Pubdate: Mon, 24 Jan 2005
Source: News & Observer (NC)
Copyright: 2005 The News and Observer Publishing Company
Contact:  http://www.news-observer.com/
Details: http://www.mapinc.org/media/304
Author: Andrea Weigl, Staff Writer
Bookmark: http://www.mapinc.org/topics/federal+sentencing (Federal Sentencing)
Bookmark: http://www.mapinc.org/coke.htm (Cocaine)
Bookmark: http://www.mapinc.org/heroin.htm (Heroin)

RULING THROWS SYSTEM FOR LOOP

'Art of Lawyering' At Center of Debate

Manning Reminds Past Clients That Ruling Is Not Retroactive.

NEW BERN -- Lawyer Barry S. Turner walked into a federal courtroom
Thursday and began chatting up probation officers to see whether the
U.S. Supreme Court's transformation of sentencing rules into mere
advisories might help his client.

Turner represented Rory Garvey, a New York man facing between five
years and 15 years in prison for being caught with two kilos of
cocaine and 674 grams of heroin during a Johnston County traffic stop.
Turner wanted the probation officers to tell him how District Court
Judge Louise Flanagan had been laying down the law since the Supreme
Court's decision in U.S. v. Booker.

He hoped Flanagan would use her new discretion to address what he
considered a long-standing problem. Turner said the sentencing
guidelines' reliance on drug weights never adequately addressed his
client's situation -- being a low-level courier who didn't control the
amount of drugs he carried, $140,000 worth.

But Flanagan stuck to the guidelines, sentencing Garvey to five years
in prison. Turner had been hoping for less than four.

"Booker didn't do a thing," Turner said afterward. "She obviously
followed the guidelines."

The Jan. 12 Booker ruling has left judges, prosecutors and defense
lawyers struggling to react. Last week, prosecutors in Wilmington
revised plea agreements, and defense lawyers gathered in Greenville to
discuss the ruling. And in New Bern, Turner and others tried to use
the ruling to persuade Flanagan to hand down lighter sentences.

The fact that defense lawyers were not very successful doesn't
surprise Raleigh defense lawyer Thomas Manning.

"Our district being the way it is, I think our judges are going to
stick pretty close to that line," Manning said. "I don't think it's
going to be as big a sea change."

However, Federal Public Defender Thomas P. McNamara said the ruling is
good news. "This was a fabulous win for the defense," McNamara said.

The guidelines reduced federal sentencing to a grid sheet and a series
of complex calculations.

"The guidelines took away the art of lawyering," said McNamara, who
organized the training session in Greenville for defense lawyers. The
court ruling, he said, "gives us an opportunity to cure many of the
problems we saw before. Now the guidelines are not the only factor in
sentencing."

Factors such as work history, military service and mental condition
now weigh equally with the guidelines, McNamara said.

Congress passed the guidelines in order to limit judicial discretion.
Citing disparities in sentences being imposed across the country for
similar crimes, lawmakers passed the Sentencing Reform Act in 1984,
which took effect in 1987. It set out how judges were to fashion
sentences for defendants.

Federal defendants usually are not sentenced until at least three
months after a verdict or a guilty plea.

In the interim, a probation officer prepares a confidential
pre-sentence report for the judge that recounts the crime, the
defendant's criminal history and other information -- all to help the
judge figure out the person's sentence under the guidelines. That
report often includes information that was never presented to the jury
or admitted as part of a guilty plea, but is considered "relevant conduct."

For example, a drug dealer's pre-sentence report would include
information not only about how much drug he was caught with, but how
much he dealt during the entire conspiracy. Under the guidelines, the
total amount of drugs -- not just what the defendant was convicted of
possessing -- determined the sentence.

Last summer, the Supreme Court ruled that only a jury, not a judge,
can decide what factors warrant a longer prison sentence. So if
prosecutors don't prove it beyond a reasonable doubt to a jury, a
judge can't use such information in a pre-sentence report to impose a
longer sentence.

On Jan. 12, in the Booker case, the justices reached the same
conclusion as they did before and offered a solution: If that practice
is unconstitutional, then the guidelines can't be mandatory, the
justices reasoned.

Manning already has heard from former clients among the total 160,000
federal inmates. They hope to use the ruling to get their sentences
reduced. Manning tells them that the ruling is not retroactive, but
added, "That may change depending upon how the case law develops."

However, Manning and other defense lawyers may never get to see the
courts expand the Booker ruling.

Charlotte lawyer Lyle Yurko, a federal sentencing expert, said
Congress might well step in once more to take away such judicial discretion.

"There's no question," he said. "The Justice Department has been
meeting since Booker to come up with a plan and ask Congress to modify
Booker." 
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MAP posted-by: Richard Lake