SENTENCING CHANGES HELP SOME

Agustin Baltazar lived at a San Antonio stash house that held more than 20
kilos of cocaine for a smuggling ring based in Mexico.

Busted in June, he was charged with conspiracy to distribute cocaine and
was looking at seven years and three months to nine years in prison, under
federal sentencing guidelines.

But because of a ruling last week by the U.S. Supreme Court that says the
guidelines are no longer mandatory, but advisory, Baltazar walked out of
federal court Friday with a break.

U.S. District Judge Fred Biery -- who said he still planned to go by the
guidelines as a starting point -- sentenced Baltazar to five years in
prison and gave him until May to turn himself over to prison authorities.

The judge took into consideration, among other things, that Baltazar, 31,
took responsibility for his actions, cooperated with police and was a
low-level cog in the mechanisms of a larger conspiracy.

Baltazar's lawyer, Clark Adams, said the crime was aberrant behavior for
Baltazar and asked the judge to give him 2 1/2 years. Prosecutors pressed
for seven years and three months.

The judge noted he had sentenced a man to two years in prison, as required
by the guidelines, because the indigent man carried 50 pounds of marijuana
across the border to pay for a casket to bury his son.

"If you were the only case I had to decide, I would put you on probation,
but I'm going to give you what is proportionate to what I gave other
people," Biery told Baltazar.

That scenario is one that could repeat itself in federal courts across the
country, as judges grapple with how to apply last week's Supreme Court
ruling that gave them almost unfettered power to punish.

Some say defendants unhappy with their sentences may now seek recourse
under the new decision, even though they note the Supreme Court said the
ruling applies only to those who have not already exhausted all their appeals.

"I'm not sure anybody has really figured out what the answer is in terms of
retroactivity of this decision," said Kirby Behre, a former federal
prosecutor in Washington and co-author of a book on federal sentencing
guidelines.

"What it unfortunately means is that, over the last 17 or 18 years,
literally hundreds of thousands of people have been sentenced under the
guidelines in an improper, unconstitutional way."

"After this decision, I'm sure there will be a boilerplate (petition), and
the self-appointed jailhouse lawyers, the defendants, will be flooding the
courts with those," Behre added. "Now, what the judges do with them is a
different story."

Some judges predicted a few defendants could make their way back to their
courtrooms, but the scenario they hope for may backfire.

"It's one of those 'you better be careful what you ask for' because .. if
the defendant comes back for re-sentencing, he may or may not get the same
sentence or less; he might get more," Biery said.

Congress created the guidelines in 1987 to prevent wild disparity in
sentencing and to ensure judges don't punish too harshly or lightly. Many
question whether they met that goal.

The guidelines take into account crimes such as drug trafficking and
factors such as the amount of drugs involved, and those variables become
part of a larger equation.

When added up, the guideline formula spits out specific ranges of prison
terms. Judges then decided where the sentence would fall within that
limited range.

But according to Wednesday's ruling, the guidelines were fatally flawed
because they penalized defendants for acts never proven to juries beyond a
reasonable doubt nor admitted by defendants.

The Supreme Court justices simply told judges to treat the guidelines as
advisories, but to be reasonable in sentencing.

The opinion has some predicting that sentences could get shorter, while
others scoff.

"The perception that you're going to see judges sentence more leniently and
there's going to be chaos is overstated," said Ryan King, research
associate with the Sentencing Project, a think tank in Washington.

"Many judges don't know any other system but the guidelines. In general,
that is their framework, and the judges will sentence real closely to that."

For its part, the Justice Department has directed its line prosecutors to
continue to push for the guidelines.

Besides Biery, two of the three other federal district judges in San
Antonio have said they plan to follow the guidelines for what they are --
guides.

Of the sentencing hearings that have taken place in San Antonio's federal
courtrooms since the Supreme Court ruling, two were delayed to study the
ramifications of the opinion. In the remainder, six saw significantly more
lenient sentences than the guidelines dictate, while three other cases
ended with terms within the recommended range.

In one case, U.S. District Judge Royal Furgeson cast aside the recommended
six-to-12 month range for a defendant convicted in an immigrant smuggling case.

The judge gave Juan Uriel Hernandez-Gonzalez a sentence of 15 months in
prison and noted he did so because he had previously sentenced three
co-defendants to 15, 18 and 24 months, respectively.

Attorney Jesse Rivera, whose client Theodore Pena Jr. was sentenced to 15
fewer months than the guidelines dictated for a cocaine conspiracy charge,
said the opinion is important because "every person comes with a different
story, and no two are alike."

"It's a fact that a bank robber who robs a bank at gunpoint could get less
time than a guy who had a handful of crack, under the federal sentencing
guidelines," Rivera said.

"In my opinion, the guy robbing a bank with a gun is much more a danger to
society than the one with the crack."