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August 14, 2004 - The Arkansas Democrat-Gazette

Federal Sentences Get Closer Scrutiny

By Michelle Bradford

Federal public defenders in Arkansas are poring over cases involving defendants punished under federal sentencing guidelines in light of recent court cases that have created confusion over aspects of the system's constitutionality.

On the other side of the bar, federal prosecutors expect to see more appeals like last week's from Darryl Fore. The Fort Smith man wants to be resentenced in line with the June 24 U.S. Supreme Court decision, Blakely v. Washington. "Right now, we haven't had many cases like Mr. Fore's," said Bill Cromwell, U.S. attorney for the Western District of Arkansas. "But I expect that to change as word of this spreads through the Bureau of Prisons."

The Blakely decision found Washington state's sentencing scheme unconstitutional. Specifically, it prohibits allowing just a judge, rather than a jury, to decide whether to increase a criminal defendant's sentence.

Before Blakely, a judge could enhance a criminal sentence by meeting a preponderance of evidence - lesser than the jury standard of beyond a reasonable doubt.

The kinds of sentences affected are those in which a defendant faced the possibility of an "enhancement," or an increase from the standard penalty range for certain "aggravating" factors.

Since Blakely, appellate courts nationwide have issued conflicting decisions over whether Blakely invalidates federal sentencing guidelines.

In an effort to address the confusion, the U.S. Supreme Court says it will consider the implications of Blakely when it convenes on Oct. 4. Meanwhile, questions abound about possibilities of retroactively changing sentences, and prosecutors are tailoring plea agreements to stay in line with the high court ruling.


In Arkansas, public defenders are reviewing cases against the Blakely backdrop, said Jack Schisler, assistant federal defender in Fayetteville. In the Western District of Arkansas, "hundreds" of such cases are under review, he said. "Some of these people have already served sentences, and even if [Blakely] ends up being applied retroactively, they've already paid the price," Schisler said. "But others out there are serving lengthy sentences. And if enhancements were involved, Blakely could apply."

Schisler said relief could be sought in the form of requesting a jury trial to decide aggravating factors. "Or it might be that since a person hasn't admitted to aggravating factors, and that the case is over, that those 'aggravators' will be removed," he said. "Or perhaps the guidelines become advisory rather than compulsory."

Cromwell said relief could be sought in three main scenarios: When a defendant who already has appealed to a higher court files a motion for remand and resentencing. When a defendant whose sentencing judgment isn't more than a year old petitions for a writ of habeas corpus to decide if the detention is lawful. When a defendant whose sentencing judgment isn't more than 10 days old asks the presiding district judge to reconsider the sentence.

Federal prosecutors in the Western District have adjusted a few plea agreements in coming cases to reflect the rulings in Blakelyand in a July 23 decision, U.S. v. Mooney, Cromwell said.

A panel of the 8 th U.S. Circuit Court of Appeals dovetailed the Blakely ruling with U.S. v. Mooneywhen it upheld the conviction of Michael Mooney but remanded his 42-month sentence back to federal district court. "Those rulings held that the sentencing guidelines are nonbinding and that the district judge can rely on them in an advisory manner if he so chooses," he said. "We're doing that in some cases." In one case, a defendant let the judge follow the sentencing guidelines, Cromwell said. In another case, the judge is using the guidelines as an advisory tool.


On Thursday, a different panel of the 8 th U.S. Circuit Court of Appeals ordered a former Arkansas sheriff's deputy to be resentenced "consistent with Blakely v. Washington." In that case, a jury convicted former deputy Louis Pirani, 40, of lying in a public corruption case. A judge sentenced Pirani to five months in prison and five months of house arrest. Like Pirani's, Darryl Fore's case was on appeal when Blakely and Mooney were handed down, and his attorney filed motions seeking remand and resentencing.

Fore was mentally ill and on the wrong medication when he stole a pistol from a gun show in Fort Smith, according to a motion filed July 27 in the 8 th Circuit.

Before his mental illness, Fore, 41, was an exemplary family man and faithful church member with no criminal record, the motion states.

Fore pleaded guilty in February to stealing a firearm from a federally licensed gun dealer. He was sentenced to the minimum under the guidelines - one year and one day in prison.

U.S. District Judge Robert T. Dawson expressed frustration that the sentencing guidelines restricted his discretion to any sentence other than prison, the motion states. "The district judge commented that the federal sentencing guidelines might be the 'tail wagging the dog' in Mr. Fore's case," the motion states.

The motion states that in Fore's case, the guidelines prohibited the judge from imposing any sentence other than prison and notes that the judge set the sentence that would mean the least prison time for Fore.

The motion quoted Dawson as saying, "Our hands are about as restricted as they can possibly be, and I submit to you that our hands are becoming more restricted with each session of Congress."

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