DRUG SELLER'S HIGH COURT CASE TESTS JUDGES' POWER

Had its timing been different, Freddie Joe Booker's appeal of his 30-year
federal prison sentence might only have garnered a routine review and
perfunctory denial.

Booker, a convicted Beloit crack cocaine dealer, instead finds his case on a
fast track for argument before the U.S. Supreme Court, sharing the spotlight
with a Maine case in the debate over the fairness of federal sentencing
guidelines.

For the sudden glare of the spotlight, Booker can thank a Washington
kidnapper named Ralph Howard Blakely Jr.

Blakely's case, in which the Supreme Court struck down sentencing guidelines
used by the state of Washington, sent shock waves through the federal bar in
June, when the court issued its decision. Federal courts have used a similar
sentencing scheme since 1987 and now there is fear - or anticipation - among
attorneys that the decision will lead to the downfall of some or all of the
federal sentencing guidelines.

Thousands of cases pending in federal district and appeals courts now hang
in the balance. Thousands more federal prisoners whose appeals have been
exhausted are also looking for ways to retroactively change their sentences
based on the Blakely decision.

And until Booker's case is decided by the Supreme Court, there is some
disagreement in federal courthouses about how to handle cases pending in
court and about whether the Supreme Court will let the sentencing guidelines
stand.

"It's caused quite a bit of consternation in the federal courts," said
Charles Giesen, a Madison lawyer who practices in federal court. Like
Giesen, Madison lawyer and former federal prosecutor Chris Van Wagner is
among lawyers who favor abandonment of the sentencing guidelines.

"I must say that the guidelines should disappear because this is a 20-year
experiment that has not succeeded," Van Wagner said. The intent of the
guidelines was to equalize sentences for similar crimes across the U.S.

Others, like U.S. Attorney J. B. Van Hollen, believe the guidelines and the
tough sentences they have brought have contributed to a decline in violent
crime in the U.S.

Still others, like Booker's attorney, T. Christopher Kelly, believe that
with a few changes, the guidelines can still work.

"Deliberate cruelty" In June, a sharply divided U.S. Supreme Court ruled 5-4
that the state of Washington guidelines under which kidnapper Ralph Howard
Blakely Jr. was sentenced are unconstitutional. The court said the
guidelines require that judges base sentences on facts decided by the judge,
not by juries.

The judge added to Blakely's sentence after he ruled that Blakely had
committed his kidnapping with "deliberate cruelty." That gave Blakely a
sentence that was more than three years longer than it would have been
without the judge's cruelty finding.

Federal sentencing guidelines are similar. Generally, defendants being
sentenced are given a numerical score based on the crime they committed and
that score determines a range of possible sentences the judge can impose.
The score can be lowered by such factors as acceptance of responsibility, or
increased by other factors, including role in the offense, perjury during a
trial and criminal history.

In drug offenses, the score can be increased based on the amount of drugs
involved, even if that amount hasn't been proven beyond a reasonable doubt.

"I have seen folks go down for lengthy, lengthy sentences based on little
information that was found to be credible by a judge," said Dennis Ryan, a
Madison lawyer who practices in federal court.

The Blakely decision did not specifically decide the validity of federal
sentencing guidelines. In the meantime, however, some federal courts are
adapting their own sentencing procedures while others are, for now, ignoring
the Blakely decision altogether.

In Madison, federal prosecutors are taking steps such as adding details to
indictments to be used at sentencing. The district court's two judges are
issuing contingency sentences for defendants. Defense attorneys are also
finding that Blakely has been at least mildly helpful to them in court at
sentencing hearings.

"It's given me some extra teeth," Ryan said. "I just don't know if they're
baby teeth or fangs."

That's where Freddie Joe Booker enters the picture.

30-year term Booker was on parole for dealing cocaine on Feb. 26, 2003, when
he was arrested by Beloit police. Court records indicate that Booker had
just sold crack to a customer when police arrived to investigate a
trespassing call. Police found 92 grams of crack in his duffel bag. He also
admitted to police that he had, in the past, sold another 566 grams of
crack.

Booker was tried in September and found guilty of two counts of possessing
more than 50 grams of crack cocaine with intent to deliver. But when he was
sentenced in December, U.S. District Judge John Shabaz held Booker
responsible for the additional 566 grams of crack. Under federal sentencing
guidelines, the added drugs bumped Booker from a maximum of nearly 22 years
in prison into a sentencing range of 30 years in prison to life. Shabaz gave
Booker 30 years in prison.

But in a 2-1 decision issued just weeks after the Supreme Court's Blakely
decision, the 7th U.S. Circuit Court of Appeals overturned Booker's sentence
and ordered that Shabaz re-sentence him. The court ruled that, as in the
Blakely decision, Booker's 6th Amendment trial rights had been violated
because Shabaz, and not a jury, had found Booker responsible for the
additional 566 grams of crack.

The government immediately appealed Booker's case to the Supreme Court.
Because of the confusion that its Blakely decision has caused, the court put
the case on a fast track, along with a Maine case that also involves
sentencing guidelines. Arguments before the court are set for Oct. 4. It
could rule by the end of the year.

Booker, 50, is serving the remainder of a 10-year sentence for a Rock County
drug conviction at the state's Oshkosh Correctional Institution. He will
begin serving his federal sentence after his release from Oshkosh in
February.

Booker declined be interviewed for this story. An Oshkosh correctional
official said Booker has become wary of the attention that his once-routine
drug case has suddenly gained.

On its face, Kelly said, the Booker case is not unusual, involving a drug
dealer who has been in and out of state prison for years. The federal
sentence, however, came as a shock to Booker, he said, in part because of
the amount of discretion that federal judges have.

"The issue we've raised, it doesn't matter what a jury thinks you did," he
said. "It's what a judge thinks you did."

Kelly said he has raised the 6th Amendment argument in federal sentence
appeals before. But with Blakely on his side this time, the Booker case is
his first win on that basis.

This also isn't Kelly's first appearance before the Supreme Court. In 1990,
Kelly argued that LSD sentences should not be based on the weight of the
drug sold but on the number of doses. He lost in a 7-2 decision.

A risky proposition Attorneys Van Wagner and Giesen said the guidelines
should be abolished, if only to allow judges to once again sentence
defendants on individual merits, rather than using the guideline's
one-size-fits-all approach.

In many cases, they said, the guidelines make going to trial a risky
proposition for defendants. That's because if a defendant loses, judges will
essentially punish the defendant at sentencing for not having accepted
responsibility for their crimes. And if defendants testify at their trials,
judges often rule at sentencing that they've obstructed justice because
their version of the story doesn't square with the prosecution's version of
events.

Getting rid of the guidelines, Van Wagner said, would greatly reduce the
number of appeals. He estimates that 70 percent of criminal appeals involve
sentencing guideline issues.

Kelly, however, is not so eager to abandon the guidelines. Ideally, he said,
most of the sentencing guidelines would still apply because they bring
uniformity to sentences for the same crimes all over the U.S. But the
fact-finding authority that judges are granted during sentencing should end,
he said, because that is what drives up sentences.

U.S. Attorney J.B. Van Hollen said his office will adapt to whatever
decision the Supreme Court makes in the Booker case, as it has adapted to
the court's ruling in the Blakely case. But he said the guidelines should
remain as they are because the tough sentences have helped stem violent
crime.

"The sentencing guidelines as they have existed have proved to be effective
in the fight against crime," Van Hollen said.

While Blakely and Booker will affect ongoing cases in district and appeals
courts, it's not clear whether federal prisoners whose appeals have been
exhausted will be able to retroactively re-open their sentences. That
question is being pursued by students of Judy Olingy, clinical associate
professor at the UW-Madison Law School's Remington Center.

Five students who are part of the center's "Oxford Project," as it is
informally known, spend 12 weeks working on the cases of federal prisoners
at Oxford Federal Correctional Institution in Adams County.

"I think there are some good, solid, strong arguments about why it should
(apply retroactively)," Olingy said.

But she said courts might deny those types of appeals simply because of the
huge number of prisoners who would file them if allowed.

Ryan said he doubts that the decisions would apply to older cases.

"I would hope there would be some allowance for backward looks," he said,
"but at what point do you stop?"