United States of America v. Robert Koch

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0284P (6th Cir.)
File Name: 04a0284p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT KOCH,
Defendant-Appellant.
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No. 02-6278
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 01-00083—Joseph M. Hood, District Judge.
Argued: August 11, 2004
Decided and Filed: August 26, 2004
Before: BOGGS, Chief Judge; MARTIN, GUY,
BATCHELDER, DAUGHTREY, MOORE, COLE,
CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and
COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: H. Louis Sirkin, SIRKIN, PINALES, MEZIBOV
& SCHWARTZ, Cincinnati, Ohio, for Appellant. Steven L.
Lane, UNITED STATES DEPARTMENT OF JUSTICE,
CRIMINAL DIVISION, Washington, D.C., for Appellee.
2 United States v. Koch No. 02-6278
ON BRIEF: H. Louis Sirkin, Jennifer M. Kinsley, SIRKIN,
PINALES, MEZIBOV & SCHWARTZ, Cincinnati, Ohio, for
Appellant. Steven L. Lane, UNITED STATES
DEPARTMENT OF JUSTICE, CRIMINAL DIVISION,
Washington, D.C., Charles P. Wisdom, Jr., ASSISTANT
UNITED STATES ATTORNEY, Lexington, Kentucky,
Laura K. Voorhees, ASSISTANT UNITED STATES
ATTORNEY, Covington, Kentucky, for Appellee.
SUTTON, J., delivered the opinion of the court, in which
BOGGS, C. J., GUY, BATCHELDER, GILMAN,
GIBBONS, ROGERS, SUTTON, and COOK, JJ., joined.
MARTIN, J. (pp. 14-24), 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, 124 S. Ct.
2531 (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

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No. 02-6278 United States v. Koch 3
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)(1)(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)(1)(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
4 United States v. Koch No. 02-6278
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. § 2D1.1(b)(1). 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,
124 S. Ct. 2531 (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)

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No. 02-6278 United States v. Koch 5
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, – F.3d – , 2004 WL 1794717 (2d
Cir. 2004); United States v. Pineiro, – F.3d – , 2004 WL
1543170 (5th Cir. 2004), a majority of our en banc colleagues
in the Fourth Circuit, see United States v. Hammoud, – F.3d
–, 2004 WL 1730309 (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, – F.3d
–, 2004 WL 1635808, at *14 (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 time 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
6 United States v. Koch No. 02-6278
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 (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 (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 (1989). Since Mistretta, 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. 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. And in 1997, the Court
turned back similar challenges to the “relevant conduct”

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No. 02-6278 United States v. Koch 7
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.
In all of these cases, the Court did not characterize the
Guidelines themselves as a source of “statutory maximums.”
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 (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 absence 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.
Edwards, to be sure, is a pre-Blakely and a pre-Apprendi
decision. But Blakely never mentions the decision, much less
8 United States v. Koch No. 02-6278
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 (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 (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 congressionally-prescribed 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, 124 S. Ct. at 2538

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No. 02-6278 United States v. Koch 9
n.9. And it said the same thing in Apprendi, 530 U.S. at 497
n.21. 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. Blakely
proceeds to define “statutory maximum” as follows:
[T]he “statutory maximum” for Apprendi 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.
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
10 United States v. Koch No. 02-6278
v. United States, 508 U.S. 36, 42 (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 (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.
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 maximums.” 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. “Apprendi’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

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No. 02-6278 United States v. Koch 11
factual determinations that the Guidelines ask federal courts
to make. Blakely, 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
(1986), and Harris v. United States, 536 U.S. 545, 558
12 United States v. Koch No. 02-6278
(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 (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
(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. United States, 432 U.S. 197
(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; see McMillan, 477
U.S. at 84 (“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

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No. 02-6278 United States v. Koch 13
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.
14 United States v. Koch No. 02-6278
______________
DISSENT
______________
BOYCE F. MARTIN, JR., Circuit Judge, dissenting, joined
by DAUGHTREY, MOORE, COLE, and CLAY, Circuit
Judges. The majority’s opinion in this case amounts to
nothing more than an exercise in futility and a waste of time
and resources, in light of the Supreme Court’s grant of
certiorari in United States v. Booker, No. 04-104, 2004 WL
1713654 (Aug. 2, 2004), and United States v. Fanfan, No. 04-
105, 2004 WL 1713655 (Aug. 2, 2004). Both cases present
the question of the impact of Blakely v. Washington, 124 S.
Ct. 2531 (2004), on the United States Sentencing Guidelines,
and both are scheduled for oral argument in just over a month,
on October 4. Given that the Supreme Court’s impending
resolution of Booker and/or Fanfan will likely resolve the
primary issue in this case, I believe that the most appropriate
course of action would be to withhold our decision until the
Supreme Court has spoken.
Nevertheless, because the majority has taken this
opportunity to state its position, I feel compelled to explain
why I disagree. For the reasons discussed below, I believe
that the Guidelines are invalid under Blakely to the extent that
they compel a trial judge to impose a sentence that exceeds
the maximum sentence that is authorized “solely on the basis
of the facts reflected in the jury verdict or admitted by the
defendant.” Blakely, 124 S. Ct. at 2536 (emphasis in
original). This is the same view espoused by the Seventh
Circuit, see United States v. Booker, 375 F.3d 508 (7th Cir.
2004), the Eighth Circuit, see United States v. Mooney, No.
02-3388, 2004 WL 1636960 (8th Cir. July 23, 2004), vacated
on grant of reh’g en banc, Aug. 6, 2004, and the Ninth
Circuit, see United States v. Ameline, No. 02-30326, 2004
WL 1635808 (9th Cir. July 21, 2004), as well as by United
States District Judges such as Judge D. Brock Hornby, whose

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No. 02-6278 United States v. Koch 15
oral decision in United States v. Fanfan, No. 03-47-P-H (D.
Me. June 28, 2004), will be reviewed by the Supreme Court
in October, and by the panel of our Court that decided United
States v. Montgomery, No. 03-5256, 2004 WL 1562904 (6th
Cir. July 14, 2004), vacated on grant of reh’g en banc, July
19, 2004, appeal dismissed, July 23, 2004.
The seeds of Blakely were sown in Apprendi v. New Jersey,
in which the Supreme Court held that “[o]ther 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. 466, 490 (2000). The Court applied this rule to
strike down a New Jersey hate crime statute that authorized a
judge to impose a twenty-year sentence, despite the usual ten-
year maximum, if the judge found that the crime was
committed “‘with a purpose to intimidate . . . because of race,
color, gender, handicap, religion, sexual orientation or
ethnicity.’” Id. at 468-69 (quoting N.J. STAT. ANN. § 2C:44-
3(e) (West Supp. 1999-2000)). Two years later, in Ring v.
Arizona, the Supreme Court applied the same rule to
invalidate an Arizona law authorizing the death penalty if the
judge found one of ten aggravating factors. 536 U.S. 603-09
(2002).
In Blakely, the Court built upon and clarified the rule
announced in Apprendi, holding that:
Our precedent make clear . . . that the “statutory
maximum” for Apprendi 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. When a
judge inflicts punishment that the jury’s verdict alone
does not allow, the jury has not found all the facts
16 United States v. Koch No. 02-6278
“which the law makes essential to the punishment,” and
the judge exceeds his proper authority.
Blakely, 124 S. Ct. at 2537 (citations omitted) (emphasis in
original).
Blakely involved the constitutionality of the sentencing
scheme employed by the State of Washington, which was
composed of two statutes. The first statute prescribed the
sentence ranges for each class of felony offenses. Blakely
was convicted of second-degree kidnaping, for which the
statute provided a maximum sentence of ten years
imprisonment. WASH. REV. CODE ANN. § 9A.20.021(1)(b).
The second statute, called the Sentencing Reform Act,
specified more limited standard sentence ranges for particular
offenses; for Blakely’s offense, it set a range of 49-53 months
imprisonment. Id. § 9.94A.320. A Washington trial court
could impose a sentence that exceeded this standard range
only if it found a “substantial and compelling reason
justifying an exceptional sentence.” Blakely, 124 S. Ct. at
2535. The Sentencing Reform Act specified several factors
that would justify a trial judge’s decision to impose an
exceptional sentence. Id. The trial judge in Blakely found
that the defendant had acted with “deliberate cruelty,” one of
the listed factors, and, accordingly, increased his sentence to
90 months. Id. at 2537. The Supreme Court held that the fact
that Blakely’s sentence was increased above the Sentencing
Reform Act’s standard range of 49-53 months based upon
facts neither found by a jury nor admitted by Blakely was a
violation of Apprendi. Id. at 2537-38.
As the majority acknowledges, in determining what the
statutory maximum was for purposes of Apprendi, the Blakely
Court looked to the standard sentence range for second-degree
kidnaping that was set by the Sentencing Reform Act, not to
the broader sentence range provided in the other statute. Id.
As a logical consequence, the statutory maximum in this case
is provided in the Guidelines, rather than in the substantive
criminal statutes that Koch was convicted of violating. Both

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No. 02-6278 United States v. Koch 17
the Guidelines and the Washington Sentencing Reform Act
were designed to narrow the extremely wide sentence ranges
within which a defendant could be sentenced for any
particular offense. Compare U.S. SENTENCING GUIDELINES
MANUAL ch. 1, pt. A, Introduction (2003) (explaining that the
Guidelines were designed to “narrow[]” the wide sentence
ranges that applied to “similar criminal offenses committed
by similar offenders”) with WASH. REV. CODE ANN. §
9.94A.010 (explaining that the Washington Sentencing
Reform Act was designed to “structure[] . . . discretionary
decisions affecting sentences” and “[e]nsure that the
punishment for a criminal offense is proportionate to the
seriousness of the offense and the offender’s criminal
history”). Just as it was the narrower sentence range under
the Washington Sentencing Reform Act that provided the
“statutory maximum” in Blakely, the narrower sentence range
under the Guidelines provides the “statutory maximum” in
this case.
Both the Guidelines and the Washington Sentencing
Reform Act provide for an increase in a defendant’s sentence
beyond that which is authorized by the jury’s verdict or the
defendant’s admissions, based upon facts neither found by a
jury beyond a reasonable doubt nor admitted by the
defendant, but rather found by a judge under the much lower
civil burden of proof. In this case, it is undisputed that
Koch’s sentence was increased, solely on the basis of facts
found by the district judge, to an amount that exceeded the
sentence that was authorized under the Guidelines in light of
the jury’s verdict. This is precisely what Blakely condemns.
Although Blakely addresses only the Washington sentencing
scheme, its holding applies with equal force to the Guidelines.
The majority concedes that “[t]he logic of this argument
has some force,” but ultimately finds the argument “not
conclusive . . . because the ‘statutory maximum’ at issue in
Blakely arose from a statute, and the Sentencing Guidelines
are not statutes.” Maj. Op. at 9. That is a distinction without
a difference. I presume that the majority would agree that
18 United States v. Koch No. 02-6278
were the challenged provisions of the Guidelines enacted by
Congress in the first instance, they would be unconstitutional
under the rule announced in Blakely. I fail to see how the fact
that Congress delegated its authority to the Sentencing
Commission to set presumptive sentencing ranges saves the
federal scheme from constitutional attack. The majority’s
holding contravenes and undermines Blakely by allowing
Congress to accomplish indirectly – by delegating authority
to the Commission – precisely what we now know the Sixth
Amendment prohibits it from doing directly.
The congressional delegation of power to the Sentencing
Commission does not affect Congress’s authority – and,
indeed, its obligation – to ratify the Guidelines. See Ameline,
2004 WL 1635808, at *7. Congress must ratify each
Sentencing Guideline promulgated by the Commission, and
it retains the power to “revoke or amend any or all of the
Guidelines as it sees fit either within the 180-day waiting
period or at any time.” Mistretta v. United States, 488 U.S.
361, 393-94 (1989); 28 U.S.C. § 994(p). It is well-established
that the Guidelines have the force of law, Stinson v. United
States, 508 U.S. 36, 45 (1993), and “bind judges and courts in
the exercise of their uncontested responsibility to pass
sentence in criminal cases,” Mistretta, 488 U.S. at 391.
Furthermore, and perhaps more to the point, neither the
outcome nor the reasoning in Blakely turned upon the fact that
the Washington Sentencing Reform Act was enacted in the
first instance by the state legislature. As Justice O’Connor
recognized in her dissenting opinion in Blakely:
It is no answer to say that today’s opinion impacts only
Washington’s scheme and not others, such as, for
example, the Federal Sentencing Guidelines. The fact
that the Federal Sentencing Guidelines are promulgated
by an administrative agency nominally located in the
Judicial Branch is irrelevant to the majority’s reasoning.
The Guidelines have the force of law, and Congress has

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No. 02-6278 United States v. Koch 19
1The footnote in Justice Thomas’s dissenting opinion to which
Justice Breyer refers reads as follows:
It is likewise unnecessary to consider whether (and, if so, how)
the rule regarding elements applies to the Sentencing Guidelines,
given the unique status that they have under [Mistre tta]. But it
may be that this status is irrelevant, because the Guidelines
unfettered control to reject or accept any particular
guideline.
Blakely, 124 S. Ct. at 2549-50 (O’Connor, J., dissenting, Part
IV.A., joined by Breyer, J.) Justice Breyer’s dissenting
opinion expressed a similar view. Id. at 2561 (Breyer, J.,
dissenting) (“Perhaps the Court will distinguish the Federal
Sentencing Guidelines, but I am uncertain how.”). The
demise of the Guidelines was forecast more explicitly in
Justice Breyer’s dissenting opinion in Apprendi, in which he
wrote:
The actual principle underlying the Court's [Apprendi]
decision may be that any fact (other than prior
conviction) that has the effect, in real terms, of
increasing the maximum punishment beyond an
otherwise applicable range must be submitted to a jury
and proved beyond a reasonable doubt. See [Apprendi,
530 U.S. at 494] ("[T]he relevant inquiry is one not of
form, but of effect—does the required finding expose the
defendant to a greater punishment than that authorized by
the jury's guilty verdict?"). The principle thus would
apply . . . to all determinate-sentencing schemes in which
the length of a defendant's sentence within the statutory
range turns on specific factual determinations (e.g., the
federal Sentencing Guidelines). Justice Thomas
essentially concedes that the rule outlined in his
concurring opinion would require the invalidation of the
Sentencing Guidelines. [Id. at 523], n. 11.
Apprendi, 530 U.S. at 543-44 (Breyer, J., dissenting).1
20 United States v. Koch No. 02-6278
“have the force and effect of laws.”
Id. at 523, n.11 (Thom as, J., dissenting) (citation omitted) (quoting
Mistre tta, 488 U.S. at 413 (Scalia, J., dissenting)).
I am also unpersuaded by the majority’s reliance upon cases
that uphold sentences imposed under the Guidelines against
various constitutional challenges. The majority assumes that
finding in Koch’s favor would necessarily require us to
“anticipate the overruling of Supreme Court precedent,” but
that assumption is erroneous. The Supreme Court has never
decided the issue presented in this case.
Among the cases cited by the majority, particular emphasis
is placed upon Edwards v. United States, 523 U.S. 511
(1998), a case that the majority says “rejected a challenge to
enhancements based on judge-made findings . . . in the
context of a Sixth Amendment challenge.” Maj. Op. at 7. In
reality, however, the Edwards Court expressly declined to
consider the petitioners’ Sixth Amendment claim. See
Edwards, 523 U.S. at 516 (proclaiming that “we need not, and
we do not, consider the merits of petitioners’ statutory and
constitutional claims”). Moreover, the Sixth Amendment
claim that the Edwards petitioners had advanced did not
challenge the validity of the Guidelines. Rather, the
petitioners argued that the district court erred in determining
whether the drug conspiracy involved cocaine or cocaine base
when the jury’s general verdict was ambiguous as to the drug
involved. See Petitioners’ Br., 1997 WL 793079, at *30-31
(“Petitioners are entitled to have the jury determine what
illegal agreement the Petitioners formed and agreed to
participate in.”). This argument concerns the effect of the
Sixth Amendment on 21 U.S.C. § 846, not on the Guidelines.
As the Seventh and Ninth Circuits have stated:
The Court did not opine on the guidelines’ consistency
with the amendment because that consistency was not
challenged. It did not rebuff a Sixth Amendment

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No. 02-6278 United States v. Koch 21
challenge to the guidelines because there was no Sixth
Amendment challenge to the guidelines.
Booker, 375 F.3d at 514; Ameline, 2004 WL 1635808, at *8.
For these reasons, Edwards is inapposite.
The majority’s reliance upon our Court’s post-Apprendi
cases is similarly misplaced. Those cases are simply
irrelevant here in light of the Supreme Court’s intervening
decision in Blakely, which undermines our prior holdings.
See Salmi v. Sec’y of Health and Human Servs., 774 F.2d 685,
689 (6th Cir. 1985) (holding that a prior decision is not
“controlling authority” if it is “inconsistent” with an
intervening Supreme Court decision).
Finally, the majority states that “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.’” Maj. Op. at 5 (quoting Booker, 375 F.3d at 515
(Easterbrook, J., dissenting)). Notwithstanding the fact that
Koch has made no “request” that the Guidelines be
invalidated (counsel for Koch explicitly stated in oral
argument that he was not asking the Court to invalidate the
Guidelines and, indeed, argued that our decision in this case
should await the Supreme Court’s resolution of Booker and/or
Fanfan), the majority ignores our very duties as United States
Circuit Judges. Having insisted upon declaring its view
regarding the applicability of Blakely to the Guidelines, rather
than – as I would do – awaiting the Supreme Court’s
impending resolution of the issue, the majority is obligated,
as we all are, to interpret and apply Supreme Court precedent
to the facts of this case, regardless of whether its analysis
leads to a result that it does not like. As I have explained,
Blakely’s holding logically controls the outcome of this case,
and the majority errs in concluding otherwise. The majority
simultaneously abdicates its responsibility to decide this issue
in a reasoned manner and insists upon “deciding” this issue as
quickly as possible. If the majority truly wished merely to
provide interim guidance for the district courts while at the
22 United States v. Koch No. 02-6278
same time waiting for the Supreme Court to decide the issue
before fully examining Blakely’s application to the
Guidelines, it would not, one hopes, be releasing opinions
possibly affected by Blakely in the meantime.
The question remains whether the unconstitutional aspects
of the Guidelines are severable from the rest of the
Guidelines, an issue on which courts have reached differing
results. Just as I would have withheld our decision in this
case pending the Supreme Court’s resolution of the
applicability of Blakely to the Guidelines, I believe that the
decision of whether and to what extent the Guidelines are
severable is better left to the Supreme Court. Notably, the
issue need not be resolved at all if the Court finds that the
Guidelines are unaffected by Blakely.
There is one procedural complication in this case that also
must be addressed. The United States argues that Koch
forfeited this claim of error by failing to object to his sentence
on Apprendi grounds. Accordingly, it argues, we are limited
to reviewing the claim for plain error. FED. R. CRIM. P. 52(b)
(“Plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the
court.”). See also United States v. Cotton, 535 U.S. 625, 628-
29 (2002). We have indicated, however, that where a
defendant has objected to the factual findings that underlie his
sentence, he has preserved for de novo review on appeal a
constitutional objection based on a rule of law announced
subsequent to his trial. See United States v. Strayhorn, 250
F.3d 462, 467 (6th Cir. 2001), overruled in part by Harris v.
United States, 536 U.S. 545 (2002). I reserve judgment as to
whether the principle announced in Strayhorn applies to this
case because I believe that the error present in Koch’s
sentence is cognizable under plain error review, which is the
least rigorous standard suggested by the parties.
Plain error exists where there is “1) error, 2) that is plain,
and 3) that affects substantial rights. If all three conditions
are met, [we] then exercise [our] discretion to notice a

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No. 02-6278 United States v. Koch 23
forfeited error, but only if 4) the error seriously affects the
fairness, integrity, or public reputation of the judicial
proceedings.” Johnson v. United States, 520 U.S. 461, 466-
67 (1997).
First, by imposing a sentence that exceeded the maximum
sentence available under the Guidelines in light of the jury’s
verdict, based upon facts neither found by a jury nor admitted
by Koch, the district court deviated from the holding of
Blakely. “Deviation from a legal rule is ‘error’ unless the rule
has been waived.” United States v. Olano, 507 U.S. 725,
732-33 (1993).
With respect to the second and third prongs, we have held
that both “are satisfied when the defendant’s total sentence
exceeds the maximum sentence that could lawfully be
imposed based upon the jury’s verdict as to all counts of
conviction.” United States v. Graham, 275 F.3d 490, 523
(6th Cir. 2001) (citations omitted). This is precisely what
happened in this case, and it is now “plain” that this is
precisely what Blakely prohibits. See Johnson, 520 U.S. at
468 (“Where the law at the time of trial was settled and
clearly contrary to the law at the time of appeal it is enough
that an error be ‘plain’ at the time of appellate
consideration.”) The district judge’s application of the
preponderance of the evidence standard to the facts presented
at the sentencing hearing certainly affected Koch’s ultimate
sentence. See Olano, 507 U.S. at 734 (holding that an error
affects “substantial rights” where it has “affected the outcome
of the district court proceedings”). The judge imposed
several sentencing enhancements, and found that the
conspiracy involved 907 kilograms of marijuana (as
compared to the probation officer’s estimate of 38.977
kilograms), based upon relatively weak evidence, much of
which was never presented at trial. Cf. Ameline, 2004 WL
1635808, at *9.
24 United States v. Koch No. 02-6278
Finally, the error affected the fairness of the proceedings.
Koch suffered at least the same unfairness that Blakely
suffered, for which the Supreme Court had this to say:
Any evaluation of Apprendi’s fairness to criminal
defendants must compare it with the regime it replaced,
in which a defendant, with no warning in either his
indictment or plea, would routinely see his maximum
potential sentence balloon from as little as five years to
as much as life imprisonment, see 21 U.S.C.
§§ 841(b)(1)(A), (D), based not on facts proved to his
peers beyond a reasonable doubt, but on facts extracted
after trial . . . .
Blakely, 124 S. Ct. at 2542. Because the district court’s
imposition of Koch’s sentence was plain error, I would
remand for resentencing in light of Blakely.
For these reasons, I respectfully dissent.

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