
    UNITED STATES of America, Plaintiff, v. William H. JOHNSON, Defendant.
    No. CR.A. 6:04-00042.
    United States District Court, S.D. West Virginia. Parkersburg Division.
    Aug. 13, 2004.
    
      Lisa G. Johnston, U.S. Attorney’s Office, Charleston, for the United States.
    Edward H. Weis, Federal Public Defender’s Office, Charleston, for the Defendant.
   MEMORANDUM OPINION

GOODWIN, District Judge.

The defendant, William H. Johnson, pleaded guilty to violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2), which prohibit the possession of a firearm by a convicted felon. On August 12, 2004, the defendant appeared before the court for sentencing. Pursuant to United States Sentencing Guidelines (the Guidelines), the base offense level for this crime is 14. U.S. Sentencing Guidelines Manual § 2K2.1(a)(6)(A) (2003). The pre-sentence report recommended a two-point enhancement because the defendant had stolen the gun involved in the offense from his brother’s home. Id. at § 2K2.1(b)(4). The total offense level recommended by the probation officer was therefore 16. After a three-point reduction for acceptance of responsibility, the offense level was 13. Id. at § 3E1.1(a). The probation officer attributed four criminal history points to the defendant, placing him in criminal history category III. Id. at .§ 5A. Based on a total offense level of 13 and a criminal history category of III, the recommended sentencing range was 18-24 months. Id.

The defendant objected,to the presentence report. He argued that Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), as interpreted by this court in United States v. Shamblin, 323 F.Supp.2d 757 (S.D.W.Va.2004), prohibits the court from relying on the stolen gun enhancement or prior convictions to increase his sentence. The court overruled the defendant’s objections to the pre-sentence report because the Fourth Circuit has recently held that Blakely does not invalidate the United States Sentencing Guidelines. See U.S. v. Hammond, 378 F.3d 426 (4th Cir.2004). Accordingly, the court sentenced the defendant within the Guideline range to a term of imprisonment of eighteen months.

In Hammond, the Fourth Circuit recommended that “in the interests of judicial economy ... district courts within the Fourth Circuit also announce, at the time of sentencing, a sentence pursuant to 18 U.S.C. § 3553(a), treating the guidelines as advisory only.” The defendant objected to imposition of an alternative sentence, and I sustained that objection. I write to explain my reasons for failing to follow our appellate court’s recommendation to impose an alternative sentence in this case.

To deal with uncertainty wrought by Blakely, a few courts have suggested that imposing alternative sentences may prevent further disarray once Blakely’s effect on the Guidelines is more clearly established. These courts cite no authority for the proposition that a court may impose an alternative sentence. Presumably, the validity of these alternative sentences depends upon some inherent power of the sentencing court to act in the interests of judicial economy.

Although preserving judicial resources is a worthy goal, it is not equal to the goal of maintaining confidence in our justice system. People must believe — and courts must assure — that judgments depriving citizens of their liberty are required by law and lack neither finality nor certainty. Confidence in the system is undermined when a judge treats a defendant like an unruly child ordered to go to his room and stay there until the courts determine a just punishment. I respectfully decline, without binding direction, to play the role of wavering disciplinarian.

Hypothetical sentencing is an abdication of my duty to decide legal issues. It is surely unprincipled, if not unlawful, for lower courts to describe alternatives and present those alternatives to a higher court for a final, binding decision. Summarizing the relevant legal arguments and offering possible conclusions is not judging. Judicial decision-making, like the adversarial process upon which it stands, thrives on the pressure of reaching — and explaining — a single result. Formulating multiple-choice questions to be answered by a higher court is an inappropriate and injudicious substitute for deciding a case.

Here, of course, the Fourth Circuit has made a decision that Blakely does not apply to the Guidelines. It has also recommended, however, that this court give an alternative sentence that would presumably take effect if the Supreme Court disagrees. My concern is that district courts and appellate courts must routinely make decisions that may be affected by cases pending on appeal before higher courts. If the function of lower courts is reduced to offering up a this-or-that option for latér judgment, then the intellectual rigor promoted by the pressure to decide the issue is eliminated. Put simply, judicial decision-making is an act best performed without a net.

Even if I were inclined to exercise some inherent power to impose an alternative sentence in the interests of judicial economy, those interests would not be served here. Clearly, imposing two sentences rather than one would increase the sentencing court’s workload. I would have to assess the proper Guidelines sentence, and then determine, treating the Guidelines as advisory, a second sentence. I would have to justify these two sentences on the record, and resolve objections to both sentences.

This extra work might be worthwhile if the imposition of an alternative sentence would prevent subsequent motions for re-sentencing by defendants in the event that their Guideline sentences were declared unconstitutional. There is a strong likelihood, however, that imposing the recommended alternative sentence will not forestall the need for resentencing. The Fourth Circuit’s alternative sentencing recommendation works only if: (1) the Supreme Court ultimately decides that Blakely applies to the Guidelines; (2) finds the Guidelines unconstitutional in toto; and then (3) remedies the constitutional defect by reading out the mandatory language of the Guidelines and ordering courts to impose sentences pursuant to 18 U.S.C. § 3553(a), treating the Guidelines as advisory. The one certain thing about post-Blakely jurisprudence is that nothing is certain. Thus, taking a course which depends upon this series of presumptions — none of which may pan out — seems more like an exercise in futility than a conservation of judicial resources.

Given the divergent approaches to Blakely in federal courts, it must be considered that the Supreme Court will reach a decision inconsistent with at least one of the Fourth Circuit’s multiple assumptions. If the Supreme Court agrees with the Fourth Circuit’s decision in Hammond, then the Guidelines survive Blakely and an alternative sentence would be obsolete. If the Court decides that Blakely applies to the Guidelines, which is the conclusion that the great majority of district courts and the Ninth Circuit have reached, it does not ineluctably follow that the Court’s remedy will, be to treat the Guidelines as advisory, as the Fourth Circuit assumes.

The Court may decide that the Guidelines are not unconstitutional in toto, but that the eonstitutionally-infirm provisions of the Guidelines can be severed, and the remainder applied in a manner consistent with the Sixth Amendment. Accordingly, the Guidelines would not become advisory; rather, the Guidelines would continue to have the force of law to the extent that they comply with the Constitution. This-approach is the one taken by the Ninth Circuit and' a number of district courts, including this one.

Alternatively, the Court may find that the constitutional portions of the Guidelines cannot be severed from the unconstitutional portions, and therefore, the entire Guideline system must fail. Several district courts have reached this result. The Fourth Circuit clearly expects that this will be the Supreme Court’s approach if it applies Blakely to the federal Guidelines. Rejection of the mandatory form of the Guidelines, however, does not inevitably require employing an advisory form. Title 18 § 3553(b) makes sentencing under the Guidelines mandatory. Congress, in fact, rejected an amendment to make the Guidelines advisory. It is not clear that the Supreme Court would choose to disregard the mandatory language of § 3553(b) and declare the Guidelines advisory. The alternative, of course, is for judges to be left to exercise discretion, as they did before promulgation of the Guidelines.

The Fourth Circuit’s recommendation also presumes that, if the Guidelines are unconstitutional and non-severable, 18 U.S.C. § 3553(a) will nevertheless remain good law. Severability is a question of legislative intent. See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999); Buckley v. Valeo, 424 U.S. 1, 108-09, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). The only legislative act involved here is the Sentencing Reform Act (SRA). The Guidelines are merely the sentencing scheme created by the Sentencing Commission pursuant to the SRA. Therefore, the Supreme Court may undertake the severability analysis with respect to the SRA, rather than with respect to the Guidelines alone. Persuasive arguments have been made that this is the better approach. If the Supreme Court took this approach to the severability analysis, and found that the constitutionally-infírm portions of the Guidelines were not severa-ble from the remainder of the SRA, then the entire SRA would be declared unconstitutional. In that situation, § 3553(a), which was passed as part of the SRA, would likewise be unconstitutional.

The remedies I’ve presented do not exhaust the possibilities. The Supreme Court may fashion no remedy, but instead depend upon Congress to create a Blakely-compliant sentencing regime. Or, the Court may find a remedy not previously considered by the lower courts or legal commentators. The relevant point is that I cannot impose a rational alternative sentence (or sentences) that would comport with every possible post -Blakely sentencing scheme.

Conclusion

I hold the opinion that alternative sentencing is inconsistent with the judicial obligation to reach a decision and undermines the role of the court. Further, imposition of the recommended alternative sentence would impede, rather than promote, judicial economy. Accordingly, I respectfully decline to impose an alternative sentence in this case, or in any future case.

The court DIRECTS the Clerk to send a copy of this Order to the defendant and counsel, the United States Attorney, the United States Probation Office, and the United States Marshal, and DIRECTS the Clerk to post this published opinion at http://www.wvsd.uscourts.gov. 
      
      . See, e.g., U.S. v. Booker, 375 F.3d 508, 515-16 (7th Cir.2004) ("As a matter of prudence, the judge should in any event select a non-guidelines alternative sentence”); U.S. v. Leach, 325 F.Supp.2d 557, 561-62 (E.D.Pa.2004) ("Because there is ... the possibility that the Guidelines do not admit to an easy severability under Blakely, we shall also announce a nonguidelines alternative sentence”) (internal citation omitted). But see U.S. v. Zompa, 326 F.Supp.2d 176 (D.Me.2004) ("[T]his court is not inclined — nor does it believe it is allowed—to render hypothetical sentences”).
     
      
      . Likewise, before the Supreme Court decided Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), which held that the Guidelines did not violate separation of powers principles, some district courts chose to impose alternative sentences. Appellate courts accepted this practice, but cited no authority permitting the imposition of more than one sentence. See, e.g., U.S. v. Draper, 888 F.2d 1100, 1105 (6th Cir.1989); U.S. v. Brittman, 872 F.2d 827, 829 (8th Cir.1989).
     
      
      . I suspect that the sub rosa, but well-intentioned, recommendation of the Fourth Circuit is to impose the same sentence twice. It is by no means clear that this court or other courts would impose the narrowly-mandated Guidelines sentence in every case if the Guidelines were only advisory. See U.S. v. Emmenegger, 329 F.Supp.2d 416 427-29 (S.D.N.Y.2004).
     
      
      . In pre-Mistretta cases where district courts imposed alternative sentences, appellate courts ultimately found that a second sentencing hearing was not necessary for the alternative sentence to take effect. See, e.g., U.S. v. Warner, 894 F.2d 957, 961 (8th Cir.1990); Brittman, 872 F.2d at 829. But see U.S. v. Martin, 913 F.2d 1172, 1176-77 (6th Cir.1990) (trial court could not impose an alternative sentence 134 days after it filed its final commitment order where the court no longer had jurisdiction over the case). Given the current unsettled state of sentencing law, I am hesitant to say that a defendant would not have a right to a second sentencing hearing, even if his alternative sentence appeared to comport with the Supreme Court's ultimate decision. As a practical matter, however, it is likely that an alternative sentence would not comport with the new sentencing regime because there are more than two sentencing options for post-Blakely cases. This is discussed further below.
     
      
      . I do not mean to suggest that the Fourth Circuit's intention was to recommend a futile endeavor. Given the twenty years of experience manifest in the Guidelines, all courts would like to believe that they will remain viable as a strongly advisory sentencing resource, if not a mandatory sentencing scheme. I merely point out that other outcomes are possible.
     
      
      . See 378 F.3d 426, 2004 WL 1730309; see also U.S. v. Pineiro, 377 F.3d 464 (5th Cir.2004); U.S. v. Olivera-Hernandez, 328 F.Supp.2d 1185 (D.Utah 2004).
      The Second Circuit has decided to continue to apply pre-Blakely sentencing law while awaiting a decision on Blakely questions certified to the Supreme Court. See Doug Berman, www.sentencing.typepad.com, post- for Thursday, August 12, 2004 (discussing United States v. Mincey, where the Second Circuit decided that the district court did not err in applying the Guidelines, but withheld the mandate pending a Supreme Court decision). This suggests that the Second Circuit finds Blakely inapplicable to the Guidelines, but the court provides no reasoning on the issue.
     
      
      
        . U.S. v. Ameline, 376 F.3d 967 (9th Cir.2004); U.S. v. Booker, 375 F.3d 508 (7th Cir.2004); U.S. v. O’Daniel, 2004 WL 1767112 (N.D.Okla. Aug.6, 2004); U.S. v. Gibson, No, 1:04-cr-12 (D.Vt. July 30, 2004); U.S. v. Mueffleman, 327 F.Supp.2d 79 (D.Mass.2004); U.S. v. Zompa, 326 F.Supp.2d 176 (D.Me.2004); U.S. v. Carter, 2004 U.S. Dist. LEXIS 14433 (C.D.Ill. July 23, 2004); U.S. v. Parson, No. 6:03-cr-204-Orl-31DAB (M.D.Fla. July 22, 2004); U.S. v. Sisson, 326 F.Supp.2d 203 (D.Mass.2004); U.S. v. Khoury, No. 6:04-cr-24-Orl-31DAB (M.D.Fla. July 21, 2004); U.S. v. Terrell, 2004 WL 1661018, 2004 U.S. Dist. LEXIS 13781 (D.Neb. July 22, 2004); U.S. v. Marrero, 325 F.Supp.2d 453 (S.D.N.Y.2004); U.S. v. King, 328 F.Supp.2d 1276 (M.D.Fla.2004); U.S. v. Sweitzer, No. 1:CR-03-087-01 (M.D.Pa. July 19, 2004); U.S. v. Harris, 325 F.Supp.2d 562 (W.D.Pa.2004); U.S. v. Lockett, 325 F.Supp.2d 673 (E.D.Va.2004); U.S. v. Landgarten, 325 F.Supp.2d 234 (E.D.N.Y.2004); U.S. v. Einstman, 325 F.Supp.2d 373 (S.D.N.Y.2004); U.S. v. Leach, 325 F.Supp.2d 557 (E.D.Pa.2004); U.S. v. Croxford, 324 F.Supp.2d 1255 (D.Utah 2004); U.S. v. Khan, 325 F.Supp.2d 218 (E.D.N.Y.2004); U.S. v. Toro, 2004 WL 1553602, 2004 U.S. Dist. LEXIS 12762 (D.Conn. July 6, 2004); U.S. v. Montgomery, 324 F.Supp.2d 1266 (D.Utah 2004); U.S. v. Thompson, 324 F.Supp.2d 1273 (D.Utah 2004); U.S. v. Lamoreaux, 2004 WL 1557283, 2004 U.S. Dist. LEXIS 13225 (W.D.Mo. July 7, 2004); U.S. v. Medas, 323 F.Supp.2d 436 (E.D.N.Y.2004); U.S. v. Shamblin, 323 F.Supp.2d 757 (S.D.W.Va.2004); U.S. v. Watson, CR 03-0146 (D.D.C. June 30, 2004); U.S. v. Fanfan, No. 03-47, 2004 WL 1723114 (D.Me. June 28, 2004); U.S. v. Gonzalez, 2004 WL 1444872, 2004 U.S. Dist. LEXIS 11760 (S.D.N.Y. June 28, 2004).
      Panels in the Sixth Circuit and the Eighth Circuit have also found that Blakely applies to the Guidelines, but those decisions have been vacated for rehearing en banc. See U.S. v. Mooney, 2004 U.S.App. LEXIS 15301 (8th Cir. July 23, 2004) (per curiam) (vacated upon grant of reh’g en banc (Aug. 6, 2004)); U.S. v. Montgomery, 2004 WL 1562904, 2004 U.S.App. LEXIS 14384 (6th Cir. July 14, 2004) (vacated upon grant of reh'g en banc (July 19, 2004) and voluntarily dismissed (July 23, 2004)).
     
      
      . Namely, the procedure whereby enhancements to the base offense level are applied by a judge using the preponderance of the evidence standard.
     
      
      . Ameline, 376 F.3d 967; O’Daniel, 328 F.Supp.2d 1168; Gibson, No, 1:04-cr-12 (D.Vt. July 30, 2004); Zompa, 326 F.Supp.2d 176; Terrell, 2004 WL 1661018, 2004 U.S. Dist. LEXIS 13781; Leach, 325 F.Supp.2d 557; Khan, 325 F.Supp.2d 218; Toro, 2004 WL 1553602, 2004 U.S. Dist. LEXIS 12762; Montgomery, 324 F.Supp.2d 1266; Shamblin, 323 F.Supp.2d 757; Watson, CR 03-0146 (D.D.C. June 20, 2004); Fanfan, No. 03-47, 2004 WL 1723114 (D.Me. June 28, 2004); Gonzalez, 2004 WL 1444872, 2004 U.S. Dist. LEXIS 11760.
     
      
      . Mueffleman, 327 F.Supp.2d 79; Carter, 2004 U.S.Dist. LEXIS 14433; Parson, No. 6:03-cr-204-Orl-31 DAB (M.D.Fla. July 22, 2004); Sisson, 326 F.Supp.2d 203; Khoury, No. 6:04-cr-24-Orl-31 DAB (M.D.Fla. July 21, 2004); Marrero, 325 F.Supp.2d 453; King, 328 F.Supp.2d 1276; Sweitzer, No. 1:CR-03-087-01 (M.D.Pa. July 19, 2004); Harris, 325 F.Supp.2d 562; Lockett, 325 F.Supp.2d 673; Einstman, 325 F.Supp.2d 373; Croxford, 324 F.Supp.2d 1255; Thompson, 324 F.Supp.2d 1273; Lamoreaux, 2004 U.S. Dist. LEXIS 13225.
      Two judges have held that where enhancements apply, the Guidelines are not severable and cannot be applied, but where enhancements do not apply, the Guidelines remain applicable. See Lockett, 325 F.Supp.2d 673; Thompson, 324 F.Supp.2d 1273.
      The Sixth and Eight Circuits also concluded that portions of the Guidelines were non-sev-erable from the whole, but those decisions have been vacated for rehearing en banc. See Mooney, 2004 U.S.App. LEXIS 15301; Montgomery, 2004 WL 1562904, 2004 U.S.App. LEXIS 14384.
     
      
      . See Mistretta, 488 U.S. at 367, 109 S.Ct. 647 (citing S.Rep. No. 98-225 (1983), 1984 U.S.C.C.A.N. 3182, 79).
     
      
      . Of course, the Guidelines would be helpful to judges in the exercise of their discretion. I simply note that the Supreme Court may not explicitly make the Guidelines advisory.
     
      
      . The only decision explicitly holding that § 3553(a) does remain legally operative and binding after declaring the Guidelines unconstitutional was vacated for rehearing era banc. See Montgomery, 2004 WL 1562904, 2004 U.S.App. LEXIS 14384.
     
      
      . The courts that have decided that the Guidelines are non-severable have assumed that the severability analysis addresses only the Guidelines, but they have not justified this assumption. Legal commentators and an impressive Blakely severability brief submitted on behalf of a defendant in the Eastern District of Wisconsin have outlined a severability approach focused on the SRA. See Doug Berman, www.sentencing.typepad.com; King & Klein, Beyond Blakely, 16 Fed. Sent. Rep., Part IC (forthcoming June 2004); Defendant's Reply Memorandum on Blakely v. Washington, U.S. v. Abu-Shawish, No. 03-CR-211 (JPS) (Filed July 23, 2003, E.D. Wis.)
     
      
      . When the severability analysis is undertaken with regard to the SRA, at least two legal scholars have opined, however, that the Guideline provisions are severable. King & Klein, supra, note 11.
     