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Court says judge erred in sentencing

New term ordered for drug dealer

A federal appeals court ruled yesterday that a judge gave a convicted drug trafficker too good a deal when she spared him a prison sentence because he had cooperated with prosecutors in other criminal investigations and had apparently turned his life around.

The US Court of Appeals for the First Circuit ordered US District Judge Nancy Gertner to resentence Gary J. Milo, who pleaded guilty in April 2004 to trafficking charges involving more than 13,000 pounds of marijuana.

Citing Milo's cooperation, remorse, and volunteer work for Habitat for Humanity, Gertner had sentenced Milo last year to the 18 days he had already spent incarcerated and five years of supervised release, with the first six months in a halfway house. She also ordered him to pay a $50,000 fine.

Prosecutors had urged her to sentence him to slightly more than six years in prison, saying that was far less than the 12 to 15 years he could have received under federal sentencing guidelines.

Yesterday, in response to an appeal by prosecutors, the appeals court in Boston said that Gertner had been too generous with Milo and that he had operated a major drug ring in Massachusetts.

"Sentences with no (or trivial) prison time have been scrutinized severely on appellate review," said the ruling written by Michael Boudin, chief judge for the appeals court for the First Circuit.

"Even taking account of both cooperation and contrition, it is far from clear that adequate basis could be furnished for a near-zero prison sentence."

No new sentencing date has been set.

Milo's lawyer, Robert L. Sheketoff, decried the ruling but said the big problem is that sentencing recommendations by the US attorney's office "come out of some black box that no one understands and changes from administration to administration."

He said he might ask for a panel of a half-dozen judges from the circuit to review the ruling.

A spokesperson for the US attorney's office was not available for comment.

Jonathan Saltzman can be reached at jsaltzman@globe.com.

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