COURT BACKPEDALS ON IGNORING FEDERAL SENTENCING GUIDES

For Federal Judges In Tennessee, Freedom Has Proved Fleeting.

Just five days ago, federal judges in the Eastern District, which
includes Knoxville, were told they were free to sentence criminals as
they saw fit.

Late Monday, however, those same judges received word that they are
once again bound by federal sentencing guidelines, which set out the
range of punishment a judge can impose.

For those who hailed last week's ruling by the 6th U.S. Circuit Court
of Appeals that gave federal judges the green light to treat
guidelines as mere advice, news of the court's decision to reconsider
its own ruling was disheartening.

"It didn't even last a week," said Federal Defender Beth Ford, whose
office defends people accused of committing federal crimes.

To those proponents of the mandatory, mathematical, gridlike
guidelines, the appellate court's decision was heartwarming.

"We're glad that the entire court is going to consider the issue,"
said First Assistant U.S. Attorney Russ Dedrick, whose office
prosecutes alleged federal criminals.

Both concede, however, that the fast-paced flip-flop does little to
bring clarity to what has become a confusing situation in the wake of
a U.S. Supreme Court decision that seems to call into question
sentencing schemes across the nation.

"Now, we're all back to scratching our heads," Ford
said.

The nation's high court on June 24 issued a ruling in the case of
Washington State v. Ralph H. Blakely Jr., opining that Blakely's Sixth
Amendment right to a jury trial was violated when a judge jacked up
Blakely's sentence based on conduct a jury never had a chance to
decide he committed.

No sooner had the ruling been made than a furor erupted over whether
the Blakely decision impacted the way criminals are sentenced in the
federal court system and whether it had any effect on states with
sentencing schemes similar to the procedure used in Washington.

The Cincinnati-based 6th Circuit, which rules on cases in Tennessee,
Ohio, Kentucky and Michigan, issued a ruling July 14 that said the
Blakely decision rendered the federal system's method of doling out
punishment as unconstitutional. The ruling is known as the Montgomery
decision.

Because of that, the ruling said, federal judges in those four states
were now free to consider the sentencing guidelines as "advisory only."

There are nine judges on the 6th Circuit panel, but only three had
issued the Montgomery decision. The U.S. Department of Justice's
appellate division cried foul and promptly asked for a review by the
entire court, known as an en banc review.

Late Monday, the 6th Circuit panel issued an order approving an en
bank review and vacating the Montgomery decision until the full court
panel decides the case.

Dedrick said it was imprudent for only three of the nine judges to
issue a ruling that had such a monumental impact. After all, he noted,
the Montgomery decision declared the very foundation of the federal
sentencing structure as unconstitutional.

"It is of such a magnitude that it is only reasonable (the entire
panel decide the issue)," Dedrick said.

But defense attorney David Eldridge argued the Montgomery decision was
not foolhardy but instead "illustrates the frustration that many
federal judges have expressed with the mandatory sentencing structure
the guidelines have imposed."

There is a split among federal appellate courts across the nation on
whether the Blakely decision has any impact at all, and everyone in
the legal system is looking to the U.S. Supreme Court for a final
answer. The high court is out of session until mid-September, however.

Dedrick said the Justice Department "has taken the position the
guidelines are constitutional."

Dedrick said his office, headed by U.S. Attorney Sandy Mattice, is
trying to tread carefully until a final decision is rendered.

"We're attempting to deal with each case on a case-by-case basis,"
Dedrick said.

Ford and Eldridge agree the 6th Circuit plans to act quickly in
deciding whether the Blakely decision spells doom for the federal
sentencing guidelines.

"I think it's on a fast track," Ford said.

The court has asked both sides in the Montgomery case to submit their
arguments by July 28.