NEW SENTENCING BATTLE LOOMS AFTER COURT DECISION

Lawmakers Move to Regain Control Over Prison Terms; 'Congress Has Ample Power'

The fallout from Wednesday's landmark Supreme Court ruling quickly emerged
with initial moves yesterday by the Justice Department and Congress to
reassert control over federal sentencing and limit the broad discretion the
court gave federal judges.

The court ruled that federal sentencing guidelines, enacted two decades ago
to standardize prison sentences nationwide, are unconstitutional because
they violate a defendant's Sixth Amendment right to be tried by a jury.

The ruling may shift power back to the judicial branch for now, but
yesterday, Justice Department officials were scrambling to meet with
members of Congress and start crafting a legislative fix that would swing
power back their way. They want to revive the spirit and effect of the 1984
Sentencing Reform Act, which sought to remove disparity in federal prison
terms and which paved the way for the now-unconstitutional mandatory
federal sentencing guidelines.

Meanwhile, some federal judges said they would probably continue to adhere
strictly to the guidelines in most cases. Some defense lawyers moved to
amend appellate briefs, hoping that clients could be resentenced to a lower
term. Many of the nation's prisoners sought to figure out what the ruling
means for them.

Some Democrats called for a go-slow approach, including Sen. Patrick Leahy
of Vermont, the ranking Democrat on the Senate Judiciary Committee, who
said, "Congress should resist the urge to rush in with quick fixes that
would only generate more uncertainty and litigation."

And several high-profile defendants are hopeful about the ruling. Former
technology banker Frank Quattrone was sentenced to 18 months in prison
after his conviction on obstruction-of-justice charges. His spokesman, Bob
Chlopak, said, "We definitely think the ruling will have an impact on our
case and it'll be part of our appeal."

The flurry of reactions and activity reflects the two lines of impact
expected from the landmark ruling. In the short term, judges, defense
lawyers and prisoners will seek to interpret the Supreme Court decision. In
the longer term, the outcome of the Congressional battle will determine
whether new, stricter sentencing rules will replace the old guidelines.

In his year-end reports for 2003 and 2004, Chief Justice William H.
Rehnquist focused on the need to repair the relationship between the
judicial and legislative branches. He has made several speeches in recent
years about Congress's attempts to interfere with judges who depart from
federal sentencing guidelines. He has said that targeting judicial
decisions of federal judges "could amount to an unwarranted and
ill-considered effort to intimidate individual judges in the performance of
their judicial duties." In his most recent year-end report, issued Jan. 1,
Judge Rehnquist noted that "there is still much work to do" to repair
judicial-legislative relations.

The major Congressional skirmish will probably involve the House and Senate
judiciary committees. F. James Sensenbrenner, a Wisconsin Republican who
chairs the House committee, is a staunch supporter of mandatory minimum
sentences, which aren't affected by the Supreme Court ruling.

Mr. Sensenbrenner also favors limiting judicial discretion over sentencing.
Some colleagues believe he is likely to support a new set of mandatory
minimums -- requiring judges to set a floor on certain sentences for set
crimes -- to rein in judges.

Arlen Specter, the Pennsylvania Republican who is the new chairman of the
Senate Judiciary Committee, is less likely to support mandatory minimums as
a solution. Moreover, his newly appointed chief counsel is a member of the
U.S. Sentencing Commission, which issues federal sentencing guidelines.

Yesterday, Mr. Sensenbrenner was out of the country, and Mr. Specter issued
a statement Wednesday night that didn't tip his hand.

The Justice Department already has made some changes in the wake of
Wednesday's rulings. Prosecutors said they had received preliminary verbal
guidance from Justice advising them that they no longer need to include
factors that could increase a sentence in their indictments.

Additionally, prosecutors won't continue to seek superseding indictments
from past cases to include additional factors, such as drug amounts and
loss amounts in white-collar cases. These factors weren't heard by juries
but were often critical in determining the length of a defendant's sentence.

Six months ago, the Supreme Court cast uncertainty over federal sentencing
guidelines when it ruled in the Washington state case of U.S. v. Blakely, a
case involving a Washington man whose sentence was boosted by factors
neither admitted by the defendant nor considered by the jury. Many expected
that ruling would eventually apply to federal sentencing guidelines. They
were right.

Judges in the overwhelming majority of states have operated as though the
guidelines were already unconstitutional, even before this week. "We're
fortunate here because we anticipated exactly what the Supreme Court did,"
said U.S. District Judge Lawrence L. Piersol of South Dakota. He said that
since June, the South Dakota judges have treated the guidelines as
advisory, rather than mandatory.

While Judge Piersol didn't anticipate having to review dozens of cases for
resentencings, federal Judge George Kazen of Laredo, Texas, was more
uncertain about the future of sentencing. The Fifth Circuit Court of
Appeals, which includes Texas, had declared the guidelines constitutional
and ordered judges to abide by them last summer.

Judge Kazen, whose district is on the Mexican border, has sentenced more
than 600 people since June. "The appeals court has to decide whether it
wants to send scores of people back from all over the country now, at the
expense of marshals and transportation."

Judge Kazen says he can think of only a handful of sentences he would
alter, and most of these would get longer, rather than shorter. In one
instance, he would lengthen a sentence for a man convicted of threatening
to kill a witness who was to testify against the defendant. In another
case, Judge Kazen believed the guidelines were too soft on a defendant who
raped a woman; because she was drunk, the defendant didn't use force,
lowering his potential guidelines range.

In Salt Lake City, federal Judge Paul G. Cassell issued an opinion
yesterday saying he planned to give heavy weight to the guidelines in
imposing sentences in nearly all cases. "I'm only going to deviate where
there's significant reason to do so," he said.

Judge Cassell, a Bush appointee, has been very public about his disdain for
mandatory minimums and his passion for the sentencing guidelines -- even
though he was the first judge to find that the guidelines were
unconstitutional after Blakely. In his opinion issued yesterday, he said
that if judges exercise their discretion responsibly, "Congress may be
inclined to give judges greater flexibility under a new sentencing system."
If the discretion is abused, "Congress has ample power to respond with
mandatory minimum sentences and the like."

Texas U.S. District Judge Keith Ellison says that the sentences he issued
on Wednesday in Laredo, following the Supreme Court ruling "were far, far
lower than" what he might have issued before the ruling.

The nation's prisoners are just beginning to digest the news. Some, like
Ryan S. Pendergraft, 51 months into a 96-month sentence in a prison in
Talladega, Ga., said, "Thank God For Blakely," referring to the Washington
state case. It isn't likely that Mr. Pendergraft, convicted of loan fraud,
will get his case opened anew, for the Supreme Court said Wednesday that
its ruling applies only to those cases on direct appeal.

"Judging from the volume of letters we received, prisoners are
misinterpreting Blakely," says Marc Mauer, assistant director of the
Washington, D.C.-based Sentencing Project, which seeks to promote
alternatives to prison. "Prisoners saw a glimmer of hope and they don't
realize it's only a glimmer."

But in some instances, defense attorneys are fueling that hope. Houston
Federal Public Defender Marjorie Meyers says her office is working overtime
to supplement appeals briefs. "None of us expected the Supreme Court to say
that the guidelines are unconstitutional," she says. Ms. Meyers says there
are about 650 appeals pending in her office.

Among the high-profile defendants hopeful about the ruling, Mr. Quattrone
had his sentence boosted by a federal judge in New York with a finding that
Mr. Quattrone had lied in his testimony at trial. Such a finding, under
this week's ruling, would now be unconstitutional.

Also affected is Kenneth Lay, former Enron Corp. chairman and chief
executive, who is scheduled to go to trial in a Houston federal court later
this year in a big financial-fraud case. Prosecutors brought new charges
against Mr. Lay late last year, taking into account the Supreme Court's
Blakely ruling. They asked that evidence once traditionally considered by
judges at the time of sentencing and known as "enhancements" -- such as
leadership role in the offense and dollar amount of the fraud -- now be put
to the jury.

Mr. Lay's lawyers yesterday indicated that they are now reviewing these
additional allegations and may seek to have them struck.

In recent months, prosecutors have had to bring new indictments to reflect
these "enhancements," or to add time to sentences. Yesterday, Robert
McCampbell, the Oklahoma City U.S. attorney who chairs the U.S. Attorney
General's sentencing subcommittee, said such additional allegations in
indictments will now be reviewed on a "case-by-case basis." In some
instances, he says, prosecutors will move to strike them.

The Justice Department urged defendants signing plea agreements in the past
six months to agree to "Blakely Waivers," which essentially said they
waived their right to have their cases resentenced following the Supreme
Court's ruling. Mr. McCampbell says he expects these waivers to stand.

[Sidebar]

THE LONG ARM OF THE LAW

The Supreme Court's ruling Wednesday that federal sentencing guidelines are
unconstitutional will immediately affect the justice system.

. Judges: After 20 years of seeing their sentencing authority eroded,
judges will have more discretion than they've had in a century. But it may
be temporary, as Congress could try to legislate additional mandatory
sentences.

. Prisoners: Those whose cases are still on appeal may be able to persuade
judges to reduce their sentences. But the court ruling explicitly states
that cases that have been resolved can't be resurrected.

. Prosecutors: Those who have been presenting sentencing factors to juries
to increase sentences can return to presenting that information to judges.

. Defense attorneys: Lawyers whose clients have appeals pending and raised
sentencing issues can now challenge the penalties under the reasonableness
standard created in Wednesday's ruling.

. U.S. Sentencing Commission: The commission survives because the
guidelines survive -- albeit only in an advisory capacity.