JUDGES LEFT IN CONFUSION ON SENTENCING

WASHINGTON - A month after a closely watched Supreme Court decision upended
the sentencing system for federal crimes, U.S. judges across the country
are struggling to navigate their newfound discretion amid thousands of
appeals, widespread confusion and sharp scrutiny from critics who are on
guard for soft punishments.

In a complex decision that touched off temporary chaos in the nation's
federal courts, the Supreme Court ruled that the guidelines that have
shaped criminal sentences for nearly two decades must be considered
advisory instead of mandatory. As a result, federal judges have found
themselves with greater freedom in sentencing criminals - and a flood of
difficult new questions and pressures that could take months or years to
resolve.

Sentencing will be harder now than it was a few months ago," U.S. District
Judge Lynn Adelman of Wisconsin said in explaining a one-year sentence he
handed down in a bank fraud case two days after the high court's ruling.

Prosecutors wanted the defendant, a former loan officer named Mark Ranum,
to face the same time he would have under the mandatory guideline system,
roughly three to four years in federal prison.

But Adelman countered in a 14-page opinion that the Supreme Court's
decision in United States v. Booker was "not an invitation to do business
as usual."

Across the country, few judges would argue that it has been. After its Jan.
12 decision in Booker, the Supreme Court promptly sent some 400 cases back
to lower courts for review. Judges in two appeals courts, in San Francisco
and New York, asked lawyers to delay filings in hundreds of other pending
sentencing reviews as they scrambled to make sense of the new system.

Many trial-level judges are unsure how to proceed, partly because they
don't know what the appeals courts will consider a "reasonable" punishment
- - the new, untested measure for whether a sentence should stand.

As federal judges muddle through the array of new issues, they are under
close watch. Although early data from the U.S. Sentencing Commission
suggest that most judges still are following the guidelines - a larger
percentage have handed down tougher punishments than before the Booker
decision - critics warn that the resulting system could become one of
unfair and inconsistent sentences.

Watching Closely

In Congress and at the Justice Department, officials are watching for
overly lenient judges. At a hearing last week, the House judiciary panel
began laying the groundwork for possible legislative action to restore a
stricter framework for federal sentences.

"Federal sentencing policy is not some abstract matter," said Daniel P.
Collins, a former associate deputy attorney general who left the Justice
Department in 2003 to work for a Los Angeles law firm. "Common sense
suggests that if you lock up criminals for longer periods of time and lock
up the very worst for very long periods of time, there will be less crime."

Collins has urged lawmakers to make a quick fix. Others want Congress to
allow time for the confusion to resolve itself. Both the American Bar
Association and the National Association of Criminal Defense Lawyers have
suggested a yearlong waiting period before any legislative changes are
considered, saying the time is needed to gather detailed statistics about
federal sentences in the aftermath of Booker.

"Basically, the kind of knee-jerk, quick-fix solutions all have problems,"
said Stephen A. Saltzburg, a George Washington University law professor and
member of the bar association committee that proposed the 12-month waiting
period. "We were very concerned in the ABA about this rush to judgment -
let's fix this, when we don't even know yet if it's broken."

That some change will come seems all but certain. Even as he sketched out a
system for using the guidelines on an advisory basis, Supreme Court Justice
Stephen G. Breyer acknowledged in one part of the sweeping January ruling:
"Ours, of course, is not the last word. The ball now lies in Congress' court."

A jury in Wisconsin found Freddie Booker guilty of possession with intent
to distribute at least 50 grams of crack cocaine. The sentencing guidelines
in his case required the judge to set a maximum "base" sentence of 21 years
and 10 months in prison. But at sentencing, the judge concluded that Booker
had possessed an additional 566 grams of crack and was guilty of
obstructing justice.

That meant that, because of the guidelines, the judge had to sentence him
to at least 30 years in prison.

Congress enacted the mandatory guideline system in 1987, giving judges a
range of possible punishment for specific crimes and allowing little leeway
for them to stray outside of those limits.

In its splintered January ruling, the Supreme Court found that system to be
unconstitutional because it allowed judges to make some findings that could
increase prison time - such as the amount of drugs sold by a dealer - in
violation of a defendant's Sixth Amendment right to a jury trial.

The decision prompted a widespread scramble among judges, lawyers,
defendants and prisoners. It presented an enormous new workload
particularly for the nation's appellate courts, where hundreds of sentences
were already pending review based on a similar Supreme Court decision from
last summer concerning state courts.

And the appeals docket could still grow. One unresolved question is whether
the decision from Booker should apply retroactively to potentially tens of
thousands of federal prisoners whose other appeals were exhausted.

"Everybody who is serving a federal sentence is trying to figure out
whether they can get some relief under Booker," said James Wyda, the
federal public defender for Maryland. "We've been bombarded with calls."

Some of the appeals cases are high-profile. In Louisiana, attorneys for
former Gov. Edwin Edwards are asking the 5th U.S. Circuit Court of Appeals
to review his sentence on corruption charges based on the Supreme Court's
Booker ruling.

A Manhattan judge is scheduled this week to hear an appeal from Niels
Lauersen, a well-known Upper East Side gynecologist, sentenced to more than
eight years in prison for bilking insurance companies out of millions of
dollars worth of fertility treatments.

At the federal district courts, where roughly 1,200 defendants are
sentenced each week nationwide, judges have begun testing out their new
discretion over the past four weeks. Under the Supreme Court's decision, a
sentence can be reversed by an appeals court if it is "unreasonable," but
it is too soon to say what that test will look like.

For now, the cases that are most likely to drive lawmakers into the fray
are ones where judges are seen as going too easy on criminals by handing
down sentences lighter than what would have been called for in the guidelines.

Testifying before the House panel last week, Assistant Attorney General
Christopher A. Wray pointed to the Ranum case as an example of the
potential problem of disparity in federal sentences.

Wray listed other anecdotal examples of sentences that dipped well below
the guideline range, but while he ordered front-line prosecutors in a memo
soon after the ruling to track whether judges were still following the
guidelines, he did not present the House panel with any of the statistics
the department has compiled.

The Ranum case he said, however, also illustrated the different thinking
among trial-level federal judges about how they should proceed.

Judge Adelman said in his pointed, 14-page opinion that in the aftermath of
the Booker decision, "district courts cannot just add up figures and pick a
number within a narrow range. Rather, they must consider all of the
applicable factors, listen carefully to defense and government counsel, and
sentence the person before them as an individual."

But in another opinion that also quickly followed the high court's ruling,
U.S. District Judge Paul Cassell of Utah expressly warned his colleagues on
the bench that the guidelines should be followed in all but "the most
unusual cases."

'Greater Flexibility'

If "discretion is exercised responsibly, Congress may be inclined to give
judges greater flexibility under a new sentencing system," Cassell said in
an opinion he issued within 30 hours of the Supreme Court's Booker decision.

Many federal judges have followed Cassell's lead, according to a survey by
the U.S. Sentencing Commission made public last week.

The commission looked at 692 sentences handed down in the three weeks after
the Booker decision and found that roughly 64 percent of them still fell
within the guideline sentencing range.

That is roughly the same percentage of cases that fell within the guideline
range when they were mandatory, although judges were allowed to add or
subtract time for specific reasons. (Extensive planning for a crime, for
instance, could add time to a sentence, while helping out the government
could help trim a sentence.)

"Privately, judges probably express more support for a guideline system
than what you hear publicly," said U.S. District Judge Ricardo H. Hinojosa,
who chairs the U.S. Sentencing Commission. That group has scheduled
hearings for next week on the fallout from Booker.

In about one-third of the recent sentences reviewed by the commission,
defendants got less time than was called for under the guidelines. That
also was consistent with data from when the guidelines were mandatory.

The greatest change over the past month did not come from judges going easy
on defendants, but from judges who handed down stiffer sentences, the
commission's data showed.

Of the 692 cases it reviewed, 19 defendants were given more time than
called for under the guidelines. Those cases made up about 2.7 percent of
the total sentences - or about a threefold increase above the average
stiffer sentence rate of 0.7 percent under the mandatory guideline system.

"Not everybody greets this decision with applause," Wyda said.

In Maryland, defendants represented by the federal public defender's office
have been sentenced within the guideline range or seen a slight reduction
based on other factors, Wyda said, but colleagues elsewhere have bemoaned
that their clients are getting hammered by get-tough judges who are now
unencumbered by the sentencing guidelines.