United States of America v. Tiffany Harris Montgomery

*The Honorable John T. Nixon, United States District Judge for the
Midd le District of Tennessee, sitting by designation.
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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:
. . .

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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
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(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

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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 fact-
finding 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

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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 sub-
section 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.

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