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June 2, 2005 - The Los Angeles Times (CA)

Court Rules Sentences Can Be Challenged

Decision In Response To Supreme Court Ruling On Mandatory Sentencing Guidelines

By Henry Weinstein

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Blakely News Archive

LOS ANGELES ­ The 9th U.S. Circuit Court of Appeals ruled Wednesday that thousands of inmates in nine Western states could challenge prison sentences imposed before the U.S. Supreme Court freed judges from mandatory sentencing guidelines.

Wednesday's ruling by the 9th Circuit, based in San Francisco, is the latest from federal appeals courts sorting out the effect of a landmark Supreme Court ruling that sentencing guidelines were no longer binding on federal judges.

To eliminate disparities in federal sentences across the country, Congress in 1987 imposed guidelines instructing judges to raise or lower sentences based on factors, such as the amount of money or drugs that changed hands in a narcotics case. The high court in a January decision, U.S. vs. Booker, however, ruled that only a jury could determine facts used to set penalties.

Judges, however, were allowed to continue to consult the guidelines on an advisory basis.

However, the Booker ruling was far from clear on how lower courts should treat the cases of prisoners already sentenced under the guidelines. Some federal appeals courts have adopted a strict standard for defendants to win resentencing, though other appellate courts adopted a more liberal yardstick.

The 9th Circuit on Wednesday steered a middle course, saying that the only practical way to find out whether the sentence would have been "materially different" without mandatory guidelines is to go back and ask the original judge.

If the judge concludes that the outcome would have been the same, then the original sentence stands, although it can still be appealed to determine whether it was "reasonable," the 9th circuit said. If the judge decides that the outcome would have been different, he or she can vacate the sentence and conduct a new sentencing hearing, the court said.

The majority, led by Judge Johnnie B. Rawlinson, of Las Vegas, said that sending the cases back to the original judge was the "only practical way (and it happens to be the shortest, the easiest, the quickest, and the surest way) to determine whether" the defendant had been treated unfairly at the original sentencing.

"If we decline to find out what the district court knows ... the defendant will surely feel abused, with some justification, and everyone will be left to wonder about whether the sentencing court might have acted differently," Rawlinson wrote. "It seems to us that would itself undermine the fairness, integrity and public reputation of the judicial proceedings, something we should try to avoid."

Wednesday's ruling stemmed from the case of Alfred A. Ameline, who pleaded guilty in Great Falls, Mont., in 2002 to distributing less than a pound of methamphetamine, which would have carried a 16-month sentence. Under the sentencing guidelines, U.S. District Judge Sam E. Haddon raised the penalty to 12 1/2 years, based on a pre-sentencing report by a federal probation officer saying that Ameline had sold more than three pounds of the drug.

Although all 11 judges on the 9th Circuit panel agreed that Ameline was entitled to resentencing, four judges issued sharp dissents to the overall approach of the majority, and expressed concerns about the possible consequences of the ruling for the administration of justice.

The dissenters, led by Judge Kim Wardlaw of Pasadena, said the majority had abdicated its responsibilities by sending the resentencing controversy back to the lower courts to resolve.

.Wardlaw also the decision created a number of practical problems, such as who would review the sentence when the original sentencing judge had retired.

Wardlaw, herself a former district court judge in Los Angeles, noted that the recent retirement of her former district court colleague Lourdes G. Baird, who has become a private mediator, "is one but one of many examples." Wardlaw said the chief judge of the district court would have to reassign any of Baird's disputed sentencings "to a currently serving judge who cannot possibly answer the question the majority poses because he was not the original sentencing judge."

"I agree that the majority's approach is `short,' `quick,' and `easy,' at least for our court," Wardlaw wrote. "It relieves our docket of `literally thousands of cases.'... It relieves us of our obligation to review each of those cases individually."

Federal trial judges in the nine affected states, already burdened "with their own heavy dockets," would have to "absorb the avalanche" of reviewing all the cases that will be sent back to them, she said.

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