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The reduction of a five-year prison sentence to 11 days in a crack cocaine case may have given a veteran with an exemplary 17-year Army career a second chance, but it also prompted prosecutors to challenge the crediting of military service in the determination of criminal sentences. The question of whether, and to what extent, military service may be used to mitigate sentences will be the subject of arguments on Feb. 1 before the 11th U.S. Circuit Court of Appeals in the case of 38-year-old Sergeant Patrick Lett. The ‘Booker’ effect Federal Sentencing Guidelines say that, ordinarily, military service should not come into play. However, in the wake of the U.S. Supreme Court’s landmark decision in U.S. v. Booker, 543 U.S. 311 (2005), which said that the guidelines are advisory and that sentences should be reviewed for reasonableness, federal appellate courts across the country have been embroiled in defining what constitutes a “reasonable” sentence. Few courts in the wake of Booker have addressed second-generation issues like the role of military service in setting sentences, according to Douglas Berman, criminal law professor at Ohio State University Michael E. Moritz College of Law. Lett left the Army after returning from Iraq in 2004, despondent, financially strapped and needing to support two daughters cared for by his mother in Peterman, Ala. In desperation, Lett agreed to deliver two ounces of crack cocaine for a cousin who promised to pay for a new transmission for his truck, according to briefs from both sides. One month later, Lett got out of dealing and re-enlisted in the Army. After serving another year, he was arrested in the Alabama drug case after being fingered by his cousin, the ringleader of the operation. In April 2006, U.S. District Judge William H. Steele reluctantly sentenced Lett to five years, stating that he believed he could not go below the mandatory minimum prison term set by Congress. Lett’s case and his initial five-year prison sentence might have slipped unnoticed through the legal system if not for the extraordinary help of his Army buddy, a third-year law student, who sat in on the sentencing and wrote to the judge after he spotted an error everyone else had missed or ignored. The student, Matthew Sinor, 33, said Lett qualified for what Congress dubbed a “safety valve” protection that allows judges to drop below mandatory minimums in unusual cases if it is a first offense in a nonviolent crime, and if the defendant has a minor role and does not use a weapon. The judge misinterpreted the law during sentencing, and Lett’s lawyer didn’t correct him, Sinor said. Trial lawyer Glenn Cortello of Alexandria, Va., did not return calls for comment. With just a seven-day window to get a sentence corrected, Sinor, a student in Berman’s Ohio State sentencing law class at the time, wrote to Steele, the prosecutor and Cortello, expressing his concerns. Without action from either side, Steele, a former federal prosecutor himself and an appointee of President George W. Bush, issued an order on his own, correcting the sentence to apply the safety valve and cut Lett’s sentence to time served, 11 days. Federal prosecutors challenged not only the reduced sentence but also the manner in which it was changed: without the judge’s consultation with either side. Assistant U.S. Attorney David Sigler said he could not comment on the case. But in appellate briefs filed with the 11th Circuit, he said Steele lacked authority to revisit and amend the sentence. Sigler also said an 11-day sentence does not reflect the seriousness of the crime, promote respect for the law or provide just punishment. Sigler also wrote that the judge “unduly emphasized the defendant’s military record as justification for a time-served sentence of 11 days.”

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