In United States v. Young, Nos. 07–5600, 07–5608 (6th Cir. Jan. 30, 2009), Judge Merritt considered two sentences for marijuana offenses and had to concur in part and dissent in part in regard to the final outcome of the appeal.
The defendants had grown marijuana and distributed it off and on for a period of some years. They were sentenced to 17 and 19 years imprisonment. Judge Merritt found the sentences to be excessive and admonished that they serve no rational purpose. He hits on disparity between state and federal sentences and between individual federal judges. He also bemoans the cost of such incarceration.
Finally, Judge Merritt concludes that the use of acquitted conduct and judge-found, offense-conduct facts to support sentencing enhancements is unconstitutional. Expresses expectation that United States v. White, 05–6596 (6th Cir. Dec. 24, 2008) (an en banc opinion addressing these issues), will be reversed and concludes that the defense should keep the case open pending the Supreme Court’s decision in White.