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February 10, 2005 - The Los Angeles Times (CA)

Sweeping Review Of Sentences Ordered

Hundreds of Inmates Are Affected by Ruling That Lifts Mandatory Terms, U.S. 9th Circuit Finds.

By Henry Weinstein, Times Staff Writer

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Blakely News Archive

Hundreds of federal prisoners in California and eight other Western states will have to be resentenced under a ruling by the U.S. 9th Circuit Court of Appeals in San Francisco on Wednesday.

The ruling was the first action from the appeals court after a landmark U.S. Supreme Court decision last month on sentencing in federal cases.

The Supreme Court ruled that the federal government's sentencing guidelines could not be binding on judges. As a result, federal judges are free in pending cases to give prison terms that are shorter or longer than those called for under the guidelines.

But the ruling left unclear how to handle the cases of prisoners who had already been sentenced under the guidelines. The high court left that issue for lower courts to decide.

Federal appeals courts around the country are weighing the issue. "Every circuit has it in front of them, and every circuit will have to speak to it," said Douglas Berman, a professor at Ohio State University's Moritz College of Law who has a widely read Web log on sentencing issues.

The Supreme Court decision has also prompted concern in Congress, leading to hearings in the House Judiciary Committee.

The 9th Circuit interpreted the Supreme Court ruling broadly. It would be only the "truly exceptional case that will not require" resentencing, the unanimous decision said.

That puts the 9th Circuit in line with three other federal appeals courts that have ruled on the issue: the 4th Circuit, based in Richmond, Va., the 6th Circuit in Cincinnati and the 2nd Circuit in New York City.

So far, only the 11th Circuit, based in Atlanta, which ruled Friday, has taken a narrower stand. The Supreme Court may eventually step in to resolve the disagreement among the appeals courts.

Legal experts said it was particularly noteworthy for the 9th Circuit, generally considered the most liberal federal appeals court in the nation, to be on the same side as the 4th Circuit, widely viewed as the most conservative of the nation's federal appellate courts.

The 4th Circuit's decision last month ordered a federal judge in Virginia to resentence a man who had been convicted of bankruptcy fraud.

Fourth Circuit Judge William W. Wilkins, the former head of the U.S. Sentencing Commission, which wrote the federal guidelines, said that the Supreme Court decision "wrought a major change in how federal sentencing is to be conducted."

As a result, Wilkins wrote, leaving a sentence in place "imposed under the mandatory guideline regime, we have no doubt, is to place in jeopardy the fairness, integrity or public reputation of judicial proceedings."

Wednesday's ruling from the 9th Circuit came in the case of Alfred A. Ameline of Box Elder, Mont., who pleaded guilty to distributing methamphetamine.

Ameline pleaded guilty in 2002 to distributing less than a pound of the drug, which would have carried a 16-month sentence. But under the sentencing guidelines, the judge hearing his case was allowed to make the sentence longer based on a pre-sentencing report by a federal probation officer. The report said that Ameline had sold more than three pounds of methamphetamine.

Based on that report, U.S. District Judge Sam E. Haddon in Great Falls, Mont., sentenced Ameline, 62, to 12 1/2 years.

Last year, in a 2-1 decision, the 9th Circuit said the sentence violated Ameline's right to a fair trial because the judge, following the sentencing guidelines, based his decision on facts that were not proved to a jury.

In its latest decision, the appeals court said it was "plain error" for the judge to sentence Ameline based on a pre-sentencing report. The three-judge panel's opinion spoke in broad terms about the need to "ensure fairness and integrity in the sentencing process."

Although the pre-sentencing report "is essential to the sentencing process, there is nothing sacrosanct about the information contained in the report," Judge Richard Paez wrote in the court's opinion.

He was joined by Judges Kim M. Wardlaw and Ronald B. Gould. All three are appointees of President Bill Clinton. Gould, who is generally more conservative than Paez or Wardlaw in criminal cases, had dissented from the earlier 9th Circuit decision in Ameline's case.

Neither Ameline's attorney nor the U.S. attorney who prosecuted him returned calls seeking comment.

One of the main issues in the cases working their way through the courts involving sentencing is which side-the prosecution or the defense-has the burden of proving assertions such as the amount of drugs in question in Ameline's case.

Prosecutors have taken the position that once they provide evidence, the defense has the burden of proving their assertions wrong.

The 9th Circuit rejected that position, saying that the burden of proving assertions that could affect the length of sentencing must be on the prosecutors.

However, the court declined to say how high the burden of proof would be for prosecutors. That means trial judges will have to decide whether the level of proof must be beyond a reasonable doubt-the normal standard in criminal cases-or whether a lower level of proof used in civil cases would be acceptable.

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