Pubdate: Thu, 10 Feb 2005
Source: Los Angeles Times (CA)
Copyright: 2005 Los Angeles Times
Contact:  http://www.latimes.com/
Details: http://www.mapinc.org/media/248
Author: Henry Weinstein, Times Staff Writer
Bookmark: http://www.mapinc.org/topics/federal+sentencing (Federal Sentencing)
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)
Bookmark: http://www.mapinc.org/prison.htm (Incarceration)

SWEEPING REVIEW OF SENTENCES ORDERED

Hundreds of Inmates Are Affected by Ruling That Lifts Mandatory Terms, U.S. 
9th Circuit Finds.

Hundreds of federal prisoners in California and eight other Western states 
will have to be resentenced under a ruling by the U.S. 9th Circuit Court of 
Appeals in San Francisco on Wednesday.

The ruling was the first action from the appeals court after a landmark 
U.S. Supreme Court decision last month on sentencing in federal cases.

The Supreme Court ruled that the federal government's sentencing guidelines 
could not be binding on judges. As a result, federal judges are free in 
pending cases to give prison terms that are shorter or longer than those 
called for under the guidelines.

But the ruling left unclear how to handle the cases of prisoners who had 
already been sentenced under the guidelines. The high court left that issue 
for lower courts to decide.

Federal appeals courts around the country are weighing the issue. "Every 
circuit has it in front of them, and every circuit will have to speak to 
it," said Douglas Berman, a professor at Ohio State University's Moritz 
College of Law who has a widely read Web log on sentencing issues.

The Supreme Court decision has also prompted concern in Congress, leading 
to hearings in the House Judiciary Committee.

The 9th Circuit interpreted the Supreme Court ruling broadly. It would be 
only the "truly exceptional case that will not require" resentencing, the 
unanimous decision said.

That puts the 9th Circuit in line with three other federal appeals courts 
that have ruled on the issue: the 4th Circuit, based in Richmond, Va., the 
6th Circuit in Cincinnati and the 2nd Circuit in New York City.

So far, only the 11th Circuit, based in Atlanta, which ruled Friday, has 
taken a narrower stand. The Supreme Court may eventually step in to resolve 
the disagreement among the appeals courts.

Legal experts said it was particularly noteworthy for the 9th Circuit, 
generally considered the most liberal federal appeals court in the nation, 
to be on the same side as the 4th Circuit, widely viewed as the most 
conservative of the nation's federal appellate courts.

The 4th Circuit's decision last month ordered a federal judge in Virginia 
to resentence a man who had been convicted of bankruptcy fraud.

Fourth Circuit Judge William W. Wilkins, the former head of the U.S. 
Sentencing Commission, which wrote the federal guidelines, said that the 
Supreme Court decision "wrought a major change in how federal sentencing is 
to be conducted."

As a result, Wilkins wrote, leaving a sentence in place "imposed under the 
mandatory guideline regime, we have no doubt, is to place in jeopardy the 
fairness, integrity or public reputation of judicial proceedings."

Wednesday's ruling from the 9th Circuit came in the case of Alfred A. 
Ameline of Box Elder, Mont., who pleaded guilty to distributing 
methamphetamine.

Ameline pleaded guilty in 2002 to distributing less than a pound of the 
drug, which would have carried a 16-month sentence. But under the 
sentencing guidelines, the judge hearing his case was allowed to make the 
sentence longer based on a pre-sentencing report by a federal probation 
officer. The report said that Ameline had sold more than three pounds of 
methamphetamine.

Based on that report, U.S. District Judge Sam E. Haddon in Great Falls, 
Mont., sentenced Ameline, 62, to 12 1/2 years.

Last year, in a 2-1 decision, the 9th Circuit said the sentence violated 
Ameline's right to a fair trial because the judge, following the sentencing 
guidelines, based his decision on facts that were not proved to a jury.

In its latest decision, the appeals court said it was "plain error" for the 
judge to sentence Ameline based on a pre-sentencing report. The three-judge 
panel's opinion spoke in broad terms about the need to "ensure fairness and 
integrity in the sentencing process."

Although the pre-sentencing report "is essential to the sentencing process, 
there is nothing sacrosanct about the information contained in the report," 
Judge Richard Paez wrote in the court's opinion.

He was joined by Judges Kim M. Wardlaw and Ronald B. Gould. All three are 
appointees of President Bill Clinton. Gould, who is generally more 
conservative than Paez or Wardlaw in criminal cases, had dissented from the 
earlier 9th Circuit decision in Ameline's case.

Neither Ameline's attorney nor the U.S. attorney who prosecuted him 
returned calls seeking comment.

One of the main issues in the cases working their way through the courts 
involving sentencing is which side -- the prosecution or the defense -- has 
the burden of proving assertions such as the amount of drugs in question in 
Ameline's case.

Prosecutors have taken the position that once they provide evidence, the 
defense has the burden of proving their assertions wrong.

The 9th Circuit rejected that position, saying that the burden of proving 
assertions that could affect the length of sentencing must be on the 
prosecutors.

However, the court declined to say how high the burden of proof would be 
for prosecutors. That means trial judges will have to decide whether the 
level of proof must be beyond a reasonable doubt -- the normal standard in 
criminal cases -- or whether a lower level of proof used in civil cases 
would be acceptable. 
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MAP posted-by: Richard Lake