Sentence ruling disrupts courts

A recent US Supreme Court decision on sentencing guidelines is causing widespread disruption in Boston's federal courts, leading one judge to issue three different sentences to one defendant this week and a second judge to free a convicted drug trafficker, while dozens of other cases have been left in doubt.

Federal judges throughout the country have been grappling with the legality of federal sentencing guidelines since a June 24 US Supreme Court decision that struck down a similar sentencing system used by the state of Washington.

In its 5-4 ruling in Blakely v. Washington, the high court found that Washington state's sentencing system violated a person's right to a trial by jury because it allowed judges to make findings on factors that were never presented to jurors. Such a system lets judges increase a sentence dramatically.

At the urging of the Justice Department, which cited chaos in the courts and confusion over "tens of thousands" of pending sentencings nationwide, the Supreme Court agreed last week to hear two cases, one from Maine and the other from Wisconsin, in early October to resolve questions about the federal guidelines. But the court could take months to rule.

"The rules are up in the air," said Boston criminal defense lawyer Peter Krupp.

The delay is frustrating judges, prosecutors, and defense lawyers, who have operated under federal sentencing guidelines since 1987.

US District Judge Nancy Gertner declared the guidelines unconstitutional in a July 26 ruling on four cases in Boston after the high court's Blakely decision. Gertner said she has 30 cases on her docket that are awaiting sentencing and will not follow the guidelines in any of those cases.

"It's certainly slowing down my practice," said Boston lawyer Benjamin Entine said. "For a federal defender to tender a plea at this point, not knowing how the law is going to look in 90 days, is pretty risky."

Rather than wait for the US Supreme Court to rule, US District Court Judge Douglas P. Woodlock handed down three sentences Thursday to an East Boston man convicted of extortion, pointing out that the ultimate sentence hinges on the Supreme Court's upcoming ruling.

The sentence for John Panico, 34, will be 57 months if the Supreme Court upholds the constitutionality of the guidelines in their entirety, 37 months if the court strikes portions of the guidelines dealing with sentence enhancements based on judges' findings, and three years if the high court strikes down the guidelines.

"He could get out in two or four years," said Gloucester lawyer Edward F. Pasquina, who represents Panico and had urged the judge not to apply the guidelines because of the Blakely ruling. "He's despondent over it. He was hoping the judge would disregard the guidelines."

Woodlock said that unless the Supreme Court strikes down the guidelines, Panico should serve 57 months in prison, based on the judge's finding that there was evidence that Panico was carrying a gun when he extorted money from a bookmaker.

But, Pasquina argued that Panico's case is exactly what the Supreme Court had in mind when it found the Washington sentencing guidelines unconstitutional because they deprived a defendant of his right to a jury trial.

In Panico's case, a jury acquitted him of carrying a gun during the extortion, finding there was not proof beyond a reasonable doubt. Yet, under the guidelines, Woodlock was allowed to consider the gun and concluded there was a preponderance of evidence that Panico did indeed have a gun, a factor that raised his sentence by nearly two years.

"If a guy is acquitted of a charge, how can you use that as an element against him in the mathematical computation of his sentence?" Pasquina said.

The lawyer also pointed out that federal courts have been handling cases differently since Blakely and therefore there has been inconsistency in sentencing even within the same courthouse.

On Tuesday, a 20-year-old Wilmington man who could have faced a 20-year mandatory prison term for allegedly selling a fatal dose of heroin to a teenager was sentenced to 21 months.

A jury found Bryan Moran guilty of selling heroin, which under the guidelines would carry a sentence of 15 to 21 months. The jury was never asked to decide whether the drugs he sold had caused the overdose death of Matthew Lessard, 19, of Lowell. However, prosecutors and the defense agreed that it would be left to the judge to decide whether the drugs caused the overdose death, which carried a mandatory minimum 20 years in prison.

But, US District Judge Robert E. Keeton said from the bench last month that it would be "a shocking denial of justice" to hold Moran to the agreement, which had been made prior to the Blakely ruling. The judge ruled that only a jury could decide whether Moran had sold the fatal drugs, but that since the jury had been disbanded, it was too late.

Moran was released immediately because he had already served his time, having been jailed without bail for two years as his case went to trial. Prosecutors have said they are seeking permission from the Justice Department to appeal the sentence.

Krupp, the lawyer who represents Moran, said the possibility that the Supreme Court could uphold the guidelines and force Moran to be resentenced is "still hanging over his head."

Krupp, who recently served as a panelist for a session with criminal defense lawyers on how to handle sentencings after the Blakely decision, said there is no consensus among lawyers on how to advise their clients.

"Whenever you have that kind of uncertainty in the system it's difficult to advise defendants about their rights and options," Krupp said. "It's difficult as a prosecutor to manage your docket. It's difficult as a person charged with a crime to make decisions."

US District Chief Judge William G. Young, who had declared the guidelines unconstitutional shortly before the Blakely decision, is partially following the guidelines, but not making findings that would require him to enhance a sentence without a jury verdict.

One federal judge in Boston views the controversy over Blakely as an encouraging sign. US District Judge Edward F. Harrington, who stopped taking criminal cases three years ago because he said the sentencing guidelines gave too much power to the government, recently announced he will start drawing criminal cases again.

In a July 21 memorandum, Harrington said he will treat the guidelines as unconstitutional, in the wake of Blakely.

A spokeswoman for US Attorney Michael J. Sullivan said he will not talk about the guidelines, since the cases are before the Supreme Court.

Federal prosecutors have been bringing dozens of superseding indictments in Boston, adding charges to cases that will require juries to make findings that were previously made by judges, such as the quantity of drugs involved in a case. Defendants entering plea agreements are being asked to waive any rights they might have under the Blakely case, as part of the deal.