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July 2, 2004 - The Chicago Tribune (IL)

Lawyer Invokes Sentencing Ruling

Supreme Court Case Used To Argue For Client's Release

By Matt O'Connor, Tribune Staff reporters

Last week, Andre Seymour was facing life imprisonment for his federal drug conspiracy conviction in Chicago. This week, his lawyer is asking a judge to release him from custody because of a U.S. Supreme Court ruling that could have a profound effect on federal courts across the nation.

The high court decision has raised constitutional problems with judges increasing convicted defendants' sentences based on evidence not presented to juries while using a lesser standard of proof than beyond a reasonable doubt.

Although the decision dealt with a Washington state case, legal experts believe it will dramatically affect similar federal sentencing laws and impact potentially tens of thousands of criminal cases awaiting trial or sentencing or that are on appeal.

As a result of the Blakely vs. Washington decision, Seymour's lawyer, Robert Loeb, filed papers this week in federal court in Chicago seeking his immediate release. Loeb contends that because prosecutors didn't prove during the trial that Seymour personally sold any drugs, the longest sentence he could face under the federal guidelines is 21 months in prison. He has already served 26 months.

But prosecutors had been seeking life imprisonment because of Seymour's involvement in a round-the-clock crack cocaine operation near an elementary school in Chicago Heights. He was convicted of conspiring to sell drugs.

"Blakely is a tidal wave," Loeb said.

U.S. District Chief Judge Charles Kocoras said the high court's decision has created "mass uncertainty" concerning the continued viability of the federal sentencing guidelines.

Citing the ruling, a federal judge in Utah held the guidelines unconstitutional on Tuesday.

As long as this period of uncertainty continues, "it can produce chaos," Kocoras said.

Randall Samborn, a spokesman for U.S. Atty. Patrick Fitzgerald, said federal prosecutors are handling the situation on a case-by-case basis while waiting for guidance from the Justice Department.

Prosecutors have had to scramble, sometimes trying to figure out what to do this week during trials. On Thursday, the sentencing of Thomas Conwell, who pleaded guilty to fraud, was postponed because of the Blakely decision.

"It's a brave new world," U.S. District Judge Robert Gettleman, presiding over the case, quipped to lawyers.

Among the possible beneficiaries of the decision is businessman Michael Segal, convicted last week of fraud and racketeering. The defense is likely to maintain that the jury wasn't asked to decide the extent of the losses for which he was responsible, a key factor in deciding his sentence. Prosecutors, though, could point out the same jury ordered him to forfeit $30 million.

Jeffrey Cole said the ruling could also affect another high-profile defendant, former Chicago Police Deputy Supt. William Hanhardt, convicted of heading a jewelry-theft ring.

Another lawyer, Marc Martin, said that in the last week he has received calls from inmates at the Metropolitan Correctional Center abuzz over the ruling's impact. "Everyone at the MCC thinks the doors are going to open," he said. "But I think courts will bend over backwards to give the Blakely decision a narrow interpretation."

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