*

The Honorable John T. Nixon, United States District Judge for the

Middle District of Tennessee, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0226P (6th Cir.)

File Name: 04a0226p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TIFFANY HARRIS

MONTGOMERY,

Defendant-Appellant.

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No. 03-5256

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 02-20247—Bernice B. Donald, District Judge.

Argued: June 10, 2004,

Decided and Filed: July 14, 2004 

Before: MERRITT and DAUGHTREY, Circuit Judges;

NIXON, District Judge.*

2 United States v. Montgomery No. 03-5256

_________________

COUNSEL

ARGUED: Needum L. Germany, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for

Appellant. Eric H. Jaso, ASSISTANT UNITED STATES

ATTORNEY, Newark, New Jersey, for Appellee.

ON BRIEF: Randolph W. Alden, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for

Appellant. Eric H. Jaso, ASSISTANT UNITED STATES

ATTORNEY, Newark, New Jersey, Carroll L. Andre, III,

ASSISTANT UNITED STATES ATTORNEY, Memphis,

Tennessee, for Appellee. 

_________________

OPINION

_________________

MERRITT, Circuit Judge. This case raises the question of

whether the Federal Sentencing Guidelines should be viewed

as a mandatory constraint on the discretion of federal district

judges to fix sentences. The defendant, Mrs. Tiffany

Montgomery, pled guilty to one count of bank fraud involving

approximately $21,000. At sentencing, the district court

found a total offense level of 10 in Zone B and believed it was

constrained by the mandatory nature of the Sentencing Table

(Chapter 5) and Sections 5B1.1(a)(2) and 5C1.1(c)(2) of the

Federal Sentencing Guidelines. Zone B, level 10, calibrates

to 6-12 months of imprisonment. Section 5B1.1(a)(2)

provides:

Imposition of a Term of Probation

(a) Subject to the statutory restrictions in subsection

(b) below, a sentence of probation is authorized if:

. . .
No. 03-5256 United States v. Montgomery 3

(2) the applicable guideline range is in Zone B of the

Sentencing Table and the court imposes a condition

or combination of conditions requiring intermittent

confinement, community confinement, or home

detention as provided in subsection (c) of § 5C1.1

(Imposition of a Term of Imprisonment)

Section 5C1.1(c) provides:

Imposition of a Term of Imprisonment

. . .

(c) If the applicable guideline range is in Zone B of the

Sentencing Table, the minimum term may be satisfied by

--

(1) a sentence of imprisonment; or 

(2) a sentence of imprisonment that includes a term

of supervised release with a condition that

substitutes community confinement or home

detention according to the schedule in

subsection (e), provided that at least one month

is satisfied by imprisonment . . . .

(emphasis added) (footnote omitted).

At the sentencing hearing, the district court imposed the

minimum six-month sentence allowed under the guidelines

and adopted option 2 of § 5C1.1(c), sentencing Mrs.

Montgomery to 30 days imprisonment with a

recommendation that it be served in a halfway house in

Memphis so that she could continue to meet her family

obligations. She also received 5 months of home confinement

and 3 years of supervised release.

Under 18 U.S.C.§ 3621, Mrs. Montgomery would be

placed in the custody of the Bureau of Prisons for her term of

“imprisonment.” The judge’s recommendation for place of

4 United States v. Montgomery No. 03-5256

imprisonment is not binding on the Bureau, but at the time

Mrs. Montgomery was sentenced, the Bureau had been acting

under a consistent policy for approximately 15 years whereby

nonviolent offenders sentenced to short periods of

imprisonment would be placed in a community confinement

center or halfway house for the requisite period of

“imprisonment” if the judge had made such a

recommendation.

After the hearing, and just days before judgment was

entered, the Department of Justice’s Office of Legal Counsel

issued a memorandum changing this policy. It informed the

Bureau of Prisons that it lacked the general authority to place

persons who have been sentenced to a short term of

imprisonment directly in a community confinement center or

halfway house, or to transfer the person to a halfway house at

any time it chooses during the course of the term of

imprisonment. (Letter of December 13, 2002, opinion of

Office of Legal Counsel, 2002 WL 31940146 (O.L.C.)

(Preliminary Print). The Office of Legal Counsel concluded

that a halfway house or other community confinement center

is not “imprisonment” and that the Bureau’s long practice of

using direct placements to halfway houses for sentences of

“imprisonment” was contrary to case law and section 5C1.1

of the Sentencing Guidelines. As a result, on January 15,

2003, the Bureau of Prisons assigned Mrs. Montgomery to the

West Tennessee Detention Center.

The defendant filed a motion challenging the Bureau’s new

policy as a violation of “her constitutional and statutory

rights” and because the new policy frustrates the court’s

clearly stated intent, which relied upon a then-existing and

long-standing Bureau of Prisons policy. In the motion,

defendant also stated her intent to file a motion to correct the

sentence under Federal Rule of Civil Procedure 36 and a

motion for resentencing under 28 U.S.C. § 2255. The

defendant also moved to stay the execution of her sentence

until the district court could rule on her motion. On

February 10, 2003, the district court denied defendant’s
No. 03-5256 United States v. Montgomery 5

motion, concluding that it is bound by the Guidelines and that

it lacked the authority to modify Mrs. Montgomery’s

sentence. The district court did grant the defendant’s motion

to stay so that she could pursue her appeal to this court on the

Bureau’s policy change.

The district court should be given an opportunity to

reconsider its sentence under the Federal Sentencing

Guidelines for two reasons. First, the intervention of the new

Bureau of Prisons policy frustrates the district court’s original

sentence. During the period since the district court’s order

denied the defendant’s motion, a number of courts have held

the policy invalid for a variety of reasons. See Distefino v.

Federal Bureau of Prisons, No. 04 Civ. 0007 RWS, 2004 WL

396999, **4-6 (S.D.N.Y. Mar. 4, 2004); Zucker v. Menifee,

No. 03 Civ. 10077 (RJH), 2004 WL 102779, *6 (S.D.N.Y.

Jan. 21, 2004); Colton v. Ashcroft, 299 F. Supp. 2d 681, 684

(E.D. Ky. 2004)(collecting cases); Monahan v. Winn, 276 F.

Supp. 2d 196, 207-08, 212 (D. Mass. 2003); Ferguson v.

Ashcroft, 248 F. Supp. 2d 547, 572 (M.D. La. 2003); Iacaboni

v. United States, 251 F. Supp. 2d 1015, 1024-29 (D. Mass.

2003). The district court should have an opportunity to

consider and adjust the sentence in light of the Bureau’s new

confinement policy and these cases and, most importantly, the

Supreme Court’s recent sentencing decision discussed below.

Second, in 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. The Court held that a

system that automatically calibrates sentences from a grid or

table based on various factual elements as found by the judge

6 United States v. Montgomery No. 03-5256

encroaches on the fact-finding authority of juries under the

Sixth Amendment. The Court made it clear that an

indeterminate sentencing system administered by judges

whose hands are not tied, as was the case prior to the

imposition of the present system in 1987 by the Federal

Sentencing Commission, does not violate the Sixth

Amendment:

First, the Sixth Amendment by its terms is not a

limitation on judicial power, but a reservation of jury

power. It limits judicial power only to the extent that the

claimed judicial power infringes on the province of the

jury. Indeterminate sentencing does not do so. It

increases judicial discretion, to be sure, but not at the

expense of the jury's traditional function of finding the

facts essential to lawful imposition of the penalty. Of

course indeterminate schemes involve judicial

factfinding, in that a judge (like a parole board) may

implicitly rule on those facts he deems important to the

exercise of his sentencing discretion. But the facts do not

pertain to whether the defendant has a legal right to a

lesser sentence – and that makes all the difference insofar

as judicial impingement upon the traditional role of the

jury is concerned.

Blakely v. Washington, No. 02-1632, 2004 WL 1402697, *7

(June 24, 2004) (emphasis in original).

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
No. 03-5256 United States v. Montgomery 7

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.

8 United States v. Montgomery No. 03-5256

Accordingly, the judgment of the district court is vacated

and the case remanded for resentencing in view of the

intervening Bureau of Prisons policy and the principles of

indeterminate sentencing as outlined in Blakely v. Washington

and this opinion.