FEDERAL JUDGES LEFT WONDERING HOW TO APPLY SENTENCE RULING

The federal courtroom was quiet for several moments Friday as the
judge scrutinized a sentencing-guidelines book.

The question before him was complicated: how, precisely, to sentence a
man who had shot a Colorado State Patrol officer, given the U.S.
Supreme Court's decision last week transforming federal criminal sentencing.

Among the questions: Should he be sentenced under the structure that
was in effect when the crime was committed? Should the judge make
findings of fact about the defendant's intent that could affect the
sentence?

In the end, U.S. District Judge Edward Nottingham delayed sentencing
for Brent David Derrick.

The judge said he would hold a hearing in which attorneys from a
half-dozen such troubling cases would make oral arguments about how to
proceed in the new world of criminal sentencing.

"I've now decided I'm going to set them for consolidated oral
argument," Nottingham said.

Across the country, the Supreme Court decision has opened the door to
speculation as lawyers and judges contemplate how to move forward and
ponder the recourse that might be available to those already sentenced.

An attorney for Martha Stewart, the domestic-arts maven convicted of
lying about why she unloaded stock before the price plunged, told a
New York newspaper that her legal team was studying whether the ruling
could shorten her prison term.

In Connecticut, lawyers speculated that former Gov. John G. Rowland,
who pleaded guilty to a corruption charge and is awaiting sentencing,
might get a more lenient sentence.

Last week, a five-justice majority held that sentencing guidelines
should be treated as advisory rather than mandatory.

The justices also ruled that the guidelines system violated
defendants' right to jury trial by allowing judges to consider
evidence at sentencing that could lengthen sentences beyond what a
jury would support.

Denver lawyer Jeff Pagliuca said the change would serve to further
complicate what already is a difficult and important judicial function.

"Most judges will tell you that sentencing is the toughest thing they
do as judges," he said. "It's difficult for most judges to decide
what's fair, looking at societal consequences versus personal
consequences."

Jeff Dorschner, spokesman for the U.S. attorney's office in Colorado,
said his office has been tracking sentencing in Denver federal
criminal courtrooms since the Supreme Court decision.

The office has found only one sentence that differed from what it
would have been previously. And that sentence was only three months
short of what guidelines would have mandated, Dorschner said.

On Friday, the sentencing hearing for Derrick ran late as the judge
and lawyers debated how to sentence the 27-year-old man who had
pleaded guilty to state charges of attempted murder of a peace officer.

Derrick, who shot Technician Chris Cutrone in 2003, faces a slate of
federal gun and assault charges stemming from the incident.

Cutrone, who was shot three times, is working in a limited capacity
and is eager to return to full duty, said State Patrol Sgt. David Santos.

At the hearing, Derrick's attorney, Virginia Grady, argued that her
client's constitutional rights would be violated if he received a
harsher punishment under the new sentencing system than he would have
gotten under the old one, when the crime was committed.

The judge and the attorneys also discussed how and whether evidence
that would not have been presented to a jury could be used in the sentencing.

The Derrick case is one in what those in the courtroom acknowledged
would be a generation of cases that may be caught in the transition
from the old system to the new.

"I think we're in that wedge of cases where you're going to run into
that problem," Grady said.