JUDGE TO USE GUIDELINES

They Are Still Worthwhile Despite Top Court Decision, Cassell Says

In what appears an effort to show Congress that federal judges can be
trusted with their newfound freedom in sentencing criminal defendants,
one Utah jurist said Thursday he intends to continue using federal
guidelines "in all but the most unusual cases."

U.S. District Judge Paul Cassell issued his opinion in response to a
Wednesday U.S. Supreme Court decision that struck down the 17-year-old
guideline system as unconstitutional and approved their use for
advisory purposes only.

In his first sentencing since the high court's decision, Cassell --
who has been using the guidelines on an advisory basis since he
declared the sentencing scheme unconstitutional last year -- said he
will continue to give the recommended sentences "considerable weight."

The result of Wednesday's decision, which invalidated the mandatory
nature of the guidelines and allows judges to sentence defendants
anywhere within the statutory range, is still unknown. Some sentencing
experts have speculated that lawmakers, fearful of judges' increased
discretion and interested in reducing disparate sentences for similar
crimes, will respond by imposing mandatory minimum terms for most
federal crimes.

Cassell apparently hoped to prevent such a reaction with his Thursday
opinion, noting it could serve as guidance to his colleagues
throughout the country who are also grappling with how to proceed in
the wake of the Supreme Court's decision.

"The congressional view of how to structure that sentencing system
will surely be informed by how judges respond to their newly granted
freedom under the 'advisory' guidelines system," Cassell said. "If
that discretion is exercised responsibly, Congress may be inclined to
give judges greater flexibility under a new sentencing system.

"On the other hand, if that discretion is abused by sentences that
thwart congressional objectives, Congress has ample power to respond
with mandatory minimum sentences and the like."

Cassell became a very vocal critic of mandatory minimum sentences
recently when he was forced to sentence 25-year-old Weldon Angelos, a
first-time drug offender, to a mandated 55-year term.

Whatever Congress has in mind, Utah defense attorneys would like to
see a system where the increased judicial discretion provided by this
week's Supreme Court decision continues to some degree.

David Finlayson, president of the Utah Association of Criminal Defense
Lawyers, said he hopes lawmakers take enough time and consider an
overall fix to the federal sentencing scheme, including existing
mandatory minimum terms.

"If people are educated as to what is really going on, I think it will
put some pressure on Congress to do something reasonable," Finlayson
said. "If they think people want to hear 'tough on crime, tough on
crime,' then we'll get the same thing that we've been getting, which
is unreasonable and unfair sentencing laws that don't make any sense."

On Thursday, defense attorney Mark Kouris asked Cassell to use his
discretion to depart lower than the recommended guidelines in the case
of his client, convicted bank robber James Joseph Wilson.

The mandates called for a sentence between 188 and 235 months, but, in
light of Wednesday's decision, Cassell could have sentenced Wilson
anywhere between probation and 25 years in prison, the minimum and
maximum terms outlined by law.

Cassell opted to impose a 188-month sentence, saying he did not find
strong enough evidence to warrant stepping outside the guideline
range. Sentencing within the guidelines, he said, is the best way to
comply with the purposes of the Sentencing Reform Act of 1984, which
created the guideline system.

"The only way of avoiding gross disparities in sentencing from
judge-to-judge and district-to-district is for sentencing courts to
apply some uniform measure in all cases," according to the judge's
opinion.

Though he said the 15 1/2-year sentence was excessive given the
circumstances of Wilson's case, Kouris said he did agree with
Cassell's decision to leave open the possibility for departures in
future cases.

"That's how it should be, because there are certainly cases like that
where you should deviate (from the guidelines)," he said.