July 12, 2004 - The Tampa Tribune (FL)
Confusion Rules In Federal Courts
By Elaine Silvestrini of the Tribune
TAMPA - As U.S. District Judge Richard Lazzara sentenced defendant after defendant on Friday, the name of one person not in the courtroom hung heavy in the air.
Ralph Howard Blakely Jr., a kidnapper from Washington state, has sent federal judges across the country into a spin because his successful appeal to the U.S. Supreme Court may mark the end of federal sentencing practices.
In ruling for Blakely, the high court invalidated Washington state's sentencing law, which experts say is very similar to federal sentencing guidelines.
Although the sharply divided Supreme Court said in its ruling June 24 that it was not addressing the federal guidelines, some experts believe the reasoning in the Blakely opinion will result in the demise of the guidelines.
Until the effect of the Blakely case is sorted out, confusion rules in many federal courtrooms.
"It is very chaotic," said Chief Judge Patricia Fawsett, who presides over the Middle District of Florida, which includes Tampa. "It's a most unusual time."
"I like the word quagmire," said U.S. Attorney Paul Perez.
Federal judges in Boston and Utah have already held the guidelines unconstitutional based on the Blakely decision, Fawsett said.
In general, there are two ways a federal sentence is determined. First, there is a law that defines each crime and provides minimum and maximum sentences for it.
Second, there are sentencing guidelines, established by a congressionally created commission, that spell out where, within the range, a sentence must fall. That place depends on a number of specific factors, such as the defendant's role in the crime. These factors are determined by a judge, not a jury.
In a boat drug trafficking case, for example, a captain may be deemed more responsible and deserving of a higher sentence than a crewman.
Use Of Information Reined In
The federal guideline scheme is similar to the Washington state law that the Supreme Court threw out. Washington state also has laws that define crimes and give broad sentencing ranges. Washington has another law that sets out where, within the range, a particular defendant should be sentenced, depending on specified factors.
The Supreme Court held that Washington state's guideline law was unconstitutional because it required judges to impose sentences based on specified facts not established by a jury or admitted by a defendant when pleading guilty.
In the Washington case, the judge ruled that Blakely had committed his kidnapping with "deliberate cruelty" and sentenced Blakely to 7 1/2 years in prison. Blakely, who pleaded guilty to the kidnapping, denied the deliberate cruelty.
Under Washington's kidnapping law, the maximum sentence is 10 years. But the standard guideline range in Washington for the crime was four years and one month to four years and four months. The Supreme Court held that the judge should not have departed from the standard guideline range.
Without guidance from the high court, federal judges are reacting in different ways to the Blakely ruling.
"We are all independent," Fawsett said. "There is no party line. There is no getting together, voting and saying, 'Let's do it that way.' Each judge is going to have to make up her own mind or his own mind about what to do."
As for what she is going to do, Fawsett said, "I haven't decided yet."
U.S. District Judge Susan Bucklew said, "I'm not sure what I'm going to do. I don't think anybody is sure what to do. ... It is an extremely stressful time."
The Justice Department, for which Perez works, takes the position that Blakely has no effect on federal sentencing. "So it's business as usual and we should go on," Perez said.
However, he said, just in case courts rule otherwise, prosecutors are reviewing options, such as requiring defendants who enter into plea agreements to waive any rights they might have under the Blakely ruling. Prosecutors also will ask defendants to admit to more details of their crimes than they have in the past.
The Blakely ruling prompted at least one Tampa judge to postpone a case last week. U.S. Magistrate Elizabeth Jenkins, citing the case, put off a scheduled guilty plea by a member of a Colombian paramilitary organization called the AUC.
U.S. District Judge Elizabeth Kovachevich, who is awaiting a jury verdict in a trial, has scheduled a hearing for today over whether a second hearing will be necessary if certain defendants are convicted so that the jury may consider sentencing issues.
"I think the judges are really struggling with what to do," said James Felman, a Tampa lawyer who serves on an advisory committee for the U.S. Sentencing Commission. "In my view, any judge that holds that Blakely does not apply is going to get reversed, ultimately."
Felman said he thinks Congress will act to circumvent the Blakely ruling by enacting a law that adjusts sentencing guidelines so that judges will have free rein to impose high sentences.
At the same time, the law would retain current restrictions on judges' ability to give low sentences. "It will end the sentencing guidelines in just an absolutely tragic way," Felman said. "That's my fear."
Jeffrey G. Brown, president of the Tampa Bay Federal Bar Association, said he and other lawyers are reviewing case files to determine which sentences can now be appealed because of the Blakely ruling. "We're looking to file a lot of appeals in cases that go back four or five years," he said.
In his sentencings on Friday, Lazzara repeatedly ruled that the Blakely case does not apply to federal guidelines.
"Until told otherwise by the 11th Circuit Court of Appeals or the U.S. Supreme Court, my position is it does not affect the sentencing guidelines," he said in case after case.
Reporter Elaine Silvestrini can be reached at (813) 259-7837.