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July 3, 2004 - The Charlotte Observer (NC)

Ruling Throws Federal Sentencing Into Chaos

Already, Judges Giving Lighter Jail Terms; Appeals Expected

By: Stephen Henderson , Knight Ridder, and Observer Staff Writer Gary L. Wright

WASHINGTON - For almost 15 years, federal sentencing guidelines made the rules clear.

Now they're in chaos, due to an unexpected Supreme Court decision that has upset sentencing practices in federal courts nationwide. In Blakely v. Washington, the justices last week stripped judges of their long-held power to increase sentences based on aggravating factors, saying the constitution reserves those determinations for juries. The ruling already is producing lighter jail terms.

It could inspire appeals by up to 250,000 inmates who were sentenced under the plan the Supreme Court rejected. It also could force U.S. attorneys to rethink how they prosecute offenders, drag Congress into a messy effort to rewrite federal sentencing laws and perhaps require fast-track reconsideration of the issue by the high court.

History may first remember the Supreme Court term that just ended for the justices' sharp criticism of the Bush administration's terrorism detentions and its eloquent assertions about the pre-eminence of civil liberties.

It will easily recall the court's failure to settle squabbles over the Pledge of Allegiance and Vice President Dick Cheney's secret energy task force. But Blakely was the late-term surprise that, by challenging the entire federal-sentencing system, could have more effect on everyday crime and punishment issues than any high court ruling in 30 years.

The effects have been immediate. U.S. District Judge Joseph Goodwin dropped a West Virginia drug dealer's sentence from 20 years to 12 months last week. And Dwight Watson, the N.C. tobacco farmer who drove his tractor onto the National Mall in Washington in March 2003 and threatened to set off a bomb, was released Thursday when U.S. District Judge Thomas Penfield Jackson cut his sentence to 16 months.

Jackson had given Watson a six-year term the day before the Supreme Court ruled last week, but he decided he shouldn't have added time to reach the six years. A judge in Maine cut another dealer's prison stint from 19 years to six. And in Utah, a judge knocked three years off the jail term of a man who took pornographic pictures of his 9-year-old daughter and another child. "This is going to have far-reaching effects on all the cases that come before us," Goodwin said. "We'll definitely need more guidance from the Supreme Court or the appeals circuits."

In Blakely, the justices overturned a Washington state man's sentence because a judge added nearly three years to his term by considering factors that were related to, but not an essential part of, his kidnapping conviction. The justices ruled that a jury, rather than a judge, had to find that those factors were proved beyond a reasonable doubt for them to be considered in sentencing.

"It's definitely the most important criminal justice decision under (Chief Justice William) Rehnquist," said Doug Berman, an Ohio State University law professor who's been chronicling the aftermath of on a Web site,

"In terms of the near-anarchy it's creating in the federal system and the possibility in state systems," Berman said, "the fallout is more dramatic than anything I can even think of." In the first week after Blakely was decided, judges in nearly every federal jurisdiction concluded that it demands a sea change in the way they calculate sentences. Some, such as Goodwin, have begun writing full-blown opinions when meting out sentences, begging for higher courts to pursue Blakely's effect.

Take the case of Ronald Shamblin, a methamphetamine maker whom Goodwin had sentenced to 20 years in prison two weeks ago. Based on the crime he pleaded guilty to, Shamblin was eligible for only a 12-month sentence under federal guidelines.

But the guidelines also called for Goodwin to impose more jail time for other "relevant conduct": possession of a weapon, having additional drugs that weren't part of the indictment, intent to sell the drugs to a minor, being the leader of a major drug operation.

That's how Shamblin got 20 years. But Shamblin's lawyers argued last week that Blakely made the sentence illegal, because Goodwin, not the jury, concluded the facts that raised their client's sentence above 12 months. Goodwin agreed, and in his opinion, he echoed frustrations shared by many judges.

"At 240 months, Shamblin's sentence represented much that is wrong about the sentencing guidelines," he wrote. "At 12 months, it is almost certainly inadequate." The ripples from Blakely have inspired some to suggest the Supreme Court, which has adjourned until the first Monday in October, might need to cut short its vacation to revisit the issue.

Ordinarily, it wouldn't consider a case involving Blakely's effects before next winter. But by then there'll be "a flurry of litigation," said Beth Brinkmann, a criminal defense specialist and partner at the Washington law firm of Morrison & Foerster LLP.

"They'll need to resolve it quickly." N.C. Impact "It appears it may have some impact on us in North Carolina," Mecklenburg District Attorney Peter Gilchrist said. "We are not sure yet what that impact will be. Prosecutors and defense lawyers are studying the potential impact on our sentencings and procedures."

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