence in the system is undermined when a judge treats a defendant like an unruly child ordered to go to his room and stay there until the courts determine a just punishment. I respectfully decline, without binding direction, to play the role of wavering disciplinarian.

Hypothetical sentencing is an abdication of my duty to decide legal issues. It is surely unprincipled, if not unlawful, for lower courts to describe alternatives and present those alternatives to a higher court for a final, binding decision. Summarizing the relevant legal arguments and offering possible conclusions is not judging. Judicial decision-making, like the adversarial process upon which it stands, thrives on the pressure of reaching — and explaining — a single result. Formulating multiple-choice questions to be answered by a higher court is an inappropriate and injudicious substitute for deciding a case.

Here, of course, the Fourth Circuit has made a decision that Blakely does not apply to the Guidelines. It has also recommended, however, that this court give an alternative sentence that would presumably take effect if the Supreme Court disagrees. My concern is that district courts and appellate courts must routinely make decisions that may be affected by cases pending on appeal before higher courts. If the function of lower courts is reduced to offering up a this-or-that option for later judgment, then the intellectual rigor promoted by the pressure to decide the issue is eliminated. Put simply, judicial decision-making is an act best performed without a net.

Even if I were inclined to exercise some inherent power to impose an alternative sentence in the interests of judicial economy, those interests would not be served here. Clearly, imposing two sentences rather than one would increase the sentencing court's workload. I would have to assess the proper Guidelines sentence, and then determine, treating the Guidelines as advisory, a second sentence. I would have to justify these two sentences on the record and resolve objections to both sentences.³

This extra work might be worthwhile if the imposition of an alternative sentence would prevent subsequent motions for resentencing by defendants in the event that their Guideline sentences were declared unconstitutional.⁴ There is a strong likelihood, however, that imposing the recommended alternative sentence will not forestall the need for resentencing. The Fourth Circuit's alternative sentencing recommendation works only if: (1) the Supreme Court ultimately decides that Blakely applies to the Guidelines; (2) finds the Guidelines unconstitutional in toto; and then (3) remedies the constitutional defect by reading out the mandatory language of the Guidelines and ordering courts to impose sentences pursuant to 18 U.S.C. § 3553(a), treating the Guidelines as advisory. The one certain thing about post-Blakely jurisprudence is that nothing is certain. Thus, taking a course which depends upon this series of presumptions — none of which may pan out — seems more like an exercise in futility than a conservation of judicial resources.⁵

Given the divergent approaches to Blakely in federal courts, it must be considered that the Supreme Court will reach a decision inconsistent with at least one of the Fourth Circuit's multiple assumptions. If the Supreme Court agrees with the Fourth Circuit's decision in Hammoud,⁶ then the Guidelines survive Blakely and an alternative sentence would be obsolete. If the Court decides that Blakely applies to the Guidelines, which is the conclusion that the great majority of district courts and the Ninth Circuit have reached,⁷ it does not ineluctably follow that the Court's remedy will be to treat the Guidelines as advisory, as the Fourth Circuit assumes.

The Court may decide that the Guidelines are not unconstitutional in toto, but that the constitutionally-infirm provisions⁸ of the Guidelines can be severed, and the remainder applied in a manner consistent with the Sixth Amendment. Accordingly, the Guidelines would not become advisory; rather, the Guidelines would continue to have the force of law to the extent that they comply with the Constitution. This approach is the one taken by the Ninth Circuit and a number of district courts, including this one.⁹

Alternatively, the Court may find that the constitutional portions of the Guidelines cannot be severed from the unconstitutional portions, and therefore, the entire Guideline system must fail. Several district courts have reached this result.¹⁰ The Fourth Circuit clearly expects that this will be the Supreme Court's approach if it applies Blakely to the federal Guidelines. Rejection of the mandatory form of the Guidelines, however, does not inevitably require employing an advisory form. Title 18 § 3553(b) makes sentencing under the Guidelines mandatory. Congress, in fact, rejected an amendment to make the Guidelines advisory.¹¹ It is not clear that the Supreme Court would choose to disregard the mandatory language of § 3553(b) and declare the Guidelines advisory.¹² The alternative, of course, is for judges to be left to exercise discretion, as they did before promulgation of the Guidelines.

The Fourth Circuit's recommendation also presumes that, if the Guidelines are unconstitutional and non-severable, 18 U.S.C. § 3553(a) will nevertheless remain good law.¹³ Severability is a question of legislative intent. See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999); Buckley v. Valeo, 424 U.S. 1, 108-09, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). The only legislative act involved here is the Sentencing Reform Act (SRA). The Guidelines are merely the sentencing scheme created by the Sentencing Commission pursuant to the SRA. Therefore, the Supreme Court may undertake the severability analysis with respect to the SRA, rather than with respect to the Guidelines alone. Persuasive arguments have been made that this is the better approach.¹⁴ If the Supreme Court took this approach to the severability analysis, and found that the constitutionally-infirm portions of the Guidelines were not severable from the remainder of the SRA, then the entire SRA would be declared unconstitutional.¹⁵ In that situation, § 3553(a), which was passed as part of the SRA, would likewise be unconstitutional.

The remedies I've presented do not exhaust the possibilities. The Supreme Court may fashion no remedy, but instead depend upon Congress to create a Blakely-compliant sentencing regime. Or, the Court may find a remedy not previously...