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Eastern District of New York Judge Jack B. Weinstein, in the past an outspoken critic of the federal sentencing guidelines, now finds himself among the minority of judges who do not believe that the U.S. Supreme Court’s decision in Blakely v. Washington spells their doom. In an opinion last week, Weinstein discussed the traditional role of juries and the role they will play in the aftermath of Blakely. In Blakely, the Court said any fact that increases a defendant’s sentence beyond a set statutory range must be either admitted by the defendant or proven to a jury beyond a reasonable doubt. The decision dealt with Washington state’s sentencing scheme, and the Supreme Court said it was passing no judgment on the federal guidelines. But judges and commentators throughout the country believe that the guidelines, with their heavy emphasis on judicial findings of fact to make upward adjustments in sentences, are finished. Not so, said Weinstein, in an opinion sentencing Ali Sher Khan to probation for cash smuggling in U.S. v. Khan, 02-cr-1242. Khan was caught boarding a plane for Pakistan with $293,266, Weinstein said, all of it legally earned by himself or his friends, for whom he was transporting it to Pakistan to support their families. There was no hint that the cash was to be used to fund terrorist activity or for any other illegal purpose, the judge said. After Khan was found guilty by a jury of cash smuggling, making false statements and conspiracy, Judge Weinstein departed downward 12 levels under the guidelines, based on Khan’s family circumstances and “the potential negative impact of a prison sentence on the workers in the businesses he operated.” The result was a sentence of 3 years’ supervised release. The government appealed, arguing that Khan should receive at least 41 months in prison. The 2nd U.S. Circuit Court of Appeals reversed and remanded, finding that the record did not support downward departures for the stated reasons. The appeals panel did, however, suggest that Weinstein could consider lowering the sentence by carefully examining Khan’s conduct under the cash smuggling section of the guidelines, �2S1.3(b)(2). On remand, Weinstein found that the guidelines made a prison sentence for Khan inappropriate, because the funds were not being used to support illegal activity and he and his friends had legitimately earned the money. And although the jury had found Khan guilty of conspiracy, for sentencing purposes, Judge Weinstein said, there was “no conspiracy.” “These were not dangerous collaborators in crime, but individuals trying to do a good turn to their former countrymen and relatives,” he said. “There is no reason to treat this defendant as a dangerous conspiring gang member.” Judge Weinstein then sentenced Khan to 5 years’ probation. He used used his opinion to declare “the Guidelines are not dead” merely because judges are not allowed to make findings that increase sentences. He noted that “the jury’s participation in sentencing has deep roots in this country’s history and may be incorporated in the constitutional right to a jury trial. Experience with juries suggests that the use of a jury in sentencing, even after a plea of guilty or in a second phase of a trial on the merits, is feasible.” Second, “Most cases result in pleas, not trials,” he said. “ Blakely will, undoubtedly, result in many plea agreements in which the defendant concedes the facts that Blakely requires to be proven by a jury. Defendants simply cannot resist the prosecutors’ offers of guaranteed low punishments.” Judge Weinstein took note of a memo sent to federal prosecutors on Blakely by Deputy Attorney General James B. Comey. He dismissed as “plainly wrong” Comey’s statement that the guidelines may still be applied, with judges making sentence-enhancing findings by a preponderance of the evidence. But he agreed with Comey’s “fall-back” position on three points. “The first point of the Department of Justice — the Guidelines should be applied if a factual issue left unresolved by a jury verdict or admitted fact does not exist — is correct,” Judge Weinstein said. “The second point — that a defendant may waive or stipulate to avoid Blakely — is also correct.” Finally, the judge agreed that when Blakely applies, “traditional sentencing should be used.” “A second alternative is to apply the Guidelines without enhancement,” he said, “A third alternative is to use the jury to decide the special enhancement facts.” The judge therefore forecast that, unless “ Blakely is made retroactive — which seems highly unlikely in view of the chaos which would result — it is probable that this decision will have little impact on practice in federal district courts.” Attorney Barry Rhodes represented Khan. Assistant U.S. Attorney Carrie Capwell represented the government.

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