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WASHINGTON — In a splintered and complex decision that may throw federal criminal cases into short-term chaos, the Supreme Court on Wednesday took the bite out of federal sentencing guidelines and may have handed back to federal judges the discretion in sentencing they lost 20 years ago after the guidelines were enacted. In a 5-4 vote in United States v. Booker and United States v. Fanfan, the justices ruled that the Sixth Amendment right to a jury trial requires that current federal sentencing guidelines be advisory, not mandatory. The court concluded that its 2004 decision in Blakely v. Washington, which said that state juries and not judges should decide the factors that increase sentences, also applies to the federal system. The federal system originally gave judges power to decide sentencing facts such as the amounts of drugs or severity of the crime involved. The mandatory nature of the guidelines created the constitutional problem, the majority said. And the best way to cure the problem, according to a separate majority, is to make the guidelines advisory only. The ironic result, according to several commentators Wednesday, is that in its effort to preserve the right of a jury trial, the court at least temporarily has given judges more discretion in sentencing by making the guidelines merely voluntary. “You can argue that, after today, judges have the greatest sentencing power they’ve ever had in the history of the republic,” said sentencing expert Frank Bowman III, professor at Indiana University School of Law. The additional power exists because judges are no longer bound by the minimum and maximum sentences once called for under the federal guidelines. Wednesday’s ruling “literally revolutionized federal sentencing law, turning the clock back nearly 20 years to the days when federal judges had virtually unlimited discretion in imposing sentences,” said Craig Margolis, a lawyer at Vinson & Elkins’ office in Washington, D.C. Christopher Wray, head of the Criminal Division of the Justice Department, which defended the guidelines before the court, expressed regret about the decision and said that by making the guidelines advisory, the court increased the risk that “sentences across the nation will be wildly inconsistent.” To some, the ruling was a welcome trimming back of the power of the guidelines system that judges and others have grumbled about for years as an infringement on their powers. “Guidelines are just that again — guidelines,” said Paul Kamenar of the Washington Legal Foundation, adding that the justices had reached a good compromise. “The federal sentencing guidelines shifted power from the judiciary to prosecutors,” said Tim Lynch of the libertarian Cato Institute. “The Booker ruling will have the effect of shifting power back to the judiciary. The net effect will be an improvement in the administration of justice, because we are more likely to find wisdom and prudence from impartial judges than from partial prosecutors.” San Francisco defense lawyer Dennis Riordan expects the ruling to have an enormous impact on state courts, what with two Blakely issues pending before the California Supreme Court and the appellate courts already dealing with them case-by-case on an almost weekly basis. The Riordan & Horgan partner declined to predict how the decision would affect the state courts specifically, but he said its impact will be immediate. “There’ll be arguments made in trial courts [today] based on this opinion,” he said, “and there will be arguments in the court of appeal, and there will be cert opinions to the Supreme Court.” Albert Menaster, a deputy public defender in Los Angeles County’s appellate division, said similar issues are now pending before the California Supreme Court in People v. Black, S126182, and People v. Towne, S125677. In Wednesday’s ruling, he said, the U.S. Supreme Court restated Blakely “in an expansive way that, I think, furthers our position that Blakely applies to California.” In other words, he said, for courts to impose upper terms or consecutive sentences, the facts will have to be an element of the offense. Since Blakely was issued last year, California’s appeal courts have tried to address the issue whenever possible, with various opinions about whether case law established by the high court applied. Menaster said his office had seen one or two Blakely rulings out of the appellate courts every week. “I don’t believe any of those cases are going to stand up,” he said. In the Ninth Circuit U.S. Court of Appeals, the nation’s busiest, interest in the high court ruling ran high Wednesday. Clerks handed out copies to lawyers and judges as they got ready for the morning’s regularly scheduled oral arguments in San Francisco. Back in July, with United States v. Ameline, 376 F.3d 967, the Ninth Circuit ruled that Blakely did indeed apply to federal sentencing guidelines. Since then, district court judges and lawyers within the circuit have used different strategies to deal with sentencing in criminal cases, including holding bifurcated trials to determine sentencing factors. But because most cases plead out, Blakely has not significantly slowed things down in Ninth Circuit district courts. Even so, there are a few cases where judges have delayed sentencing until after Booker and Fanfan were settled. The Ninth Circuit has held up reviewing about 70 cases where the main issue involves facts found by a judge. It’s not yet clear whether the circuit will assign those to panels or send them back down to the district court. In addition, of the approximately 160 criminal cases already before panels, about one-third involve a Blakely sentencing issue, said Ninth Circuit Clerk Cathy Catterson. There’s no way of knowing exactly when appellate judges will issue a decision in one of those cases to set precedent for the rest of the circuit. Wednesday’s high court ruling spanned 124 pages and included writings by six of the nine justices. Following the court’s Blakely decision in June, it expedited review of the cases in October, after a summer of confusion in lower courts over whether Blakely applied to the federal guidelines. The sprawling, at times contradictory, opinions give credence to suspicions of sharp splits among justices that kept the decision from being issued until three months after it was argued. Chief Justice William Rehnquist, who heard arguments in the case before being diagnosed with cancer, participated in the voting in the case. “Fairness and reliability protected by the right to a jury trial � has always outweighed the interest in concluding trials swiftly,” wrote Justice John Paul Stevens for a majority that included Antonin Scalia, David Souter, Clarence Thomas and Ruth Bader Ginsburg. The ruling clearly contemplates that Congress, which first enacted the guidelines in 1984 to reduce sentencing disparity, will have to revisit its legislative design. “Ours, of course, is not the last word: The ball now lies in Congress’s court,” wrote Justice Stephen Breyer for a separate 5-4 majority that said making the guidelines advisory would be the only way to reconcile the intent of Congress with the court’s determination that the guidelines run afoul of the Sixth Amendment. Ginsburg, who was in the majority on the constitutional issue, switched sides to give Breyer a majority on the remedy. Congressional leaders responded quickly to the decision Wednesday. Sen. Arlen Specter, R-Pa., who chairs the Senate Judiciary Committee, said, “I intend to thoroughly review the Supreme Court’s decision and work to establish a sentencing method that will be appropriately tough on career criminals, fair, and consistent with constitutional requirements.” Sen. Patrick Leahy, D-Vt., the ranking minority senator on the committee, urged caution: “Congress should resist the urge to rush in with quick fixes that would only generate more uncertainty and litigation and do nothing to protect public safety.” Breyer said Wednesday’s ruling in Booker and Fanfan would have to be applied to “all cases on direct review” and said appeals courts could use “ordinary prudential doctrines” to weed out meritless appeals. But some lawyers and commentators predicted waves of litigation involving past and pending cases, as well as a reinvigoration of judicial discretion and power over sentencing. “We are likely to have lots and lots of litigation over what this means for ongoing cases,” said Ohio State University law professor Douglas Berman, whose Sentencing Law and Policy blog has tracked post- Blakely developments in detail. “Appellate courts have enormous sentencing powers in the days ahead.” Breyer’s pivotal role in the decision Wednesday and his interpretation of the intent of Congress are likely to raise new questions about whether he should have participated in the case. As a Senate aide, Breyer helped draft the sentencing law, and he helped craft the guidelines as a member of the Sentencing Commission before joining the high court. Before the arguments, some judicial ethics experts suggested these past roles left Breyer with a personal stake in the outcome that should have led him to recuse. Practitioners were divided over the impact of the decision in courthouses nationwide. “In the short and perhaps medium term, chaos will reign in federal courthouses as judges decide how to exercise their new- found discretion in sentencing, and prosecutors and defense lawyers argue their positions,” said former federal prosecutor Kirby Behre, now with the D.C. office of Paul, Hastings, Janofsky & Walker. “I don’t think the sky is going to be falling,” said Carmen Hernandez, vice president of the National Association of Criminal Defense Lawyers. She said that in states that have advisory guidelines rather than mandatory ones, 85 percent of sentences “end up being the same.” As if to underline the point, Wisconsin Federal Public Defender Dean Strang, who represented Freddie Booker in the case ruled on Wednesday, said his client “unfortunately may end up with the very same sentence.” Booker, convicted on drug charges in 2003, saw his sentence increased by eight years to 30 years because a judge, not a jury, determined the amount of drugs Booker sold. That enhanced sentence went beyond what the guidelines would have dictated on the facts found by the jury, Strang said, but the drug statute itself allows for sentences from 20 years to life. Hence, in the wake of Wednesday’s ruling making the guidelines advisory, the judge could still sentence Booker to 30 years because the law allows it — even if the guidelines did not. Gregory Wallance, a partner at Kaye Scholer in New York, said the ruling will also have an impact on prosecutors. “In all likelihood, the use of the guidelines as advisory still means that prosecutors now have a heavier burden of proving sentencing facts to a jury beyond a reasonable doubt.” Wallance said. “The opinion,” he added, “also very clearly kicks the sentencing ball back to Congress to decide whether to keep the guidelines as advisory only, throw them out altogether, or put in something new.” Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C. Legal Times senior reporters Vanessa Blum and T.R. Goldman contributed to this story, as did Recorder reporter Jeff Chorney and associate editor Mike McKee.

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