Down in Texas and Arkansas, Derek Ives was a leader of the "A-Team," a group of old high school buddies who ran an amphetamine ring -- at least that's the way the original indictment read when Ives was brought to federal court six years ago.

His older brother, David, was charged along with him and described in a confidential presentence report as a "lower-level distributor or worker" for the drug operation.

Yet by the time the brothers' sentences were handed down, the chain of command looked entirely different.

Derek Ives struck a deal with the U.S. Attorney's Office that allowed him to be reindicted on lesser charges in exchange for helping the government. Prosecutors allowed him to plead guilty to filing a false income tax return, a charge that brought one year in prison.

David Ives decided not to bargain. He "didn't want to snitch out his buddies so he took his shot entering a guilty plea with the judge" to distributing amphetamine, said his lawyer Paul D. Stickney, a federal public defender in Fort Worth.

His prison term under the U.S. Sentencing Guidelines: eight years and a month.

The Ives brothers came up against federal sentencing guidelines that have shifted much of the power in the courtroom from judges to prosecutors and law enforcement. Instead of a judge deciding the pertinent facts about a criminal and a crime and handing down a sentence based on them, prosecutors now make those calls.

The charge, in essence, determines the sentence. And it is the prosecutor who decides the charge.

"The guidelines make the U.S. attorney the most powerful person in the courthouse," said Pittsburgh defense lawyer J. Alan Johnson, who was the U.S. attorney for Western Pennsylvania when the sentencing rules took effect in 1987. He likens prosecutors' clout -- and their potential for misusing it -- to a driver with a powerful sports car.

"I can tell you firsthand, it takes restraint to recognize you don't have to drive 120 miles an hour just to get home," said Johnson.

For Gaynelle Jones, U.S. attorney in Houston, the clout she now wields under the sentencing rules argues for restraint. "I tell my people, don't indict up to the hilt and be stuck with something that is unfair. You are going to have to eat what you slay."

It's always been left to prosecutors to decide what can be proven and sculpt charges accordingly. And it's always been the case that prosecutors have a strong hand to play in a system where most cases are concluded through a plea agreement, not a trial.

But the decisions about crafting charges now carry tremendous new weight under a system in which a single fact -- trumpeted or hidden -- can dramatically sway the length of the prison sentence.

Was a gun used or not? How much drugs were involved? Was the defendant a ringleader or a flunkie? Was the crime a drug conspiracy or could it just as easily -- if not as accurately -- be labeled drug possession? Should the case be brought in federal court or the state system where penalties could be less harsh?

Prosecutors control all of those decisions, and each of these elements carries a point value that rolls into a mathematical formula used to set a sentence. The enhanced power has had an unintended consequence: A successful defense often depends on outsmarting, outwitting and outmaneuvering prosecutors; or better yet, winning them over early in an effort to get leniency. Lawyers in U.S. attorneys offices, on defense teams and even some judges readily concede that since the guidelines went into effect, there is often a deliberate effort to subvert the complex rules.

Ignoring or bending the guidelines can achieve mutually agreeable goals. Prosecutors and defense lawyers can structure ways to give a sympathetic defendant a break, clobber a defiant criminal or save the court system time and money by generating more guilty pleas and fewer trials.

As defense lawyer James Druker of Garden City, N.Y., put it, "There's a certain fiction we all engage in if we want a certain result."

Back-room negotiations occur with a frequency that is troubling, said Judge William W. Wilkins Jr., a former chairman of the U.S. Sentencing Commission. A 1994 Sentencing Commission study concluded that prosecutors deliberately evade the guidelines in 25 to 30 percent of all cases, often for reasons of efficiency. But once prosecutors realize they wield such power, Wilkins said, "it kind of breeds on itself. It gets easier to hide the ball -- or hide the gun."

The sentencing guidelines were built on the basic assumption that provable facts would be fully and truthfully disclosed, allowing punishment to be dictated by the book, in this case, an 845-page manual of rules known as the U.S. Sentencing Guidelines.

In reality, plenty of defendants still land their sentences the old-fashioned way: by the bargain.

Confront a recalcitrant defendant with the maximum sentence he or she could get under the federal guidelines, says U.S. Attorney Jay McCloskey of Maine, and it's easier now than ever to coax a plea. "Only the U.S. attorney knows the strengths and weaknesses of his case but you don't have to show that hand," McCloskey said. "I don't know how many cases I've had where a defendant pleaded guilty when he saw how we'd charged him and where I thought I'm lucky they didn't know how weak my case was if I'd had to take it to trial."

"Judges have the power and intelligence to administer what is appropriate as punishment but they can't with these guidelines, so we help them sometimes," by casting the details of a crime in the most favorable light, said Zachary Carter, U.S. attorney for the Eastern District of New York.

Candid talk about deals rarely makes it into open court because off-the-books bargaining invites review and reversals by appeals courts, which most judges hope to avoid.

Yet in ways ranging from written plea agreements that are binding on a judge to a wink and a nod in the courtroom, attorneys and judges in federal criminal cases have learned to telegraph how they intend to dodge the rules.

"If your guy's in on a drug count and they seem to be taking a shine to him, we start fudging the amount of drugs he was handling to get the sentence down," because the smaller the quantity the shorter the jail term, said Donald R. Becker, a defense attorney in Fargo, N.D.

Sometimes "it's all in the presentation," says John Murphy, a federal public defender in Chicago. If a deal has been made outside court, an agreed-on accounting of the crime will be laid out at sentencing, with neither side contesting facts.

The key to having a deal stick, said J. Hilary Billings, a defense attorney in Bangor, Maine, is "to get it so that both sides arrive at an arrangement that suits them, which means no one will appeal and put the case back on radar where another set of judges gets to look it over and pick it apart."

Prosecutors guide all of this negotiating and it is clear, said Judge Richard P. Conaboy, the current Sentencing Commission chairman, that "almost everyone but the prosecutors agree that the system as it's presently operated gives enormous power to the prosecutor and almost a control over the sentencing process."

Yet that's nothing new, said Robert S. Litt, deputy assistant attorney general for the Department of Justice's Criminal Division. "It's always been true that in terms of plea negotiations your fate depended to a great deal on the prosecutor as well as who your own lawyer is."

And while the Justice Department has internal procedures over what prosecutors can -- and can't -- negotiate in cases, Litt said, "When you've got 4,000 assistant U.S. attorneys and 40,000 criminal defendants a year, you can't expect that in every case policy is going to be followed to the letter." The Pharmacists' Sting

The luckiest break a criminal may get after being charged is to find the case in the hands of an assistant U.S. attorney willing to loosely interpret the federal sentencing rules.

Otto Obermaier, who left the U.S. Attorney's Office in New York's Southern District in 1993, was one such prosecutor.

Obermaier was known as a "lawyer's lawyer," who often ruminated about what he called the "mantra of consistency that's built around these sentencing guidelines." Having worked as a white-collar defense lawyer, Obermaier said, he knew as U.S. attorney how the parts of any misdeed could be packaged into different "wholes."

"If you push and pull a whole lot you can reach almost any conclusion you want about what you actually charge a person with," said Obermaier, now back in private practice. "And that's the whole ballgame. You can call the same act by several names, and each one brings about a different result in prison time.

"When I stand before the deity when I die, I don't want them there with a guidelines book going over every act in my life to give me points for everything I did right and debits for everything I did wrong," Obermaier remarked in a recent interview. "I want them generally giving me more consideration for good and less for failings and winding up being more or less merciful. I want to be judged on the whole, not the parts."

Obermaier tested his reasoning after a much publicized sting operation that snared 37 New York area pharmacists in 1992 for defrauding Medicaid through a black market for prescription drugs. Attorneys for most of the defendants met with prosecutors from Obermaier's office to craft a deal.

As recounted in a written plea agreement, and by Obermaier and defense lawyers Larry Silverman and David Richman, this is how the bargaining worked:

The government agreed to accept the defense attorneys' general rendition of the role their clients played in the fraud: who was a major player, who was a minor one, who handled lots of deals, who dabbled. Each distinction affects prison time under the sentencing rules.

In return, the defendants would give up their pharmacist licenses, forfeit their business assets and plead guilty.

Then Obermaier threw out the rule book. He offered an off-the-books arrangement, which he said he created out of whole cloth, that was a hybrid of law and hubris. So much so that he dubbed it the "Super Two."

If all the defendants in the sessions took the deal -- saving the court the expense and time of a trial for each -- they'd all get an extra two-level drop on their sentences, a reduction that would shave months off prison time. But if any one of them balked, the bonus was off.

The sentencing manual clearly allows for tailoring prison time to fit a defendant's role in the crime. Just as clearly, the manual says nothing about a two-level drop for an all-for-one, one-for-all guilty plea.

"What can I say? When I take down my guidelines book, I don't genuflect," said Obermaier. "Would I bring up this little device at my next confirmation hearing? Probably not, but I'm convinced it was a good decision and made the most of my office's resources."

It's a prosecutor's job to find efficiencies, he said. As "the largest single consumer of resources in a judicial district, I believe I was doing the right thing.

"I wouldn't look for Uncle Otto's Super Two' in the guidelines manual, though. It isn't there. The sentencing law is the law of the land and I'm sworn to uphold the law. I'm not sure that on occasion I didn't contort it."

Silverman, who defended one of the druggists, isn't about to decry the "Super Two" since it gives some defendants a break.

But "look at the rest of the process in these negotiations," Silverman said. "The whole {sentencing} guideline calculation was negotiated backwards, starting with what jail time we'd be ready to plead to and then building in the fact patterns to support it. That's what makes it a sham." Skewing the Results

Nowhere does the impact of a prosecutor's power play out more starkly than in cases like that involving the Ives brothers, in which several defendants are involved in the same crime. "The results can be so skewed as to make any notion of consistency in sentencing laughable," said Fort Worth federal public defender Stickney.

Judge Jerry Buchmeyer conceded that he was bothered by the sentence David Ives faced because he refused to cooperate with prosecutors like his brother Derek and others in the drug ring.

"I agree with your argument that the defendant was much less involved than a number of the other people sentenced," but the sentencing rules limited the leniency he could show, the judge told Stickney.

On an appeal to the 5th U.S. Circuit Court of Appeals, David Ives's sentence was upheld and he remains in prison in Bastrop, Tex., with three years to go.

David Ives said that offering to help the government as way to get a lesser sentence is a thought that "never even crossed my mind, nor will it ever cross my mind. I think anyone who will rat on his friends to get his ownself out of trouble should be hung. Just like I said before, you know the rules of the game before you start playing." The L.A. Heroin Ring

Choices made during a criminal investigation can drive up astronomically the penalties a defendant will face.

The transcript of a pre-arrest strategy session -- at which undercover agents and the prosecutor planned how suspects would be lured to various sites and apprehended -- shows the calculus now at work long before a crime is charged.

In 1991, federal drug agents permitted a British Broadcasting Corp. crew to tag along as they prepared to bust a heroin and marijuana distribution ring centered in Los Angeles.

According to the BBC transcript, Assistant U.S. Attorney Gregory W. Jessner and two agents from the Drug Enforcement Administration, Mike Holm and Edward Follis, discussed plans to arrest six people in an undercover operation as they unloaded a cargo ship container.

The DEA agents could predict how two of the suspects were likely to react because they knew them. But the four others were strangers, and so more dangerous.

The talk turned from danger to guns, and just as quickly to whether the suspects ought to be encouraged by undercover agents to bring guns, which would automatically drive up their prison time under various sentencing rules. One suspect had considered toting a machine gun to the loading site, a decision that could cost him 30 years of prison time atop whatever sentence he might get for drugs.

Holm, the DEA supervisor, urged the safest route, arguing against the weapons. "It's a lot safer and you've got a case," he said. But Jessner, the prosecutor, pressed for the guns: "I don't want you to do anything that you don't think is secure. I'm just telling you that there are significant disadvantages to cutting the weapons out as far as what these guys are looking at," in jail terms.

The arrests went through for the narcotics, with one defendant getting an added charge for a weapon. But most of the charges in the case were subsequently dropped when a key government witness was impugned on the witness stand.

Jessner, in a recent interview, said the situation was unusual because agents had so won the confidence of the arrest targets "that we knew we could control the weapons." The guns, in fact, were locked in a car trunk during the arrests. "I brought up the issue of the added jail time they'd face because I wanted to be sure the agents were aware of what a difference that would make. But it was their call ultimately on how to proceed."

As a general practice, Jessner said, "piling on added charges" is more common in drug cases than weapons cases "where's it easier for us to control how much drugs are brought to the scene. Speaking for myself over seven or eight years as a federal prosecutor, I believe I have a constant awareness of what's fair to charge and exercised the discretion I have in a very fair manner. But it's a big country, so I'm sure you can find times when it's done differently." Opinions about what amounts to "piling on" charges vary from one U.S. Attorney's Office to another "and even within an office," Jessner said.

Law enforcement may influence not just the way a crime is carried out but also the calculation of its consequences, another important factor in how a prison sentence is determined.

Last year, the U.S. Attorney's Office for Eastern New York came before Judge David G. Trager arguing that a ring of car thieves caused a $5.1 million loss when they cannibalized parts from stolen cars.

By setting the figure at just over $5 million, rather than just under it, the FBI -- which developed the case and gave the loss estimate -- added at least 30 percent to the prison terms faced by the defendants.

Trager was skeptical and wondered aloud at a hearing whether agents "can testify with such certainty" about an extra $100,000, particularly since they'd had to pick through the remains of nearly 400 stolen cars to derive the figure. To avoid an argument about this-or-that bumper, as Trager put it, he reset the figure at between $2.5 million and $5 million.

The decision trimmed prison time but left the judge feeling more "comfortable." Baltimore Crack Cocaine

Instead of bargaining time, which the sentencing guidelines do not permit, prosecutors often bargain counts. The ability to pile on -- or deduct -- charges gives prosecutors tremendous powers of persuasion under the guidelines.

John Raley, U.S. attorney for the Eastern District of Oklahoma, said, "You can't bargain time because the {sentencing} table locks you in on that. But you can bargain counts -- how many charges will you bring, how will you label the crime. All of that affects the time, so you're getting to the same end by a different route."

"Charge stacking" -- or stacking up counts against a defendant to provide incentive for bargaining -- is considered unfair and unprofessional by many prosecutors, yet it happens frequently. It was precisely that type of manipulation that caused U.S. District Judge J. Frederick Motz to deliver from the bench a blistering condemnation of the sentencing rules and their enhancement of prosecutor's power during a 1992 hearing for a man convicted in a crack conspiracy that brought drugs and weapons to a Baltimore city neighborhood.

If defendant David Moe Robinson, then 22, pleaded guilty and avoided a trial, the government would enter into an agreement that gave him between 24 and 27 years in prison, based primarily on the government's accounting of the amount of drugs involved and the number of times a weapon was used. To get the deal and avoid going to trial, Robinson had to tell the U.S. Attorney's Office about his mother's alleged involvement in the drug ring.

Robinson refused to implicate his mother, rejected the plea bargain and asked for a jury trial.

At trial, the U.S. Attorney's Office presented a different accounting of Robinson's crimes than prosecutors had outlined during plea negotiations. They said he had used guns more often than they'd previously stated.

The jury convicted Robinson on several counts, leaving him facing nearly triple the jail time he would have had under the plea bargain. At Robinson's sentencing, Motz demanded to know why the facts outlined in the plea agreement differed so dramatically from those entered in court.

"I've been extremely concerned about public policy and the alleged uniformity in sentencing caused by the sentencing guidelines when, in fact, that may be an illusion because really discretion has merely been transferred from the court to the prosecutors," Motz said in court.

"The only way in theory the {sentencing} guidelines make any sense," he said, was if prosecutors always brought the harshest provable charges against a defendant and present them to a jury, "not engage in plea negotiations which are going to hide their eyes to some evidence, not hide it to others, in some cases."

Motz asked, "The man exercised his constitutional right to go to trial and is now facing life imprisonment because he rejected a plea offer. What is going on in this country? It is absolutely wrong." Motz suspended sentencing for two weeks, asked both sides to file written statements explaining their positions. In a final hearing, the U.S. Attorney's Office said Robinson's case was the only one in five years in which it had added the extra gun charges at trial and that it sometimes did -- but sometimes didn't -- alert the defense in advance.

With a few final blasts, Motz sentenced Robinson to 45 years by making some of his sentence run concurrently and by trimming a decade off the prison time called for in the sentencing rules under a provision that allows judges to show discretion in a narrow band of cases.

The U.S. Attorney's Office appealed, contending Robinson should have been sentenced to 55 years. It eventually dropped the appeal.

To Antonio Gioia, Robinson's attorney, the case was "the most extreme example of something that occurs regularly. It's my experience that whenever someone is indicted on a federal drug charge the wheels of reason come right off the cart." Margot Williams, Metro resource director, contributed to this report. NEXT: Protest from the bench THE SERIES SO FAR

Part One: Using mathematical formulas to calculate just punishment for federal crimes was the basic premise -- and promise -- behind the U.S. Sentencing Guidelines. But a Washington Post investigation shows the reform has not worked as intended. Disparity in sentencing persists; the system has become too complicated for the average person to understand; and sentencing appeals are clogging the courts. CAPTION: A Funny Thing Happened on the Way to the Facts

Revamped federal sentencing rules promised to bring consistency to the process of setting prison terms. Facts, not finagling, would set the sentence.

It hasn't happened. Finagling is so common that players in all aspects of the court system, defense lawyers and prosecutors in jurisdictions great and small, openly talk about how they manipulate the system: Hide the gun: If a defendant is willing to plead guilty to a crime, but balks because he also is facing added jail time for possessing a weapon as part of the crime, "we'll consider bargaining on the gun. The way things work, you don't fight every battle you might win, you go for the best results in the long run," says Jay McCloskey, U.S. attorney for Maine. Tie the court's hands: Plea bargains can be negotiated under various rules governing courtroom procedures, but only one criminal procedure rule insulates the deal from being overturned by a sentencing judge. Arrange the deal under that rule, and "you duck the guidelines altogether that way," says Susan Hitt, a federal public defender in Columbia, S.C. Finesse dates: Sentences are supposed to be set under the terms of the sentencing manual in place on the date the crime was committed. But because the manual is constantly being revised, some editions treat a crime more leniently than other versions. In a crime that was a conspiracy and continued over many months, a defense lawyer "can gain a real advantage if he can get the prosecutor to agree -- or get a judge to agree -- that a conspiracy ended on a date that locks them into using a rule book that works in your client's favor," says Samuel J. Buffone, a white-collar crime defense lawyer in Washington, D.C. Fudge the numbers: In a fraud, jail time is linked to the size of the loss caused by a defendant. The larger the fraud, the longer the sentence. The system "encourages getting as grandiose as the imagination allows in saying what harm was done, especially when there was a scheme to defraud that wasn't fully implemented. The U.S. attorney will come in with a huge estimate, you'll come back with a lower one and then you start to negotiate to arrive at a figure you present to the judge. If you reach an agreement, it gets presented in court as though it were a figure that was indisputable," says Charles Rominger Jr., a white-collar crime defense attorney in Grand Rapids, Mich. Tailor the facts to fit a sentence, not the crime: Because federal sentencing has become much harsher in recent years, "I've found myself hearing the prosecutor say at our first meetings, This guy doesn't deserve this kind of time, so let's come up with the factual stipulations to lower it. How do we get there?' And then we see what we can agree on in the way of a loss estimate or a drug quantity that lowers the {point} levels and that my client will plead guilty to," says John Barry, a federal public defender in Newark. Lowball a drug amount: "We'll bring a charge with an unspecified amount of drugs in cases of the mules' who are paid to carry drugs through JFK {airport}," says Zachary Carter, U.S. attorney in Brooklyn. Many of the carriers -- who come from overseas by the hundreds through JFK -- are paid small amounts and know little about the criminal enterprise organizing the drug rings, Carter says. By not specifying a drug amount in the charge, and getting the couriers to plead guilty, Carter says his office avoids the tough mandatory minimum sentences required for certain drug crimes and saves the expense and time of trials.

Show sympathy: Some deals are made to avoid unduly harsh sentences. "If one sees that the guidelines bring about what reasonable people would view as an unjust result -- and judges don't have the discretion to address that but prosecutors do -- there is an argument to be made that we should use our discretion" about which crimes to pursue or which facts to air in court, says Charles Tetzlaff, U.S. attorney for Vermont. CAPTION: CHANGING THE TERMS OLD 1 Judge decides sentence, deciding on his own how much weight to give certain factors. Defendant can rarely appeal. NEW 1 Probation officer prepares report listing factors that should be weighed at sentencing and calculating jail time defendant faces using the sentencing grid. 2 Defense and prosecuting attorneys review findings and can challenge facts. 3 Probation officer adjusts report and forwards remaining disputes to judge. 4 Judge resolves issues and sentences defendant based on final calculations. Either side can appeal. FEDERAL CRIMES OFFENSE BY TYPE Defendants sentenced under guidelines, Oct. 1994-Sept. 1995 Drugs

40% Fraud

15% Money

11% Immigration

8% Larceny

7% Firearms

7% Violent

6% Other

6% DRUG OFFENSE BY SUBSTANCE Powder cocaine 29% Marijuana

27% Crack

25% Heroin

9% Methamphetamine 8% LSD

3% NOTE: Figures may not add to 100 because of rounding. SOURCE: U.S. Sentencing Commission CAPTION: SHAPING TIME: Ex-prosecutor Otto Obermaier says the charge is "the whole ballgame. You can call the same act by several names, and each one brings about a different result in prison time." CAPTION: POWER: In the eyes of Sentencing Commission Chairman Richard P. Conaboy, the system "gives enormous power to the prosecutor."