Pubdate: Tue, 25 Jan 2005
Source: Wall Street Journal (US)
Page: A2
Copyright: 2005 Dow Jones & Company, Inc.
Contact:  http://www.wsj.com/
Details: http://www.mapinc.org/media/487
Author: Gary Fields, Staff Reporter
Bookmark: http://www.mapinc.org/topics/federal+sentencing (Federal Sentencing)

OVER 400 CASES RETURNED FOR POSSIBLE RESENTENCING

WASHINGTON -- The Supreme Court sent more than 400 cases back to
appeals courts yesterday, instructing the lower courts to decide
whether defendants should be resentenced in light of the high court's
landmark ruling earlier this month overturning mandatory-sentencing
guidelines.

The defendants had asked the Supreme Court to review their cases after
the high court in June struck down sentencing guidelines in the state
of Washington that were similar to the federal guidelines. Both sets
of guidelines directed judges to boost sentences based on such factors
as the defendant being a ringleader in a crime or acting with
deliberate cruelty. The court came back Jan. 12 with a ruling that the
guidelines were advisory.

The cases remanded yesterday range from white-collar fraud convictions
to drug cases. For the moment, the justices have returned sentencing
decisions to the lower courts, although appeals on specific aspects of
the recent ruling are likely to wend their way back to the high court
in time.

"This is standard operating procedure," said Thomas Goldstein, a
Washington, D.C., lawyer who has often argued before the court. "This
is what they always do when they have cases that raise issues similar
to one they've decided." He added that if the court had more than 400
cases, "It shows the avalanche the lower courts are going to have to
confront in the wake" of its Jan. 12 ruling.

The decision cited in the orders, U.S. v. Booker, stems from the case
of Freddie Booker, who was charged with possession with intent to
distribute crack cocaine . Based on his criminal history and the
quantity of drugs determined by the jury, the guidelines required the
judge to sentence Mr. Booker to about 18 years in prison.

But the judge concluded by a preponderance of the evidence that Mr.
Booker possessed more crack and that he was guilty of obstructing
justice. Those findings required the judge to impose a sentence of 30
years to life. The Supreme Court concluded that was
unconstitutional.

Gerald Shargel, a New York defense attorney who is representing one of
the defendants whose case has been sent back to an appeals court, said
a judge now has the discretion to look at the sentence given to his
client and say, "That looks a little extreme."

Mr. Shargel raised the sentencing issue for his client, Niels
Lauersen, during his January 2001 trial for mail and health-care fraud.

Mr. Shargel said if only the issues determined by the jury had been
used in his client's sentencing, he would have gotten about six
months. Instead, he was sentenced to more than seven years because of
enhancements added by the judge. Those included the scope of the
intended fraud in the crimes and the fact that Dr. Lauersen had abused
his position of trust as a medical doctor. Mr. Shargel said that
during the trial he asked that potential enhancements to his client's
sentence be submitted to a jury.

"I asked it during trial. I asked it in the Second Circuit and I
raised it on the Supreme Court," he said. "And now, it's going to come
back for resentencing. I'm happy for Dr. Lauersen. It presents him
with an opportunity to have the sentence considered in an entirely
different light. It was particularly harsh for one reason, the
guidelines." 
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MAP posted-by: Richard Lake