Pubdate: Tue, 12 Sep 2000
Source: Sacramento Bee (CA)
Copyright: 2000 The Sacramento Bee
Contact:  P.O.Box 15779, Sacramento CA 95852
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Author: Claire Cooper and Denny Walsh

RULING'S EFFECTS COULD BE MONUMENTAL: OPINION IN APPEAL COULD CAST DOUBT ON 
DRUG SENTENCES

SAN FRANCISCO -- Driving home the impact of a recent U.S. Supreme Court 
decision, the highest court in the West on Monday cast doubt on the 
validity of sentences already handed down in the most-serious federal drug 
cases.

On a 3-0 vote the 9th U.S. Circuit Court of Appeals overturned a Humboldt 
County man's sentence for marijuana crimes, holding that he was not 
eligible for 10-years-to-life in prison, as a San Francisco federal judge 
had assumed, but for a maximum of five years.

The decision could upset "a gigantic class of cases," said Steven Kalar, a 
defense lawyer and authority on the fallout from the high court's ruling.

Kent Scheidegger, of the conservative Criminal Justice Legal Foundation, 
said the crime was one of the most common types of federal prosecution.

The reason for the 9th Circuit's reversal: The judge rather than the jury 
determined the critical factor in arriving at the longer sentence -- the 
quantity of marijuana. Judge Vaughn Walker found that Kayle Nordby was 
responsible for 1,000 or more plants.

Walker didn't mess up. When he sentenced Nordby on March 25, he did what 
was required under federal sentencing guidelines that have been used in a 
half-million cases since 1989.

But on June 26, the U.S. Supreme Court put the guidelines on shaky ground. 
It declared, in an appeal from New Jersey known as the Apprendi case, that 
a jury must determine beyond a reasonable doubt the truth of almost all 
factors used by prosecutors to boost sentences.

Several Supreme Court justices among both the five-person majority and 
four-person minority warned of what Justice Sandra Day O'Connor, a 
dissenter, called "colossal" implications.

The Nordby decision, which is binding in all federal courts in California 
and eight other states, was among the first to apply the Apprendi ruling in 
a defendant's favor.

The ruling returning the case to Walker for re-sentencing was issued by 
representatives of the 9th Circuit's left, right and center and was written 
by Senior Judge William C. Canby Jr. of Phoenix.

According to Erwin Chemerinsky, a law professor at the University of 
Southern California, as of the end of August, 36 federal and state court 
opinions had grappled with Apprendi.

At least one other high-ranking court has thrown out a sentence: the 6th 
Circuit, which covers Kentucky, Ohio, Tennessee and Michigan. The opinion 
issued two weeks ago said Nancy Jo Rebmann's proper sentence for heroin 
distribution was no more than 30 months and could not be increased to 24 
years on the basis of a trial judge's finding that her crime caused her 
husband's death.

But most courts have been reluctant to throw out sentences.

For example, a federal judge in San Diego ruled in July that Apprendi would 
not affect drug penalties.

Many of the courts have ruled that violations of the Apprendi doctrine were 
mere "harmless error" -- in carjacking, firearms and drugs cases -- because 
of a variety of circumstances such as admissions by defendants.

The 9th Circuit said "harmless error" could not be applied to Nordby 
because he consistently maintained he wasn't responsible for more than 
2,000 marijuana plants found on land he owned.

At least two other cases raising Apprendi issues are pending in the 9th 
Circuit.

In one of those, the federal Public Defender's Office in Sacramento 
recently amended its appeal to argue that, under the Apprendi decision, 
Vidal Garcia-Contreras should have been sentenced to a maximum of two years 
for illegal re-entry into the United States. He was sentenced to more than 
seven years because he had an aggravated felony conviction on his record, 
but the accuracy of the record never was proved to a jury.

On Friday, the first in a group of Sacramento-area cases involving the same 
issue as the Nordby case is set for sentencing before U.S. District Judge 
Garland E. Burrell Jr.

Federal prosecutors are asking Burrell to sentence Javier Mora to 17 years 
in prison "in light of Apprendi," about four years less than they would ask 
for without Apprendi.

Paul Seave, the U.S. attorney in Sacramento, said some sentences will be 
negotiated with defense counsel "on a case-by-case basis." "The sentences 
will be long, regardless, and the public's interest will be served. That's 
the important thing," he said.

He predicted few retrials.

As for upcoming cases, he said drug quantities will be included in 
indictments and other charging documents and presented to juries for their 
determination. That practice already has been instituted in federal drug 
prosecutions in San Francisco, according to a spokesman for the U.S. 
attorney in that city.
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