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July 11, 2004 - The Advocate (LA)

Sentencing Guidelines In Question

Supreme Court Ruling Has Judges Reviewing Cases

By Penny Brown Roberts, Advocate staff writer

Last week, U.S. District Judge Frank Polozola sentenced Ronald J. Marks to 10 months in prison-not just once, but twice. It wasn't that the judge was trying to level an unduly harsh punishment.

Rather, Polozola was preparing for the possibility that the nearly 20-year-old U.S. Sentencing Guidelines-which he and other federal judges across the United States use to determine prison terms-might be thrown out any day now.

Polozola issued one 10-month sentence for Marks -- a 22-year-old recent LSU graduate from Church Point who pleaded guilty to selling cocaine and heroin -- based upon the guidelines, and an alternative 10-month sentence without them.

"Some judges around the country have already declared the guidelines to be unconstitutional, and I'm not certain what the appellate courts will do," Polozola told Marks during his sentencing hearing last week. "I will give you two sentences today. One will be under the guidelines, and one will be without -- just like I did when in the '80s when I came on the bench."

At issue is a U.S. Supreme Court ruling late last month that judges can no longer sentence convicted criminals to more time than called for by law by taking into account aggravating circumstances that haven't been proven beyond a reasonable doubt.

Those factors-such as whether the person is a ringleader, carried a gun during the crime, accepts responsibility for the crime or lied to authorities-now must be alleged in the indictment and proven to a jury unless the person waives that right. The only exception is that the judge can consider any prior convictions.

The high court issued the 5-4 opinion in Blakely v. Washington, ruling that a wealthy rancher wrongly was given a longer sentence for kidnapping his estranged wife in 1998.

Ralph Howard Blakely II pleaded guilty in a deal with prosecutors and expected a sentence of about four years as set in state sentencing guidelines. But the judge added three years to his prison term after deciding Blakely had shown "deliberate cruelty."

While the decision dealt with a Washington state case, some legal experts predict it could dramatically affect federal sentencing laws nationwide and change the course of thousands of criminal cases awaiting trial or sentencing, or on appeal in Louisiana and other states.

One federal judge in Utah has already ruled the guidelines unconstitutional, but his decision is expected to be appealed to the Supreme Court.

In Baton Rouge, the uncertainty has federal prosecutors rethinking indictments and plea agreements, defense attorneys scrambling to appeal punishments and judges issuing dual sentences. Even attorneys for former Gov. Edwin Edwards have filed notice that they plan to appeal his sentence based on the new ruling.

The 5th U.S. Circuit Court of Appeals last week heard oral arguments in a case challenging a sentence based on the Supreme Court ruling and is expected to issue guidelines for federal courts in Louisiana, Texas and Mississippi soon. The U.S. Senate Judiciary Committee is scheduled to hold hearings on the matter in Washington, D.C., beginning Tuesday morning.

"We represent the vast majority of people whose sentences could be affected by Blakely," Louisiana federal public defender Rebecca Hudsmith said. "That means we've got a lot of work to do."

In 1984, Congress enacted the Sentencing Reform Act in an attempt to make criminal punishments more consistent and uniform across the nation. The guidelines went into effect in 1987, setting dozens of factors that might determine sentences-including whether the judge levied a punishment above or below what is called for by law.

But in the Blakely v. Washington ruling, the Supreme Court said it is unconstitutional for a judge acting alone to use those factors to add to the punishment. The Constitution gives defendants a right to a trial by a jury, Justice Antonin Scalia noted, and "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment."

U.S. Attorney David Dugas of Baton Rouge declined to comment on the issue, referring all questions to the U.S. Department of Justice. But department spokesman John Nowacki also declined to comment.

In a five-page memo dated July 2 to Dugas and other federal prosecutors nationwide, Deputy Attorney General James Comey said the government believes the "rule announced in Blakely does not apply to the Federal Sentencing Guidelines."

But Comey outlines new procedures for prosecutors in Baton Rouge and other cities to include in all indictments "readily provable" aggravating factors that could add prison time, and seek "waivers of Blakely rights" in all guilty pleas. He also suggests they ask district judges to state alternative sentences.

Judges in Baton Rouge are rethinking their practices as well. During a sentencing hearing Thursday, U.S. District Judge James Brady said he is "going back over and reviewing some cases. I'm aware of the fray."

During a Wednesday hearing, Polozola said he wasn't aware of challenges to any of his sentences based on the Supreme Court ruling. But he said he was preparing for the possible fallout.

"I don't know what effect Blakely has on anything," Polozola said. "But whenever I take a guilty plea, it will be substantially different than in the past. I may not accept some guilty pleas anymore. I may not be able to."

Defendants in Louisiana already are lining up to appeal their sentences, and among them is former Gov. Edwin Edwards and his son, Stephen Edwards.

Attorney Mike Small filed a motion last week asking U.S. District Judge Ralph Tyson to allow Small to challenge the constitutionality of Edwards' sentence and conviction based on the Blakely ruling. The request still is pending.

Small notes in his motion that Polozola added jail time to the Edwardses' sentences based on underlying facts not found by a jury. Those factors included payment of more than one bribe, an intended loss of more than $4.1 million and leadership or supervisory roles in the crime. The former governor also got extra time for obstruction of justice.

A favorable ruling based on Blakely could significantly reduce the Edwardses' sentences, Small said Saturday.

"Blakely is hot off the press, and questions as to its effect and application are too up in the air for me to accurately predict its effect on the Edwards cases," Small said.

"Suffice to say we believe it could result in a significant reduction in Edwin's and Stephen's sentences," Small said. "We take the position that the federal sentencing guidelines are unconstitutional to the extent that they require application of enhancements or increased sentences based on facts not found by the jury."

The Edwardses are not alone. Federal public defender Hudsmith said she's reviewing as many as seven cases pending on appeal to determine whether the Blakely ruling might come into play. That doesn't include any closed cases that could be affected as well.

"I'm still very much in the phase of investigating what needs to be done to protect the rights of all of our clients -- both present and past," Hudsmith said. "What it means is there's a lot more work to be done on cases where I thought most of our work was complete."

Some answers may come soon from the 5th Circuit. Last week, the appellate court heard oral arguments in U.S. v. Francisco Pineiro, a drug-trafficking case out of Lafayette.

A Louisiana judge sentenced Pineiro as though his offense involved more than 450 kilograms of marijuana and nearly 1,050 grams of cocaine -- despite a jury finding of a lesser amount.

Mandeville attorney Christopher Aberle argued: "Addressing Pineiro's claim now is especially important in light of the many plain-error Blakely cases waiting in the wings."

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