August 15, 2004 - The Wisconsin State Journal (WI)
Drug Seller's High Court Case Tests Judges' Power
By Ed Treleven
Had its timing been different, Freddie Joe Booker's appeal of his 30-year federal prison sentence might only have garnered a routine review and perfunctory denial.
Booker, a convicted Beloit crack cocaine dealer, instead finds his case on a fast track for argument before the U.S. Supreme Court, sharing the spotlight with a Maine case in the debate over the fairness of federal sentencing guidelines.
For the sudden glare of the spotlight, Booker can thank a Washington kidnapper named Ralph Howard Blakely Jr.
Blakely's case, in which the Supreme Court struck down sentencing guidelines used by the state of Washington, sent shock waves through the federal bar in June, when the court issued its decision. Federal courts have used a similar sentencing scheme since 1987 and now there is fear -- or anticipation -- among attorneys that the decision will lead to the downfall of some or all of the federal sentencing guidelines.
Thousands of cases pending in federal district and appeals courts now hang in the balance. Thousands more federal prisoners whose appeals have been exhausted are also looking for ways to retroactively change their sentences based on the Blakely decision.
And until Booker's case is decided by the Supreme Court, there is some disagreement in federal courthouses about how to handle cases pending in court and about whether the Supreme Court will let the sentencing guidelines stand.
"It's caused quite a bit of consternation in the federal courts," said Charles Giesen, a Madison lawyer who practices in federal court. Like Giesen, Madison lawyer and former federal prosecutor Chris Van Wagner is among lawyers who favor abandonment of the sentencing guidelines.
"I must say that the guidelines should disappear because this is a 20-year experiment that has not succeeded," Van Wagner said. The intent of the guidelines was to equalize sentences for similar crimes across the U.S.
Others, like U.S. Attorney J. B. Van Hollen, believe the guidelines and the tough sentences they have brought have contributed to a decline in violent crime in the U.S.
Still others, like Booker's attorney, T. Christopher Kelly, believe that with a few changes, the guidelines can still work.
"Deliberate cruelty" In June, a sharply divided U.S. Supreme Court ruled 5-4 that the state of Washington guidelines under which kidnapper Ralph Howard Blakely Jr. was sentenced are unconstitutional. The court said the guidelines require that judges base sentences on facts decided by the judge, not by juries.
The judge added to Blakely's sentence after he ruled that Blakely had committed his kidnapping with "deliberate cruelty." That gave Blakely a sentence that was more than three years longer than it would have been without the judge's cruelty finding.
Federal sentencing guidelines are similar. Generally, defendants being sentenced are given a numerical score based on the crime they committed and that score determines a range of possible sentences the judge can impose. The score can be lowered by such factors as acceptance of responsibility, or increased by other factors, including role in the offense, perjury during a trial and criminal history.
In drug offenses, the score can be increased based on the amount of drugs involved, even if that amount hasn't been proven beyond a reasonable doubt.
"I have seen folks go down for lengthy, lengthy sentences based on little information that was found to be credible by a judge," said Dennis Ryan, a Madison lawyer who practices in federal court.
The Blakely decision did not specifically decide the validity of federal sentencing guidelines. In the meantime, however, some federal courts are adapting their own sentencing procedures while others are, for now, ignoring the Blakely decision altogether.
In Madison, federal prosecutors are taking steps such as adding details to indictments to be used at sentencing. The district court's two judges are issuing contingency sentences for defendants. Defense attorneys are also finding that Blakely has been at least mildly helpful to them in court at sentencing hearings.
"It's given me some extra teeth," Ryan said. "I just don't know if they're baby teeth or fangs."
That's where Freddie Joe Booker enters the picture.
30-year term Booker was on parole for dealing cocaine on Feb. 26, 2003, when he was arrested by Beloit police. Court records indicate that Booker had just sold crack to a customer when police arrived to investigate a trespassing call. Police found 92 grams of crack in his duffel bag. He also admitted to police that he had, in the past, sold another 566 grams of crack.
Booker was tried in September and found guilty of two counts of possessing more than 50 grams of crack cocaine with intent to deliver. But when he was sentenced in December, U.S. District Judge John Shabaz held Booker responsible for the additional 566 grams of crack. Under federal sentencing guidelines, the added drugs bumped Booker from a maximum of nearly 22 years in prison into a sentencing range of 30 years in prison to life. Shabaz gave Booker 30 years in prison.
But in a 2-1 decision issued just weeks after the Supreme Court's Blakely decision, the 7th U.S. Circuit Court of Appeals overturned Booker's sentence and ordered that Shabaz re-sentence him. The court ruled that, as in the Blakely decision, Booker's 6th Amendment trial rights had been violated because Shabaz, and not a jury, had found Booker responsible for the additional 566 grams of crack.
The government immediately appealed Booker's case to the Supreme Court. Because of the confusion that its Blakely decision has caused, the court put the case on a fast track, along with a Maine case that also involves sentencing guidelines. Arguments before the court are set for Oct. 4. It could rule by the end of the year.
Booker, 50, is serving the remainder of a 10-year sentence for a Rock County drug conviction at the state's Oshkosh Correctional Institution. He will begin serving his federal sentence after his release from Oshkosh in February.
Booker declined to be interviewed for this story. An Oshkosh correctional official said Booker has become wary of the attention that his once-routine drug case has suddenly gained.
On its face, Kelly said, the Booker case is not unusual, involving a drug dealer who has been in and out of state prison for years. The federal sentence, however, came as a shock to Booker, he said, in part because of the amount of discretion that federal judges have.
"The issue we've raised, it doesn't matter what a jury thinks you did," he said. "It's what a judge thinks you did."
Kelly said he has raised the 6th Amendment argument in federal sentence appeals before. But with Blakely on his side this time, the Booker case is his first win on that basis.
This also isn't Kelly's first appearance before the Supreme Court. In 1990, Kelly argued that LSD sentences should not be based on the weight of the drug sold but on the number of doses. He lost in a 7-2 decision.
A risky proposition Attorneys Van Wagner and Giesen said the guidelines should be abolished, if only to allow judges to once again sentence defendants on individual merits, rather than using the guideline's one-size-fits-all approach.
In many cases, they said, the guidelines make going to trial a risky proposition for defendants. That's because if a defendant loses, judges will essentially punish the defendant at sentencing for not having accepted responsibility for their crimes. And if defendants testify at their trials, judges often rule at sentencing that they've obstructed justice because their version of the story doesn't square with the prosecution's version of events.
Getting rid of the guidelines, Van Wagner said, would greatly reduce the number of appeals. He estimates that 70 percent of criminal appeals involve sentencing guideline issues.
Kelly, however, is not so eager to abandon the guidelines. Ideally, he said, most of the sentencing guidelines would still apply because they bring uniformity to sentences for the same crimes all over the U.S. But the fact-finding authority that judges are granted during sentencing should end, he said, because that is what drives up sentences.
U.S. Attorney J.B. Van Hollen said his office will adapt to whatever decision the Supreme Court makes in the Booker case, as it has adapted to the court's ruling in the Blakely case. But he said the guidelines should remain as they are because the tough sentences have helped stem violent crime.
"The sentencing guidelines as they have existed have proved to be effective in the fight against crime," Van Hollen said.
While Blakely and Booker will affect ongoing cases in district and appeals courts, it's not clear whether federal prisoners whose appeals have been exhausted will be able to retroactively re-open their sentences. That question is being pursued by students of Judy Olingy, clinical associate professor at the UW-Madison Law School's Remington Center.
Five students who are part of the center's "Oxford Project," as it is informally known, spend 12 weeks working on the cases of federal prisoners at Oxford Federal Correctional Institution in Adams County.
"I think there are some good, solid, strong arguments about why it should (apply retroactively)," Olingy said.
But she said courts might deny those types of appeals simply because of the huge number of prisoners who would file them if allowed.
Ryan said he doubts that the decisions would apply to older cases.
"I would hope there would be some allowance for backward looks," he said, "but at what point do you stop?"