The Guidelines are "Guidelines" from now on, the 6th Circuit Says

The Sixth Circuit has spoken in U.S. v. Montgomery, No. 03-5256, 2004 FED App. 0226P (6th Cir.) stating that:

[I]n Blakely v. Washington, No. 02-1632, decided June 24, 2004, the Supreme Court made a sea change in the administration of the Federal Sentencing Guidelines. The court applied Apprendi v. New Jersey, 530 U.S. 466 (2000), to a state sentencing system that allowed a judge to find a fact that increased the federal sentence by 37 months. The Court held that “determinate” or fixed rule-bound sentencing, like the Federal Sentencing Commission’s system, which increases sentences based on a requirement of judicial factfinding instead of jury fact-finding, violates the trial-by-jury requirement of the Sixth Amendment. [...] Therefore, in order to comply with Blakely and the Sixth Amendment, the mandatory system of fixed rules calibrating sentences automatically to facts found by judges must be displaced by an indeterminate system in which the Federal Sentencing Guidelines in fact become “guidelines’ in the dictionary-definition sense (“an indication or outline of future policy,” Webster’s International Dictionary (3d ed. 1963)). The “guidelines” will become simply recommendations that the judge should seriously consider but may disregard when she believes that a different sentence is called for. This solution to the immediate problem in federal sentencing is not inconsistent with the alternative position by the Deputy Attorney General in his memo to federal prosecutors, a memo forwarded to the federal judiciary on July 7, 2004. (“In that event [when the guidelines may not be applied as mandatory rules], the government should urge the court to impose 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 subsection 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.