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Two lawyers convicted in an insurance kickback scheme four years ago have won another delay in serving their jail terms because of uncertainty over federal sentencing guidelines. Though the attorneys were recently denied a chance to appeal to the U.S. Supreme Court, the 2nd U.S. Circuit Court of Appeals last week declined to issue a final mandate for their case , U.S. v. Rybicki, 354 F.3d 124, which would force the defendants to begin serving one-year sentences. Since its August ruling in U.S. v. Mincey, 380 F.3d 102, the 2nd Circuit has stayed all mandates involving sentencing enhancements, which are at issue in Rybicki, because of the potential impact of Blakely v. Washington. In Blakely, the U.S. Supreme Court invalidated a Washington state sentencing scheme that allowed judges, not juries, to make findings that became the basis for enhanced criminal sentences. Federal prosecutors have argued that the convicted lawyers, Thomas Rybicki and Frederic Grae, should receive no benefit from the circuit’s blanket stay since their case is final now that the U.S. Supreme Court has denied their request for an appeal. Any Blakely issues would have to be raised in a collateral attack under a writ of habeas corpus, it is argued. However, Herald Price Fahringer, one of the attorneys for Rybicki and Grae, said that the existence of potential Blakely issues in the case means the former Staten Island attorneys should receive the benefit of the stay. The pair were convicted of paying insurance claims adjusters, through middlemen, for favorable settlements from insurance companies. Prosecutors alleged that payments were made in 20 cases from 1991 to 1994, resulting in $3 million in settlements. The attorneys had their law licenses suspended and received an enhanced sentence, in part for abusing a special skill. The attorneys’ convictions sparked contentious appeals in the 2nd Circuit over the viability of federal mail and wire fraud statutes. Last December, an en banc panel of the 2nd Circuit ruled 7-4 to affirm the convictions. The attorneys then sought an appeal at the U.S. Supreme Court, which denied their request in October. Shortly thereafter, though, prosecutors in the Eastern District U.S. Attorney’s Office were informed that the 2nd Circuit would not issue a final mandate in the case until the Supreme Court had decided U.S. v. Booker and U.S. v. Fanfan, two cases that could extend Blakely‘s reasoning to the federal sentencing guidelines. In a declaration filed last month, Daniel R. Alonso, chief of the office’s criminal division, argued that the defendants had not raised any claims that “could possibly be cognizable under the Sixth Amendment.” In a previous declaration, Alonso wrote: “While the defendants are within their rights to exhaust every possible avenue of appellate review, that process has now come to an end. The defendants should no longer be able to postpone serving their sentences for crimes that they committed more than a decade ago.” The circuit denied the request without comment. Fahringer said that prosecutors were improperly trying to distinguish this case from others. “There clearly was a Blakely issue in the sense that there was a guideline elevation,” he said. “We are happy that the court agreed that case should not be singled out.” Fahringer added about the two defendants: “You’re not talking about anybody who could conceivably be argued as a danger.” Alonso said his office was considering its options.

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