Pubdate: Sat, 12 Jun 2004
Source: Tampa Tribune (FL)
Copyright: 2004, The Tribune Co.
Contact:  http://www.tampatrib.com/
Details: http://www.mapinc.org/media/446
Author: Elaine Silvestrini
Note: Limit LTEs to 150 words

CONFUSION RULES IN FEDERAL COURTS

TAMPA - As U.S. District Judge Richard Lazzara sentenced defendant after
defendant on Friday, the name of one person not in the courtroom hung heavy
in the air.

Ralph Howard Blakely Jr., a kidnapper from Washington state, has sent
federal judges across the country into a spin because his successful appeal
to the U.S. Supreme Court may mark the end of federal sentencing practices.

In ruling for Blakely, the high court invalidated Washington state's
sentencing law, which experts say is very similar to federal sentencing
guidelines.

Although the sharply divided Supreme Court said in its ruling June 24 that
it was not addressing the federal guidelines, some experts believe the
reasoning in the Blakely opinion will result in the demise of the
guidelines.

Until the effect of the Blakely case is sorted out, confusion rules in many
federal courtrooms.

``It is very chaotic,'' said Chief Judge Patricia Fawsett, who presides over
the Middle District of Florida, which includes Tampa. ``It's a most unusual
time.''

``I like the word quagmire,'' said U.S. Attorney Paul Perez.

Federal judges in Boston and Utah have already held the guidelines
unconstitutional based on the Blakely decision, Fawsett said.

In general, there are two ways a federal sentence is determined. First,
there is a law that defines each crime and provides minimum and maximum
sentences for it.

Second, there are sentencing guidelines, established by a congressionally
created commission, that spell out where, within the range, a sentence must
fall. That place depends on a number of specific factors, such as the
defendant's role in the crime. These factors are determined by a judge, not
a jury.

In a boat drug trafficking case, for example, a captain may be deemed more
responsible and deserving of a higher sentence than a crewman.

Use Of Information Reined In

The federal guideline scheme is similar to the Washington state law that the
Supreme Court threw out. Washington state also has laws that define crimes
and give broad sentencing ranges. Washington has another law that sets out
where, within the range, a particular defendant should be sentenced,
depending on specified factors.

The Supreme Court held that Washington state's guideline law was
unconstitutional because it required judges to impose sentences based on
specified facts not established by a jury or admitted by a defendant when
pleading guilty.

In the Washington case, the judge ruled that Blakely had committed his
kidnapping with ``deliberate cruelty'' and sentenced Blakely to 7 1/2 years
in prison. Blakely, who pleaded guilty to the kidnapping, denied the
deliberate cruelty.

Under Washington's kidnapping law, the maximum sentence is 10 years. But the
standard guideline range in Washington for the crime was four years and one
month to four years and four months. The Supreme Court held that the judge
should not have departed from the standard guideline range.

Without guidance from the high court, federal judges are reacting in
different ways to the Blakely ruling.

``We are all independent,'' Fawsett said. ``There is no party line. There is
no getting together, voting and saying, `Let's do it that way.' Each judge
is going to have to make up her own mind or his own mind about what to do.''

As for what she is going to do, Fawsett said, ``I haven't decided yet.''

U.S. District Judge Susan Bucklew said, ``I'm not sure what I'm going to do.
I don't think anybody is sure what to do. ... It is an extremely stressful
time.''

The Justice Department, for which Perez works, takes the position that
Blakely has no effect on federal sentencing. ``So it's business as usual and
we should go on,'' Perez said.

However, he said, just in case courts rule otherwise, prosecutors are
reviewing options, such as requiring defendants who enter into plea
agreements to waive any rights they might have under the Blakely ruling.
Prosecutors also will ask defendants to admit to more details of their
crimes than they have in the past.

The Blakely ruling prompted at least one Tampa judge to postpone a case last
week. U.S. Magistrate Elizabeth Jenkins, citing the case, put off a
scheduled guilty plea by a member of a Colombian paramilitary organization
called the AUC.

U.S. District Judge Elizabeth Kovachevich, who is awaiting a jury verdict in
a trial, has scheduled a hearing for today over whether a second hearing
will be necessary if certain defendants are convicted so that the jury may
consider sentencing issues.

Reversals Predicted

``I think the judges are really struggling with what to do,'' said James
Felman, a Tampa lawyer who serves on an advisory committee for the U.S.
Sentencing Commission. ``In my view, any judge that holds that Blakely does
not apply is going to get reversed, ultimately.''

Felman said he thinks Congress will act to circumvent the Blakely ruling by
enacting a law that adjusts sentencing guidelines so that judges will have
free rein to impose high sentences. At the same time, the law would retain
current restrictions on judges' ability to give low sentences. ``It will end
the sentencing guidelines in just an absolutely tragic way,'' Felman said.
``That's my fear.''

Jeffrey G. Brown, president of the Tampa Bay Federal Bar Association, said
he and other lawyers are reviewing case files to determine which sentences
can now be appealed because of the Blakely ruling. ``We're looking to file a
lot of appeals in cases that go back four or five years,'' he said.

In his sentencings on Friday, Lazzara repeatedly ruled that the Blakely case
does not apply to federal guidelines.

``Until told otherwise by the 11th Circuit Court of Appeals or the U.S.
Supreme Court, my position is it does not affect the sentencing
guidelines,'' he said in case after case.
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