FEDERAL APPEALS COURT GRAPPLES WITH REAGAN-ERA DRUG SENTENCES

SAN FRANCISCO (AP) -- A federal appeals court is revisiting its August
ruling that wiped out a major drug-sentencing statute created during the
Reagan administration's war on drugs.

The hour-long oral argument Wednesday involving 11 judges and three
attorneys was lively, but the judges of the 9th U.S. Circuit Court of
Appeals seesawed and did not indicate whether they would strike down drug
sentencing statutes that may affect thousands of defendants throughout the
Western United States.

The case is seen as having such broad implications that almost every federal
public defender and U.S. attorney in the West submitted briefs to the
circuit that covers California, Nevada, Arizona, Oregon, Washington, Idaho,
Montana, Alaska and Hawaii.

At issue is a three-judge panel's decision from the 9th Circuit that found a
1984 drug-sentencing law unconstitutionally allowed a judge to increase a
prison sentence based on the quantity of drugs found. The amount of drugs
was not presented to the jury, a standard practice in federal drug
prosecutions until this summer.

The 9th Circuit said that a judge could not enhance a defendant's sentence
based on the weight of the drugs because that is akin to being punished for
something that was never proven to a jury.

The case is an outgrowth of a June ruling by the U.S. Supreme Court that
found a defendant is entitled to a jury decision, not a judge's, on whether
he acted out of racial bias when committing a crime. Racially motivated
crimes carry steeper sentences than nonracially motivated crimes.

That case spilled over into the drug prosecution arena, and five federal
circuit courts of appeal ordered federal prosecutors to prove to a jury the
amount of drugs in question. Those same circuits left intact the judge's
discretion to enhance the sentence -- all the way to a life term -- based on
the quantity of drugs proven to a jury.

But the San Francisco-based 9th Circuit declared the enhancement law
unconstitutional, meaning that federal drug traffickers in the circuit can
be sentenced to no more than 20 years. That is because a 20-year term is the
maximum allowed under federal sentencing guidelines without taking into
account the enhancements judges can levy for quantity.

The case argued Wednesday involves Calvin Buckland, who received a 27-year
sentence for possessing 17 pounds of methamphetamine in Seattle. A
three-judge 9th Circuit panel said in August that since the jury was never
asked to find how much of the drug was seized, the judge could not
automatically increase the sentence by seven years based on his own
conclusions on the amount of drugs discovered.

During the arguments Wednesday, the circuit judges went back and forth,
arguing whether they should follow the same direction as the other circuits
and allow the enhanced sentences after a jury concludes the amount of drugs
in question.

"What's wrong with that?" asked Judge Ronald M. Gould of Seattle.

Judge Stephen S. Trott of Boise, Idaho, asked "What's the precedential case
that says we can do this?"

San Francisco Assistant U.S. Attorney Douglas Wilson urged the panel to
follow the other circuits.

"There's nothing unusual or improper about doing that," he said.

San Diego Assistant Federal Defender Benjamin Coleman asked the court to
nullify all the enhancements because "Congress intended for quantity of
drugs to be determined by a judge."

Circuit Judge Stephen R. Reinhardt of Los Angeles said it probably doen't
matter what the court does.

"Maybe the Supreme Court can decide this," he said.

The U.S. Supreme Court generally decides cases when there is a rift among
circuit courts. But even when the legal issue is concluded, lawyers said
litigation on the topic will continue.

That is because a host of other questions remain unanswered, legal experts
said.

If it is ultimately decided that juries can decide the quantity issue, do
defendants already sentenced when a judge determined the quantity have a
right to a new sentence or trial? And if so, which defendants are eligible?

Another question is which defendants are eligible for reduced sentences if
the enhancement laws are thrown out. None of these questions are broached in
the case.

The case is United States v. Buckland, 99-30285.