SENTENCING GUIDELINES IN QUESTION

Supreme Court Ruling Has Judges Reviewing Cases

Last week, U.S. District Judge Frank Polozola sentenced Ronald J.
Marks to 10 months in prison -- not just once, but twice. It wasn't
that the judge was trying to level an unduly harsh punishment.

Rather, Polozola was preparing for the possibility that the nearly
20-year-old U.S. Sentencing Guidelines -- which he and other federal
judges across the United States use to determine prison terms -- might
be thrown out any day now.

Polozola issued one 10-month sentence for Marks -- a 22-year-old
recent LSU graduate from Church Point who pleaded guilty to selling
cocaine and heroin -- based upon the guidelines, and an alternative
10-month sentence without them.

"Some judges around the country have already declared the guidelines
to be unconstitutional, and I'm not certain what the appellate courts
will do," Polozola told Marks during his sentencing hearing last week.
"I will give you two sentences today. One will be under the
guidelines, and one will be without -- just like I did when in the
'80s when I came on the bench."

At issue is a U.S. Supreme Court ruling late last month that judges
can no longer sentence convicted criminals to more time than called
for by law by taking into account aggravating circumstances that
haven't been proven beyond a reasonable doubt.

Those factors -- such as whether the person is a ringleader, carried a
gun during the crime, accepts responsibility for the crime or lied to
authorities -- now must be alleged in the indictment and proven to a
jury unless the person waives that right. The only exception is that
the judge can consider any prior convictions.

The high court issued the 5-4 opinion in Blakely v. Washington, ruling
that a wealthy rancher wrongly was given a longer sentence for
kidnapping his estranged wife in 1998.

Ralph Howard Blakely II pleaded guilty in a deal with prosecutors and
expected a sentence of about four years as set in state sentencing
guidelines. But the judge added three years to his prison term after
deciding Blakely had shown "deliberate cruelty."

While the decision dealt with a Washington state case, some legal
experts predict it could dramatically affect federal sentencing laws
nationwide and change the course of thousands of criminal cases
awaiting trial or sentencing, or on appeal in Louisiana and other states.

One federal judge in Utah has already ruled the guidelines
unconstitutional, but his decision is expected to be appealed to the
Supreme Court.

In Baton Rouge, the uncertainty has federal prosecutors rethinking
indictments and plea agreements, defense attorneys scrambling to
appeal punishments and judges issuing dual sentences. Even attorneys
for former Gov. Edwin Edwards have filed notice that they plan to
appeal his sentence based on the new ruling.

The 5th U.S. Circuit Court of Appeals last week heard oral arguments
in a case challenging a sentence based on the Supreme Court ruling and
is expected to issue guidelines for federal courts in Louisiana, Texas
and Mississippi soon. The U.S. Senate Judiciary Committee is scheduled
to hold hearings on the matter in Washington, D.C., beginning Tuesday
morning.

"We represent the vast majority of people whose sentences could be
affected by Blakely," Louisiana federal public defender Rebecca
Hudsmith said. "That means we've got a lot of work to do."

In 1984, Congress enacted the Sentencing Reform Act in an attempt to
make criminal punishments more consistent and uniform across the
nation. The guidelines went into effect in 1987, setting dozens of
factors that might determine sentences -- including whether the judge
levied a punishment above or below what is called for by law.

But in the Blakely v. Washington ruling, the Supreme Court said it is
unconstitutional for a judge acting alone to use those factors to add
to the punishment. The Constitution gives defendants a right to a
trial by a jury, Justice Antonin Scalia noted, and "every defendant
has the right to insist that the prosecutor prove to a jury all facts
legally essential to the punishment."

U.S. Attorney David Dugas of Baton Rouge declined to comment on the
issue, referring all questions to the U.S. Department of Justice. But
department spokesman John Nowacki also declined to comment.

In a five-page memo dated July 2 to Dugas and other federal
prosecutors nationwide, Deputy Attorney General James Comey said the
government believes the "rule announced in Blakely does not apply to
the Federal Sentencing Guidelines."

But Comey outlines new procedures for prosecutors in Baton Rouge and
other cities to include in all indictments "readily provable"
aggravating factors that could add prison time, and seek "waivers of
Blakely rights" in all guilty pleas. He also suggests they ask
district judges to state alternative sentences.

Judges in Baton Rouge are rethinking their practices as well. During a
sentencing hearing Thursday, U.S. District Judge James Brady said he
is "going back over and reviewing some cases. I'm aware of the fray."

During a Wednesday hearing, Polozola said he wasn't aware of
challenges to any of his sentences based on the Supreme Court ruling.
But he said he was preparing for the possible fallout.

"I don't know what effect Blakely has on anything," Polozola said.
"But whenever I take a guilty plea, it will be substantially different
than in the past. I may not accept some guilty pleas anymore. I may
not be able to."

Defendants in Louisiana already are lining up to appeal their
sentences, and among them is former Gov. Edwin Edwards and his son,
Stephen Edwards.

Attorney Mike Small filed a motion last week asking U.S. District
Judge Ralph Tyson to allow Small to challenge the constitutionality of
Edwards' sentence and conviction based on the Blakely ruling. The
request still is pending.

Small notes in his motion that Polozola added jail time to the
Edwardses' sentences based on underlying facts not found by a jury.
Those factors included payment of more than one bribe, an intended
loss of more than $4.1 million and leadership or supervisory roles in
the crime. The former governor also got extra time for obstruction of
justice.

A favorable ruling based on Blakely could significantly reduce the
Edwardses' sentences, Small said Saturday.

"Blakely is hot off the press, and questions as to its effect and
application are too up in the air for me to accurately predict its
effect on the Edwards cases," Small said.

"Suffice to say we believe it could result in a significant reduction
in Edwin's and Stephen's sentences," Small said. "We take the position
that the federal sentencing guidelines are unconstitutional to the
extent that they require application of enhancements or increased
sentences based on facts not found by the jury."

The Edwardses are not alone. Federal public defender Hudsmith said
she's reviewing as many as seven cases pending on appeal to determine
whether the Blakely ruling might come into play. That doesn't include
any closed cases that could be affected as well.

"I'm still very much in the phase of investigating what needs to be
done to protect the rights of all of our clients -- both present and
past," Hudsmith said. "What it means is there's a lot more work to be
done on cases where I thought most of our work was complete."

Some answers may come soon from the 5th Circuit. Last week, the
appellate court heard oral arguments in U.S. v. Francisco Pineiro, a
drug-trafficking case out of Lafayette.

A Louisiana judge sentenced Pineiro as though his offense involved
more than 450 kilograms of marijuana and nearly 1,050 grams of cocaine
- - despite a jury finding of a lesser amount.

Mandeville attorney Christopher Aberle argued: "Addressing Pineiro's
claim now is especially important in light of the many plain-error
Blakely cases waiting in the wings."