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MIAMI — A challenge to controversial changes in national sentencing rules pushed through Congress last year by Attorney General John Ashcroft and Republican leaders has been shot down by Senior U.S. District Judge James Lawrence King in Miami. In a 14-page order, King rejected every argument made by a high-powered South Florida defense team in its spirited attack on the sentences imposed on convicted Hialeah gambling boss Luis A. Bordon Sr. and his sons, Luis Bordon Jr. and Adel Bordon. At a hearing Jan. 28, King affirmed those sentences, as demanded by the U.S. attorney’s office. Judge King’s most important findings upheld the constitutionality of a key part of the so-called Feeney Amendment, and dismissed as “irrelevant to the issues presented in this case” additional defense arguments that the law violates the Constitution’s separation of powers doctrine. But South Florida’s longest-serving U.S. district judge avoided rendering any opinion of the much-criticized law. In September, the U.S. Judicial Conference voted to support the repeal of the law. Critics, including the American Bar Association, denounce it as a one-size-fits-all approach that severely limits the ability of federal trial judges to tailor sentences to individual defendants. Judge King’s decision has no binding effect outside his courtroom. Still, his findings establish a precedent for several thousand criminal cases with similar issues which are thought to be pending nationwide. “This is a case of first impression,” said Fort Lauderdale attorney Benson Weintraub, a sentencing expert who represented the Bordons along with Miami’s Ben Kuehne and his law partner Jon Sale, and J. David Bogenschutz of Fort Lauderdale’s Bogenschutz & Dutko. Weintraub noted that many defendants would be eligible for lower sentences but for the new law, which was sponsored by Orlando-area Republican Congressman Tom Feeney and dubbed the Feeney Amendment. A spokesman for U.S. Attorney Marcos Jimenez declined comment on King’s ruling. The new law directed the U.S. Sentencing Commission to change its policies to reduce so-called downward departures in sentencing by federal judges in all types of criminal cases, establish a system for reporting to Congress how individual federal judges handle sentencing, and mandate appellate courts to conduct fresh reviews of downward departures by district court judges. In introducing the bill, Feeney argued that too many federal judges are “arbitrarily deviating” from sentencing guidelines and reducing sentences downward “based on their personal biases and prejudices, resulting in wide disparities in sentencing.” But the law has infuriated federal judges, including Chief Justice William Rehnquist, who argue that it threatens the independence of the judiciary and robs them of what little discretion they have left to tailor sentences to individual defendants. According to the U.S. Bureau of Justice Statistics, in 2001, 64 percent of federal sentences were within the range of sentencing guidelines. There were downward departures in 35 percent of cases, and upward departures in 0.6 percent of cases. Almost half of the downward departures — 17 percent — were in cases where the defendants provided “substantial assistance” to prosecutors in building cases against other defendants. Those types of cases would not be affected by the Feeney Amendment. DECISIVE DELAY Judge King tailored his ruling to issues bearing directly on the Bordons’ resentencing. Those sentencing issues arose after the Bordons were convicted in 1998 for running an illegal gambling operation and conspiring to launder illegal gambling proceeds through the family’s liquor store. The jury also ordered the Bordons to forfeit nearly $5.8 million. After a hearing in 1998, King calculated that U.S. guidelines allowed him to depart downward from usual sentencing range. Bordon Sr. got 57 months in prison; his sons got 46 months. The Bordons were allowed to remain free during their appeal to the Eleventh Circuit U.S. Court of Appeals in Atlanta. “However, no good deed goes unpunished,” King quipped in last week’s order. In July 2000, in a ruling now known as Bordon I, the Eleventh Circuit affirmed the convictions but vacated and remanded the case for resentencing after finding King had abused his discretion by departing downward without making adequate factual findings. King held two more sentencing hearings, and in July 2001 resentenced the Bordons using the tougher standard imposed by the appellate court judges. Bordon Sr. got 97 months; his sons got 78 months. That was at the low end of the guideline range. The Bordons were all shipped off to prison to begin serving their time. Five days after the resentencing, the Bordons appealed their sentences, asserting that King had misinterpreted the earlier appellate ruling and failed to consider departing downward again. In August 2002, in Bordon II, the Eleventh Circuit agreed with the defense, vacated the sentences and remanded the case to King again after making it clear to him that he had the discretion to depart downward as long as he made sufficient factual findings on the record. In the meantime, though, the U.S. Sentencing Commission had amended the guidelines — which were created to ensure more uniform sentencing — to lower the sentence range for money laundering. That was the backdrop until last April, when Congress passed and President Bush signed the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act. Without any discussion or debate, Feeney and House GOP leaders had quietly slipped changes in federal sentencing rules into the Protect Act, taking the judiciary and the criminal defense bar by surprise. Among the Feeney provisions was a requirement that courts “shall” apply the sentencing guidelines “that were in effect on the date of the previous sentencing of the defendant prior to the appeal.” For the Bordons, that meant they’d be sentenced under what their lawyers considered tougher guidelines in place before the U.S. Sentencing Commission lowered the range for money laundering effective Nov. 1, 2001 — thus lengthening their sentences. MERELY PROCEDURAL? The Bordons’ defense team sought to eviscerate the new law. They argued that its application violated the ex post facto clause of the Constitution, which prohibits new or increased punishments after a criminal act is committed. They also argued that it violated the separation of powers doctrine by directing the Department of Justice to impermissibly intrude into the judicial function. It did so, they said, by modifying sentencing guidelines established by the judicial branch and mandating that the Justice Department monitor the sentencing record of every federal judge. In response, Assistant U.S. Attorney Lawrence LaVecchio in Fort Lauderdale argued that the Feeney provision did not violate the ex post facto clause because it was merely a procedural change in the law and did not increase punishment for the Bordons beyond the applicable penalty at the time they broke the law. LaVecchio said the Feeney clause required the court to use the guidelines in effect when the Bordons were originally sentenced in 1998. Judge King agreed with LaVecchio’s analysis on every point, noting that the Feeney law “merely” instructs judges to apply the law that existed on the original day of sentencing. “Thus, by definition, [the Feeney Amendment] cannot subject defendants to a greater punishment,” King wrote. At the resentencing hearing, King again imposed a sentence of 97 months on Bordon Sr., and 78 months each on his two sons. King won’t get the final word on whether the Feeney law applies in the Bordons’ case. After his ruling last week, the Bordons’ attorneys served notice that they’ll appeal again with a new issue; they asked King to let the Bordons out on bond. Weintraub said the new appeal would be based on what he called the right to speedy sentencing, citing the 17-month delay in sentencing for his clients — during which time Congress passed the Feeney Amendment locking in longer sentences for them. King gave the government 10 days to respond. Dan Christensen wrote this story for Miami Daily Business Review, a Recorder affiliate.

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