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August 3, 2004 - The New York Times (NY)

Justices Agree to Consider Sentencing

By Lyle Denniston

WASHINGTON, Aug. 2 - The Supreme Court on Monday agreed to rule on the constitutionality of the guidelines for federal criminal sentences. By acting in its summer recess, the court signaled a sense of urgency about resolving some of the turmoil in the lower courts stirred up by a decision from the Supreme Court itself.

The court set a hearing for the afternoon of opening day of the justices' new term, Oct. 4, to review two appeals by the Justice Department.

At the heart of the cases is the impact, if any, on federal sentencing guidelines of a ruling that the court issued less than six weeks ago, in the case of Blakely v. Washington, involving state sentencing guidelines. In the aftermath of that ruling, which strictly limited judges' power to increase sentences, lower courts have issued more than three dozen rulings, sometimes flatly contradictory, in federal cases.

Many of those judges have ruled the guidelines unconstitutional. A federal judge in Boston, Nancy Gertner, said in an opinion last week that the Blakely decision "has effected nothing less than a sea change" in federal criminal sentencing.

Justice Sandra Day O'Connor, who dissented in the 5-to-4 Blakely decision, told a group of federal judges last month that the decision "looks like a No. 10 earthquake to me."

The order issued by the justices on Monday sets review on two issues: whether the June 24 decision means that the Sixth Amendment limit on letting judges increase sentences applies to the federal guidelines and, if it does, whether the entire guideline system set up by Congress in 1984 is unconstitutional because Congress would not have intended to create the system at all without assigning judges that role.

The Justice Department's top advocate before the Supreme Court, Acting Solicitor General Paul D. Clement, raised those issues in two appeals. Although criminal defense lawyers urged the court to expand its review beyond the specific questions that Mr. Clement posed, the justices declined to do so after Mr. Clement said that the issues he framed would set the stage for a wide-ranging review of the guidelines' validity.

The guidelines, created by Congress in an effort to make sentencing in federal cases more uniform, set up a series of punishment ranges for specific federal crimes, and a judge generally must follow those. But the guidelines also empower the judge to increase a sentence, based upon the judge's conclusions that the crime may have been more serious than the jury found.

One of the cases that the court will hear in October involves Freddie J. Booker, 50, of Racine, Wis., who was convicted of possessing crack cocaine and distributing it. He was sentenced to 30 years in prison by a federal judge, even though a jury had concluded that Mr. Booker actually distributed a lesser amount of cocaine that would have resulted in a lesser sentence than the judge imposed. The United States Court of Appeals for the Seventh Circuit, in Chicago, ruled June 30 that the Blakely decision nullified that longer sentence, and it ordered a new sentencing hearing.

The other case involves Ducan Fanfan, 30, of Somerville, Mass., who was convicted in Portland, Me., of conspiring to distribute crack cocaine. The judge, acting after the Supreme Court ruling in the Blakely case, sentenced Mr. Fanfan to 6 years, instead of the 15 to 19 years specified in the guidelines. The justices agreed to review that case even before the United States Court of Appeals for the First Circuit, in Boston, had a chance to rule on it.

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