COURT CASE RAISES SENTENCING ISSUES

WASHINGTON - The Supreme Court unleashed a potential revolution in
criminal sentencing two years ago when it ruled that only the jury,
and not a judge, could find a defendant eligible for a sentence above
the range that the legislature had specified for a crime.

The decision, Apprendi vs. New Jersey, not only invalidated New
Jersey's hate-crime law but called into question the basic sentencing
system that the federal government and many states use in which the
jury determines guilt but judges make the crucial factual findings -
the quantity of drugs, for example - that determine the sentence.

Now the justices have to decide what happens next. The proceeding in
the courtroom on Monday morning was labeled an argument but it more
resembled a high-level seminar in which the justices and the lawyers
were engaged with utmost seriousness in figuring out what the
Apprendi revolution meant and how far it would go.

At issue was a seven-year federal sentence that a pawnbroker in
Albemarle, N.C., received for ``brandishing'' a gun while he sold 4
ounces of marijuana to undercover officers. Carrying a gun during a
drug transaction violates a federal law and yields a sentence of five
years to life in prison. ``Brandishing'' a gun, as opposed to simply
carrying one, brings a mandatory minimum sentence of seven years.

The finding that the pawnbroker brandished the weapon was made by the
judge, after the jury found him guilty of the underlying offense. On
appeal the pawnbroker argued that the judge's role violated the rule
of the Apprendi decision. Every federal appeals court to consider the
issue held that because the maximum sentence was life in prison, the
seven-year minimum was obviously within the statutory range and did
not violate the Apprendi principle.

The Supreme Court appeal raises the important question that the
Apprendi decision left hanging: If a judicial finding cannot be
allowed to pierce the sentencing ceiling, can it logically be
permitted to raise the sentencing floor, through the imposition of a
mandatory minimum sentence?

The court also heard a second criminal case on Monday, in which the
question was whether a federal appeals court had properly ordered a
new sentencing hearing for a Tennessee death row inmate whose lawyer
failed to present mitigating evidence or to make a closing argument.

Nearly all the justices indicated by their questions that they agreed
with the state that the attorney's performance, while problematic,
was not constitutionally deficient.