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January 28, 2005 - The Spokesman-Review (WA)

Sentencing Ruling Sows Confusion In Federal Courts

By Hope Yen, Associated Press

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Blakely News Archive

WASHINGTON ­ Thousands of criminals are filing for reduced sentences. Backlogged courts are asking lawyers to slow down their appeals. Judges say they're confused about what to do.

Two weeks after the Supreme Court threw out mandatory sentencing guidelines, federal courts are just beginning to grapple with the consequences. And judges say it may take months, if not years, to sort through thousands of appeals and piece together a new sentencing system.

"It's a much more stressful exercise now," said U.S. District Judge Harold Baer of New York, who sentences dozens of white-collar criminals and drug offenders each month. "We're all desperately trying to follow the Supreme Court decision. But what does that mean?"

Congress enacted the federal guidelines two decades ago to ensure justice would be meted out more equally around the country. In place since 1987, the guidelines give judges a range of possible punishments for a given crime and make it difficult for judges to go outside those boundaries. Many states have adopted similar systems for their local courts.

In the Jan. 12 ruling, the Supreme Court said making the guidelines mandatory violated a defendant's Sixth Amendment right to a jury trial because they call for judges to make factual decisions that affect prison time, such as the amount of drugs involved in a crime.

Under the ruling, the guidelines now are only advisory; as a result, federal judges are free to sentence convicted criminals as they see fit, but they may be subject to reversal if appeals courts find them "unreasonable."

The burden of defining that legal standard will fall on the nation's 13 federal appeals courts, which received 400 new cases Monday after the Supreme Court ordered them to reconsider defendants' sentences for crimes ranging from securities fraud to theft and drug possession.

Those 400 cases are petitions from defendants who wanted their sentences reviewed after justices struck down a similar sentencing guidelines plan in Washington state last June, putting the federal guidelines in doubt. Hundreds of other appeals are pending at the appeals court level.

Washington state courts have been in turmoil since a similar ruling last June overturned part of Washington's sentencing law.

The appeals courts already are feeling the heat. At least two, the 9th Circuit in San Francisco and the 2nd Circuit in New York, are asking defense attorneys to hold off on filing some sentencing appeals for now, with exceptions for emergency cases.

Court officials cited an already congested docket in asking defendants to wait until the appeals court judges can offer some guidance on the definition of "reasonable" sentences in a few test cases in coming weeks.

Edward Becker, a senior judge for the Philadelphia-based 3rd U.S. Circuit Court of Appeals, said his court is still determining whether to delay some appeals. The main challenge, he said, will be determining whether the ruling should apply retroactively to tens of thousands of prisoners nationwide whose appeals already have run their course.

"There's been huge correspondence among the federal judges," Becker said. "But we have to wait and see how the district judges sentence in the wake of the opinion. It's going to have to spin out for another six months."

Added Carmen Hernandez, a vice president of the National Association of Criminal Defense Lawyers: "Defendants sitting in prison are calling us wanting to know how the ruling affects their case. We're having to tell them to wait."

Many judges are sticking close to the guidelines, but some judges who had long chafed under the mandatory system are showing some leniency for first-time offenders.

Last week in Maine, for instance, U.S. District Judge D. Brock Hornby declined to sentence first-time offender Steven Jones to 12 to 18 months under the guidelines for illegal gun possession. Instead, he ordered a house arrest and treatment because of Jones' history of depression.

"The sentence I contemplate here will in all likelihood better protect the public over the long term than the guideline sentence," Hornby wrote in an opinion Jones' attorney cheered as a "new day."

But in Utah, U.S. District Judge Paul Cassell chose to sentence a bank robber to 188 months, the same amount of time prescribed by the guidelines.

In his opinion, Cassell said the guidelines should be followed in "all but the most unusual cases." Douglas Berman, a sentencing expert at Ohio State University's law school, called the preliminary disagreements and legal challenges so far the "tip of the iceberg."

"I don't think we can overstate the massive amount of work that lies ahead," Berman said. "A tsunami comes to mind."

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