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A Hialeah money laundering case in U.S. District Court in Miami is serving as one of the first test cases of a controversial new law that reduces the limited authority of federal judges to individually tailor sentences. Senior U.S. District Judge James Lawrence King is nearing a decision in the criminal case of Luis A. Bordon Sr. and his sons, Luis Bordon Jr. and Adel Bordon. The Bordons, who were convicted in 1998 on gambling and money laundering charges but whose sentences twice were overturned on appeal, are arguing that the new federal law unconstitutionally increases their sentence after their original crime and prosecution. The law, passed by Congress with little debate or public awareness in April during the invasion of Iraq, altered the way federal judges apply the complex set of sentencing guidelines that were created to ensure more uniform sentencing in criminal cases. As a result of the law, 18 U.S.C. 3742, the U.S. Sentencing Commission in October partially rewrote the guidelines to reduce the incidence of downward departures by judges. The controversy over the new law has to do with whether the retroactive application of its sentencing provisions violates the constitutional prohibition against ex post facto laws. Defense lawyers argue the new law violates that constitutional ban because, when defendants must be resentenced after their original sentences are overturned on appeal, it increases the penalties that were in effect at the time of the original crime and prosecution. Both the U.S. Department of Justice and the law’s sponsor, U.S. Rep. Tom Feeney, R-Orlando, have taken the position that the new law does no more than return sentencing to the way Congress originally intended it. Several thousand federal criminal defendants currently await post-appeal resentencing and could be affected by what happens as a result of legal challenges related to the Feeney amendment, legal experts said. “What’s at stake is resentencing for many defendants, a large number of whom could receive lower sentences but for the Feeney amendment,” said Fort Lauderdale attorney Benson B. Weintraub, an expert in sentencing issues who represents the Bordons. WRONG SENTENCING GUIDELINE The Bordons, who operated a Hialeah liquor store and check-cashing business called Gulf Discount Liquors, were convicted in 1998 of running an illegal bolita gambling operation and conspiring to launder illicit profits. They were also hit with an order to forfeit nearly $5.8 million. Following trial, Judge King sentenced Bordon Sr. to concurrent terms of 57 months imprisonment, and his sons got concurrent terms of 46 months. But the government appealed, saying King used the wrong money laundering guideline to calculate the sentences and as a result had improperly departed down. In 2000, the 11th U.S. Circuit Court of Appeals in Atlanta reversed the Bordons’ sentences and sent the case back to King for resentencing. In July 2001, King upped Bordon Sr.’s concurrent sentence to 60 months for illegal gambling and 97 months for the money laundering conspiracy. He also imposed sentences on Bordon’s two sons of 60 months and 78 months for the same counts. At that point, the Bordons were shipped off to prison. But they appealed, alleging that King incorrectly interpreted the mandate from the 11th Circuit as having precluded him from considering any downward departure from the guideline ranges. In August 2002, the 11th Circuit agreed and sent the case back to Judge King for yet another sentencing. The appellate court ruled that King had the authority to depart downward as long as he made certain factual findings on the record. Meanwhile, effective Nov. 1, 2001, the U.S. Sentencing Commission revamped the money laundering guidelines in ways the Bordons’ attorneys say should reduce their sentences. The Bordons want the benefit of those changes. But before the Bordons could be resentenced a second time, President Bush signed the Feeney amendment into law as part of the broader Prosecuting Remedies and Tools Against the Exploitation of Children Today Act. Under the new law, trial courts ordered to recalculate sentences must base them on the guidelines that were in effect on the day the defendant was originally sentenced. For the Bordons, that means they must be sentenced under what their lawyers consider the tougher guidelines in effect prior to Nov. 1, 2001 — thus increasing the length of their sentences. By defense estimates, that increase would be considerable. Assistant U.S. Attorney Lawrence D. LaVecchio in Fort Lauderdale is seeking a minimum of 97 months for each of the three defendants. The Bordons’ defense attorneys, Weintraub of Fort Lauderdale and Ben Kuehne, of Miami, said that if their arguments are right, the Bordons should be sentenced to about 21 months each; they’ve already served more than two years each. Weintraub said that if Judge King had resentenced the Bordons “within a reasonable time” after the second reversal by the 11th Circuit, the resentencing would have occurred before the passage of the Feeney amendment and the pre-Nov. 2001 guidelines would have applied. Weintraub called the Feeney amendment “invalid on its face” because it funs afoul of the constitutional prohibition against ex post facto legislation. The Bordons are also represented by Kuehne’s partner, Jon A. Sale, and by J. David Bogenschutz of Fort Lauderdale’s Bogenschutz & Dutko. But in court papers, prosecutor LaVecchio said the Bordons’ ex post facto argument misconstrues the new law. “The Bordons argument is erroneous because the changes [under the Feeney amendment] are procedural in nature and do not result in penalties that are more severe than those the Bordons faced at their original sentencing,” LaVecchio said. “The Bordons,” LaVecchio wrote, “have presented no legal authority for their novel proposition that they have a substantive right to be resentenced.” Douglas A. Berman, long-time editor of the Federal Sentencing Reporter and a professor at Ohio State University law school, said in an interview that both sides have a point. “At a very functional level, there is no doubt that the Feeney amendment has made sentences longer,” he said. “But seen from a prosecutor’s eye, all they’ve done is tightened the rules because people were playing fast and loose with the system.’” Still, Berman thinks the defense has a more compelling argument. “Departures are a fundamental part of the system, rather than just an extra way to cut defendants a break,” he contended. “Change in the way they happen, to make them less likely, is the kind of legal change that ex post facto should apply to.” LAST-MINUTE ADDITION The new sentencing provisions, included as a last-minute addition to a politically popular anti-child kidnapping bill, also gave members of Congress new power to embarrass and intimidate individual judges they consider too lenient. It established a system for reporting to Congress how individual federal judges handle sentencing, and mandated appellate courts to conduct fresh reviews of all downward departures by district court judges. Critics said those provisions threaten the independence of the judiciary. Attorney General John Ashcroft, who pushed for the law, had complained that federal judges were too frequently using their power to reduce sentences. But many judges and legal groups, including Chief Justice William R. Rehnquist, the U.S. Judicial Conference, and the American Bar Association, rejected that criticism and opposed the Feeney-sponsored provision. According to the U.S. Bureau of Justice Statistics, in 2001, 64 percent of all federal sentences were within the range of sentencing guidelines. There were downward departures in 35.4 percent of cases, and upward departures in 0.6 percent of cases. Nearly half of the downward departures — 17.1 percent — were in cases where the defendants provided “substantial assistance” to prosecutors in building cases against other defendants. Those types of cases are not be affected by the Feeney amendment. Ohio State’s Berman said that until all pending resentencing cases work themselves through the system, sentencing issues arising from the Feeney amendment will persist. And that could take a while. Sentencing issues dominate the docket in the nation’s federal appeals courts. Out of 11,500 criminal appeals last year, nearly 9,800 involved sentencing issues, according to the U.S. Sentencing Commission. Orders remanding cases for new sentences were issued in about 15 percent of those 9,800 cases. “These ex post facto concerns, and the added problem of how reversals and remands play into the constitutional rules, is something that’s playing out in every federal circuit across the country and will continue to play out for a while,” Berman said.

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