* The Hon or ab l e J oh n T. Nixon, Unit ed States Distr ict Judge for the

Midd le Distri ct of Tennessee, sit ting by designat ion.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0226P (6th C ir.) File Name: 04a02 26p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

T IF FANY H ARR IS M ONTGO MERY , Defenda nt-Appel

lant. X - - - -
> , - - - - N No. 03-5256

Appeal from the United States District Court for the We stern Dis trict of T ennesse e at Memphis. No. 02-20247—Bernice B. Donald, District Judge.

Argued: June 10, 2004, Decided and Filed: July 14, 2004

Befor e: MERRI TT and DA

UGHTREY , Circuit Jud

ges; NIXON, District Judge. * 2 United Sta tes v. Mo ntgomery No. 03-5256

_________________ COUNSEL

ARGUED: Ne ed um L. G er ma ny, O FFICE OF THE FEDERAL

PU BLIC DEFENDER, Memphis, Tennessee, for Appell an t. Eric H. Jaso, ASSISTANT UNI TED STATES ATTORNEY, Newark, New Jersey , for Ap pellee. ON BRIE F: Randolph W. Alden, OFFICE OF TH E FEDERAL

PUBL IC DEFENDER, Memphis, Tennessee, for Appellan t. Eric H

. Jaso, ASSISTANT UNITED STATES ATTORNEY, Newark, New Jersey , Carroll L. An dre, III, ASSISTANT UNI TED STATE S ATTORNE Y, Memp h is, Tennessee, for Appellee.

_________________ OPINION

_________________ MERRITT, Circuit Judge. This case raises the question of whether the Fed eral Sen tencing Guideline s should

be viewed
as a mandatory c onstraint on the discretion of federal district judges to fix sentences. The defendant, Mrs. Tiffany Mo nt go me ry, pled guilty to one count of bank

fraud involving approxima

tely $21,000. A

t sentenc in g, t he district court found a total offense level of 10 in Zone B and believed it was constrained

by the mandatory

nature o f the Sent

encing Table (Chapter 5) and Sections 5B1.1(a)(2) a nd 5C1.1(c)(2) of the Feder al Senten cing Gu idelines. 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 statut ory restrictions in

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

. . .No. 03-5256 United Sta tes v. Mo ntgomery 3

(2) the appli cable g

uideline range is in Zone B of the SentencingTable and the court imposes a condition or combination of conditions requiring intermittent confine ment, co mm un it y co nfineme nt, or home d etent ion as provided in subsection (c) of § 5C1.1 (Imp osition of a

Term of I

mprisonme

nt)

Section 5C 1.1(c) provides: Imposition of a Term of Imprisonment

. . . (c) I f the app licable

guideli ne rang e is in Zone B of the SentencingTable, 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

confine ment or home detention ac c ording to th e schedu le in subsection (e) , provide

d that at lea

st one mon th is satisfied by imprisonment

. . . . (emphasis added) (footnote omitted).

At the sentencing hearing, t h e district court imposed the minimum six -mont h sent ence al lowed under the gu ideli nes and adopted o

ption 2 of § 5C1.1(c) , sentenc ing Mrs. Montgomeryto 30 days impr isonment with a recommendation

that it be served in a halfway hou se in Memphis so tha t sh e could c ontinue to meet her

family obligat i ons. She also received 5 months of home confinement and 3 yea rs of supervised release.

Under 18 U.S.C.§ 3 621, Mrs. Montgomery would be placed in the custody

of the Bureau of Prisons for her term of “imprisonment.” The judge’s recommendation for plac e of 4 United Sta tes v. Mo ntgomery No. 03-5256

imprisonmentis not bindin g on the Burea u, but at th e time Mrs. Montgomery

was sentenced, the Bureau had bee nacting under a consistent policy for a

pproximately 15 y

ears whereby nonviolentoffenders s entenced to short periods of imprisonmentwould be placed in a community c onfinement center or halfway

house for

the requisite period of “impri sonment” if the judge h ad made such a recommendation.

After the hearing, and just days before judgment was entered, the Department of Justice’s Office of Le gal Counsel issued a memorandum changing

this policy. I

t informed the Bureau of Prisons

that it lac ked the g eneral

authority to place persons who have be en sente nced to a short term of imprisonmentdirectly 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 imprison ment. (Letter of Dec ember 13, 2002, opinion of Office of Le gal Coun sel, 2002 WL 31940146 (O.L.C.) (Preliminary

Print). The Office of L egal Counsel concluded that a halfway

house or other com

munity confinement center is not “imprisonment” and that the Bureau’s long practice of usi ng direct placements to halfway houses for sentences of “imprison ment”was cont

rary to case l aw and se ct ion 5C1.1 of the Sentencing Guidelines . As a r esult, on January 15, 2003, the Bureau

of Prisons assigned

Mrs. Montgomery

to the West Tennessee Detention Center.

The defendant filed a motion challenging the Bure au’s new p olic y as a violation of “her constitutional and statutory ri ghts” and because the new policy frustrates the court’s clearly stated intent, which relied upon a then-existing and long-standing

Burea u of Pris ons policy. I

n the motion, defendant also stated her intent to file a motion to correct the sentence u nder Fe deral Rule of Civil Procedure 36 and a motion for resentencing u nder 28 U.S.C. § 2255. The defendant al so m oved to stay the execution of her sentence until the distri ct court could rule on her motion. On February 10, 2003, the district court denied d e fendant’sNo. 03-5256 United Sta tes v. Mo ntgomery 5

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

to modify Mrs. Montgo mery’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 opport un it y 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

th e period since the district court’s order denied the defendant’s motion, a number of

courts ha ve held the poli cy invalid for a

variety of r

easons. See Distefino v. Federal Bureau of

Prisons , No. 04 Civ. 0007 RWS, 2004 WL 3 96999, **4-6 (S. D.N.Y. Ma r. 4, 2004 ); Zucker v

. Menife e , No. 03 Civ. 10077 (RJH), 2004 WL 102779, *6 (S.D.N.Y. Jan. 21, 2004) ; Colton v. A shcroft , 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. 2 003); Ferguson v. Ashcroft
, 248 F. Supp. 2d 547, 572 (M.D. La. 2 003); Iacaboni

v. United States , 251 F. Su pp. 2d 1015 , 1024-29 (D. Mass. 2003). The district co urt shou ld have a n opportun

ity t o consider and adjus t the sente

nce in light of the Bureau’s new confinement

policy and these c ases and, most importantly, the Supreme Court’s recent sentencing decision discussed below. Second, in Blakely v. Washington , No. 02-1 632, decided June 24, 2004, the Supreme Court made a sea change in the administration of the Federal Sent enci ng Guidelines. The court applied Apprendi v. New Jersey , 530 U.S. 466 (2000), to a state sentencing sy stem that allowed a judge to find a fact that increased the federal sentenc e by 3 7 months. The Court held that “determinate” or fixed rule-bound sent en cing, like the Feder

al Senten

cin g Co mmission’s system, which increases sen tences b ased on a require ment of jud

icial factfinding instead of

jury fact-finding, violates the trial-by-jury requirement

of the Sixth Amendme

nt. The Cou

rt held tha

t a system that automatically ca

librates sentences from

a grid or tablebased

on various factual eleme nts as found by the jud ge 6 United Sta tes v. Mo ntgomery No. 03-5256

encroaches on the fact- finding authority of juries under the SixthAmendment. The Court made it clear that an indeter minatesentenc in g system a dministered by judge s whosehands ar e not tied, as was the case prior to the imposition of the pr

esent sys tem in 1987 by the Fede ral SentencingCommission, d oes not violate the Sixth Amendmen

t: First, the Sixth Ame

ndment by

its terms is not a limit atio non judicial power, but a reservation of jury power. It limi

ts judicia l power only

to the extent thatthe claimed judicial power infringes on the pr o vince of the ju ry. Indeterminate sentenc ing does not do s o. I t increases judicial discretion, to be s ure, butnot at the expense of the jury' s tra di tional function of finding the facts e sse ntial to lawful imposition of the penalty. Of
co urse indeter

minate sc hemes in

volve judi cia l factfi ndin g, in that a judge (like a parole board) ma y implicitly rule on those facts he dee ms important to the exercise of his sentencing discretion. But the facts do not pertain to wheth er

the defe ndant has a lega l right to a lesser sentence – and

that makes all the difference insofar
as judicial impingement upon the tradition a l role of the jury is concer

ned. Blakely v. Washington , No. 02-1632, 2004 WL 1402697, *7 (June 24, 2004) (emphasis in original). Therefore, in order

to comply

wit h Bl akely and the Sixth Amendmen

t, the mandatory sy

stem of fixed rules calibrating sentences a

utom atically to facts found by judge s must be displaced by a n indeter minate sy ste m in which the Federal SentencingGuideline s in fact b ecome “ guideli nes’ i n the dictionary-de finition sense (“an indication or outline of future policy,” Webster’s International Dictionary (3d ed. 1963))

. The “g uideline s” will be come simpl y recommendations that t he judge should seriously c onsider but may disreg ard when she believes that a d iffere nt sentence is ca lled for. This solution to the immediate problem in federal sentencing

is notNo. 03-5256 United Sta tes v. Mo ntgomery 7

inconsistentwith the a

lternati ve position by

the Depu

ty Attorney Genera l in his memo to feder

al prose cutors, a

memo forwarded

to the federal judiciary

on July 7, 2004. (“ In t

hat event [when the guidelines may notbe applied as mandatory

r ules ], the gov ernment

should urg e the cou

rt to impose sentence, exercising traditional judicial discretion, within the applica ble statutory

se ntence range” wi th th e “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 ga ve rise to the present determinate sentencing

system, doesnot by

its terms require a mandatory, r

ule-bound

system calibrating

sentences to judiciall

y- found fa

cts. The statutory lang

uage would have allowed the creation of

an indete rminate system in which the gu i delines are simply consider ations for Article II

I federal judges to access beforepassing sentence. The most important provision of the statute, section 3 5 53(a) of Title 18, s imply
sa ys that “the court, in

determin ing the p articula

r sentence to be imposed, shall consider ” a large number of listed factors like the “seriousness of the offense” and the “characteristics of the defe ndant,” only

one of wh

ich is the “kind of

sentence and the s en tencing range established” by the Sentencing Commission. In a

ddition to the various factor s that a judge should “consider” as listed in Section 3553(a), the next subsect i oncounsels the judge to consider the “aggravating or mitigating circumstances” of the particular c as e. The SentencingCommission itself interpret ed t he statutory langua ge and converted this advisory language into thekind of mandatory

rules of a determinate system of sentencing that the Supreme Court has now invalidated. In lig ht of Blakely
, and the language of the ena

bling act itself, a

dis trict judge should no longer view herself as ope ratin g a mandatory or determinate sente ncing s ystem, but rather should view the guidelines in ge neral as recommendations to be considered and then applied only if the judg e believes they are ap p ropriate

and in the interests of justice in the particular
case. 8 United Sta tes v. Mo ntgomery No. 03-5256

Ac co rd in gl y, the judgment of the district court is vacated and the case remanded for resentencing in view of the interveningBureau of

Pr isons policy and the principles of i ndeterm inate s entencing as outlined in Blakely v. Washington and this opinion.