SENTENCING RULING STIRS S.C. HOPE

Supreme Court Decision Could Aid Beaufort Man

A U.S. Supreme Court ruling on Washington state's sentencing guidelines has
the nation's federal courts scrambling, but it has a South Carolina man
smiling.

Last month, the Supreme Court said Washington state's sentencing law
unconstitutionally allows judges to lengthen defendants' sentences
based on facts the defendants had not admitted or that were not part
of a jury's verdict.

Although the ruling was on a state's sentencing law, it has broad
implications on the 20-year-old federal sentencing guidelines. It is
too early to tell, however, what effect the ruling will have on
federal judges in South Carolina. The ruling does not affect the
state's courts.

In a memo, Frank Bowman, a law professor at the University of Indiana
School of Law, told the U.S. Sentencing Commission the ruling throws
the federal courts into chaos as judges determine its
implications.

Bowman said, "In the longer term, either the guidelines will be
transformed into an annex to the criminal code, augmenting the power
of prosecutors and decreasing the authority of judges, or more likely
the whole structure will be thrown aside."

Andrew Siegel, a constitutional law professor at the University of
South Carolina Law School, said the court did not outlaw the
guidelines directly "but the reasoning the court used (in the
Washington state case) seemed to strongly suggest that the federal
scheme is also unconstitutional."

That has created "a huge buzz" in federal prisons and among criminal
defense attorneys nationwide, said Charleston attorney Andy Savage. It
also has caused some judges to drastically reduce sentences even
though the court did not strike a direct hit on the rules, he said.

For example, a federal judge in West Virginia recently reduced the
sentence of a defendant who conspired to make methamphetamine from 20
years to one year.

When Senior U.S. District Judge Sol Blatt presides over criminal cases
later this month, he said he's not sure what kind of sentences he
might impose. "All of us are wondering about" the Supreme Court's
decision, the judge said. "I am going to decide that issue when I am
faced with it, and I will be facing it soon."

Ninth Circuit Solicitor Ralph Hoisington said the ruling does not
affect the state's criminal courts. The ruling excludes sentencing
enhancements based on a defendant's criminal record, the solicitor
said. In South Carolina, the two- and three-strikes law automatically
gives defendants mandatory life sentences for prior
convictions.

The likelihood of the Supreme Court striking down the federal
sentencing rules gives hope to Terrance Smalls of Beaufort, who is
appealing his 40-year sentence in February on a federal drug
conviction because it is 75 months more than it would have been if he
had not been implicated in a murder 10 years ago.

Even though Smalls was never charged with killing Audrey Smith
Stoeckle, he admitted that he was present the night she was shot to
death. Based on that admission, Blatt gave Smalls more time.

Savage, who represents Smalls, has appealed to the U.S. 4th Circuit
Court of Appeals, arguing that his client deserves a shorter sentence
because the federal law is unconstitutional.

In the Washington case, the Supreme Court said a judge can't enhance a
sentence beyond the sentencing guideline for the primary offense
unless the defendant admits to aggravating factors or a jury finds the
fact to be true. Judges can take into consideration prior convictions,
the court ruled.

Ralph Blakely challenged the Washington state law. He had pleaded
guilty to kidnapping his estranged wife, a crime that carried a
sentence of 53 months. But a judge raised the penalty to 90 months
after he found that Blakely had acted with "deliberate cruelty," a
finding not accepted by Blakely or a jury.

The Supreme Court ruled the additional prison time for Blakely
violated his right to a jury trial.

Because of the ruling, prosecutors are unsure how the sentencing
guidelines might apply and it is expected to change the way they
handle plea negotiations.

Parks Smalls, South Carolina's chief federal public defender, said if
the ruling brings new rules "we will have to make more inquiries up
front before we plead guilty to ask what factors the government will
use in the enhancement process." Smalls is not related to Terrance
Smalls.

Under current rules, judges can extend sentences based on a variety of
criteria, including a defendant's role in the crime, background and
whether a defendant was armed. A defendant "can be convicted of
jaywalking and sentenced for murder," Smalls said. "That is what is
emblematic of the old system. So much can be brought in even though
you were not charged with it. It does not sound like American justice
as we know it."

Officials with the U.S. Attorney's Office in South Carolina declined
to comment, referring questions to the U.S. Department of Justice.

John Nowacki, a justice department spokesman, said, "The department is
currently reviewing the decision and its ramifications. The issues
raised are significant and complex." He declined to comment further.

As a result of the decision, Siegel said some federal judges are
assuming that the guidelines are unconstitutional and are giving
defendants sentences that fall within the minimum and maximum of the
sentencing range.

"Other judges are using the guidelines but are not taking into account
any fact not found by the jury or admitted to by the defendant and
that has produced lower sentences," Siegel, a former Supreme Court law
clerk, said.

A third option, which is used in Kansas but has not been adopted
elsewhere, is to ask a jury to agree on the facts that have a bearing
on sentencing, he said.

"Those are the options available to judges unless and until Congress
changes the federal sentencing structure," Siegel said.