United States v. Thompson

рlaintiffs prove 22, failure to highlights dating May in support of their actual, injury. compensable respective Whatever positions. basis for the constitutional substantive sum, none of Haag-Streit’s argu- liability, damages awarded in a ments on the “limited success” issue have always designed action must be to com- any merit. The district court therefore injuries

pensate caused the [constitu- did not abuse its discretion when it de- deprivation. plaintiff When a re- tional] clined to reduce the lodestar amount based only damages covers nominal because of prevail Imwalle’s failure to on all of his prove his failure to an essential element claims. relief, monetary his claim only usually reasonable fee is no fee at all. III. CONCLUSION Farrar, 115, at U.S. 113 S.Ct. 566 For the above, reasons discussed we (internal quotation citations and marks AFFIRM the judgment of the district omitted). court. But this case is not like Farrar. Im- walle received far more than “nominal”

compensatory damages, which in Farrar Farrar,

totaled one dollar. See 756 F.2d (5th Cir.1985)

1148, (remanding

case to the district court with an order to

award the plaintiff damages nominal “not dollar”). Here,

to exceed one Imwalle’s America, STATES of $185,000 compensatory damages award UNITED Plaintiff-Appellee, was jury’s finding based on the that he discharged was making retaliation for claims of discrimination. Unlike the plain THOMPSON, Thomas M. Defendant- Farrar, tiff in Imwalle prove was able to Appellant. “actual, compensable injury.” See Far rar, 115, 113 506 U.S. at S.Ct. 566. No. 06-6233. Haag-Streit’s argument last is that Appeals, States Court of 22, “[o]nly May the facts after when Sixth Circuit. complained Imwalle first any alleged about discrimination, Submitted: were related to Oct. 2007. his success- ful retaliation claims.” This assertion is Decided and Filed: Feb. 2008. only puzzling, disingenuous. but Haag-Streit argued itself that the decision

to terminate Imwalle May occurred before (when attorney Imwalle’s sent the alleging age discrimination),

letter justified Inabnit and Ott were in fir-

ing him problems due to the at Moeller

and the Reliance sales slump in both

of which occurred well May before Indeed, parties both introduced sub-

stantial highly pre- relevant evidence Drake, Jr.,

ON BRIEF: Thomas J. Drake, Craig Nashville, & Tennessee, for Appellant. Philip Wehby, H. Assistant Attorney, Nashville, United States Tennes- see, Appellee. MERRITT, ROGERS,

Before: McKEAGUE, Judges. Circuit McKEAGUE, J., delivered the opinion court, ROGERS, J., joined. which MERRITT, 569-75), (pp. J. delivered a separate dissenting opinion.

OPINION McKEAGUE, Judge. Circuit A grand jury indicted Thomas M. Thompson and six codefendants of various federal offenses drug related to a transac- tion that turned into an armеd robbery. Thompson pleaded guilty to three criminal counts. He received 360 months of impris- onment for conspiracy to distribute five or kilograms more of cocaine and for being a in possession felon of a firearm. He also received a mandatory consecutive sentence years’ ten imprisonment for the dis- charge of a firearm in connection with a drug transaction. appeal,

On Thompson raises several claims of error. He contends that district court erred when it enhanced his sentencing range under the United States (the Sentencing Guidelines “Guidelines” or “U.S.S.G.”) for assault on an official victim and for holding a leadership role in the crime. He argues also engaged in impermissible double- drop two men to to the floor and not to same criminal it used the counting when grabbed bag of cocaine his Guidelines move. Jones activity to both enhance ten-year him to the money and the ‍‌​‌​​​‌​​​‌‌‌‌​‌​‌‌‌​‌‌​‌‌‌​‌‌​‌‌​‌‌‌​‌‌‌‌​​​​‌​‍two fled from the hotel range and sentence Finally, argues he mandatory sentence. room. only a received five- he should have observing drug The officers transac- carrying possessing year sentence for pursued from the next room Jones tion transaction, rather drug during a firearm stairs, yell- down the hotel discharging ten-year than They jackets ing, “Metro Police!” wore a firearm. “Police” on the sleeves and printed with below, we set forth For the reasons body. one officer reached bot- When remand part, in and part, affirm in reverse kilograms noticed of tom floor he several purpose the limited court for to the district money lying and on the floor. As cocaine under 18 resentencing Thompson U.S.C. of corner, fired a the officer turned Jones 924(c)(1)(A). § in the officer shot his direction. When

peered again, around the corner Jones I lobby An officer in the fired another shot. Thompson running Jones and to- observed 6, 2005, the Metro Nashville April On him. fired a third shot at the wards Jones arranged with a confi- Department Police officers, missing by just one a few inches. “Cl”) (the purchase to informant dential to in a Thompson and tried hide Jones proceeded purchase to cocaine. The Cl area, vending police machine but the or- of of cocaine from several small amounts surrender, them to come out and dered days Several Thompson’s co-defendants. eventually did. The officers they which later, that he learned police the Cl told pistol Ruger a semi-automatic recovered purchase large a Thompson wanted to pistol from the and a Glock semi-automatic met an cocaine. The Cl with volume of machine. top vending of a a pose was to undercover officer who arrange in Chicago from order dealer Jones, Thompson, A indicted grand Thompson. drug transaction with and drug co-defendants on and five other named charges. Thompson was weapons negotiation, rounds of After several of the five counts: Count One three Thomp- officer met Cl and the undercover and five others with charged Thompson finalize the sale. in a hotel room to son with possess to distribute and conspiracy under video surveil- Police had the room or more kilograms to distribute five intent bag con- Thompson was shown lance. 846; § of 21 cocaine in violation U.S.C. twenty kilograms of cocaine taining Thompson pos- charged Two Count After in- packages. in smaller wrapped as a convicted felon of a firearm session cocaine, left the Thompson specting the § 922(g)(1); and violation of 18 U.S.C. room, money to ostensibly get more using charged Thompson Four Count He returned with the complete the sale. and in rela- carrying during a firearm money accompanied was co-defen- trafficking offense viola- drug tion to a Kenneth Jones. dant 924(c)(1)(A) § and 18 tion of 18 U.S.C. drug turned the Thompson Jones eventually pleaded § 2. U.S.C. robbery. an armed Both Jones sale into counts. to all three guilty pistols Thompson drew semiautomatic prepared presen- office They probation and the CL ordered on the officer (“PSR”).1 Beginning with a that the report tence district court must consider “the thirty four base-offense level under the need for the imposed”: Guidelines, the office recommended a six- (A) to reflect seriousness the of- level enhancement under U.S.S.G. fense, promote law, for respect 3A1.2(c)(l) assaulting law-enforce- just provide punishment and to for the during ment officer the course оf an of- offense; therefrom, a flight fense or four-level en- (B) adequate to afford deterrence to 3Bl.l(a) under hancement U.S.S.G. for a conduct; criminal conspiracy, role leadership and a (C) protect from public further reduction two-level under U.S.S.G defendant; crimes of the 3El.l(a) acceptance responsibility. (D) to provide the defendant with need- adjusted of 42 With base-offense level ed educational or training, vocational V, criminal-history category and a care, medical or other correctional treat- sentencing range office recommended a ment in the most effective manner[.] under Guidelines of 360 months’ to life While the district court need not explicitly imprisonment for and 2. Counts On reference each factors of Count the office recommended that 3553(a), § “there must be sufficient evi Thompson mandatory receive a minimum dence in affirmatively the record to dem years’ imprisonment. ten sentence onstrate the court’s consideration of [these objected Thompson to the PSR. Jones, factors].” United States v. 445 court a sentencing The district held (6th Cm.) (internal 865, F.3d quotation 869 hearing. After receiving testimony from — omitted), denied, marks cert. U.S. several of the officers at the scene and —, 251, 127 S.Ct. 166 L.Ed.2d 197 hearing parties’ arguments, after (2006). district court sentenced to 360 court, contrast, appellate re imprisonment months of each Counts views the defendant’s sentence for “rea Two, One be served concurrently, under an sonableness” abuse-of-discretion Four, and 120 months on Count to be — States, standard. v. Gall United U.S. consecutively. served —, 586, 591, 128 S.Ct. 169 L.Ed.2d 445 Thompson timely appealed his sentence. (2007).

II Advisory B. The Guidelines Sentencing A. 1. In General

A district court and an appellate sentencing One factors court have different in federal roles sen that the court district must consider is the tencing. The district court must applicable consider range. Guidelines United sentencing Gale, (6th relevant factors set forth at States v. 468 F.3d 934 — 18 Cir.2006), denied, U.S.C. 3553. U.S. —, Pursuant the so- cert. 127 parsimony called provision (2007). of 18 S.Ct. U.S.C. 168 L.Ed.2d Spe 758 § 3553(a), a district 3553(a)(4) court must “impose cifically, requires U.S.C. sufficient, greater but not than that the court district “the consider kinds necessary, comply purposes” with the the sentencing range sentence and es 3553(a)(2). 3553(a)(2) for—(A) Section provides tablished the applicable category probation 1. The office used the 2005 version of the Guidelines manual. calculations”); guideline cat- United States by applicable committed of offense (6th Cir.2005) Stone, 432 F.3d 654-55 as set forth defendant egory of (holding that the district court’s fact-find Sentencing issued guidelines (i)— jus respect to an obstruction of Supreme ing Court ex- Commission.” enhancement did not violate the Sixth are the tice that the Guidelines plained Gall stating that did Amendment and “Booker and the initial benchmark” “starting point judicial fact-finding”), at not eliminate cert. sentencing. 128 S.Ct. federal denied, U.S. —, — Guidelines, considering the When Booker, (2006); at L.Ed.2d 35 543 U.S. cf. must calculate the cor the district court 257-58, (expressly rejecting 125 S.Ct. 738 Gale, Id.; 468 F.3d sentencing range. rect approach that would have left the dissent’s means that the practice, this at 934. judge free “to facts sentencing consider proper at the base-of begin court must or circumstances not found level, any applicable enhance apply fense plea agreement pur admitted in a for the to arrive at the ad ments or reductions pose adjusting level base-offense level, resulting and use the justed-offense down, up, applicable within the but criminal- appropriate level with the offense guidelines range”). engaging When this arrive at a history category to fact-finding, employ district courts court did is what the district range. This stan preponderance-of-the-evidence “same of Kim Supreme Court case in the recent governed to Booker.” prior dard that — —, U.S. brough v. United 456 F.3d Ferguson, States v. (2007). L.Ed.2d 481 S.Ct. Cir.2006). (6th a base-of began The district has calcu Once the district court history of of 32 and a criminal fense level it appropriate range, lated the Guidelines Kimbrough. Id. at 565. dis II for in range light considers that then Kimbrough found that had trict court then 3553(a) § factors in fashion other relevant falsely at his codefendant’s trial testified States v. ing the sentence. United levels, adjust resulting in an and added Cir.2006). (6th McBride, 434 F.3d Supreme of 34. Id. The ed offense level of reasonable presumption accord a We favorably noted that Court that lies within the to a sentence ness calculating and by properly “began Gale, 468 F.3d advisory range. Guidelines аdvisory Guidelines considering — 937; U.S. at see Rita v. United Using at 575. the Guidelines range.” Id. 2462, 168 —, L.Ed.2d 203 (as any judge-found adjusted with range apply circuit courts to (permitting facts) applicable range Guidelines as the to a within- of reasonableness presumption 3553(a)(4) has been the purposes sentence). Guidelines See, e.g., of this court. practice consistent Robinson, 503 F.3d United States Enhancement for As- 2. Guidelines (6th Cir.2007) (applying presumption sault on Official Victim to a within-Guidelines of reasonableness that Thompson first contends calculation the Guidelines sentence where of by enhancing his court erred judge-found on facts district was enhanced based § 3A1.2 for level under U.S. S.G. have fense resulting sentence would that he argues He assaulting an officer. outside a non-enhanced Guidelines been “drug Cook, purported know that F.3d did not States v. range); United Cir.2006) actually an (6th in the hotel room was dealer” (explaining argues that the officer. He also advisory undercover bearing ... no “Booker has only (e) court found that 134; district Jones fired money,” JA “[h]e was also in pursuit on the officers who were giving Jones, directions to who attemрted they two the hotel room. as fled to turn left down hall. And he direct- him, no, go ed right down the hall and We find no error the district court. down the at hall,” stairs the end of the id. provides Section 3A1.2 part: relevant Finding Thompson to be “the man in (c) If, in a manner creating substantial charge,” it was not unreasonable for the bodily injury, risk of serious the defen- district court also to conclude that he person dant or a whose conduct should be held “accountable ... for the defendant is otherwise accountable— being shots fired by Jones.” JA 131. Un- (1) knowing having reasonable 3A1.2(c), der U.S. S.G. this was suffi- cause to person believe that a was a apply cient to the six-level enhancement. officer, law enforcement assaulted such during officer the course of the 3. Guidelines Enhancement for Lead- therefrom; offense or flight immediate ership Role challenges increase also [the level] offense 6 levels. four- level increase he received for his leader The district court clear made that the en- ship role in the conspiracy. The Guide hancement went Thompson’s conduct lines call fоr a four-level enhancement if a after robbery, not his conduct in the defendant is an “organizer or leader aof hotel room. Both Thompson and Jones criminal activity that involved five or more brandished their they firearms fled the participants or was otherwise extensive.” room. The evidence presented during the 3Bl.l(a). U.S.S.G. Thompson argues sentencing hearing confirmed also that the points Jones, the evidence two defendants were on sufficient notice Thompson, as the leader. The district were, the pursuing fact, officers court recognized that played Jones also police officers. significant role conspiracy and rob Even assuming arguendo that there was bery. can, More than person however, one insufficient evidence that Thompson him- hold a leadership role the conspiracy for officers, self shot at the there was suffi- purposes of the Guidelines enhancement. cient evidence person that “a for whose (“There § U.S.S.G. 3B1.1 can, cmt. n. 4 of conduct” Thompson was “otherwise ac- course, be more person than one quаl who countable” created “a substantial risk of ifies as a organizer leader or of a criminal bodily serious injury.” There is little dis- association conspiracy.”). or Given that pute that Jones fired at the officers during Thompson negotiated the details of the flight. In discussing Thompson’s lead- sale, drug had the money, and checked the ership role in conspiracy, the district cocaine quality, the district court prop court found that Thompson “was the man erly concluded that he had a leadership (a) charge” in because: “he was the man role. whom negotiated Cl try to arrange buy 20 kilograms cocaine,” Counting 4. Double (b) 133; “negotiations JA continued (c) id.; Thompson,” “he was the man Thompson next alleges that that doing was all talking and wanted the district court enhanced his Guidelines (d) cocaine,” id.; to see the “[h]e’s one offense 3A1.2(c) § level under U.S.S.G. that went out brought and in try Jones to for the same activity it sentenced him un complete the deal with 924(c)(1)(A)(iii). his additional § der 18 U.S.C. He ar-

563 reject family). Accordingly, we his so, court the district by doing gues district court claim that Thompson’s criminal for the same him twice punished under this by applying rule’ in enhancement erred activity. ‘established “[T]he “double ‘impermissible § 3A1.2. circuit U.S.S.G. the same precisely when

counting” occurs conduct factors of a defendant’s aspect Mandatory 18 U.S.C. Sentence Under C. ” ways.’ separate in two into his 924(c)(1)(A) § Sabino, 307 F.3d v. States Thompson asserts argument, In his final Cir.2002) (6th (quoting United States the Sixth court violated the district (6th Farrow, Cir. F.3d v. discharge-of-a- because the Amendment 2K2.4(b) 1999)). provides that § U.S.S.G. 18 U.S.C. under firearm enhancement under convicted defendant was if a 924(c)(l)(A)(iii) in- pled § was not 924(c), imprisonment term of § U.S.C. jury beyond a by a or found dictment Thus, the statute. by the required is that doubt, in Su- violation reasonable aspect same is whether question v. holdings Apprendi preme Court’s into 18 factors U.S.C. conduct Thompson’s 466, 120 S.Ct. 530 U.S. Jersey, New 924(c)(l)(A)(iii) § 3A1.2 and U.S.S.G. § Blakely v. 147 L.Ed.2d ways. separate two Washington, 542 U.S. engage did not district (2004). Had the district 159 L.Ed.2d keyA as counting. double impermissible subparagraph him under court sentenced ‍‌​‌​​​‌​​​‌‌‌‌​‌​‌‌‌​‌‌​‌‌‌​‌‌​‌‌​‌‌‌​‌‌‌‌​​​​‌​‍that enhanced conduct Thompson’s pect of firearm, (i) carry of rather for use under range U.S.S.G. his Guidelines (iii) one, he would discharge than Jones people § fact that 3A1.2—the five-year, rath- subjeсt only to have been police officers shooting at were was mandatory minimum sen- ten-year, than er anot factor citizens—is simply private tence. under 18 set U.S.C. the crime forth 924(c)(1)(A)(iii). Thus, Appren- case reject Thompson’s this is not a Although we § aspect” of conclude that same we argument, do “precisely di-based where impacted his sentence er- conduct reversible court committed defendant’s (iii) ways. United States separate subparagraph in two by applying ror Cir.1994) (4th (“By 149, 154 Sloley, language 19 F.3d specific under the terms, no inherent neces there is their the indictment. 924(c)(1) sary overlap between 924(c) 3A1.2(b) viola most —indeed v. United States Harris ‘official victim.’ do not involve tions 924(c)(1)(A) in relevant provides Section drug trafficker fact that mere part: a law enforce used particular case this mini- greater a the extent that Except to the gun against officer officer’s ment by provided is otherwise mum sentence applying a court from preclude not should by any provision other or this subsection and the ‘official firearm statute the both who, and in during law, any person United States adjustment.”); victim’ cf. drug violence or any crime of Cir.2006) relation (6th 572, Cousins, F.3d 575 469 (including a crime of trafficking crime court’s enhance (upholding trafficking crime that drug or violence though even 3A1.2 under ment U.S.S.G. if punishment for an enhanced provides 18 convicted under was the defendant deadly a or the use of 879(a)(2) by committed 871(a) for threat §§ U.S.C. device) which weapon or dangerous the United States ening the President 564 Harris, may prosecuted 550, a at be in court arm.” 536 122 person

the U.S. S.Ct. McMillan). States, (discussing uses or carries a 2406 of the United two who, reconciled, in decisions firearm, any furtherance of earlier could be ac- or firearm, shall, cording to in the Court: crime, a possesses such punishment provided for addition to the Apprendi ... McMillan and are consis- violence or traffick- drug such crime of because tent there is a fundamental dis- ing crime— tinction between the factual findings were at issue in two

(i) those cases. impris- to a be sentenced term of any fact Apprendi extending said that years; less than 5 onment of not beyond the defendant’s sentence (ii) brandished, firearm if the is be jury’s maximum authorized ver- to а term imprisonment sentenced dict would have been considered ele- years; of not than 7 less of an aggravated ment crime—and thus (iii) discharged, if firearm is be jury—by the domain of the those who to a imprisonment sentenced term of Rights. framed the Bill of The same years. of not than 10 less cannot be said a fact increasing argument Thompson’s Apprendi (but mandatory minimum not extending Supreme hold foreclosed Court’s beyond statutory maxi- ing in v. United 536 Harris U.S. mum), for jury’s verdict has author- 2406, 545, 122 153 L.Ed.2d 524 S.Ct. judge ized the impose the minimum (2002). Harris, held In Court or finding. with without the As McMil- (ii) (iii) subparagraphs were sentenc recognized, may lan a statute reserve may ing by prepon be factors that found type of finding this factual judge by judge, derance of the evidence rather violating without the Constitution. than crime that must be elements 557, 122 Id. at S.Ct. 2406. by a under the higher found standard. Blakely, turn, applied holding of Id. at 122 2406. petitioner S.Ct. Apprendi reviewing a state judge’s en- argued that Harris had the Court’s of a hancement defendant’s sentence above decision in Apprendi conflicted its statutory maximum. 542 at U.S. Pennsylva earlier in McMillan v. decision 124 Supreme S.Ct. 2531. The Court dis- nia, U.S. S.Ct. McMillan, tinguished explаining that the (1986). Apprendi, L.Ed.2d decision not on-point was because it “in- Court fact explained, “[O]ther than the a sentencing volved that imposed scheme conviction, a prior any fact that increases statutory judge minimum if a par- found a beyond pre a crime penalty for ticular fact.” Id. at 124 S.Ct. 2531 statutory scribed maximum be sub must (citing Harris in support). Pointedly, jury, beyond mitted and proved to a did Blakely not either reverse McMillan reasonable doubt.” U.S. at Likewise, presented or Harris. when However, S.Ct. years fourteen earli Booker, question a similar the Court did er, the in McMillan Court “had declined to or nega- overturn otherwise comment adopt a more restrictive constitutional tively about the continuing vitality of rule. McMillan sustained a statute that McMillan Harris. minimum penalty increased the for a crime, beyond not though statutory panels Prior of this court have recog- maximum, the sentencing judge when that controlling, nized Harris is still even found, evidence, See, by a of the preponderance post-Blakely e.g., and Booker. United Gonzalez, (6th that possessed 630, had a fire- v. defendant States 501 F.3d 643

565 (“The contrоls, Cir.2007) directly leaving of this manda which Su- application [the 21 years under overruling five of tory preme] prerogative minimum Court [of 841(b)(1)(B) decisions”). Appren- creates no Accordingly, ] deny U.S.C. its own we moreover, years five because problem, di Thompson’s Apprendi challenge. statutory of maximum not exceed does Exceeding Scope of that can be the Indict-

twenty years’ imprisonment under 21 U.S.C. ment imposed ... 841(b)(1)(C).” v. (citing United States Yet, find no under while we error Cir.2003) (6th 698, Wade, 705 318 F.3d do Apprendi, we conclude confined the constitu (holding Harris (iii) in applying subparagraph court erred factors requirements Apprendi

tional particular language under the the indict be a defendant’s sentence increase a long ment. Courts have understood that statutory otherwise-applicable yond a place criminal indictment holds central Bowen, maximum))); 194 States v. United It under the U.S. Constitution. (6th Cir.2006) 393, (explain Fed.Appx. 404 process three protects constitutional due could “see no reason ing that namely: the rights, Sixth Amendment’s implicitly overruled hold Harris has been to fair right notice criminal courts Blakely”). Other by Booker and against one charges which will need to recognized vitality of similarly have defend; and Fifth Amendment’s Williams, 464 v. Harris. United States protections against placing dual twice a Cir.2006) (“Harris 443, (3d re F.3d 449 jeopardy defendant for of- same of the Book binding mains law wake fense, holding the defendant to an- Estrada, decision.”); v. States er United in- presented swer for crimes not to or (2d Cir.2005) (“[W]e 387, are F.3d 391 428 by grand jury. v. dicted United States rulings Supreme bound Court’s (6th Cir.2004) Combs, 935 F.3d United Harris.”); Almendarez-Torres Pandilidis, v. (quoting United States (9th Dare, 634, 641 v. 425 F.3d States (6th Cir.1975)). F.2d Cir.2005) (“We au question cannot Harris’ grand jury vested with exclusive thority binding precedent.”); charges authority setting the criminal (7th Jones, v. 418 F.3d States in an indictment. Cir.2005) (“Under Harris, the Su which grand jury charged both Booker, preme Court did disturb 924(c)(1)(A). violating and Jones ten-year mandatory mini imposition of the in rele- the indictment reads Specifically, mum sentence violation part: 924(c)(1)(A)(iii) vant not violate the Sixth did

Amendment.”). us, Thompson asks While THREE COUNT effect, that Harris has been find by Blakely and Book

implicitly overruled FURTHER THE GRAND JURY er, that. authority we do to do not have CHARGES: Williams, cases); 449 (citing F.3d at 26, 2005, in the April or about Felton, On Agostini see also 521 U.S. Tennessee, KEN- District of Middle 1997, 138 L.Ed.2d 391 S.Ct. JONES, used, knowingly car- NETH L. (reaffirming rule that ‍‌​‌​​​‌​​​‌‌‌‌​‌​‌‌‌​‌‌​‌‌‌​‌‌​‌‌​‌‌‌​‌‌‌‌​​​​‌​‍a рrecedent “[i]f firearm, ried, to-wit: discharged in a application Court has direct [the] caliber, Glock, case, Model .45 semi-auto- yet appears reject to rest reasons decisions, and in relation to pistol, during matic in some line of ed other may he drug trafficking the case crime which should follow Appeals Court prosecuted be a court of that, the United recognize We general matter, as a States, 21, to-wit: of violation Title Thompson may indeed be held liable for Code, United States Sections 846 and Jones’ conduct. As the points Government 841(a)(1). out, aiding and abetting liability is avail- able § under 18 U.S.C. 2 and Pinkerton 18, of Title

In violation United States liability is available for co-conspirators. Code, 924(c), 18, Section Title Unit- Nevertheless, the question here is Code, not ed Section 2. States

whether Thompson may be held liable for Jones’ generally, actions but rather wheth- FOUR COUNT er, specific 924(c) under the language §of THE GRAND JURY FURTHER indictment, and the the district court ap- CHARGES: propriately sentenced Thompson to the 10-year 26, April 2005, mandatory On or about minimum. Tennessee, Middle of District THOMAS There are two fundаmental problems THOMPSON, M. knowingly used and with the First, district court’s sentence. firearm, carried a to-wit: Ruger, Mod- by the of indictment, terms grand P94, caliber, el .40 pistol, semi-automatic jury charged Thompson using during and in relation to a drug traffick- carrying Ruger” “a in connection with ing prosecut- crime for he bemay which drug trafficking, and aiding and abetting States, ed in a court of the United to- the same under § 18 U.S.C. 2. Under a 21, wit: a violation Title United plain reading indictment, Ruger, 841(a)(1). Code, States Sections 846 and being “a firearm” purposes violation Title United States 924(c)(1)(A), § would be “the firearm” for Code, 924(c), Section and Title Unit- purposes Thompson’s sentence. Sec- Code, ed States Section 2. ond, the indictment charged Thompson not By the terms of Count grand jury only with respect particular to a make and charged Thompson using and carry- firearm, model of it charged also him with ing Ruger during relation to a respect to specific criminal activity— crime, drug trafficking aiding “us[ing] and carr[ying]” a firearm. In con- abetting the same under trast, 18 U.S.C. 2. it charged his co-defendant with Though evidence during the “us[ing], carrfying], and dischargpng]” hearing did establish that the Ruger Thus, firearm. the indictment not only discharged was during the course of the provide failed to Thompson notice that the crime, drug trafficking the district court Glock could serve as “the firearm” for sentenced 10-year to the man- purposes 924(c)(1)(A) enhance- datory 924(c)(l)(A)(iii) minimum under ments, it put also failed to him on notice based on evidence Jones had dis- that he could be held responsible for the charged the Glock. discharge of a firearm.2 Robison, In United States this charged.” Hartz, court held United States v. 458 F.3d specific type that “the (9th used Cir.2006). firearm Supreme As the possessed conspirator is not an explained, essen- Court has "The surplus insertion of tial element of the crime." 904 F.2d words in the change indictment does not (6th Cir.1990). The Ninth Circuit has similar- nature charged.” of the offense Bridges v. ly language held that in an 209, 223, indictment de- 346 U.S. scribing the model of a firearm is mere (1953). "sur- 97 L.Ed. 1557 Robison and plusage, Hartz, however, rather than an essential element of involved claims of construc- the crimes amendment; for which [the case, defendant] was tive Thomp- instant

567 fair no- Thompson give did not dictment incorpo jury expressly grand the Had responsible for held Thоmp that he could be tice into Count then 3 rated Count Glock, court notice discharge had clear of the have would son 4, including the scope of the to Count guilty exceeded pleading impermissibly abetting stat aiding and to the Ac- sentencing stage. reference at the indictment for the liable ute, potentially Thomp- he was also vacate and cordingly, we reverse in out spelled his co-defendant actions of minimum sen- mandatory ten-year son’s jury grand Alternatively, 924(c)(l)(A)(iii). Count § under 18 U.S.C. tence any of listing with dispensed could have hold- that our for clarification We note 18 U.S.C. factors of sentencing court not limit district ing today does 924(c)(1)(A)(i)-(iii) Count 3 in either only whether consider remand to any refer i.e., have omitted it could 4— mandatory receive a Thompson should model of make particular and to ences years under five minimum of in Count “discharge” the term firearm or (ii) (1)(A)(i). 924(c) Subparagraph 924(c)(1)(A)in §to simply and referred manda- seven-year provides that section v. See Almendarez-Torres counts. both “brandishing” minimum sentence tory 224, 228, 523 U.S. United 3 nor Count Count a firearm. Neither (“An indict 1219, 140 L.Ed.2d sub- brandishing or specifically refеrence each element must set forth ment (ii). not grand did As the paragraph it need not set charges. But that it crime to respect narrow the indictment the sentenc only to forth factors relevant dis- respect to it did with brandishing as guilty found ing of an offender con- is free to court charging, the district crime.”); v. Perez- States United charged Cir.2003) receive a (6th Thompson should sider whether Olalde, 328 F.3d brandishing Ruger. need sentencing sentence for factors (explaining indict grand-jury included not be Butler, F.2d

ment); v. Buckley Ill Cir.1987) (“[Tjhere (5th no Fifth a few of briefly respond to we Finally, jury indictment grand to right Amendment pro- The dissent facts.”). the dissent’s comments. on the sentenc- guide Mean” poses a “Golden specifically Instead, by charging Jones principle on the part courts based ing discharging a carrying using, must be es- factfinding that all only with Thompson charging Glock re- factfinding either chewed unless grand Huger, carrying a using within somewhere sults vis-a-vis the indictment jury narrowed the Guide- level under initial base-offense way. material Cf. ex- explicitly lines or district Leichtnam, 379-81 948 F.2d v. States general concepts why the plains Cir.1991) (7th the Govern- (holding that mitigat- outweigh the deterrence individuаl to a limit indictment ment’s decision the likelihood circumstances ing a material weapon constituted particular op. at 571. Dis. rehabilitation. successful indictment); see also United narrowing Mean, how- adopt this Golden order 901-04 F.3d Bishop, 469 States to don first ever, have (same). in- courts would (10th Cir.2006) Because Thompson and and, charged only 924(c) charge ment here guilty pleaded son fire- different in relation to co-defendant his consequently, he was convicted whether arms, but, ac- criminal different importantly, charged the indict- offense other than Moreover, tivity. indict- is not at issue. ment philosopher-kings crowns of that is account, takes those factors into —for only way any court in that this circuit reaches a result, consistent ap- court of import, could avoid the reasoning clear peals may presume that the district court holding precedent. of binding properly has weighed the sentencing fac- Rita, tors. See at S.Ct. 2463. The above, explained

As both Supreme only theory makes sense if the Guidelines Court and this court have consistently are applied they as contemplated were adjusted ranges treated Guidelines as the apply by taking into applicable account ranges purposes for enhance- 18 U.S.C. — 3553(a)(4). provided § supra by ments Adjust- See II.B.l. the Guidelines. simply ments to the There is base-offense level no routinely basis to contend that depend upon Sentencing facts found sentencing Commission ever contem- judges by preponderance plated of the evi- taking without into ac- The dence. Supreme Court sanc- count has enhancements provided judicial tioned factfinding, even factfinding Guidelines. that enhances rather than reduces a defen- As to couple points that the dis- sentence, long dant’s so as the factfinding sent makes particular case, about this does not result ain sentence beyond the analysis dissent’s rings hollow. Leaving statutory maximum. See supra § II.B.1. aside whether engaging in a conspiracy Supreme meant, Had the instead, Court distribute five or kilograms more of co- applicable that the really Guidelines range caine is a crime, “victimless” op. Dis. at level, should be the unadjust- base-offense 569, part of Thomрson’s sentence was by any judicial ed factfinding, one would based on his being a in possession felon have expected it that would have clarified a firearm and using and carrying the fire- expounded upon such a seismic shift in arm during the drug transaction. As the how the Guidelines are calculated.3 In court district found police based on testi-

fact, if the position sound, dissent’s were mony surveillance, and video Thompson’s why one Supreme wonders Court did “use” of the firearm included pointing at it much excise Guidelines when it the Cl and the undercover police officer. portions excised of 18 U.S.C. 3553 and Thompson’s illegal activities were hardly § 3742 in Booker. “victimless.”

The position dissent’s also conflicts with the underlying theory of Supreme Finally, the district court did not en- Court’s recent Rita decision. theory gage in a “rote sentencing” of Thompson, of Rita is that the Guidelines do take the the dissent’s characterization to the con- sentencing factors of account, 3553 into trary notwithstanding. Dis. op. at 574-75. and when the district court independently The district court a sentencing held hear- fact, it is unclear hand, whether the dissent’s оther the Sixth protects Amendment approach apply adjustments would to all defendant, to a Government, criminal not the so defendant's just base-offense level or enhance- presumably the approach dissent's per- would hand, ments but not reductions. On the one mit reductions to the base-offense level based logic suggest would that the base-offense level on factfinding, although might one just is adjustments, that —no period. ap- expect This the Government would be far proach put jeopardy, would among other inclined oppose vigorously more all reduc- things, all acceptance reductions for of re- tions if enhancements were off the table. If sponsibility cooperation, neither of which approach the latter proposed by one are dissent, ever submitted to the and which then likely "seismic shift” understates collectively among have be fre- impact most it would have federal sentenc- quently applied adjustments of all. On ing. mechanically habit of their to break courts co-defen- of his and one ing for alone. just guidelines on the relying testimony from heard The court dants. transcript eye three witnesses. young, drug-addicted, have a we Here A review pages. runs over hearing illegiti- Born cocaine. dealing in man black confirms transcript figure, father without a Nashville mate in objec- Thompson’s each addressed and sent to a child he was abandoned the court con- School, confirms It also a school tions. Preparatory Tennessee sentencing factors the relevant and other juvenile delinquents sidered orphans, for for explanation a reasoned some Tests showed provided and children. problem the from apart a Accordingly, is now a child. He the sentence. retardation as mental in- exceeding the in his of case, court’s error two small children district sad 924(c)(1)(A)charge, we in lifetime the a virtual support on and dictment own to sentence, in its as of discretion the ratcheting up abuse By no prison. find other ag- Thompson. guidelines, piling under the typical of Court, District aggravator, on gravator Tennessee, Nashville, lock-step with the in IV (as recommendations Office Probation U.S. reasons set fоrth for Accordingly, decided), had never been though Booker PART and RE- above, IN we AFFIRM of 32 with level a base offense from went Thompson’s sentence. IN PART VERSE (corresponding history points criminal to the district the case REMAND We carrying pen- plea), guilty to defendant’s of resentenc- purpose limited months, of to a sentence alty years, 15of 924(c)(1)(A) consis- U.S.C. ing under 18 a vic- years prison years forty — opinion. with this tent District Court The drug crime. timless not admitted findings of fact even made dissenting. MERRITT, Judge, Circuit an additional triggered the defendant sentence consecutive mandatory minimum lawyers judges those Except for all the other top on years of of conformity continue routine prefer to who not admitted enhancements findings of of process old pre-Blakely-Booker to the sen- 40-year of the Most defendant. widespread there is sentencing, guideline based court was by the ‍‌​‌​​​‌​​​‌‌‌‌​‌​‌‌‌​‌‌​‌‌‌​‌‌​‌‌​‌‌‌​‌‌‌‌​​​​‌​‍imposed tence sys- muddled present of the disapproval or by the defendant admitted facts never main, because, old This is tem. jury. by a found though continuing on as just system is for the par are harsh sentences Such under happened сontinuing nothing had — sentenc- guidelines. under the course only are guidelines pretext with- harsh imposed a ing court only considered being “advisory” of instead family mitigating considering seriously out backdrop of point against starting aas pos- or rehabilitation personal factors penalogical and humane sensible the more Sentenc- the U.S. in line with sibilities—all 3553(a), 18. This Title goals set out consider- against rules ing Commission continuing of the example is one more case Chapters factors in individual ation such or of guidelineism, problem problem, refus- This 5K of Guidelines.1 5H and of most federal inability “guidelinitis,” works, upbringing, addic- disadvantaged good rule relevant” "not The Commission's ties, illness, tion, family rehabili- mental mitigating host against consideration contrary directly to the condition, possibilities are tation edu- age, physical factors such Eighth of the interpretation service, Supreme Court’s cation, public military, employment, al seriously factors, consider individual plea of guilty. As the Court said rehabilitation, including has been the most Cunningham, “under the Sixth Amend- important characteristic of the work ment, any fact that exposes a defendant Sentencing Commission. begin- From the greater potential sentence must be found ning, guidelines have emphasized col- by a jury, not a judge.” Cunningham v. lectives, individuals; and individualized California, U.S.

sentencing by judges, federal the weighing 863-64, 166 L.Ed.2d 856 (emphasis aggravators and mitigators through a added). This statement the Sixth process of dialectic reflection and reconcili- Amendment rule was first stated in Blake- ation, has become relic of past. ly even more clearly repeated then creation of these guidelines involved the Booker Rita. unclear, It is still howev- breakdown of behavior into smaller and er, whether the Supreme Court is going to parts smaller and categories aggrava- stay with or erode reject and then tors or enhancements without consider- clear holding of Blakely: ation of important other individual factors. [T]he ‘statutory maximum’ Appren- The process ratcheting-up in the instant di purposes is the maximum sentence a case all upon judicial was based findings of judge may impose solely on the basis of fact.2 It anyone is obvious to who has the in the jury verdict or facts reflected watched disingenuous this рrocess develop by admitted the In other defendant. that present the system is completely in- words, the ‘statutory relevant maximum’ consistent with Blakely the and Booker is not the maximum judge sentence a opinions, judicial which confíne fact finding may impose after finding additional to those facts carrying jury out a facts, verdict but the maximum may he impose Ohio, 586, Amendment in Lockett v. 438 U.S. guideline enhancements to raise a sentence 2954, (1978), 98 S.Ct. 57 L.Ed.2d 973 and guideline above range the corresponding to Oklahoma, 104, Eddings v. 455 U.S. 102 S.Ct. the jury verdict plea. or So when the Su- 869, (1982), 71 L.Ed.2d 1 requiring states preme phrase Court uses the "within the sentencing to consider such mitigating fac- guidelines," as it frequently does in these Commission, Sentencing tors. The and now cases, yet it is not clear precisely what it direction, the federal courts at its refuse to means that or it means enhanced sentences take account mitigating into the and human- findings based on by judge of facts the over izing factors that Eddings Lockett and require. and the by above facts jury found the verdict There is no any indication that such factors guilty plea. or the were considered or influencеd the sentence in Supreme The Court did not say in this case. Gall or Rita the sentencing that judge should "start" sentencing process the by enhancing significant It the sen- cases, in the that recent Rita tence aggravator by aggravator, States, - U.S. -, happened v. as United (2007), instant case. 168 States, L.Ed.2d 203 Court said that the Gall v. United - U.S. -, sentencing judge begin "ap- 128 should S.Ct. with the 169 L.Ed.2d 445 (2007), plicable - range” Kimbrough and Guidelines v. which in Gall was -, U.S. the 128 initial base S.Ct. level corresponding offense L.Ed.2d 481 to (2007), in facts Supreme which admitted guilty plea, the upheld the Court which car- sentences, the range district court ried a the 30 to 37 sentence was months. There is no within or guideline language below range the in Gall requires corre or Rita that appel- sponding to jury the guilty verdict or late plea. or district judges "begin" with the There was ratcheting up no process. of the sentence process enhancement That is direct- enhancements of the sentencing ly outside contrary initial language to the quoted below in range. There judicial were no findings Blakely fact "judge that a proper exceeds his au- sentence, that raised the thority” therе is no Su by basing higher judi- sentence on preme Court case that allows a court to findings use cial outside the verdict. Cun law toothless.” case Amendment When findings. additional any without 270, 127 549 U.S. California, v. ningham that punishment inflicts judge (2007). L.Ed.2d allow, S.Ct. not does alone jury’s verdict Supreme the members Many of ‘which the facts all found jury has at one opinions recognized in have Court punish- makes essential the law inconsis unprincipled, another time or proper his exceeds judge ment,’ sentencing game nature tent authority. engaged.4 arewe now which 296, 303- U.S. Washington, 542 Blakely return the begin to way to only L.Ed.2d 04, 124 S.Ct. with something consistent process added). is that clear isWhat (emphasis concept and with Amendment ap- Sixth the courts courts recognize sentencing is to individualized express- in this case majority peals, two over- we stick and insist this rule applying are not acknowledges, ly First, fact principles: riding Supreme Court not believe do be a sentence length finding and The view enforce it. actually intends base-of- within somewhere in limited opinion remedial to be seems corresponding fense-level, range rule, guideline this inconsistent Booker is plea, unless jury verdict in to the disregarded simply may be the rule so con- why the explains judge such predicted Justice Scalia practice.3 deterrence and individual general of cepts Booker, the Court’s noting that result the for longer sentence require “de should preserving risked scheme remedial mit- outweigh the and individual discourag- particular by mandatory guidelines facto (includ- of the case igating circumstances sentencing outside from courts ing district addiction, family age, like ing factors States ranges.” Guidelines by the irrelevant 738, responsibility deemed 313, 220, 125 S.Ct. Booker, U.S. 543 5H Chapters Sentencing Commission (Scalia, J., (2005) dissent- 621 160 L.Ed.2d of suc- 5K), the likelihood as as well mandatory ap- Indeed, facto, this de ing). Second, rehabilitation. cessful afoul runs guidelines plication weighing pro- explain the sentencing judge that “Book- admonition Supreme Court’s into (taking account er’s, cess outlined above ... the Federal Guidelines remedy for de- special general culpability, moral Sixth rendering our recipe for is not opinions of See, separate example, the point are clear. this еmpirical on data 3. The ("I fact” to the not blind 1990-2003, am received of offenders Stevens Justice 90.6% From range. to treat adhering judges continue "many to the Guidelines federal sentences made the purportedly mandatory”); Jus- Booker virtually after Guidelines of offenders still "advisory,” 86.3% Thomas, (“no Guidelines one knows— Scalia and tices range, a in the Guidelines sentences received to know—how one is meant perhaps no Fur- enhancements. including judicial range prac- function ... advisory will Guidelines thermore, these within- appellate review ("consistency began to tice”); Souter Justice post- changed has not sentences Guidelines falter,” pull to now-discre- “gravitational Booker, 99.9% have affirmed as circuit courts very fea- preserve ... tionary Guidelines Conversely, sentences. of within-Guidelines jury trivialize the that threaten ... ture sen- below Guidelines courts reversed Circuit has just what ask "fair that it is right” so time, only while tences almost 85% - Rita, U.S. accomplished”). See been -, in less sentences reversing above-Guidelines 2487-88, Bilsborrow, 127 S.Ct. See James the cases. than 5% L.Ed.2d 203. Note, Acquitted. Conduct Sentencing Dustbin, & Mary Pоst-Booker L.Rev. Wm. (2007). 314-15 terrence, mitigating circumstances and re doubt, reasonable not by a merely pre- habilitation) so that the sentence and its ponderance of the evidence. explanation comply with the “overarching Id. at 863. The court then finds basis provision instructing district courts to ‘im for its decision in Blakely precedent, pose a sentence ... greater not than nec quoted above, two years decided before: essary’ accomplish goals of sentenc The judge could not have sentenced — ing,” Kimbrough v. United Blakely above the standard range with- U.S. —, 558, 569, 169 L.Ed.2d out finding the additional fact of deliber- 3553(a)). (quoting 18 U.S.C. cruelty. ate Consequently, that fact was This “overarching provision,” enacted subject to the Sixth Amendment’s Congress §in 3553(a), humane, sets a bal trial guarantee. 304-314, U.S. at ancing standard that the sentencing judge S.Ct. 159 L.Ed.2d 403. It did should keep as the Golden Mean governing matter, we explained, Blakely’s judicial necessary reflection in each sentence, though outside the standard sentencing case to reconcile contrary fac range', was within the 10-year maximum tors arguments in the weighing prо B class felonies: cess in order to arrive at a fair sentence. “Our precedents make clear ... that the If judges lawyers any have doubt ‘statutory maximum’ for Apprendi pur- about the limitation on fact finding poses is the maximum sentence a judge that the Blakely-Booker-Cunningham line may impose on solely the basis imposes cases sentencing judges and in the jury verdict or facts reflected appeals, courts of they should carefully admitted In other reread defendant.... Cunningham case decided a words, the ‘statutory relevant maximum’ year ago. justices joined Six in the opin- is not the maximum a judge ion. opinion opens by stating the may impose finding after additional question: facts, the but maximum he may impose question presented The is whether the any without additional findings. When DSL [the California determinate sen- a judge inflicts punishment that the law], by tencing placing sentence-elevat- jury’s verdict allow, alone does not the ing finding fact within the judge’s prov- not has found all the facts ‘which ince, violated the right defendant’s to the law makes essential to punish- the trial jury safeguarded by the Sixth ment,’ ... and the judge exceeds his аnd Fourteenth Amendments. We hold proper authority.” Id. at 303, 124 S.Ct. that it does. 2531 (emphasis in original) (Quoting J. Cunningham California, 549 U.S. Bishop, Criminal Procedure § p. 55 S.Ct. (2007). 166 L.Ed.2d 856 (2d. 1872)). ed. After stating the fact that the sentencing Id. at 865. The judge emphasized, court up ratcheted reem- the defendant’s sen- phasized and then stated again tence by one that ratch- level based on fact eting up sentences finding, through judicial began the court fact its analysis of the finding violates the question Sixth II, in Section Amendment: as follows: This court has repeatedly that, held un- If the jury’s verdict alone does not au- der Sixth Amendment, the any fact that thorize the sentence, if, instead, the exposes a to greater defendant a poten- judge must find an additional fact to tial sentence be must found by a jury, impose the term, longer the Sixth not a judge, and beyond established Amendment requirement is not satisfied. from deviating given by the reasons it makes the Finally, at 869. Id. Sixth under established starting point opin- the remedial Breyer’s Justice that clear process This constraints. Amendment rule the way alters in no in Booker ion rote, ratcheting- to an end put should by judi- sentence ratcheting up against the sen- characterizes that now up process of enhancements: findings cial, factual on based process tencing process, guide- the federal remedy for Booker’s factors mitigating that rule Commission’s for render- short, recipe anot lines, relevant.” “not are law case Amendment our Sixth ing Alito, Justice 15] [Footnote these toothless. based on system This modified opin- His just that. however, less, do would is, more or what principles two portion remedial the be- reads like in ion looked have system would to override Booker truly opinion were Court’s the Guidelines if ginning en- academic to render Blakely, mandatory rules. than rather “guidelines” itself. of Booker part Commission, beginning, tire first in the If recommended, lawyers many judges judge sentencing words, the other judges assist guidelines adopted had level offense base with the start should correct discipline than rather by the found facts to the corresponding have would system modified judges this plea. guilty admitted or jury verdict I system. a workable provided perhaps go up not should sentencing judge The ad- the Commission before myself testified her in his or point unless from down judiciary not to saddle vising it two process weighing mind own constitutionally are mandatory rules requires above stated overriding principles most rules would such suspect because in guidel- not engage judge should it. The individualized likely eliminate down up or ineism, adjusting the factors. mitigating full consideration so, as oc- say guidelines just because however, Commission, believed case, be- rather instant but curred to ex- be trusted judges could federal justice, sense own judge’s cause harsher and that properly discretion ercise result reflection, different leads upon imposed be must sentencing rules level. base-offense beginning, than longer sentences insure in order to judges play pivotal guidelines allows the This current uniformity. collective judge requires begin with but role to with- up sentences that ratchet Guidelines and faculties mental her own his or to use reha- or factors mitigating considering out the did in just judges as judgment, best result. are the bilitation sentencing before indeterminate of days guide- sentencing federal mandatory above described system The modified era. ei- sentencing from line process a different sentencing, as it indeterminate pure ther Appeals should the Court job of or guidelines, before operated sentencing the federal only to see be process guideline mandatory, rote right place at starts judge was Amendment the Sixth before prevailed lev- (at offense the base reasoning process finding. fact a limitation as recognized jury verdict corresponding el would system a modified such Hopefully, by the Sixth ‍‌​‌​​​‌​​​‌‌‌‌​‌​‌‌‌​‌‌​‌‌‌​‌‌​‌‌​‌‌‌​‌‌‌‌​​​​‌​‍required as plea), guilty between a balance provide begin to Blakely, by interpreted as Amendment of lock- collectivized, sentencing process (2) engages Booker, Cunningham, and re- heretofore adjustments step, upward dialectical of serious process general in a Commission, by quired reconciliation, as evidenced reflection thoughtful sentencing individual by glish federal judges American begin- since the judges that was the ideal ning behind the 18th Century. feder- al system (in sentencing used so effectively The modified scheme proposed above my opinion) years for 200 since the first squares with the most recent Supreme Congress enacted law, the first sentencing — decision, Court Gall United (1790).5 1 Stat. eh. 9 Further, sys- a U.S. —, 169 L.Ed.2d 445 tem that incorporates facets of indetermi- (2007), in which the Court dis instructed nate sentencing preserves the historical trict judges “make individual judges role of as sentencing experts and ized assessment based on the pre facts jury as fact finder. Sentencing sented” proce- with the operating Guidelines as dures based on the “initial these roles were benchmark” never but “not the only challenged Gall, as consideration.” undermining the Supreme the Sixth Court affirmed the right Amendment’s a jury district sen trial court’s because of thirty-six tence probation, judges did months objective function as fact punishment upon based judge’s district finders and judge-found facts did not carry individualized evaluation of the un factors consequences. determinate der U.S.C. 3553(a) particularly re — Such a system modified includes an ele- rejected habilitation —and the appellate democratic, ment of legislative control over court’s rote application of the Guidelines. sentencing while keeping elements of indi- Moreover, this approach lessens the likeli vidualized sеntencing from system. the old of as-applied hood Sixth Amendment chal Such a system modified may be strongly lenges, which, as out, Justice Scalia points by prosecutors resisted and the Depart- are still available. Id. at (Scalia, J., ment of Justice officials who have now concurring). become accustomed to controlling sentenc- Unfortunately, the sentencing process in ing through the charging process, the re- this just case was repeat guidelinitis, lease of enhancement information to pro- system of rote sentencing in which the bation officers plea bargaining. Back sentencing judge ratchets up the sentence in my day as U.S. Attorney years ago, instead of engaging anything close to prosecutors were viewed solely parties the deliberative or process reflective out- to the case and not entitled to control the lined the two overriding principles stat- length of the sentence. Removing control ed above. The determinate of sentencing from prosecutorial arm based on finding, fact including a government should be viewed aas mandatory consecutive sentence based en- step forward, although it is really step tirely on facts never found the jury or back in history to restore the benefits of admitted, makes the principle of Blakely, individualized practiced by Booker, En- and Cunningham joke. Hence, system finding fact and individu- Bills of 1692 and 1701. See Harold Ber J. sentencing alized by judges man, enacted II, Law and Revolution The Impact of Congress First system was the developed to the Protestant on the Le Western Reformation 226-28, justice reconcile with mercy by Tradition, our gal (Harvard 306-29 Univ. forebearers the English system 2003); Blackstone, criminal Press Commentaries on developed particularly after the IV, demise England, the Laws Book Chap. law— 368- prerogative courts of Star Chamber and (Legal 1983). Library Classics Ed. High following Commission English civil Sentencing Guidelines removed individual war, the Glorious revolution of the En- sentencing ized by judges that had existed in glish Rights Bill of and the Anglo-American creation law for more than cen three independent of an judiciary Judges’ in turies. the case remand reverse I would compli- beginning

resentencing from principles overriding two with the

ance should above.

stated corre- guideline

start look at take plea, guilty to the

sponding from operate would guidelines

how weighing engage then

that point above outlined process explanatory reach obligation feeling

without the Commission’s consistent

result find- After policies. structure

guideline sentence, it is guideline beginning

ing the law a common like judge act

up to process same engaged of old

judge after system the federal prevailed experi- failed, 20-year

1790 but before sentencing. guideline mandatory

ment Petitioner, LI,

JUMU Attorney MUKASEY, B.

Michael the United

General

Respondent.

No. 06-3711. Appeals, States Court Circuit.

Sixth 1, 2008. Feb.

Submitted: 13, 2008. Feb. and Filed:

Decided

Case Details

Case Name: United States v. Thompson

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 11, 2008

Citation: 515 F.3d 556

Docket Number: 06-6233

Court Abbreviation: 6th Cir.