APPEALS COURT REFINES FEDERAL DRUG SENTENCING LAW

To the immense relief of prosecutors in nine Western states, a federal
appeals court removed a cloud yesterday that it had cast five months
ago over a federal drug sentencing law.

The law, in effect since 1984, is used regularly in federal
prosecutions and allows drug sentences to be lengthened by many years
based on the amount of narcotics involved. One application is to
increase the maximum sentence for selling drugs, normally 20 years, to
life in prison if large quantities were sold.

Until recently, the jury was simply asked whether the defendant was
guilty of possession. It was left to the judge to determine the
quantity involved, guided by a preponderance of the evidence -- an
easier finding than the beyond- a-reasonable-doubt standard required
for the jury's conviction. But prosecutors and judges scrambled to
change their practices after the U.S. Supreme Court ruled in 2000 that
a defendant has the right to a jury trial on any fact that determines
the maximum sentence.

Last August, a three-judge panel of the U.S. Court of Appeals in San
Francisco ruled that the 1984 law required judges to determine drug
quantities,

and therefore was unconstitutional based on the Supreme Court
ruling.

The decision not only allowed current prisoners to challenge their
sentences, but also barred prosecutors from seeking the increased
sentences unless Congress rewrote the law. Numerous drug cases were
put on hold while the government appealed.

But after pleas from every federal prosecutor's office in the nine
states of the judicial circuit, the court granted a rehearing by a
larger panel. In an 8-to-3 ruling yesterday, the court said the law
could be interpreted constitutionally, to let jurors make the crucial
findings about quantity when deciding guilt.

Congress' intent in the law was "to ramp up the punishment for
controlled substance offenders based on the type and amount of illegal
substance involved in the crime," said Judge Stephen Trott. Despite
past rulings to the contrary, he said, Congress did not necessarily
intend that judges make those determinations.

The court reinstated the 27-year sentence of Calvin Buckland of
Tacoma, Wash., who was convicted of possessing methamphetamine with
intent to distribute.

Dissenting Judge A. Wallace Tashima, author of the panel decision last
August, said the court was rewriting the law to save it. A San
Francisco defense lawyer agreed.

"The courts have held for the last 20 years that the amount of drugs
could be proven at sentencing," said Assistant Federal Public Defender
Steven Kalar. "Now, because that interpretation hurts the government,
they've gone 180 degrees around without explaining why they were wrong
before."