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WASHINGTON — During the past 10 years, since he became a judge on the U.S. District Court for the District of Columbia, Paul Friedman, like every other judge in the federal system, has had to live by the federal sentencing guidelines. Until now. Barely one month since the Supreme Court shot holes in the guidelines system, Friedman is one of the first D.C. judges to grapple with the real-world consequences of the high court’s ruling. In two recent cases, he took decidedly different approaches: In one, he appeared tentative, hardly deviating from handing down a sentence that just weeks ago would have been required; in another, he flirted with the possibility of reopening one of the most explosive issues spawned by the original guidelines — namely, the deep divide between sentences for crack- and powder-cocaine violations. A month ago, it would have been a predictable decision. The defendant had pleaded guilty to felony gun possession. The probation department had calculated the range of time the offender should receive under federal sentencing guidelines. The government said it didn’t oppose a sentence on the lower side of the range while the defense asked Friedman for an even lighter sentence. The defendant apologized and asked for leniency. Friedman had been through the ritual hundreds of times, yet his authority had been limited to handing down a sentence that was within the congressionally mandated guidelines. Only a minute set of factors would allow him to deviate from that range. But the Jan. 12 Supreme Court decision in United States v. Booker and United States v. Fanfan changed all of that. The court ruled the guidelines were advisory, in effect giving federal judges the authority to accept or reject them. The ruling altered the face of federal sentencing practices by taking away much of the control prosecutors once had in determining sentences, and handing it over to the judiciary. Since then, several federal trial and appellate judges across the country have been issuing written opinions trying to make sense of what has happened and to set ground rules on how the guidelines should be applied when sentencing defendants. Defense lawyers have been given another opportunity to argue for a better result for their clients. Meanwhile, Congress is already contemplating whether to draft legislation aimed at returning to a mandatory sentencing system — even though only a handful of judges have strayed from the guidelines since the Supreme Court’s January decision. A House Judiciary subcommittee broached the issue by holding a hearing on the impact of Booker/ Fanfan last week. As a result, the once-routine gun possession case before Friedman on Feb. 4 instead became a test of his new sentencing power. Under the guidelines, the defendant, Philip Roth Jr., faced a sentence of 12 to 18 months in prison — a range determined by the nature of the offense and Roth’s criminal history. Instead of merely signing off on the guideline range, Friedman — noting that it was his first sentence since the Booker/ Fanfan decision — explored Roth’s criminal history and the facts surrounding his arrest, as well as how the case wound up in the federal court system. Initially, Roth had been charged in D.C. Superior Court. The case, however, was upgraded to the federal court after Roth failed to appear for a hearing. Prosecutors also found outstanding warrants for his arrest from several states. Roth had also been held at the D.C. Jail for the previous six months. Friedman, a critic of mandatory guidelines who was appointed to the federal bench in 1994 by President Clinton, wasn’t satisfied with his options under the guidelines. For one, an earlier misdemeanor gun charge in Louisiana put the defendant in a category that called for straight prison time. Friedman noted that nothing in the record showed Roth to be a violent criminal. “If this case remained in superior court � six months would have been roughly the right sentence,” Friedman said. “And apparently the only reason it didn’t remain in superior court is because of his fugitivity, not because he became any more dangerous or the facts and circumstances of the crime changed at all.” Friedman still handed down a 12-month sentence, but went outside of the guidelines by ordering that Roth serve six months of that time in a D.C. halfway house. With credit for time served, it meant that Roth would be transferred to a halfway house as soon as a spot was available. While it wasn’t a significant break from the guidelines — and just the second at D.C.’s federal court since the sentencing cases were decided — it signaled the fact that judges are willing to use their newfound authority. And Friedman knew that the Justice Department was paying attention. “The government can do with that what it wants to,” Friedman stated immediately after sentencing Roth. Friedman also noted how the sentence would be reported to Attorney General Alberto Gonzales with Friedman’s name in bold face “so the new attorney general knows who we are.” RANGE WARS Data developed by the U.S. Sentencing Commission suggest that judges, for the most part, are still sentencing defendants in the range prescribed by the guidelines. Of 692 sentences handed down nationwide since Jan. 12, approximately 64 were outside the range because of a judge’s use of discretion under Booker/ Fanfan, according to Judge Ricardo Hinojosa, chair of the Sentencing Commission, in testimony before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security last week. Of those 64, Hinojosa noted that about 10 were actually above the guideline range. “The very early preliminary data since Booker seems to indicate that courts are sentencing pursuant to the Federal Sentencing Guidelines in the overwhelming majority of cases,” Hinojosa said at the Feb. 10 hearing. At that same hearing, Assistant Attorney General Christopher Wray gave a much different picture of the criminal justice system since Booker/ Fanfan. Wray cited two cases where judges handed down unusually light sentences — one involved convicted drug dealers in California, the other a person convicted of bank fraud in Wisconsin. Wray urged the subcommittee to promptly enact legislation. “In the three weeks since Booker, the actions of several courts have already raised concerns about the consequences of a return to greater discretion in sentencing,” he said. Locally, prosecutors say they aren’t seeing much deviation from the guidelines. In the Eastern District of Virginia, U.S. Attorney Paul McNulty says fewer than 10 of the sentences handed down since Booker/ Fanfan have been outside the guidelines. McNulty did not say whether any of these sentences were made at the government’s request, but did say that there are no plans to appeal them. “We’re trying to take this carefully,” McNulty says. “From the government’s perspective, we don’t want to create bad law.” OLD FLAMES Last week, Friedman ordered prosecutors and defense counsel in two separate drug cases to brief the decade-old issue of the disparity between crack cocaine and powder cocaine penalties under the guidelines. Defense counsel in one case raised the disparity issue only briefly. (The argument that the disparities were unconstitutional were raised repeatedly and rejected resoundingly throughout the 1990s by federal trial and appellate courts.) But Friedman latched on to the argument and asked counsel for additional information. In an interview, Friedman says he concluded from Booker/ Fanfan that the U.S. Sentencing Commission’s reports and recommendations should be given considerable weight when crafting a sentence. The Sentencing Commission has issued three reports in the past 10 years outlining the large gap in penalties imposed on those convicted of crack cocaine offenses compared with those convicted of powder cocaine offenses. According to the reports, the amount of powder cocaine necessary to trigger mandatory minimum penalties is 100 times that of crack cocaine. In 1995, 1997 and again in 2002, the commission urged Congress to revise the guidelines to make powder cocaine and crack cocaine sentences more comparable to one another. Congress either rejected or failed to act on the recommendations. “What [Justice Stephen] Breyer said in his opinion in Booker is that the sentencing commission is the expert agency,” Friedman says. “They’ve now spent 17 years studying all this stuff.” Friedman isn’t alone in rethinking long-settled issues. U.S. Attorney McNulty says that this dynamic is also starting to play out in Virginia. He says U.S. District Judge Robert Payne in Richmond has ordered similar briefs in a drug case. And at a hearing last week in a gun possession case, U.S. District Judge Leonie Brinkema in Alexandria, Va., asked prosecutors what penalties defendants faced if they were to be sentenced by the state. To McNulty, Brinkema’s query signals an interest in exploring the prosecutors’ decision to charge the case in federal court where penalties are stiffer. “Policy issues are starting to emerge,” McNulty says. CAUTION LIGHTS In D.C., federal judges have been left to their own interpretations of Booker/ Fanfan. The D.C. Circuit U.S. Court of Appeals has yet to issue any guidance — though it did request additional briefing in a sealed case after the Supreme Court decision was handed down. Judges are planning an informal meeting next week to discuss sentencing, and Chief Judge Thomas Hogan is scheduled to testify before the U.S. Sentencing Commission this week. Federal prosecutors have been taking their marching orders from Main Justice. In a memo to U.S. attorney’s offices last month, Deputy Attorney General James Comey said prosecutors should push for a guideline sentence “in all but extraordinary cases” and keep records on the judges who sentence outside the guideline range. Stevan Bunnell, chief of the Criminal Division in the U.S. attorney’s office in D.C., says there hasn’t been much to report from D.C.’s federal court. “We haven’t seen anything,” Bunnell says. “We don’t have any horror stories.” Outside the courtroom, defense lawyers are being cautious when talking about how the new sentencing scheme may benefit their clients. Some say they fear judicial discretion will quickly erode if Congress believes it swings too often in favor of the offender. Some defense lawyers also say judges, for the most part, have been reluctant to stray too far from the guidelines for similar reasons. As for Friedman, he says that even with additional discretion, judges must consider — and most of the time follow — the guidelines. “I don’t think this gives judges carte blanche to do what we want to do,” Friedman says. “We all should start with the guidelines and go through the same procedures, listen to the arguments about the guideline sentencing range,” Friedman adds. “Most of the time, we’ll go down that road. But there are other factors to look at now that may lead us to do something different. Personally, I think that’s a good thing.” Tom Schoenberg is a reporter with Legal Times, a Recorder affiliate based in Washington, D.C.

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