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10-03-2004, 08:49 AM
Found on FPPP/Yahoo
http://news.tbo.com/news/MGBJKGMKUZD.html
Oct 3, 2004
Federal Sentencing Rules Face Tough Test
By ELAINE SILVESTRINI
esilvestrini@tampatrib.com
TAMPA - Defense lawyer Frank Louderback says waiting for the U.S. Supreme Court to weigh in on federal sentencing guidelines is similar to bracing for a hurricane to make landfall.
``You know it's coming, but you don't know if it's going to hit you,'' Louderback said. ``Everybody's kind of running around trying to figure out what's going to happen, and if it will hit you, how to prepare yourself. ... It's a strange situation.''
Or as U.S. Attorney Paul Perez put it, ``We're just kind of holding our breath at this point because we're in a holding pattern until we see what happens.''
``Hurricane Blakely,'' Louderback said, ``is coming out of Washington.''
Blakely v. Washington is the name of a case in which the U.S. Supreme Court's July 24 ruling declared unconstitutional the sentencing statute in the state of Washington.
The case has reverberated in federal courthouses nationwide as legal experts see strong parallels between Washington's sentencing law and federal sentencing guidelines. The high court struck down the Washington law because - like the federal guidelines - it required judges to set sentences based on facts not determined by a jury or admitted by a defendant.
The Blakely case involved a kidnapper whose sentence was lengthened because the judge concluded the man had acted with ``deliberate cruelty.'' The defendant, who pleaded guilty to kidnapping, denied he had acted with such cruelty.
Many expect the 5-4 Blakely ruling to spell the end of the federal sentencing rules. No one is quite sure, if that happens, how federal sentencing will change.
After the Blakely decision, some judges, including in Orlando, have ruled federal sentencing guidelines unconstitutional, and others have ruled just the opposite. Federal judges in Tampa have continued to abide by the guidelines.
Congress called on the Supreme Court to step in and clear up the confusion, and the justices agreed to hear oral arguments in two cases Monday.
In September, the Atlanta- based 11th U.S. Circuit Court of Appeals, which covers Tampa, upheld the federal guidelines, for now. The appeals court said in an Alabama case that it would not overturn the guidelines unless the Supreme Court strikes them down.
Ruling in the case of Eric Orlando Reese, the appeals court also noted that the current situation is unstable. The court said judges might want to take precautions in case the Supreme Court changes or strikes down the guidelines, but the 11th Circuit did not say what those precautions should be.
Federal sentences are determined in two steps. The parameters are set out in federal criminal laws giving ranges of possible sentences for particular crimes. For example, a specific crime might carry a possible prison sentence ranging from 10 years to life.
Where the sentences must fall within the ranges is determined by federal sentencing guidelines that employ complicated formulas centering on numerous facts, such as the defendant's role in the offense. For instance, the leader of a drug organization would receive a tougher sentence than a low-level dealer. Likewise, someone involved in importing tons of cocaine into the country would receive more prison time than someone who imported a smaller amount.
The state of Washington's sentencing laws followed a similar scheme. The main difference was that the sentencing guidelines there were established under a separate legislatively enacted law. The federal guidelines, on the other hand, were crafted by a commission set up by Congress.
Both guideline schemes required judges to determine sentences based on facts not ruled on by a jury or admitted by a defendant when entering a guilty plea. In striking down the Washington law, the Supreme Court held this was a violation of the Sixth Amendment right to a trial by jury.
Windfall For DefendantsIf the court applies the ruling to strike down the federal guidelines, it could be a windfall for defendants, at least in the short term. Many believe that the result could be the overturning of untold numbers of sentences. While many might receive new sentences that are just as long, others could see reductions in their time behind bars.
Those most likely to benefit by such a ruling are those who have raised the issue already. Consequently, defense attorneys in federal courtrooms across the country are almost universally raising objections to sentences on the grounds that the guidelines are unconstitutional.
On the other side, prosecutors are trying to protect sentences from possible challenges by requiring defendants pleading guilty to waive their right to file appeals based on the Blakely ruling.
In at least one instance, a judge in Tampa submitted questions to a trial jury in an effort to have the panel decide factual issues relevant to sentencing. The questions went beyond determinations of guilt or innocence of specific offenses. Some federal prosecutors have obtained detailed statements from grand juries that go beyond the allegations normally contained in indictments.
``Everybody's sort of jockeying for position in the event the court strikes down the guidelines,'' said James Felman, a Tampa lawyer who serves on an advisory committee for the U.S. Sentencing Commission.
Castillo said: ``I strongly believe the sentencing guidelines are unconstitutional. I filed a motion in each and every case I have.'' Castillo also said the guidelines lead to unfairly long prison sentences by restricting judges from taking special circumstances into consideration.
Felman said that if the court overturns the federal guidelines, he expects that Congress will craft a new sentencing law that complies with the ruling but still limits the discretion of judges.
New Law Might Be TougherEven though defense lawyers are hoping the guidelines are overturned, Jeffrey G. Brown, president of the Tampa Bay Chapter, Federal Bar Association, said replacing them probably would hurt defendants.
``I think we'll end up with a system that is worse for defendants than it is now,'' Brown said. ``It's not going to get better.''
One way the system could get worse for defendants is if Congress, for example, fashions a new sentencing scheme that sets a series of mandatory minimum sentences for particular crimes, giving judges discretion to impose even higher sentences. In other words, judges would be restricted from showing mercy but not from being harsh. Although many defense advocates bridle at the current system, they note that it does set some restrictions on the length of sentences as well as hindering judges from being lenient.
Felman said he has ``no idea'' how the Supreme Court will rule. ``Intellectually, it seems pretty clear to me that Blakely will apply to the federal guidelines.
``I'm not a bookie,'' Felman said. ``If you were going to put a gun to my head, I would say its 50-50 or maybe more than 50-50 that [the federal guidelines] will be struck down, but I just truly do not know.''
Reporter Elaine Silvestrini can be reached at (813) 259-7837.
http://news.tbo.com/news/MGBJKGMKUZD.html
Oct 3, 2004
Federal Sentencing Rules Face Tough Test
By ELAINE SILVESTRINI
esilvestrini@tampatrib.com
TAMPA - Defense lawyer Frank Louderback says waiting for the U.S. Supreme Court to weigh in on federal sentencing guidelines is similar to bracing for a hurricane to make landfall.
``You know it's coming, but you don't know if it's going to hit you,'' Louderback said. ``Everybody's kind of running around trying to figure out what's going to happen, and if it will hit you, how to prepare yourself. ... It's a strange situation.''
Or as U.S. Attorney Paul Perez put it, ``We're just kind of holding our breath at this point because we're in a holding pattern until we see what happens.''
``Hurricane Blakely,'' Louderback said, ``is coming out of Washington.''
Blakely v. Washington is the name of a case in which the U.S. Supreme Court's July 24 ruling declared unconstitutional the sentencing statute in the state of Washington.
The case has reverberated in federal courthouses nationwide as legal experts see strong parallels between Washington's sentencing law and federal sentencing guidelines. The high court struck down the Washington law because - like the federal guidelines - it required judges to set sentences based on facts not determined by a jury or admitted by a defendant.
The Blakely case involved a kidnapper whose sentence was lengthened because the judge concluded the man had acted with ``deliberate cruelty.'' The defendant, who pleaded guilty to kidnapping, denied he had acted with such cruelty.
Many expect the 5-4 Blakely ruling to spell the end of the federal sentencing rules. No one is quite sure, if that happens, how federal sentencing will change.
After the Blakely decision, some judges, including in Orlando, have ruled federal sentencing guidelines unconstitutional, and others have ruled just the opposite. Federal judges in Tampa have continued to abide by the guidelines.
Congress called on the Supreme Court to step in and clear up the confusion, and the justices agreed to hear oral arguments in two cases Monday.
In September, the Atlanta- based 11th U.S. Circuit Court of Appeals, which covers Tampa, upheld the federal guidelines, for now. The appeals court said in an Alabama case that it would not overturn the guidelines unless the Supreme Court strikes them down.
Ruling in the case of Eric Orlando Reese, the appeals court also noted that the current situation is unstable. The court said judges might want to take precautions in case the Supreme Court changes or strikes down the guidelines, but the 11th Circuit did not say what those precautions should be.
Federal sentences are determined in two steps. The parameters are set out in federal criminal laws giving ranges of possible sentences for particular crimes. For example, a specific crime might carry a possible prison sentence ranging from 10 years to life.
Where the sentences must fall within the ranges is determined by federal sentencing guidelines that employ complicated formulas centering on numerous facts, such as the defendant's role in the offense. For instance, the leader of a drug organization would receive a tougher sentence than a low-level dealer. Likewise, someone involved in importing tons of cocaine into the country would receive more prison time than someone who imported a smaller amount.
The state of Washington's sentencing laws followed a similar scheme. The main difference was that the sentencing guidelines there were established under a separate legislatively enacted law. The federal guidelines, on the other hand, were crafted by a commission set up by Congress.
Both guideline schemes required judges to determine sentences based on facts not ruled on by a jury or admitted by a defendant when entering a guilty plea. In striking down the Washington law, the Supreme Court held this was a violation of the Sixth Amendment right to a trial by jury.
Windfall For DefendantsIf the court applies the ruling to strike down the federal guidelines, it could be a windfall for defendants, at least in the short term. Many believe that the result could be the overturning of untold numbers of sentences. While many might receive new sentences that are just as long, others could see reductions in their time behind bars.
Those most likely to benefit by such a ruling are those who have raised the issue already. Consequently, defense attorneys in federal courtrooms across the country are almost universally raising objections to sentences on the grounds that the guidelines are unconstitutional.
On the other side, prosecutors are trying to protect sentences from possible challenges by requiring defendants pleading guilty to waive their right to file appeals based on the Blakely ruling.
In at least one instance, a judge in Tampa submitted questions to a trial jury in an effort to have the panel decide factual issues relevant to sentencing. The questions went beyond determinations of guilt or innocence of specific offenses. Some federal prosecutors have obtained detailed statements from grand juries that go beyond the allegations normally contained in indictments.
``Everybody's sort of jockeying for position in the event the court strikes down the guidelines,'' said James Felman, a Tampa lawyer who serves on an advisory committee for the U.S. Sentencing Commission.
Castillo said: ``I strongly believe the sentencing guidelines are unconstitutional. I filed a motion in each and every case I have.'' Castillo also said the guidelines lead to unfairly long prison sentences by restricting judges from taking special circumstances into consideration.
Felman said that if the court overturns the federal guidelines, he expects that Congress will craft a new sentencing law that complies with the ruling but still limits the discretion of judges.
New Law Might Be TougherEven though defense lawyers are hoping the guidelines are overturned, Jeffrey G. Brown, president of the Tampa Bay Chapter, Federal Bar Association, said replacing them probably would hurt defendants.
``I think we'll end up with a system that is worse for defendants than it is now,'' Brown said. ``It's not going to get better.''
One way the system could get worse for defendants is if Congress, for example, fashions a new sentencing scheme that sets a series of mandatory minimum sentences for particular crimes, giving judges discretion to impose even higher sentences. In other words, judges would be restricted from showing mercy but not from being harsh. Although many defense advocates bridle at the current system, they note that it does set some restrictions on the length of sentences as well as hindering judges from being lenient.
Felman said he has ``no idea'' how the Supreme Court will rule. ``Intellectually, it seems pretty clear to me that Blakely will apply to the federal guidelines.
``I'm not a bookie,'' Felman said. ``If you were going to put a gun to my head, I would say its 50-50 or maybe more than 50-50 that [the federal guidelines] will be struck down, but I just truly do not know.''
Reporter Elaine Silvestrini can be reached at (813) 259-7837.