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December 28, 2004 - The Wall Street Journal (US)

Double Standard

In Wake Of Ruling, Disarray Plagues Federal Sentencing

Supreme Court's June Verdict Leaves Judges Confused; Some Issue Two Decisions

Mr. Pena Makes An Objection

By Laurie P. Cohen

Return to
Blakely News Archive

NEW YORK -- At Manhattan's federal courthouse, Judge Shira Scheindlin has had a new policy since August: She doesn't sentence any defendants unless they ask for it. Three floors down, Judge Jed Rakoff has a different but equally unusual policy: He gives every defendant two sentences, based on two different sets of rules.

Disarray has enveloped the federal court system for the past six months since a Supreme Court ruling hinted that the guidelines governing federal sentences may be unconstitutional. As federal judges wait, and wait some more, for the divided high court to deliver a final verdict, they have come up with a myriad of ways to sentence defendants.

"To the general public, this signifies a criminal justice system run amok," says J.P. Stadtmueller, a federal judge in Milwaukee.

The Supreme Court ruling on June 24 in the Blakely v. Washington case struck down a system used in the state of Washington that guides judges to boost sentences based on exacerbating factors in a crime -- for example, that the defendant played a leadership role. The Supreme Court said it's unconstitutional to do this unless the defendant has admitted to the exacerbating factor or it has been found true by a jury beyond a reasonable doubt.

While the court's ruling technically applied only to Washington state, many lawyers and judges believe it effectively makes the federal sentencing guidelines unconstitutional too, since they're similar to Washington's. The Supreme Court is now hearing two cases involving the federal guidelines, which are used to sentence 60,000 defendants a year. Many expected the high court to rule this year, but it didn't. The earliest next possible decision date is Jan. 11.

If the Supreme Court rules that its verdict in Blakely applies to the federal guidelines as well, many legal experts expect it to strike down the entire guidelines system. Another option would be to throw out only those parts of the guidelines that deal with sentencing "enhancements."

In the meantime, federal appeals courts have given varying instructions to district courts. Some have ordered district judges to carry on as if nothing has changed. Two appeals courts have ruled the exact opposite: They say the federal guidelines are now unconstitutional until further notice and judges shouldn't follow them as written. Still others say it's up to the individual judge.

The Second Circuit, which includes New York, is one of those that has ordered district judges in the circuit to keep using the federal guidelines until the Supreme Court makes up its mind. In Manhattan, Judge Scheindlin has refused. "The Second Circuit was telling me to act as if June hadn't come and I said I just can't do that," she says. Her solution: For the time being, sentence no one.

Sentencing under the guidelines requires judges to do considerable work to figure out which "enhancements" apply to a defendant. If the Supreme Court shoots down the guidelines, Judge Scheindlin notes, all that work would be wasted. "Who wants to do it again?" she asks. When a defendant agrees, judges can defer sentences indefinitely. So long as the defendant is in jail awaiting sentencing, this is usually fine with prosecutors. In one case a defendant asked Judge Scheindlin to be sentenced right away, but the others were willing to wait because they figured the guidelines could be struck down and they would have a better shot at a light sentence later.

For his part, Judge Rakoff thought about putting off sentencing but worried that he'd be stuck with a huge backlog. "If you put off 15 sentences, that's eight days' work," he says. He is issuing one sentence that assumes that the guidelines will remain in effect and another that will take effect if they don't. For the moment, it's the first sentence that counts.

Many judges have long criticized the guidelines, calling them too rigid and harsh, and welcome the chance to use their discretion. Federal Judge Bill Wilson in Little Rock, Ark., says drug penalties are "far too severe" in many instances. His circuit hasn't ruled on the constitutionality of the guidelines, thus giving him leeway to sentence outside of them. In several recent drug cases he has given lighter sentences than the guidelines would prescribe. However, in another recent case involving a defendant who dumped waste into a stream, Judge Wilson issued a sentence that was tougher than the one called for by the guidelines. Judge Wilson also issues sentences that presume the guidelines are constitutional. He says that about two-thirds of the time, the two sentences are very similar.

In California, which is in one of the two circuits that has ruled the federal guidelines unconstitutional, one high-profile defendant reaped a windfall. Richard I. Berger, the former chief executive of Craig Consumer Electronics, was convicted of bilking banks and investors by presenting false financial figures. Los Angeles federal prosecutors recommended a sentence of more than eight years, alleging that Mr. Berger played a leadership role in the fraud and was responsible for millions of dollars in losses to investors.

But Judge Robert Takasugi said he was "constrained" from boosting Mr. Berger's sentence because of these factors, which the jury hadn't ruled on. He sentenced Mr. Berger in September to just six months in prison.

The hope for leniency extends to prisoners who have already been sentenced under the federal guidelines. If the Supreme Court rules that the guidelines are unconstitutional it might also order that the ruling be applied retroactively, meaning some prisoners could try to get their sentences reduced.

Deluged by prisoner questions, the Federal Bureau of Prisons issued a list of "talking points" this month. "You are probably aware" of the coming Supreme Court ruling, wardens are advised to tell inmates. "It is essential that you understand nothing will happen automatically with your case as a result of the Supreme Court's decision." Instead, the memo explains, any revision of sentences would be up to individual sentencing courts.

If the federal guidelines are judged unconstitutional, one suggested fix is to have juries rule on all the factors that can enhance a sentence. As a temporary measure, the Justice Department has urged federal prosecutors to include these sentencing factors in their indictments.

Ellyn Marcus Lindsay, an assistant U.S. attorney in Los Angeles, is spending days rewriting old indictments to conform with the Justice Department's recommendation. "For six months, I've been dealing with the mess that Blakely created," she says.

In Sioux Falls, S.D., Chief Judge Lawrence L. Piersol says he is asking juries to find drug quantities and that is "simple for them." But financial fraud cases are another matter. Judge John C. Coughenour, chief judge of the Western District of Washington, yesterday completed an eight-week trial involving 87 counts of tax evasion and other fraud. The jurors came back with guilty verdicts against six defendants. "It's not going to be a simple task for a jury to conclude how much the tax loss was," says Judge Coughenour.

In parts of the country where the guidelines are still in effect, one tactic of prosecutors is to press defendants to sign "Blakely waivers" along with a guilty plea. This waiver adds an extra layer of security to the standard pledge in which the defendant promises not to contest the sentence resulting from the guilty plea. The waiver says that even if the Supreme Court rules the guidelines unconstitutional, the pledge still holds - -- in other words, that the defendant can't use a high court ruling as an excuse to contest his sentence.

New York defense lawyer Robert Morvillo, who represented Martha Stewart in her criminal trial this year, balked when Brooklyn federal prosecutors asked one of his clients to sign a Blakely waiver in a recent tax-evasion case. "What if the Supreme Court declares the guidelines unconstitutional?" Mr. Morvillo says he responded. "How can you force a judge to sentence under an unconstitutional sentencing system and me to waive my client's rights? That would be malpractice." Mr. Morvillo successfully persuaded prosecutors to allow him to challenge the sentence if the Supreme Court declares the guidelines unconstitutional.

Roslynn Mauskopf, the U.S. attorney in Brooklyn, says defendants waive many rights when they plead guilty, including the right to a jury trial, and there is nothing special about waiving the right to appeal a sentence if the law changes. She notes that the Justice Department has encouraged prosecutors to seek Blakely waivers.

One of the nation's busiest federal courtrooms is in Laredo, Texas, where Judges Keith Ellison and George Kazen together sentence about 2,800 defendants a year, mostly on drug or alien-smuggling charges. The appeals court of the Fifth Circuit, which includes Texas, is one of those that has directed judges to rule as if nothing has changed.

By 9 a.m. on a recent Wednesday, the third-floor courtroom in Laredo's new federal courthouse was packed with prosecutors, lawyers, handcuffed defendants and family members. Many of the defendants faced significant extra prison time because of enhancements based on the amount of drugs they smuggled or the number of aliens they tried to ferry across the border with Mexico, which is right across the Rio Grande from Laredo.

Public defenders in the region have been challenging the use of these enhancements based on the Supreme Court's Blakely ruling. Judge Ellison politely but firmly dismissed each challenge as he sentenced 14 defendants in just over three hours. "In our circuit, the guidelines are constitutional, so while your objection is noted for appeal, it is overruled," he told defendants and their lawyers.

Still, says Laredo defense lawyer Oscar O. Pena, "right now, if you're not making a Blakely objection, you're not doing your job." It's especially important, he says, "in situations where we know intuitively that we wouldn't punish a guy as much as the guidelines do."

On this day, Mr. Pena was representing a 19-year-old drug addict who was arrested in a warehouse that held four tons of marijuana. The young man claimed he had been hired to package the drugs . While out on bond, he failed a routine drug test. Fearful of being imprisoned before his sentencing, he cut off his electronic monitor bracelet and fled to Mexico. Days later, he returned and turned himself in to authorities in Laredo.

Judge Ellison ruled that the defendant's role in the marijuana distribution scheme was a minor one. Nonetheless he sentenced the defendant to three years and 10 months in prison, as the guidelines mandated. Mr. Pena thinks he might be able to get that reduced if the guidelines are overturned.

Judge Ellison says he often used to issue sentences below the range recommended in the guidelines. But last year a law called the Feeney Amendment passed by Congress demanded that judges who "depart downward" explain their rationale to the Justice Department in writing. Judge Ellison says he now departs downward only when prosecutors recommend it. In other cases, he typically sentences at the low end of the guidelines range.

One particularly thorny case involved 24-year-old Manuel De La Fuente, who pleaded guilty to possessing and intending to sell about 220 pounds of marijuana. While his sentencing for that crime was pending, he escaped from a San Antonio jail, only to be recaptured. The federal guidelines called for Mr. De La Fuente's drug sentence to be boosted because he obstructed justice by escaping -- even though he faced separate charges for the escape in San Antonio.

Homero Martinez, Mr. De La Fuente's lawyer, argued that it was unfair to punish his client twice for the escape. That argument prompted Judge Ellison to wonder aloud how such cases might be handled if the Supreme Court strikes down the federal guidelines in line with its Blakely ruling. "It really does raise an interesting Blakely question," he mused. "I'm wondering, under Blakely, what we do about post-indictment conduct. Would it have to be subject to a new indictment?"

Then the judge returned to the real world of the Fifth Circuit. He concluded that Mr. De La Fuente should have his prison time extended because of his escape and handed down a sentence in line with the prosecutors' request: 10 years and five months.

"We're going to proceed with this sentence today," Judge Ellison said. "But if the Supreme Court intervenes, we may have to revisit it."

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