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US JUDGE WILLIAM YOUNG: Sees jury's role enhanced
US JUDGE WILLIAM YOUNG: Sees jury's role enhanced
US JUDGE NANCY GERTNER: 'We will be reasonable'
US JUDGE NANCY GERTNER: "We will be reasonable"

2 Boston jurists hail return of discretion

For an East Boston man convicted of extortion, yesterday's US Supreme Court ruling on federal sentencing guidelines came down to one simple thing: less time in prison.

John Panico, 34, was given three possible sentences in August by a federal judge who said the time Panico spent in jail hinged on whether the nation's highest court upheld the constitutionality of the guidelines.

"It's an extremely good day for John Panico," said his lawyer, Edward F. Pasquina, noting that yesterday's ruling meant Panico would serve about three years in prison instead of the 57 months he could have been sentenced had the court upheld mandatory guidelines. "It means, in my view, that his constitutional rights have been upheld."

Panico was acquitted by a jury of carrying a gun while extorting a bookmaker, but the guidelines mandated a longer sentence, based on the judge's finding that Panico probably did have a gun when he committed the crime.

Yesterday, the Supreme Court ruled that it is unconstitutional to mandate higher sentences for defendants based on facts that were never put to a jury. The court ruled that the sentencing guidelines remain in effect, but that federal judges aren't required to follow them.

With nearly 600 federal defendants charged with crimes last year in Massachusetts and hundreds of others either awaiting sentencing or appealing their convictions, yesterday's ruling is expected to have wide implications, according to lawyers and judges.

Chief US District Judge William G. Young, who ruled last year that the guidelines were unconstitutional, said that yesterday's decision will force prosecutors to prove the elements of a case to a jury or get a defendant to admit to them as part of a plea bargain.

"What this does is resuscitate the jury," he said. "It places a jury of the people at the center of the determinations which go into sentencing . . . and that's where it should be."

Federal judges have been grappling with the legality of the federal sentencing guidelines since June, when the Supreme Court struck down a similar sentencing system used by the state of Washington.

Throughout the country, federal judges have been divided over whether to continue to apply the sentencing guidelines in recent months as they awaited yesterday's decision. Some, as in the Panico case, have handed down multiple possible sentences; others have applied some or all of the guidelines.

US District Judge Nancy Gertner said she was pleased by yesterday's high-court ruling because she had issued an order that mirrored it last July, concluding that the guidelines should be treated only as advisory.

"So many times we have found ourselves in a situation where the guideline sentence made no sense in light of the facts," she said. A major effect of the Supreme Court's ruling, she said, is that judges may now consider individual characteristics of a defendant -- a health condition, for example.

"People are not from cookie cutters; cases aren't made out of the same mold," said Gertner, adding that judges will now be able to consider the guidelines but not be mandated to follow them if they don't make sense in a case. "It means we will be reasonable, which is what they put us on the bench for."

Young and Gertner acknowledged that federal sentencing guidelines were put into effect by Congress 18 years ago to create consistency and fairness in sentencing so that defendants charged with the same crimes would face similar punishments, regardless of the state where they lived or the judge who handled the case. Both said they believe judges will continue to follow the intent of the guidelines, to make sure defendants are treated equitably.

"Nobody is going to go back to the bad days," Gertner said. "I don't think any judge wants to be an iron John, and I don't think any judge wants to be a bleeding heart."

The ruling says that it is not considered retroactive, meaning that it would apply only to defendants who are awaiting trial or sentencing, or those in the process of a direct appeal of their convictions.

Still, Young said he expects the court will receive an influx of petitions from prisoners seeking to have their sentences reduced. He said he's not sure how the court will handle them since yesterday's ruling. Young said he rejected all 15 requests by prisoners to have their sentences vacated that were filed before him after the Supreme Court's ruling last June in the Washington case.

Boston attorney Rosemary Scapicchio, who represented Duncan Fanfan, one of two defendants whose cases led to yesterday's Supreme Court ruling, said she was concerned that prisoners who were unfairly sentenced under the federal guidelines may have no recourse.

"I think we've won the battle, and whoever wins the war remains to be seen," she said.

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