JUSTICES' DECISIONS SHAPE A NEW COURSE FOR FEDERAL SENTENCING

WASHINGTON, Oct. 2 - The Supreme Court opened its new term today where it
left off in June: directing a potential revolution in federal criminal
sentencing.

The court vacated sentences for four narcotics defendants because the
central fact that determined the sentence - the quantity of drugs involved
- - had been decided by the judge rather than the jury.

The justices instructed the lower courts to reconsider the sentences in
light of the Supreme Court's ruling on June 26 that any fact that increases
the penalty for a crime beyond the statutory maximum has to be found by the
jury beyond a reasonable doubt.

The court dealt today with the leading edge of dozens of cases that would
need to be reconsidered in the wake of the 5-to-4 ruling in Apprendi v. New
Jersey, a decision that cut across the court's usual ideological boundaries
and raised the prospect that the federal sentencing guidelines themselves
might be unconstitutional because many crucial findings were made by the
judge alone.

The cases today did not raise the broader guidelines question, but rather a
more precise issue under federal narcotics law that illustrates the type of
question facing the courts in the wake of the Apprendi decision. The
maximum sentence for possession of any quantity of heroin or cocaine is 20
years, which can be raised to 30 years if the defendant has a prior conviction.

But if a defendant who has two or more serious drug convictions is then
found guilty of an offense involving 50 grams or more of crack cocaine, a
separate section of the law mandates a sentence of life in prison. After
the Apprendi decision, that became problematic because the judge, not the
jury, makes the factual finding on the quantity of drugs.

The four cases the court acted on today shared a similar outline. For
example, one defendant, Bobby Joe Burton, was charged in a federal
indictment with conspiracy to manufacture and distribute crack cocaine, but
the indictment did not specify any quantity. After a federal jury in
Houston found Mr. Burton guilty, the trial judge found that the amount was
"in excess of 99 grams," sufficient to merit a life sentence despite the
maximum of 30 years that would have otherwise applied.

Responding to Mr. Burton's appeal, Burton v. United States, No. 99- 9902,
the Solicitor General's office told the court that imposing a life sentence
based on a factual determination by the judge was "plain error" under the
Apprendi decision.

As a practical matter, Mr. Burton may not receive much relief from the
reconsideration that the United States Court of Appeals for the Fifth
Circuit, in New Orleans, will give his sentence. As is often the case in
major drug prosecutions, he was convicted on multiple counts, with
sentences to run concurrently although the judge had the power to impose
consecutive 30-year sentences. In seeking resentencing, Mr. Burton has the
legal burden of demonstrating to the appeals court not only that his
sentence was erroneous, but that he was actually harmed by the error.

The other cases in which the court vacated sentences were Blue v. United
States, No. 99-6775; Wims v. United States, No. 99-8958; and Gibson v.
United States, No. 99-7351.

The Apprendi decision, which took much of the legal world by surprise,
invalidated a New Jersey hate-crime law under which defendants received
longer sentences if their criminal actions were motivated by prejudice. The
finding of prejudice was made by the judge, using the relaxed
"preponderance of the evidence" standard of proof. Under the Apprendi
decision, written by Justice John Paul Stevens, the jury had to make such a
finding by the ordinary criminal law standard of "beyond a reasonable doubt."

Justices Antonin Scalia, David H. Souter, Clarence Thomas and Ruth Bader
Ginsburg joined in the majority opinion, which was based on the
constitutional guarantees of due process and trial by jury, while Chief
Justice William H. Rehnquist and Justices Sandra Day O'Connor, Anthony M.
Kennedy and Stephen G. Breyer dissented.

While it is now clear that the jury must find the facts that can lead to a
sentence longer than what would otherwise be the maximum, the Apprendi case
raised a more difficult question that does not have a clear answer. Under
federal sentencing guidelines, the judge makes a number of crucial findings
that do not necessarily bring a sentence above the statutory maximum, but
that can end up increasing a sentence sharply within the statutory range.

Susan N. Herman, a professor at Brooklyn Law School who is an expert on
criminal sentencing, said that while the court today had dealt with the
"easy Apprendi question," the more difficult question of whether the
justices will apply the logic of the decision to the guidelines remains ahead.

"The question is how formalist the court will be," Ms. Herman said, adding:
"Tremendously important factual questions are decided at sentencing." For
example, she said, the guidelines instruct judges to impose a sentence
based not on the precise quantity of drugs for which a defendant was
convicted, but on the "relevant quantity," which requires deciding whether
a defendant caught with a small quantity of drugs knew about an entire
shipment of which the small amount formed a part.

Depending on the judge's determination of such factors, Ms. Herman said, a
sentence can increase by many years while remaining under the statutory
maximum. The court will feel obliged to sort this out in the near future,
she predicted.

Disposing today of hundreds of new appeals, the court did not grant any new
cases for review. These were among the cases the justices turned down, all
without comment:

School Admissions

The justices turned down a challenge to a race-based admissions policy at a
public elementary school operated by the University of California at Los
Angeles. The school, the purpose of which is to conduct research on
effective education methods in diverse urban areas, explicitly considers
race, ethnicity and income levels in composing classes that mirror
California's diversity.

The policy was challenged by the parents of a child who was turned down for
admission. The child was described as having mixed Caucasian and Japanese
ancestry. The parents argued that race can constitutionally be taken into
account only as a remedy for past discrimination. But the United States
Court of Appeals for the Ninth Circuit, in San Francisco, ruled last year
that the school had a "compelling state interest" in maintaining a diverse
student body on which to test various educational methods. The case was
Hunter v. Regents of the University of California, No. 00-135.

Assault Weapons

The court rejected a constitutional challenge to the 1994 federal law that
prohibits the manufacture, sale or possession of certain semiautomatic
assault weapons. The makers of several such weapons, including the TEC-DC9
and TEC-22 semiautomatic pistols and the Striker 12 shotgun, challenged the
law on the ground that it exceeded Congress's authority to regulate
interstate commerce.

The challenge was rejected by the federal appeals court here, with one
judge, David Sentelle, issuing a strong call for the case to be reheard
because, he said, the Supreme Court had ruled in a 1995 case striking down
the Gun-Free School Zones Act that possession of a gun did not have enough
connection with commerce to come within Congress's regulatory power.

The Clinton administration, urging the justices to reject the appeal, said
the assault weapons ban was based on evidence that "the nationwide market
for firearms renders purely local prohibitions ineffective" and was not
invalidated by the 1995 decision in United States v. Lopez. The case today
was Navegar v. United States, No. 99-1874.