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Justices Order Review Of 400-Plus Sentences

Court Also Backs Searches by Sniffer Dogs

By Charles Lane
Washington Post Staff Writer
Tuesday, January 25, 2005; Page A07

The Supreme Court yesterday announced the first consequences of its landmark decision to give federal judges greater freedom in sentencing, ordering federal appeals courts to reconsider more than 400 criminal sentences in light of the Jan. 12 ruling.

Separately, the justices ruled that police may use a trained sniffer dog to check a car for illegal drugs during a routine traffic stop, as long as the inspection does not unreasonably prolong the stop.

Yesterday's 87-page list of orders in the federal sentencing cases was expected. The justices had been flooded with petitions from defendants who wanted their sentences reviewed after the court struck down a state sentencing guidelines plan in June, putting the federal sentencing guidelines in jeopardy.

The court was holding those cases pending the result in the two cases decided Jan. 12, United States v. Booker and United States v. Fanfan.

Still, the sheer volume of cases demonstrated the wide and still largely unresolved ramifications of the Booker-Fanfan decision.

"It's the tip of the iceberg," said Douglas A. Berman, an expert on federal sentencing law at the Moritz College of Law at Ohio State University.

In its Booker-Fanfan decision, the court said that the Constitution forbids the practice, common under the guidelines, of using facts found by a judge to tack extra years onto criminal sentences. Every defendant is entitled to a jury trial on the facts that could affect his punishment, the court ruled.

At the same time, the court ruled that the guidelines, created by a congressionally authorized judicial commission to ensure that similar criminals receive similar prison terms, may remain in use as long as they are "advisory," not mandatory.

That means district judges are free to impose the sentences they deem appropriate, as long as they consult the guidelines and as long as the sentences are found "reasonable" by the appeals courts.

Among the cases sent back to the lower courts yesterday is that of Mohamad Hammoud, who was convicted in 2002 of smuggling cigarettes to raise money for the Lebanese terrorist group Hezbollah. He faced a 57-month sentence for that crime, but because of the terrorism connection and other findings by the judge, he was sentenced to 155 years.

But since the appeals courts were divided over the constitutionality of federal sentencing before the Booker-Fanfan ruling, it is unlikely that they will produce a uniform definition of "reasonableness" now, Berman said.

"No one has completely come to terms with it," he said. "There will be mountains of work for everyone."

Already, Berman noted, the New York-based U.S. Court of Appeals for the 2nd Circuit and the San Francisco-based 9th Circuit have asked scores of litigants not to send in supplemental briefs on the Booker-Fanfan ruling.

In the dog case, the court ruled that an Illinois state trooper's use of a drug-sniffing dog to investigate Roy I. Caballes's car after he was stopped for speeding did not violate the Fourth Amendment prohibition on unreasonable searches.

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