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Well before the U.S. Supreme Court’s Blakely v. Washington ruling, defense lawyer Gerald Shargel was attacking prison time add-ons under the federal sentencing guidelines as unconstitutional. Last week, Shargel lost his latest challenge to the sentence of a doctor convicted of health care fraud. But his arguments on enhancements at the trial 3 1/2 years ago followed the same logic the Supreme Court used in Blakely. On Thursday, Southern District of New York Judge William H. Pauley rejected Shargel’s latest in a series of claims that the doctor, Niels Lauersen, was serving an unconstitutional sentence. The case is U.S. v. Lauersen, 98 CV 1134. Shargel had argued the principle of Blakely: that juries, not judges, should find beyond a reasonable doubt any fact that increases a defendant’s sentence. Lauersen was given additional time based on Judge Pauley’s findings on the amount of money defrauded from insurance companies in filing false claims on behalf of women seeking infertility treatments, on the doctor’s leading role in the scheme, on the amount of planning involved, and on his abuse of a position of trust. In Blakely, the Supreme Court ruled in June that Washington state’s sentencing scheme violated the Sixth Amendment. The Court said it was not passing judgment on the federal sentencing guidelines, but many federal judges say the rationale of the decision has doomed the federal scheme, and defense lawyers have moved quickly to try to use Blakely in federal courts. Some judges, however, have adopted the position taken by Judge Pauley in his opinion Thursday. “The guidelines are constitutional until the Supreme Court says they are not,” he wrote. The split among the courts has led both the 2nd U.S. Circuit Court of Appeals and the Department of Justice in unrelated cases to ask the Supreme Court to act quickly to resolve the implications of Blakely. In 2001, after the verdict and before the sentencing of Lauersen, Shargel objected to the judicial enhancements, saying they violated the rule announced in the Supreme Court’s precursor to Blakely, Apprendi v. New Jersey. In Apprendi, the Court said that any fact that increases a defendant’s sentence beyond the statutory maximum must be charged in the indictment and proven beyond a reasonable doubt to a jury. Shargel felt strongly enough about the issue to urge Judge Pauley in January 2001, after the verdict, to adopt a procedure that some judges are now using or contemplating. Shargel asked for a second proceeding in which the jury would decide beyond a reasonable doubt on any fact that would increase the defendant’s sentence. “Perhaps it’s innovative, but I want to try a different tack,” Shargel argued with the jury out of the room. Shargel said he wanted to argue the facts on any enhancement to the jury because “I believe the law is heading” in that direction. Later, he told Judge Pauley that “to have a sentence double, triple what it would have been without enhancements and to have that done by a judicial officer by a standard other than beyond a reasonable doubt is, I argue, unconstitutional.” Judge Pauley declined and in October 2001 sentenced Lauersen to 87 months in prison. EFFECT OF ‘BLAKELY’ The appeal to the 2nd Circuit ended with the appeals court affirming his conviction. The court remanded the case to Judge Pauley for resentencing for guideline-based reasons unconnected with Apprendi. Shargel approached the resentencing with ammunition provided by Blakely, which was decided a year after the remand. He asked that Lauersen be free on bail pending resentencing, saying the court had a new reason to believe that Lauersen would not flee. The reason was Blakely. If the guidelines are overturned by the Supreme Court, Lauersen’s sentence would be only 21 months, and he has already served 40, Shargel said, meaning a greatly reduced risk of his fleeing. Judge Pauley did not agree. “If Lauersen’s prognostication about the reach of Blakely is correct, it does not ineluctably follow that his term of imprisonment will be shorter than the prison time he has already served or will have served by the time of resentencing,” Judge Pauley wrote. Shargel said Friday he is disappointed with the decision but that it came as little surprise given the confusion over Blakely. “This just underscores the complete mayhem in federal sentencing,” he said. “It’s almost like a lottery. You go before one judge, like the judge in West Virginia who changed a 20-year sentence to 1 year because of Blakely, and then you go before another judge and they say nothing has changed.”

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