Why? Sixth Circuit Okays a Dirty Dozen Years

“When I think about this case, as I have done so often as of late, it makes me sick to my stomach.” So writes Judge Boyce Martin, in his dissent from a recent Sixth Circuit decision. Amidst the hubbub surrounding the end of the Supreme Court’s term, the majority of the three-judge panel in the case brushed aside relevant precedent to say this: Convicted of simple possession of a handgun and released from prison after serving his originally-imposed sentence, Lummie Sanders now must go back behind bars to serve another twelve years for his crime, despite having been free, law-abiding and productive for a full six years, despite having little reason to believe he hadn’t finished paying his debt to society and despite extraordinary foot-dragging by both the government and the trial court in imposing the higher sentence. Bush II appointee Julia Smith Gibbons authored the majority opinion, joined by Bush II appointee Richard Griffin. Judge Martin, a Carter appointee, pointedly, passionately – and incredulously – responded:

To imagine the emotional and psychological turmoil Mr. Sanders has been forced to endure as a result of the government's action and inaction in this case shocks and angers me to no end. Sanders woke up every day for six years believing that he was a free man. That's 2,190 mornings. And, in this case, it appears that Lummie Sanders used each of those days to make something out of his life. I cannot imagine any more settled expectations than those. I would order Sanders released from prison immediately. If we as a federal court cannot remedy the truly fundamentally unfair result that exists here, I don't know what good we are. And the law, well, if the law truly requires Lummie Sanders to go back to prison - the law is a ass. [Quoting Charles Dickens, Oliver Twist.]

In December 1993, Lummie Sanders was sentenced to 37 months for the crime of being a felon in possession of a handgun. The government appealed the sentence as being too light. By 1998, as the case worked its way up and down the appellate ladder, Sanders had served the 37 months (then still the mandated sentence) and was released. Over the next several years, as a free man, he immediately found productive employment; renewed his strong, prior commitment to his children and grandchildren (many of whom he had both supported and lived with when sent to prison in 1993); became active in church, where he met a woman whom, after three years of dating, he married; and ministered weekly to inner city youth. As Judge Martin remarked, “Sanders, it appears, made quite a life for himself. He exemplified rehabilitation at its best.” In the midst of it all, in April 2000, the U.S. Probation Office sent him an official notice saying he had successfully completed his period of “supervised release” and had no further obligations to fulfill on his sentence.

A month before, unbeknownst to Sanders, the courts had determined after years of appeals that Sanders should have been sentenced to a whopping 180 months, rather than 37. (Why the Probation Office then issued its notice is a mystery.) But because of delays by the government and the trial court, it was not until more than three years later, when the police came to re-arrest him in December 2003, that Sanders learned of his fate. And it was not until December 2004 – another year later, and four years after the higher courts’ final decision – that the trial court reluctantly added another 143 months to Sanders’ original sentence and ordered him re-incarcerated. At the time, Sanders had been a free man, and an upright man, for more than six full years.

On appeal, Judges Gibbons and Griffin held that returning Sanders to prison for another 12 years did not violate his constitutional rights, despite his expectations of continuing liberty and despite the extraordinary delay in re-sentencing him. What’s most striking about the ruling, though, is not the demonstrably inequitable result. Rather, it is the fact that this result is the product of the majority’s rejection of on-point case law not only from other circuits, but from the Sixth Circuit itself. As Judge Martin noted, the majority “does not cite or consider this Court’s prior unpublished decision [in United States v. Mayes] …. [which] if followed, would … lead to a finding in favor of Sanders.” Under both Mayes and similar cases from other federal appeals courts – all of which, incidentally, feature situations less compelling than Sanders’ – Sanders would be set free because:

a) The government and district court had not acted sufficiently diligently in seeking to re-sentence him;

b) He had already been free for a lengthy time period;

c) He had done nothing to contribute to the delay in his re-sentencing;

d) In the end, he had a reasonable expectation that his sentence was complete; and

e) He would suffer enormous prejudice because he had resumed a normal, productive life.

Judges Gibbons and Griffin dismissed the precedents from the other appeals courts as non-binding on them. They similarly back-handed Mayes, which was authored for a unanimous Sixth Circuit by arch-conservative Reagan-appointee Danny Boggs, on the grounds that it was unpublished and thus also technically non-binding. Whether binding or not, however, it was, as Judge Martin noted, deserving of considerable attention, something Judges Gibbons and Griffin didn’t give it. Interestingly, it was Judge Gibbons’ own decision as a trial court judge in Mayes that the Sixth Circuit reversed as a violation of Mayes’s constitutional due process rights. Then-District Judge Gibbons, who took over the Mayes case after the original trial judge retired, noticed an error in the original sentence, and, though Mayes had been free for five years, ordered him back to prison without holding a hearing. Might Judge Gibbons have used her new authority as a circuit judge to effectively undo a decision she just didn’t like?

Whatever the reasons of Judges Gibbons and Griffin for scuttling pertinent precedent, Lummie Sanders must now – at great cost to taxpayers – spend 12 years away from his family and from what had long become a productive, law-abiding life. Echoing the district court judge forced to re-sentence Sanders, Judge Martin called it “one of the most fundamentally unfair results that I have ever witnessed in thirty-plus years as a judge.”

United States v. Sanders, slip. op. No. 04-4540 (6th Cir. June 29, 2006).