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August 2, 2004 - Bloomberg News (US)

U.S. Sentencing Guidelines Draw Supreme Court Review

By Greg Stohr

The U.S. Supreme Court will consider the constitutionality of sentencing guidelines used in 64,000 federal criminal cases every year, agreeing to give fast-track review to appeals by the Bush administration in two drug cases.

Spurred by lower court rulings that the federal guidelines are invalid, the justices decided to address the confusion they spawned in June when they said a similar system in Washington state deprived defendants of their right to a jury trial. The court scheduled arguments for Oct. 4, the first day of its 2004- 05 term, in Washington.

A decision invalidating the federal guidelines would give a potentially powerful new legal tool to such defendants as Adelphia Communications Corp. founder John Rigas and former Enron Corp. Chairman Kenneth Lay. Such a ruling also would create spin- off questions that might roil the criminal justice system for years, said Ohio State law professor Douglas Berman.

"To suggest that the Supreme Court has put this in a blender is to understate how much they've mixed up the world,'' said Berman, who runs an online journal, or "weblog,'' on the fallout from the high court's ruling.

That decision, Blakely v. Washington, said judges can't increase prison terms based on facts that haven't been considered by a jury or admitted by the defendant. The 5-4 ruling said the Constitution guarantees criminal defendants the right to put those facts before a jury and to be judged under a "beyond a reasonable doubt'' standard.

Consistency Sought

The federal guidelines grew out of a congressional effort to eliminate sentencing disparities and standardize the punishment for similar crimes committed by similar offenders. In 1984 Congress set up the U.S. Sentencing Commission, which issued guidelines that are binding on federal judges.

Under the rules, a convicted defendant's crime serves as a starting point, putting him in a range of permissible sentences. Judges then increase the prison term by a specified period if, for example, a gun was fired during the crime. In corporate fraud cases such as those involving Enron and Adelphia, judges must increase sentences if an especially large amount of money was involved.

Other factors, such as acceptance of responsibility for the offense, may lead to a sentence reduction.

The Justice Department contends the Blakely ruling doesn't apply to the federal guidelines. Several lower courts have disagreed.

`Absurdly Low'

The government argues that, if judges are barred from increasing a sentence in a particular case, they also shouldn't be bound by the lower initial sentencing range.

Leaving the original range intact "could produce absurdly low sentences for very serious criminal conduct,'' acting U.S. Solicitor General Paul Clement argued in a court filing. Instead, judges should be able to impose any sentence between a separate statutory minimum and maximum, he said.

One issue not directly presented in the cases is whether the guidelines would remain in effect for cases where prosecutors aren't asking a judge to increase the sentence. Another question is whether the high court's decision would apply retroactively.

Lower courts also may have to assess a strategy the Justice Department has used in the aftermath of Blakely -- seeking more detailed indictments to ask juries to decide matters that previously would have been presented to a judge during sentencing. Defense lawyers may be able to argue that putting those issues before a jury would be prejudicial, Berman said.

`A Mess'

The Blakely decision, though barely a month old, has already produced at least 40 lower court decisions on its applicability to the federal system.

"It's a mess, in a word,'' said Roscoe C. Howard Jr., a Washington defense lawyer who stepped down as U.S. attorney for the city earlier this year. "People are desperately looking for some sort of clarification.''

While putting the case on a fast track, the justices rejected a Bush administration proposal for an even more expedited schedule that would have meant a Sept. 13 hearing, three weeks before the beginning of the court's term.

The two appeals accepted today raise virtually identical issues. In one, a Wisconsin jury convicted Freddie J. Booker of possessing and distributing crack cocaine. The jury concluded that Booker had 92.5 grams of crack, an amount that would mean a maximum prison term of 21 years and 10 months.

Drug Cases

During sentencing, which took place before the Blakely ruling, the trial judge found that Booker had distributed an additional 566 grams and had obstructed justice. The effect was to increase the permissible sentence to a range of 30 years to life. The judge sentenced him to 30 years.

Two weeks after the Blakely decision, a federal appeals court in Chicago overturned Booker's sentence on a 2-1 vote.

In the second case, the Justice Department seeks to overturn a Maine federal judge's decision that he could sentence Ducan Fanfan to no more than 6 1/2 years, based on a jury's conclusion that he conspired to distribute cocaine powder.

Prosecutors, saying the case also involved trafficking in crack, sought to put Fanfan in a sentencing range of at least 15 years and eight months. The trial judge said Blakely barred imposition of the longer sentence. The Supreme Court bypassed the appeals court level in taking up the case.

The cases are U.S. v. Booker, 04-104, and U.S. v. Fanfan, 04- 105.

To contact the reporter on this story: Greg Stohr in Washington at

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