SUPREME COURT TO CONSIDER CONSTITUTIONALITY OF SENTENCING GUIDELINES

WASHINGTON -- The Supreme Court, acting to halt tumult among federal
courts, agreed to consider the constitutionality of federal sentencing
guidelines in the wake of its June decision striking down the sentencing
system in Washington state.

In a rare move on their summer break, the justices agreed to hear arguments
in two cases involving the federal guidelines when the new term opens Oct.
4. The Justice Department had asked the court to schedule arguments in the
two cases for mid-September.

The action highlights the chaos in the criminal-justice system following
the Supreme Court's June ruling on state sentencing guidelines. In that 5-4
decision, the high court ruled that any factor increasing a criminal
sentence must be admitted by the defendant in a plea deal or proved to a
jury. Although the decision, in the case of Blakely v. Washington,
technically affected just the guidelines of a single state, federal judges
and circuit courts have cited it in dozens of legal opinions. During recent
weeks, a number of federal judges and three appellate courts have ruled the
federal guidelines unconstitutional.

The Blakely ruling has exposed concerns about the fairness of the
20-year-old system, which affects the federal sentences of roughly 250
defendants a day. Though originally intended as "guidelines" set by the
U.S. Sentencing Commission, the rules carry the force of law, and judges
are required to sentence within them or face potential congressional
scrutiny if they depart downward.

In a filing to the court requesting an expedited review, Paul Clement, the
acting solicitor general, warned that the ripple effect from Blakely "has
profoundly unsettled the federal criminal-justice system."

The two cases the court agreed to hear involved Ducan Fanfan, a
Massachusetts man convicted of cocaine trafficking, and Freddie J. Booker,
a Wisconsin man convicted of selling crack cocaine.

Mr. Fanfan was convicted by a jury before the Supreme Court's Blakely
ruling, but was sentenced after it. Although he faced a sentence of at
least 15 years, the trial judge sentenced him to six years, after rejecting
the federal guidelines.

In Mr. Booker's case, the U.S. Court of Appeals for the Seventh Circuit in
Chicago ruled that the federal guidelines aren't constitutional under
Blakely. The court said Mr. Booker's constitutional right to a jury trial
was violated when a district-court judge gave him a 30-year prison sentence
based on the judge's own findings about the quantity of drugs involved, as
well as on a conclusion that Mr. Booker had obstructed justice. The appeals
court ordered the trial court to resentence him.

The principal question the Supreme Court will take up is whether a
defendant's Sixth Amendment right to a jury trial is violated when a
sentencing judge imposes an enhanced sentence based on the judge's
determination -- by a preponderance of evidence -- of a fact that wasn't
found by the jury or admitted by the defendant. The court will also decide
whether this renders the entire federal-guidelines system unconstitutional.

The court didn't address questions raised by the defense teams for Messrs.
Booker and Fanfan, as well as by National Association of Criminal Defense
Lawyers. Lawyers for the two defendants had raised questions about whether
these two cases were ideal vehicles for reviewing federal guidelines. In a
brief submitted Wednesday, the association, a nonprofit with more than
11,200 members nationwide, sought to reframe the Justice Department's
questions, broadening them. The association also asked the court to refrain
from considering the case of Mr. Fanfan, a defendant with a long criminal
history who appeared to have benefited significantly from the Blakely ruling.

Yesterday, Thomas C. Goldstein, a Washington lawyer representing the
association, said he wasn't surprised that the court hadn't considered the
organization's suggestions. "When the court is having to move fast, they
have to trust the solicitor general's choice of cases," he said. He added
that the association and other defense-lawyer groups will now submit new
briefs for the court's consideration. "When the court decided Blakely, it
knew what it was doing to the guidelines," he said.

The briefing and argument schedule set by the court indicates that the
justices realize many complex issues are to be considered, some specialists
say. Says Douglas Berman, a sentencing expert at Ohio State University's
law school, in Columbus: "Though the Justice Department is saying there's a
huge crisis, the Supreme Court is saying it's not going to rush to judgment."

As is generally the case, the Supreme Court didn't comment when it agreed
to review the two cases. It also didn't address Washington state's petition
for a rehearing of the Blakely case. Stung by that decision, the state had
hoped it might have a second opportunity to argue its case.