DOUBLE STANDARD

In Wake Of Ruling, Disarray Plagues Federal Sentencing

Supreme Court's June Verdict Leaves Judges Confused; Some Issue Two Decisions

Mr. Pena Makes An Objection

NEW YORK -- At Manhattan's federal courthouse, Judge Shira Scheindlin has
had a new policy since August: She doesn't sentence any defendants unless
they ask for it. Three floors down, Judge Jed Rakoff has a different but
equally unusual policy: He gives every defendant two sentences, based on
two different sets of rules.

Disarray has enveloped the federal court system for the past six months
since a Supreme Court ruling hinted that the guidelines governing federal
sentences may be unconstitutional. As federal judges wait, and wait some
more, for the divided high court to deliver a final verdict, they have come
up with a myriad of ways to sentence defendants.

"To the general public, this signifies a criminal justice system run amok,"
says J.P. Stadtmueller, a federal judge in Milwaukee.

The Supreme Court ruling on June 24 in the Blakely v. Washington case
struck down a system used in the state of Washington that guides judges to
boost sentences based on exacerbating factors in a crime -- for example,
that the defendant played a leadership role. The Supreme Court said it's
unconstitutional to do this unless the defendant has admitted to the
exacerbating factor or it has been found true by a jury beyond a reasonable
doubt.

While the court's ruling technically applied only to Washington state, many
lawyers and judges believe it effectively makes the federal sentencing
guidelines unconstitutional too, since they're similar to Washington's. The
Supreme Court is now hearing two cases involving the federal guidelines,
which are used to sentence 60,000 defendants a year. Many expected the high
court to rule this year, but it didn't. The earliest next possible decision
date is Jan. 11.

If the Supreme Court rules that its verdict in Blakely applies to the
federal guidelines as well, many legal experts expect it to strike down the
entire guidelines system. Another option would be to throw out only those
parts of the guidelines that deal with sentencing "enhancements."

In the meantime, federal appeals courts have given varying instructions to
district courts. Some have ordered district judges to carry on as if
nothing has changed. Two appeals courts have ruled the exact opposite: They
say the federal guidelines are now unconstitutional until further notice
and judges shouldn't follow them as written. Still others say it's up to
the individual judge.

The Second Circuit, which includes New York, is one of those that has
ordered district judges in the circuit to keep using the federal guidelines
until the Supreme Court makes up its mind. In Manhattan, Judge Scheindlin
has refused. "The Second Circuit was telling me to act as if June hadn't
come and I said I just can't do that," she says. Her solution: For the time
being, sentence no one.

Sentencing under the guidelines requires judges to do considerable work to
figure out which "enhancements" apply to a defendant. If the Supreme Court
shoots down the guidelines, Judge Scheindlin notes, all that work would be
wasted. "Who wants to do it again?" she asks. When a defendant agrees,
judges can defer sentences indefinitely. So long as the defendant is in
jail awaiting sentencing, this is usually fine with prosecutors. In one
case a defendant asked Judge Scheindlin to be sentenced right away, but the
others were willing to wait because they figured the guidelines could be
struck down and they would have a better shot at a light sentence later.

For his part, Judge Rakoff thought about putting off sentencing but worried
that he'd be stuck with a huge backlog. "If you put off 15 sentences,
that's eight days' work," he says. He is issuing one sentence that assumes
that the guidelines will remain in effect and another that will take effect
if they don't. For the moment, it's the first sentence that counts.

Many judges have long criticized the guidelines, calling them too rigid and
harsh, and welcome the chance to use their discretion. Federal Judge Bill
Wilson in Little Rock, Ark., says drug penalties are "far too severe" in
many instances. His circuit hasn't ruled on the constitutionality of the
guidelines, thus giving him leeway to sentence outside of them. In several
recent drug cases he has given lighter sentences than the guidelines would
prescribe. However, in another recent case involving a defendant who dumped
waste into a stream, Judge Wilson issued a sentence that was tougher than
the one called for by the guidelines. Judge Wilson also issues sentences
that presume the guidelines are constitutional. He says that about
two-thirds of the time, the two sentences are very similar.

In California, which is in one of the two circuits that has ruled the
federal guidelines unconstitutional, one high-profile defendant reaped a
windfall. Richard I. Berger, the former chief executive of Craig Consumer
Electronics, was convicted of bilking banks and investors by presenting
false financial figures. Los Angeles federal prosecutors recommended a
sentence of more than eight years, alleging that Mr. Berger played a
leadership role in the fraud and was responsible for millions of dollars in
losses to investors.

But Judge Robert Takasugi said he was "constrained" from boosting Mr.
Berger's sentence because of these factors, which the jury hadn't ruled on.
He sentenced Mr. Berger in September to just six months in prison.

The hope for leniency extends to prisoners who have already been sentenced
under the federal guidelines. If the Supreme Court rules that the
guidelines are unconstitutional it might also order that the ruling be
applied retroactively, meaning some prisoners could try to get their
sentences reduced.

Deluged by prisoner questions, the Federal Bureau of Prisons issued a list
of "talking points" this month. "You are probably aware" of the coming
Supreme Court ruling, wardens are advised to tell inmates. "It is essential
that you understand nothing will happen automatically with your case as a
result of the Supreme Court's decision." Instead, the memo explains, any
revision of sentences would be up to individual sentencing courts.

If the federal guidelines are judged unconstitutional, one suggested fix is
to have juries rule on all the factors that can enhance a sentence. As a
temporary measure, the Justice Department has urged federal prosecutors to
include these sentencing factors in their indictments.

Ellyn Marcus Lindsay, an assistant U.S. attorney in Los Angeles, is
spending days rewriting old indictments to conform with the Justice
Department's recommendation. "For six months, I've been dealing with the
mess that Blakely created," she says.

In Sioux Falls, S.D., Chief Judge Lawrence L. Piersol says he is asking
juries to find drug quantities and that is "simple for them." But financial
fraud cases are another matter. Judge John C. Coughenour, chief judge of
the Western District of Washington, yesterday completed an eight-week trial
involving 87 counts of tax evasion and other fraud. The jurors came back
with guilty verdicts against six defendants. "It's not going to be a simple
task for a jury to conclude how much the tax loss was," says Judge Coughenour.

In parts of the country where the guidelines are still in effect, one
tactic of prosecutors is to press defendants to sign "Blakely waivers"
along with a guilty plea. This waiver adds an extra layer of security to
the standard pledge in which the defendant promises not to contest the
sentence resulting from the guilty plea. The waiver says that even if the
Supreme Court rules the guidelines unconstitutional, the pledge still holds
- -- in other words, that the defendant can't use a high court ruling as an
excuse to contest his sentence.

New York defense lawyer Robert Morvillo, who represented Martha Stewart in
her criminal trial this year, balked when Brooklyn federal prosecutors
asked one of his clients to sign a Blakely waiver in a recent tax-evasion
case. "What if the Supreme Court declares the guidelines unconstitutional?"
Mr. Morvillo says he responded. "How can you force a judge to sentence
under an unconstitutional sentencing system and me to waive my client's
rights? That would be malpractice." Mr. Morvillo successfully persuaded
prosecutors to allow him to challenge the sentence if the Supreme Court
declares the guidelines unconstitutional.

Roslynn Mauskopf, the U.S. attorney in Brooklyn, says defendants waive many
rights when they plead guilty, including the right to a jury trial, and
there is nothing special about waiving the right to appeal a sentence if
the law changes. She notes that the Justice Department has encouraged
prosecutors to seek Blakely waivers.

One of the nation's busiest federal courtrooms is in Laredo, Texas, where
Judges Keith Ellison and George Kazen together sentence about 2,800
defendants a year, mostly on drug or alien-smuggling charges. The appeals
court of the Fifth Circuit, which includes Texas, is one of those that has
directed judges to rule as if nothing has changed.

By 9 a.m. on a recent Wednesday, the third-floor courtroom in Laredo's new
federal courthouse was packed with prosecutors, lawyers, handcuffed
defendants and family members. Many of the defendants faced significant
extra prison time because of enhancements based on the amount of drugs they
smuggled or the number of aliens they tried to ferry across the border with
Mexico, which is right across the Rio Grande from Laredo.

Public defenders in the region have been challenging the use of these
enhancements based on the Supreme Court's Blakely ruling. Judge Ellison
politely but firmly dismissed each challenge as he sentenced 14 defendants
in just over three hours. "In our circuit, the guidelines are
constitutional, so while your objection is noted for appeal, it is
overruled," he told defendants and their lawyers.

Still, says Laredo defense lawyer Oscar O. Pena, "right now, if you're not
making a Blakely objection, you're not doing your job." It's especially
important, he says, "in situations where we know intuitively that we
wouldn't punish a guy as much as the guidelines do."

On this day, Mr. Pena was representing a 19-year-old drug addict who was
arrested in a warehouse that held four tons of marijuana. The young man
claimed he had been hired to package the drugs . While out on bond, he
failed a routine drug test. Fearful of being imprisoned before his
sentencing, he cut off his electronic monitor bracelet and fled to Mexico.
Days later, he returned and turned himself in to authorities in Laredo.

Judge Ellison ruled that the defendant's role in the marijuana distribution
scheme was a minor one. Nonetheless he sentenced the defendant to three
years and 10 months in prison, as the guidelines mandated. Mr. Pena thinks
he might be able to get that reduced if the guidelines are overturned.

Judge Ellison says he often used to issue sentences below the range
recommended in the guidelines. But last year a law called the Feeney
Amendment passed by Congress demanded that judges who "depart downward"
explain their rationale to the Justice Department in writing. Judge Ellison
says he now departs downward only when prosecutors recommend it. In other
cases, he typically sentences at the low end of the guidelines range.

One particularly thorny case involved 24-year-old Manuel De La Fuente, who
pleaded guilty to possessing and intending to sell about 220 pounds of
marijuana. While his sentencing for that crime was pending, he escaped from
a San Antonio jail, only to be recaptured. The federal guidelines called
for Mr. De La Fuente's drug sentence to be boosted because he obstructed
justice by escaping -- even though he faced separate charges for the escape
in San Antonio.

Homero Martinez, Mr. De La Fuente's lawyer, argued that it was unfair to
punish his client twice for the escape. That argument prompted Judge
Ellison to wonder aloud how such cases might be handled if the Supreme
Court strikes down the federal guidelines in line with its Blakely ruling.
"It really does raise an interesting Blakely question," he mused. "I'm
wondering, under Blakely, what we do about post-indictment conduct. Would
it have to be subject to a new indictment?"

Then the judge returned to the real world of the Fifth Circuit. He
concluded that Mr. De La Fuente should have his prison time extended
because of his escape and handed down a sentence in line with the
prosecutors' request: 10 years and five months.

"We're going to proceed with this sentence today," Judge Ellison said. "But
if the Supreme Court intervenes, we may have to revisit it."