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July 21, 2004 - The Miami Herald (FL)

Supreme Court Asked to Rule on Sentences

By Anne Gearan, Associated Press

WASHINGTON - The Bush administration appealed to the Supreme Court Wednesday to quickly rule on the constitutionality of federal sentencing rules, a two-decade-old system that the court placed in doubt with its ruling last month striking down a similar state sentencing program.

The administration's top Supreme Court lawyer filed two rush appeals involving federal drug cases, and asked the high court to hear the cases as soon as September. The court gave lawyers for the drug defendants a week to file paperwork in response.

"The federal sentencing system has fallen into a state of deep uncertainty and disarray about the constitutional validity of the federal sentencing guidelines system," Acting Solicitor General Paul Clement wrote in asking the high court to move quickly.

The government appeals had been expected since the Supreme Court ruled in June that juries, not judges, must consider any factor that could lengthen a defendant's sentence beyond the maximum set out in state sentencing guidelines.

Dissenting justices in the 5-4 ruling had warned that the ruling would undermine if not destroy the 17-year-old federal system, which was meant to make sentencing fairer by reducing disparities among punishments handed out by different judges.

The Supreme Court is on its summer hiatus, but lawyers and law professors predict the justices will agree within days to add the new cases to its calendar for the fall. The justices ordinarily return to work in October, but Clement suggested the court could settle the sentencing question faster if they held a special session in September, as they did last year in a complex campaign finance case.

Clement noted that federal trial judges and appeals courts have divided over whether the Supreme Court's ruling in Blakely v. Washington invalidates the federal sentencing system, with some judges concluding that they cannot continue sentencing criminal defendants under the old rules.

"The number of cases potentially affected is staggering," Clement wrote. "There are approximately 64,000 federal criminal defendants sentenced under the guidelines each year," which breaks out to about 1,200 a week, he wrote.

"Given the current disarray, a very large percentage of those cases may result in unlawful sentences."

The number of cases affected will only grow longer if the high court waits to settle the question, Clement said.

Adding to the split in the circuits, the 9th U.S. Circuit Court of Appeals, based in San Francisco, ruled Wednesday that Blakely does apply to federal sentencing guidelines.

The nation's largest federal appeals court was meeting at its annual conference in Monterey, Calif., when it issued its ruling.

About an hour before the ruling was released, Deputy Attorney General James Comey addressed the group and repeated the government position that the Blakely ruling "did not reach the federal sentencing guidelines."

Clement also defended the guidelines in the criminal cases sent to the court Wednesday.

In one of the appeals, a panel of the 7th U.S. Circuit Court of Appeals in Chicago threw out a Wisconsin man's sentence because a federal judge, acting alone, decided how much drugs were involved, and that the man had obstructed justice.

The appeals court said that Freddie Booker was entitled to have those decisions made by a jury, beyond a reasonable doubt.

Booker's appeal was pending at the Chicago court when the Supreme Court ruled last month. The appeals court reheard arguments in the case and ruled three days later that the federal guidelines, as used in Booker's case, were unconstitutional.

The second case involves a Massachusetts man convicted in Maine of conspiracy to distribute cocaine and set for sentencing four days after the Blakely ruling was issued. The judge in Ducan Fanfan's case was prepared to impose a sentence of between 15 years and 16 years, based in part on facts that were not part of the jury trial.

The judge reconsidered because of the Supreme Court case, and Fanfan was sentenced instead to about six years in prison.

The case is on appeal to the 1st U.S. Circuit Court of Appeals in Boston, but Clement argued that the Supreme Court shouldn't wait for that intermediate court to rule. In a highly unusual move, Clement asked the high court to skip the appeals court step and simply review the case now.

Also Wednesday, the Senate passed a unanimous, nonbinding resolution asking the Supreme Court to resolve the sentencing question quickly.

Judiciary Committee Chairman Sen. Orrin Hatch, R-Utah, said he would have preferred a stronger statement from Congress in defense of the guidelines, but "we simply just ran out of time."

Congress is near its summer recess.

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