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Southern District Judge Robert P. Patterson denounced Congress’ toughening of the federal sentencing guidelines as he gave a lesser sentence to a man who admitted firing shots at the United Nations building. Calling recent legislation in Congress aimed at reducing downward departures by judges “their latest attack on the third branch of government,” Patterson on Monday gave a man who fired the shots in a political protest a lesser sentence than agreed to in a plea agreement between the prosecution and the defense. Patterson found that Steven Kim’s decision to fire seven shots at the United Nations to call attention to the repressive regime in North Korea in October 2002 did not meet the definition of aggravated assault, the crime to which Kim had already entered a plea of guilty. So instead of sentencing the 57-year-old U.S. citizen to somewhere between 30 and 37 months, Judge Patterson ordered Kim to serve two years and three months in prison. The judge departed from the guidelines because, he said, aggravated assault is a felonious assault that involves a “dangerous weapon with intent to cause bodily injury (i.e., not merely to frighten) with that weapon.” “Here, the court finds that aiming a gun at 85 degrees in front of an office building is not bound to result in bodily harm,” the judge said, adding that “strict application” of the guideline “is inappropriate in this case.” The departure, opposed by Assistant U.S. Attorney Matthew Biben, came six weeks after Patterson asked the government whether he is allowed to take into account the fact that Kim had fired the gun as a political statement. Biben had answered in the negative, saying, “If he’s making a political statement with a .357 handgun, and we allow that as a basis for departure” from the guidelines, “it would be a very violent society indeed.” Monday, the judge, in an opinion read from the bench, focused on the discretion he has under the guidelines, and he used the opportunity to criticize Congress. “Because this case has received media attention, I am taking the occasion to point out that the degree to which members of the court are being squeezed between adherence to their moral consciences and these guidelines: We must sentence in accordance with the law, yet as members of whatever religious group we may belong to, we must render a fair and just sentence based on the unique facts with which we are sometimes confronted,” he said. Patterson took aim at changes made this year to the sentencing guidelines. The changes restrict the number of situations in which judges may sentence below the guideline range, direct the Justice Department to report downward departures to Congress, and limit the number of judges on the Sentencing Commission to no more than three. “Evidently Congress sought to deter any departures by the implicit threat to trial judges that, if they are considered for appellate positions, they will be subjected to the type of demeaning and unseemly treatment which nominees to the courts of appeals have undergone at the hands of Congress in recent years,” he said. LATEST EXAMPLE Patterson’s comments were just the latest example of an increasingly vocal judiciary fighting back against what it sees as congressional meddling. Southern District Judge John S. Martin decided to enter private practice this summer, publicly announcing his disgust with mandatory minimum sentences and other broad restrictions on judicial authority. Last month, the Judicial Conference of the United States called for the repeal of the latest restrictions of judicial discretion and the operation of the U.S. Sentencing Commission. One problem with the changes to the guidelines, Patterson lamented, is that they vest even more influence in U.S. Attorneys, who, by virtue of their authority to “determine what offenses are charged and what facts are stipulated,” already “have immense power in the criminal justice process under the sentencing guidelines.” Judges have far more experience in dealing with the “difficult decisions” involved in sentencing than the prosecutors who are charged with tracking judicial adherence to the guidelines, he said. “If, as a result of Congress’ increasing pressure to eliminate any departures from the guidelines, trial judges’ sentencing decisions do not comply with the basic tenets of fairness and justice, the confidence of our citizens that the courts play an independent and fair role in the dispensation of justice will be diminished or lost,” he said. “Then our system of justice will be regarded as subservient to the other branches of government — the system that prevailed for so many years behind the Iron Curtain.” Kim was represented by John P. Curley of the Legal Aid Society Federal Defender Division.

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