RULING THROWS FEDERAL SENTENCING INTO CHAOS

Already, Judges Giving Lighter Jail Terms; Appeals Expected

WASHINGTON - For almost 15 years, federal sentencing guidelines made
the rules clear.

Now they're in chaos, due to an unexpected Supreme Court decision that
has upset sentencing practices in federal courts nationwide. In
Blakely v. Washington, the justices last week stripped judges of their
long-held power to increase sentences based on aggravating factors,
saying the constitution reserves those determinations for juries. The
ruling already is producing lighter jail terms.

It could inspire appeals by up to 250,000 inmates who were sentenced
under the plan the Supreme Court rejected. It also could force U.S.
attorneys to rethink how they prosecute offenders, drag Congress into
a messy effort to rewrite federal sentencing laws and perhaps require
fast-track reconsideration of the issue by the high court. History may
first remember the Supreme Court term that just ended for the
justices' sharp criticism of the Bush administration's terrorism
detentions and its eloquent assertions about the pre-eminence of civil
liberties.

It will easily recall the court's failure to settle squabbles over the
Pledge of Allegiance and Vice President Dick Cheney's secret energy
task force. But Blakely was the late-term surprise that, by
challenging the entire federal-sentencing system, could have more
effect on everyday crime and punishment issues than any high court
ruling in 30 years. The effects have been immediate. U.S. District
Judge Joseph Goodwin dropped a West Virginia drug dealer's sentence
from 20 years to 12 months last week. And Dwight Watson, the N.C.
tobacco farmer who drove his tractor onto the National Mall in
Washington in March 2003 and threatened to set off a bomb, was
released Thursday when U.S. District Judge Thomas Penfield Jackson cut
his sentence to 16 months.

Jackson had given Watson a six-year term the day before the Supreme
Court ruled last week, but he decided he shouldn't have added time to
reach the six years. A judge in Maine cut another dealer's prison
stint from 19 years to six. And in Utah, a judge knocked three years
off the jail term of a man who took pornographic pictures of his
9-year-old daughter and another child. "This is going to have
far-reaching effects on all the cases that come before us," Goodwin
said. "We'll definitely need more guidance from the Supreme Court or
the appeals circuits." In Blakely, the justices overturned a
Washington state man's sentence because a judge added nearly three
years to his term by considering factors that were related to, but not
an essential part of, his kidnapping conviction. The justices ruled
that a jury, rather than a judge, had to find that those factors were
proved beyond a reasonable doubt for them to be considered in
sentencing. "It's definitely the most important criminal justice
decision under (Chief Justice William) Rehnquist," said Doug Berman,
an Ohio State University law professor who's been chronicling the
aftermath of Blakely on a Web site,
http://sentencing.typepad.com/sentencing_law_and_policy.
"In terms of the near-anarchy it's creating in the federal system and
the possibility in state systems," Berman said, "the fallout is more
dramatic than anything I can even think of." In the first week after
Blakely was decided, judges in nearly every federal jurisdiction
concluded that it demands a sea change in the way they calculate
sentences. Some, such as Goodwin, have begun writing full-blown
opinions when meting out sentences, begging for higher courts to
pursue Blakely's effect. Take the case of Ronald Shamblin, a
methamphetamine maker whom Goodwin had sentenced to 20 years in prison
two weeks ago. Based on the crime he pleaded guilty to, Shamblin was
eligible for only a 12-month sentence under federal guidelines. But
the guidelines also called for Goodwin to impose more jail time for
other "relevant conduct": possession of a weapon, having additional
drugs that weren't part of the indictment, intent to sell the drugs to
a minor, being the leader of a major drug operation.

That's how Shamblin got 20 years. But Shamblin's lawyers argued last
week that Blakely made the sentence illegal, because Goodwin, not the
jury, concluded the facts that raised their client's sentence above 12
months. Goodwin agreed, and in his opinion, he echoed frustrations
shared by many judges. "At 240 months, Shamblin's sentence represented
much that is wrong about the sentencing guidelines," he wrote. "At 12
months, it is almost certainly inadequate." The ripples from Blakely
have inspired some to suggest the Supreme Court, which has adjourned
until the first Monday in October, might need to cut short its
vacation to revisit the issue.

Ordinarily, it wouldn't consider a case involving Blakely's effects
before next winter. But by then there'll be "a flurry of litigation,"
said Beth Brinkmann, a criminal defense specialist and partner at the
Washington law firm of Morrison & Foerster LLP. "They'll need to
resolve it quickly." N.C. Impact "It appears it may have some impact
on us in North Carolina," Mecklenburg District Attorney Peter
Gilchrist said. "We are not sure yet what that impact will be.
Prosecutors and defense lawyers are studying the potential impact on
our sentencings and procedures."