Pubdate: Fri, 14 Jan 2005
Source: Roanoke Times (VA)
Copyright: 2005 Roanoke Times
Contact:  http://www.roanoke.com/
Details: http://www.mapinc.org/media/368
Author: Jen McCaffery, The Roanoke Times
Bookmark: http://www.mapinc.org/topics/federal+sentencing

ROANOKE LAWYERS DISCUSS FEDERAL SENTENCING GUIDELINE RULING

The U.S. Supreme Court Found That Judges Were Assessing Factors That
Should Be Determined by a Jury.

A U.S. Supreme Court decision that was handed down Monday may help
level the playing field for defendants in federal court.

That's what some local defense attorneys hope in the wake of a ruling
that said the way federal judges have sentenced some defendants under
federal sentencing guidelines is unconstitutional. But no one's
exactly sure how the decision will ultimately play out.

Roanoke attorney Tom Blaylock asked for a guilty plea that was
scheduled for Tuesday morning to be postponed in the wake of the
decision so he could assess what it might mean for his client.
Blaylock said federal Judge Samuel Wilson granted the request.

The ruling said that judges were assessing factors that should be
determined by a jury. The decision found that judges were improperly
adding time to defendants' sentences in violation of their Sixth
Amendment right to a jury trial. But the ruling stopped short of
getting rid of the sentencing guideline system and said the guidelines
should remain as advisory.

Roanoke lawyer David Damico said the ruling may give some additional
discretion to the sentencing judge. With the decision, the sentence a
defendant receives could depend more on the judge, Damico said.

The ruling could also make federal sentencing more like the sentencing
in state court, Damico said. Virginia has sentencing guidelines, but
they are advisory, not mandatory.

In the federal system, because judges were bound by the federal
sentencing guidelines, a "prosecutor had unfettered authority to get
an outcome that he liked, based on his choice of charges," Damico argued.

U.S. Attorney John Brownlee did not return calls for comment on the
decision.

Roanoke lawyer Ray Ferris also said the decision could play out in
several ways.

Under the previous system, prosecutors might go to trial on only one
drug transaction that they knew they could prove beyond a reasonable
doubt, Ferris argued. Then if the defendant was convicted of that
charge, at sentencing, prosecutors could introduce additional evidence
to the judge, knowing that the evidence faced a lower burden of proof
at that stage under the federal sentencing guidelines. The judge only
had to find by what is called a "preponderance of the evidence" that
it was more likely than not that the additional allegations of
criminal behavior took place.

"You rarely see judges not being able to find beyond a preponderance
of the evidence that there was another 50 grams in the woods," Ferris
said. That finding would result in a longer sentence for the defendant
under the old system.

Ferris also said that in the past, because of the way the system
worked, prosecutors would use the likelihood that a judge would
determine at sentencing that a defendant committed additional criminal
acts as leverage to get a defendant to plead guilty to a certain
charge or drug weight. 
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