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July 21, 2004 - The Knoxville News-Sentinel (TN)

Court Backpedals On Ignoring Federal Sentencing Guides

For Federal Judges In Tennessee, Freedom Has Proved Fleeting

By Jamie Satterfield

Just five days ago, federal judges in the Eastern District, which includes Knoxville, were told they were free to sentence criminals as they saw fit.

Late Monday, however, those same judges received word that they are once again bound by federal sentencing guidelines, which set out the range of punishment a judge can impose.

For those who hailed last week's ruling by the 6th U.S. Circuit Court of Appeals that gave federal judges the green light to treat guidelines as mere advice, news of the court's decision to reconsider its own ruling was disheartening.

"It didn't even last a week," said Federal Defender Beth Ford, whose office defends people accused of committing federal crimes.

To those proponents of the mandatory, mathematical, gridlike guidelines, the appellate court's decision was heartwarming.

"We're glad that the entire court is going to consider the issue," said First Assistant U.S. Attorney Russ Dedrick, whose office prosecutes alleged federal criminals.

Both concede, however, that the fast-paced flip-flop does little to bring clarity to what has become a confusing situation in the wake of a U.S. Supreme Court decision that seems to call into question sentencing schemes across the nation.

"Now, we're all back to scratching our heads," Ford said.

The nation's high court on June 24 issued a ruling in the case of Washington State v. Ralph H. Blakely Jr., opining that Blakely's Sixth Amendment right to a jury trial was violated when a judge jacked up Blakely's sentence based on conduct a jury never had a chance to decide he committed.

No sooner had the ruling been made than a furor erupted over whether the Blakely decision impacted the way criminals are sentenced in the federal court system and whether it had any effect on states with sentencing schemes similar to the procedure used in Washington.

The Cincinnati-based 6th Circuit, which rules on cases in Tennessee, Ohio, Kentucky and Michigan, issued a ruling July 14 that said the Blakely decision rendered the federal system's method of doling out punishment as unconstitutional. The ruling is known as the Montgomery decision.

Because of that, the ruling said, federal judges in those four states were now free to consider the sentencing guidelines as "advisory only."

There are nine judges on the 6th Circuit panel, but only three had issued the Montgomery decision. The U.S. Department of Justice's appellate division cried foul and promptly asked for a review by the entire court, known as an en banc review.

Late Monday, the 6th Circuit panel issued an order approving an en bank review and vacating the Montgomery decision until the full court panel decides the case.

Dedrick said it was imprudent for only three of the nine judges to issue a ruling that had such a monumental impact. After all, he noted, the Montgomery decision declared the very foundation of the federal sentencing structure as unconstitutional.

"It is of such a magnitude that it is only reasonable ( the entire panel decide the issue )," Dedrick said.

But defense attorney David Eldridge argued the Montgomery decision was not foolhardy but instead "illustrates the frustration that many federal judges have expressed with the mandatory sentencing structure the guidelines have imposed."

There is a split among federal appellate courts across the nation on whether the Blakely decision has any impact at all, and everyone in the legal system is looking to the U.S. Supreme Court for a final answer. The high court is out of session until mid-September, however.

Dedrick said the Justice Department "has taken the position the guidelines are constitutional."

Dedrick said his office, headed by U.S. Attorney Sandy Mattice, is trying to tread carefully until a final decision is rendered.

"We're attempting to deal with each case on a case-by-case basis," Dedrick said.

Ford and Eldridge agree the 6th Circuit plans to act quickly in deciding whether the Blakely decision spells doom for the federal sentencing guidelines.

"I think it's on a fast track," Ford said.

The court has asked both sides in the Montgomery case to submit their arguments by July 28.

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