SUPREME COURT RULING HITS HOME

Sentencing Decision Prompts Confusion in Federal Courtrooms

It was 8 a.m. during an icy Wednesday rush hour in Colorado, and
federal Judge Lewis Babcock, already on the bench, was about to
sentence a Denver woman for identity fraud in connection with a
cocaine case.

The woman was the first person to be sentenced in Colorado U.S.
District Court after - mere hours after, in fact - the U.S. Supreme
Court issued a landmark ruling that made the federal courts'
20-year-old sentencing guidelines only guidelines - and no longer mandatory.

So as Veronica Macias Fraire, who had pleaded guilty in a bargain with
the government, stood waiting before Babcock, the judge had a big
question: Does this brand-new ruling affect this case?

Lawyers on both sides said it didn't, and Fraire was sentenced without
further ado to four months in federal prison.

Babcock had just learned of the high court's long-anticipated ruling,
handed down Wednesday morning in Washington, D.C. - where people still
were puzzling over it.

Many still are.

The questions will keep judges, prosecutors and defense lawyers busy
discussing thousands of criminal cases nationwide for months to come.

"There'll be plenty of litigation about this," predicted Colorado
defense lawyer Phil Cherner.

Colorado's federal prosecutors file about 500 criminal cases in an
average year. Cherner guessed that the sentences in half to
three-quarters of the recently completed cases will be challenged.

But acting Colorado U.S. Attorney William Leone said he expects a
flurry of sentencing appeals to quickly die down, once a few decisions
are rendered to answer questions about how to apply the new ruling.

Cherner said he plans two such challenges already, one for a man
convicted of illegally re-entering the United States after a previous
felony conviction, and the other for a man who illegally possessed a
firearm after a previous felony conviction.

The man who illegally re-entered the country got a prison sentence two
or three years longer than he might have if the judge hadn't been
required to follow the sentencing guidelines, Cherner said.

He said the guidelines also prevented a judge from considering certain
mental health problems that might have affected the man who illegally
possessed a firearm.

Without mandatory guidelines, the judges might decide on different -
and shorter - sentences, Cherner said.

The U.S. Supreme Court's book-length ruling actually consisted of two
separate rulings, on which the justices voted differently, and four
dissents.

"I've never seen that - two opinions with different majorities to
settle one case," Cherner said.

The guidelines were adopted two decades ago to impose consistency on
the federal courts, so that a sentence for a certain crime in one
courthouse wasn't wildly different from a sentence for the same crime
in another.

Many defense lawyers see the guidelines as too severe and "too
mechanistic," Cherner said - too oblivious to such individual factors
as possible mental problems.

Leone said prosecutors were disappointed that the U.S. Supreme Court
didn't keep the guidelines mandatory.

"Prosecutors generally favor the principle that like defendants should
be treated in a like manner," Leone said.

But judges still must consult the guidelines in an advisory way, and
their sentencings still must be "reasonable" in comparison to others,
the U.S. Supreme Court said.

"Most judges will follow those guidelines most of the time," Leone
predicted, "so there will still be some uniformity there."

Many older judges disapproved of the mandatory guidelines because they
limited their ability to make individual decisions in cases.

Cherner said newer judges, who never have sentenced anyone without the
guidelines, may have some work to do.