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Court Offers Guidance on Sentencing In Md., Va.

U.S. Judges Urged To Issue 2 Penalties

By Jerry Markon
Washington Post Staff Writer
Wednesday, August 4, 2004; Page A01

A federal appeals court trying to end confusion over the legality of sentencing guidelines has come up with a highly unusual suggestion: Judges should sentence defendants twice.

The Richmond-based U.S. Court of Appeals for the 4th Circuit issued the recommendation to judges in Virginia, Maryland and three other states on a temporary basis until the Supreme Court explains its recent decision casting doubt on the constitutionality of U.S. sentencing guidelines.

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The 4th Circuit's decision to weigh in late Monday is a measure of the turmoil that has gripped federal courts nationwide since the Supreme Court ruled June 24 that Washington state's sentencing guidelines were unconstitutional. The high court struck them down because they allowed a judge, rather than a jury, to consider factors that increase a defendant's sentence.

Because Washington state's system resembles the federal one, dozens of federal judges have since ruled that the high court's decision makes part or all of the U.S. sentencing guidelines unconstitutional. The confusion has affected thousands of cases, with some hearings delayed, other sentences drastically reduced, and prosecutors and defense lawyers flooding courts with changes to indictments and requests for new sentences.

In its two-page order, the 4th Circuit said the high court's ruling in Blakely v. Washington did not invalidate under the guidelines the 155-year sentence of a North Carolina cigarette smuggler convicted on terrorism charges. The court instructed federal judges in Virginia, Maryland, West Virginia, North Carolina and South Carolina to continue using the guidelines to sentence defendants.

But in case the Supreme Court does decide to toss out the sentencing guidelines system, the 4th Circuit recommended that judges also issue a second sentence using the guidelines only as "advisory." The second sentence is apparently designed as a fallback that could be imposed if a later Supreme Court ruling invalidates the first.

A number of federal District Court judges across the country have started issuing such dual sentences since the Blakely decision, experts said.

The existing federal sentencing guidelines, developed over the past two decades, established a complicated points-based system that requires judges to decide a sentence based on "aggravating" factors not necessarily considered by a jury during a trial, such as whether a gun was used during a crime or whether the defendant played a leadership role in a criminal organization. The Blakely decision calls that system into question by mandating that a jury must decide the facts of any issues that would increase a defendant's sentence.

After numerous conflicting decisions from appellate courts nationwide over whether Blakely invalidated the guidelines, the Supreme Court agreed Monday to reconsider the issue. The court said it will hear two cases suggested by the Bush administration, both involving federal drug defendants, on Oct. 4, the first day of the new court term.

The 4th Circuit's guidance won praise yesterday from some legal experts who said it would restore order in the courts temporarily until the Supreme Court reconsiders the sentencing dispute this fall.

"It's innovative," said Steven L. Chanenson, a Villanova University law professor and former federal prosecutor. "It's kind of like the chicken soup theory: I'm not sure how much it's going to help, but it can't hurt."

But defense lawyers and other experts said the court might have sown more confusion inadvertently.

Douglas A. Berman, an Ohio State University law professor closely following the Blakely debate, credited the court for making an effort but said he found the recommendation for double sentences "amazingly peculiar."

"How a court even does these backup sentences is completely uncharted territory," Berman said. "Do they have to have two sentencing hearings? Can the second sentence get appealed? They're asking judges to do a lot more work, and if in fact the old rules do apply, all that extra work will be wasted."

Federal public defender Frank W. Dunham Jr., whose office handles the majority of criminal cases at the federal courthouse in Alexandria, expressed concern that both sentences could be invalidated if the Supreme Court reaches a middle ground between upholding the guidelines and throwing them out. That would cause numerous cases to be sent back to U.S. District courts for resentencing.

Day to day, Dunham added, the 4th Circuit guidance "does make it somewhat easier to muddle through. At least the judges will know what to do. But this is all up in the air until the Supreme Court decides it."

Federal prosecutors in Alexandria declined to comment yesterday. In a July 2 memo to all federal prosecutors, Deputy Attorney General James B. Comey said the Justice Department's position is that the Blakely decision does not apply to sentencing guidelines. But prosecutors have been aggressively pursing "Blakely waivers" in which defendants agree, as part of a plea bargain, not to use Blakely to challenge their sentences.

The Blakely decision has affected numerous federal sentences. For example, Dwight Watson, the North Carolina farmer who drove his tractor onto the Mall and threatened to set off a bomb in 2003, was sentenced to time already served and ordered freed because a judge decided he could not add extra jail time under Blakely.

In Richmond, the 4th Circuit order entered at the direction of Chief Judge William W. Wilkins Jr. said a full decision on the North Carolina cigarette smuggler's case will be issued "in due course," with majority and dissenting opinions. Experts said it is highly unusual for the court to telegraph a future opinion before issuing it.


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