United States v. Robert Koch , 383 F.3d 436 ( 2004 )

SUTTON, J., delivered the opinion of the court, in which BOGGS, C.J., GUY, BATCHELDER, GILMAN, GIBBONS, ROGERS, and COOK, JJ., joined. MARTIN, J. (pp. 443-49), delivered a separate dissenting opinion, in which DAUGHTREY, MOORE, COLE, and CLAY, JJ., joined.

OPINION

SUTTON, Circuit Judge.

This court granted en banc review of United States v. Koch, 373 F.3d 775 (6th Cir.2004), to consider whether Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), requires us to invalidate the United States Sentencing Guidelines on Sixth Amendment grounds. Concluding that it does not, we reinstate the judgment of the panel in this case, adopt the panel’s opinion as our own and add this opinion regarding the current validity of the Sentencing Guidelines.

I.

Briefly summarized, the facts are these. In 2001, Robert Koch bought large amounts of marijuana in Arizona to sell in Kentucky. To further his scheme, he asked Justin Davis to act as a “frontman” who would sell drugs on Koch’s behalf. Koch supplied Davis with five pounds of marijuana on credit, and Davis promised to repay Koch $5,000 once he had sold the drugs. Davis, however, failed to repay the $5,000, claiming in his defense that the drugs had been stolen. Apparently suspicious of Davis’s explanation, Koch took matters into his own hands.

In the early morning of April 27, 2001, Koch went to Davis’s home with Patrick O’Brien, Robert Gibson and Joe Shukler. Koch and Gibson were carrying guns. Koch and Gibson knocked on the door, which Davis’s roommate, Luke Hitchner, answered. Although witness accounts differ over what happened next, it is clear that before long a shoot-out began between Koch and his compatriots on the one hand and Davis and Hitchner on the other. During the shoot-out, Gibson was killed and O’Brien was permanently injured.

Koch fled the scene and was not immediately apprehended. After police learned about his drug-dealing activities and the shoot-out, they executed a search warrant at his home. There, they discovered a Beretta handgun, 31 rounds of ammunition, over $1,000 in cash, 421.5 grams of marijuana and marijuana-cultivating equipment.

A federal grand jury indicted Koch on six counts stemming from his drug-dealing and the shoot-out: (1) conspiring to possess and distribute marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1); (2) using a firearm in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(l)(A)(iii); (3) being an unlawful user of a controlled substance in possession of a firearm in violation of 18 U.S.C. § § 922(g)(3) & 924(a)(2); (4) possessing with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1); (5) possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(l)(C)(i); and (6) being an unlawful user of marijuana in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(3) & 924(a)(2).

A jury convicted Koch on each count but the fifth one. At sentencing, the district court found that (1) Koch’s drug conspiracy involved 907 kilograms of marijuana, thereby requiring an enhanced base-offense level of 30 under U.S.S.G. § 2D1.1; (2) Koch had obstructed justice (by threatening a witness), thereby requiring a two-level enhancement under U.S.S.G. § 3C1.1; and (3) Koch had possessed a dangerous weapon, thereby requiring a two-level enhancement under U.S.S.G. § 2Dl.l(b)(l). All adjustments considered, Koch faced a base-offense level of 34, which, when combined with his criminal history category (I), resulted in a sentencing range of 151-188 months. Despite this sentencing range, the court sentenced Koch to concurrent 60-month sentences on Counts 1, 3, 4 and 6 because it believed (mistakenly, it turns out) that this was the applicable statutory maximum. With respect to Count 2, the district court started with the mandatory minimum sentence of 120 months, then departed upward six levels to 188 months because it found that Koch’s conduct had resulted in death (to Gibson) and significant physical injury (to O’Brien). See U.S.S.G. §§ 5K2.1 & 5K2.2. In view of the statutory requirement that his sentence on Count 2 run consecutively to his other sentences, Koch received a cumulative sentence of 248 months. Each of Koch’s sentences in the end fell below the (congressional) statutory maximum.

Koch appealed his sentence. He argued that the district court’s finding that the conspiracy involved 907 kilograms of marijuana was not supported by the evidence. He argued that the district court committed a “double-counting” error by adding two levels for his possession of a weapon. And he challenged the court’s six-level upward departure on his sentence for Count 2 on numerous grounds. A panel of this Court rejected each argument and affirmed his sentence. 373 F.3d 775.

Koch filed a petition for rehearing en banc, arguing that the enhancement provisions of the Sentencing Guidelines violate the Sixth Amendment as construed in Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and that two of his sentencing enhancements (the two-level increase based on drug quantity and the six-level upward departure based on injury and death) should be reversed. We need not decide whether Koch properly preserved these issues or whether the alleged error was harmless or plain because we conclude that Blakely does not require us to invalidate the Guidelines.

II.

We are not the first court to consider this question and we will not be the last, as the Supreme Court has scheduled oral arguments on this question for October 4, 2004. See United States v. Booker, 2004 WL 1713654 (Aug. 2, 2004); United States v. Fanfan, 2004 WL 1713655 (Aug. 2, 2004). Because we cannot expect a final answer from the Court for several months and because the judges in this Circuit deserve guidance in the interim, we granted Koch’s en banc petition. We now join our colleagues in the Second and Fifth Circuits, see United States v. Mincey, 380 F.3d 102 (2d Cir.2004); United States v. Pineiro, 377 F.3d 464, 2004 WL 1543170 (5th Cir.2004), a majority of our en banc colleagues in the Fourth Circuit, see United States v. Hammond, 378 F.3d 426 (4th Cir.2004), and some of our colleagues in the Seventh and Ninth Circuits, see United States v. Booker, 375 F.3d 508, 515 (7th Cir.2004) (Easterbrook, J., dissenting); United States v. Ameline, 376 F.3d 967, 970 (9th Cir.2004) (Gould, J., dissenting), in determining that Blakely does not compel the conclusion that the Federal Sentencing Guidelines violate the Sixth Amendment. As several of these opinions convincingly explain why Blakely does not resolve the issue and as the Court soon will give us the final word, we write briefly to emphasize three reasons for our decision.

First, in responding to a request that we invalidate the Sentencing Guidelines, we agree with Judge Easterbrook that “[t]his is the wrong forum for such a conclusion.” Booker, 375 F.3d at 515. “It is always embarrassing for a lower court to say whether the timé has come to disregard decisions of a higher court, not yet explicitly overruled, because they parallel others in which the higher court has expressed a contrary view.” Spector Motor Serv. v. Walsh, 139 F.2d 809, 823 (2d Cir.1943) (L.Hand, J., dissenting), vacated sub nom. Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944). But the “exhilarating opportunity” to anticipate the overruling of Supreme Court precedent should be resisted, id., because the Court generally bears responsibility for determining when its own cases have been overruled by later decisions. See generally Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997).

Since 1987, when the Sentencing Guidelines were promulgated, the Supreme Court has considered numerous constitutional challenges to them, not one of which suggested their eventual demise and at least one of which gave the back of the hand to the kind of challenge raised here. To our knowledge, not one Justice has opined that the sentencing-enhancement provisions of the Guidelines violate the Sixth Amendment.

In 1989, the Court rejected an across-the-board challenge to the constitutionality of the Guidelines and to the Sentencing Commission on non-delegation and separation-of-powers grounds. Mistretta v. United States, 488 U.S. 361, 412, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Since Mis-tretta, the Court has rejected a variety of constitutional challenges to sentencing enhancements under the Guidelines (1) that turned on facts not alleged in the indictment, (2) that were based on judicial findings of fact and (3) that required proof only by a preponderance of the evidence. In 1993, the Court rejected the claim that Guideline § 3C1.1, which permits courts to enhance a sentence for perjury committed at the trial from which the conviction arose, violates the defendant’s right to testify on his own behalf. See United States v. Dunnigan, 507 U.S. 87, 96, 113 S.Ct. 1111, 122 L.Ed.2d 445. In 1995, the Court rejected a double-jeopardy challenge to the “relevant conduct” provisions of the Guidelines, which permit courts to enhance a sentence based on uncharged conduct, because the higher sentencing range “still falls within the scope of the legislatively authorized penalty.” Witte v. United States, 515 U.S. 389, 399-400, 115 S.Ct. 2199, 132 L.Ed.2d 351. And in 1997, the Court turned back similar challenges to the “relevant conduct” Guidelines provisions even when (as in that case) the jury had acquitted the defendant on a charge related to that very conduct. See United States v. Watts, 519 U.S. 148, 156-57, 117 S.Ct. 633, 136 L.Ed.2d 554.

In all of these cases, the Court did not characterize the Guidelines themselves as a source of “statutory máximums.” And in each of the post-Mistretta cases, the Court addressed a question not dissimilar to the one presented here: May federal judges find facts under the preponderance standard that increase a sentence beyond the facts found by the jury under the beyond-a-reasonable-doubt standard? Because the Court said “yes” in each case, this line of authority by itself suggests that a lower court should be skeptical about concluding that Blakely’s invalidation of a state-sentencing scheme suddenly dooms the Federal Sentencing Guidelines.

But in Edwards v. United States, 523 U.S. 511, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998), the Court went one step further: It not only rejected a challenge to enhancements based on judge-made findings, but it also did so in the context of a Sixth Amendment challenge. In Edwards, the jury convicted the petitioner of conspiring to possess powder cocaine or crack cocaine under 21 U.S.C. § 846. When the judge sentenced him on the basis of both substances, Edwards argued that § 846 should not be interpreted to allow sentences based “on the most severe interpretation of the verdict, carrying the highest range of statutory penalties” in the ab-senee of a jury finding to support the more severe penalty. Br. for Pet’r, 1997 WL 793079, at *7. Otherwise, he argued, his Sixth Amendment rights (among other constitutional rights) would be violated. Id. at *30-32. The Supreme Court rejected Edwards’ claim because the judge’s finding that the conspiracy involved both cocaine and crack did not increase his sentence beyond the maximum sentence permitted by statute for a cocaine-only conspiracy. 523 U.S. at 515, 118 S.Ct. 1475.

Edwards, to be sure, is a pr e-Blakely and a pr e-Apprendi decision. But Blakely never mentions the decision, much less overrules it. And instead of marginalizing Edwards, Apprendi inflates its significance by saying the following:

The Guidelines are, of course, not before the Court. We therefore express no view on the subject beyond what this Court has already held. See, e.g., Edwards v. United States, 523 U.S. 511, 515, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998) (opinion of BREYER, J., for a unanimous court) (noting that “[o]f course, petitioners’ statutory and constitutional claims would make a difference if it were possible to argue, say, that the sentences imposed exceeded the maximum that the statutes permit for a cocaine-only conspiracy. That is because a maximum sentence set by statute trumps a higher sentence set forth in the Guidelines.”).

530 U.S. at 497 n. 21, 120 S.Ct. 2348 (emphasis added).

Faced with this line of authority, our Circuit has consistently turned back Sixth Amendment challenges to Guideline enhancements so long as the resulting sentence falls below the eongressionally-pre-scribed statutory maximum. See United States v. Lawrence, 308 F.3d 623, 634 (6th Cir.2002) (noting that Apprendi “applies only where the finding ‘increases the penalty ... beyond the prescribed statutory maximum’ ” and does not apply to the Guidelines); United States v. Garcia, 252 F.3d 838, 843 (6th Cir.2001); see also United States v. DeJohn, 368 F.3d 533, 546 (6th Cir.2004); United States v. Helton, 349 F.3d 295, 299 (6th Cir.2003); United States v. Solorio, 337 F.3d 580, 597 (6th Cir.2003). And, in doing so, we have relied on Edwards, among other cases. United States v. Pritchett, 40 Fed.Appx. 901, 908 (6th Cir.2002); United States v. Martin, 40 Fed.Appx. 177, 186 (6th Cir.2002); United States v. Boucha, 236 F.3d 768, 770 n. 1 (6th Cir.2001).

Instead of criticizing its own cases or lower court cases that have reached similar conclusions, the Supreme Court said in Blakely that “[t]he Federal Guidelines are not before us, and we express no opinion on them.” Blakely, — U.S. at - n. 9, 124 S.Ct. at 2538 n. 9. And it said the same thing in Apprendi 530 U.S. at 497 n. 21, 120 S.Ct. 2348. The Court thus has not given us the authority to invalidate the Guidelines, it has not given us the authority to ignore Edwards and it has not given us a sufficient reason to ignore our own decisions upholding the Guidelines. We ought to take the Court at its word.

Second, differences between the sentencing provisions at issue in Blakely and the Federal Sentencing Guidelines may well have constitutional significance. According to Apprendi the Sixth Amendment contains the following requirement: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. Blakely proceeds to define “statutory maximum” as follows:

[T]he “statutory maximum” for Appren-di purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. ... In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.

— U.S. at -, 124 S.Ct. at 2537.

Relying on this passage, Koch argues that, for federal sentencing purposes, the “statutory maximum” is no longer the sentencing range enacted by Congress but the sentencing range promulgated by the Sentencing Commission. The logic of this argument has some force because the Guidelines require federal judges to find facts that will indeed increase individual sentences. The argument is not conclusive, however, because the “statutory maximum” at issue in Blakely arose from a statute, and the Sentencing Guidelines are not statutes. While sentencing statutes and the Guidelines both have the force of law and both bind courts, see Stinson v. United States, 508 U.S. 36, 42, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993), the Guidelines are agency-promulgated rules enacted by the Sentencing Commission — a non-elected body that finds its home within the Judicial Branch, the very branch of government in which sentencing discretion has traditionally been vested. See Mistretta, 488 U.S. at 396, 109 S.Ct. 647 (the Guidelines do not “vest in the Judicial Branch the legislative responsibility for establishing minimum and maximum penalties for every crime. They do no more than fetter the discretion of sentencing judges to do what they have done for generations — impose sentences within the broad limits established by Congress.”). This precise distinction, notably, was central to Mistretta’s decision to uphold the Guidelines in the first instance. Id. at 396-97, 109 S.Ct. 647.

Whether this distinction will carry the day in Booker and Fanfan remains to be seen, but it at least undermines the view that Blakely compels us to invalidate the Sentencing Guidelines. Blakely did not hold — because it could not hold — that agency-promulgated sentencing rules must be treated as creating “statutory máxi-mums.” The issue was not before the Court. And indeed Blakely’s counsel advanced the very distinction we have drawn, arguing that Washington’s standard “sentencing ranges” as “prescribed by the legislature” differ materially from the “federal sentencing grid [which] is promulgated by a Sentencing Commission that resides in the Judicial Branch.” Br. for Pet’r, 2003 WL 22970606, at *23 n. 6. “Appren-di’s prohibition,” he continued, “against exceeding the ‘statutory’ maximum based on facts that were not submitted to- the jury or proved beyond a reasonable doubt arguably pertains only [to] sentencing limits set by legislatures.” Id.

The distinction seems significant in another sense. While it may be true that agencies are no less capable of violating the Sixth Amendment than legislatures, the Guidelines come from the very branch of government that all nine Justices of the Court agree has long exercised considerable discretion over sentencing determinations based on the same kinds of factual determinations that the Guidelines ask federal courts to make. Blakely, — U.S. at -, -, 124 S.Ct. at 2538, 2540; id. at 2553 (O’Connor, J., dissenting). If federal judges, in other words, may consider facts that increase sentences in an indeterminate sentencing regime, is it not permissible for this branch of government collectively to channel the consequences of these facts based on their group experience? Maybe the Court will find the distinction consequential; maybe it will not. But the difference is enough to counsel restraint on the part of a lower court asked to invalidate the entire regime.

Unlike the sentencing statute in Blakely, finally, it remains unclear how a rule that turns on the “statutory maximum” or the “maximum sentence” would apply to the Sentencing Guidelines. The Guidelines do not supply a clear “standard sentencing range” for each defendant and indeed represent a form of indeterminate-determinate sentencing because even after application of the hundreds of pages of the' Guidelines Manual, to say nothing of relevant case law, to each individual defendant’s sentence, judges still may increase (or decrease) sentences based on factors not addressed in the Guidelines. See 18 U.S.C. § 3553(b)(1); U.S.S.G. § 5K2.0. No “standard” sentence for categories of defendants thus emerges from the Guidelines in the same way that it does for the two-factor sentencing grid that Washington’s legislature adopted.

Third, in asking us to invalidate the Guidelines, Koch asks us to embrace a reading of Blakely■ — any fact that increases a defendant’s punishment must be submitted to a jury — that not only would extinguish the Guidelines but also would create tension with other Court precedents.

It has long been true that legislatures may treat some facts as “sentencing factors” that need not be submitted to a jury and other facts as “elements” of the crime that must be submitted to a jury and (in the federal system) included in the indictment. In McMillan v. Pennsylvania, 477 U.S. 79, 91-92, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), and Harris v. United States, 536 U.S. 545, 558, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), the Court held that judges may find facts that compel a mandatory minimum sentence and that necessarily will increase some defendants’ sentences. In Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Court held that the Government need not include the fact of a prior conviction in an indictment (and prove it to a jury beyond a reasonable doubt) because it is not an “element” of the offense, even though it may increase the defendant’s punishment. In Jones v. United States, 526 U.S. 227, 248, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Court said that “[i]t is not, of course, that anyone today would claim that every fact with a bearing on sentencing must be found by a jury; we have resolved that general issue and have no intention of questioning its resolution.” And in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the Court held that legislatures have wide latitude in defining the elements of a crime that must be proved to a jury beyond a reasonable doubt. See id. at 210, 97 S.Ct. 2319; see McMillan, 477 U.S. at 84, 106 S.Ct. 2411 (“Patterson ... rejected the claim that whenever a State links the severity of punishment to the presence or absence of an identified fact the State must prove that fact beyond a reasonable doubt.”) (quotation omitted).

In the face of these decisions, Blakely presents a lower court with stark alternatives for explaining why the Guidelines must be invalidated. One possibility: Blakely means that judges may never make findings of fact that increase an individual’s sentence. No doubt this theory would invalidate the Guidelines, but it also would create tension with the Court’s other decisions giving legislatures wide berth in distinguishing between sentencing facts and elements-of-the crime facts. The other possibility: Blakely means that “Other than the fact of a prior conviction, other than facts that compel mandatory minimum sentences and other than (still other) facts not traditionally treated as elements of a crime, any fact that increases the penalty for a crime must be submitted to a jury.” This theory might eliminate the Guidelines; it might not. Under either theory, however, the critical point is that only a master tailor could invalidate the Guidelines without unraveling the fabric of these other rulings.

All of which brings us back to our central concern. It may be that the trajectory of Apprendi, Ring and Blakely will end with a nullification of the Guidelines. But, in the face of these relevant precedents, it is not for us to make that prediction or to act upon it. Not only would such a ruling be of some consequence to the Guidelines, but it also would be in tension with whole bodies of law that the lower courts long have been obliged to follow.