Sunday, August 08, 2004
U.S. high court decision hits home in S.W. Va.
The ruling, handed down June 24, unleashed "chaos" in the federal court system nationwide over whether federal sentencing guidelines are constitutional.
Had Anthony Benton Fisher of Bedford County gotten indicted and convicted on drug and gun charges before a recent U.S. Supreme Court ruling, issues such as how many kilograms of "mushrooms" Fisher allegedly dealt would have been determined by a federal judge, who then would have pronounced his sentence, based on those findings.
But the decision handed down June 24 unleashed "chaos" in the federal court system around the United States over whether federal sentencing guidelines are constitutional, said Chief U.S. District Judge James Jones.
The decision in the case, Blakely v. Washington, essentially said that a jury, not a judge, must determine whether or not to increase a defendant's sentence based on additional allegations not included in the indictments against them. That may or may not be helpful to defendants, one of Fisher's attorneys, Rhonda Overstreet of Roanoke, said.
In light of the decision, federal prosecutors have added new language to many indictments to cover those sentencing issues, U.S. Attorney John Brownlee confirmed.
Now, unless Fisher decides to enter a guilty plea, it would be up to a jury instead of a judge to determine whether Fisher not only distributed drugs, but specifically, whether he should be held responsible for 11.3 kilograms of "mushrooms" and for other "relevant conduct," such as allegedly carrying a gun during drug trafficking.
In federal drug cases, the severity of a defendant's sentence is tied to the type and weight of drugs and can also be enhanced if the defendant used a gun while dealing drugs.
Overstreet, who is representing Fisher with Gary Lumsden, said the new indictments are helpful in some ways, because they lay out all the prosecution's allegations at the indictment stage. Before, prosecutors could introduce additional evidence to a judge at sentencing, when the burden of proof is lower.
"They're just aligning their cases more specifically to what they feel they can prove," said Roanoke attorney William Cleaveland.
But Overstreet also said defendants might be better off having a judge, rather than a jury, determine whether their sentences should be increased.
Fisher was charged last month after he was linked to burglaries of a Buchanan home and St. Andrew's Catholic Church in Roanoke. Federal authorities then leveled drug and gun charges against him.
Aside from the new language in indictments and in some guilty-plea agreements, in which some defendants have agreed to give up their right to appeal their conviction under Blakely, not much has changed in the Western District of Virginia because of the decision.
"We've been continuing to get tough sentences in the cases that warrant it," Brownlee said.
The 4th U.S. Circuit Court of Appeals - which covers lower district courts in Virginia, West Virginia, Maryland, North Carolina and South Carolina - ruled last week that the federal sentencing guidelines are still constitutional, and that will be what governs Brownlee's office until the Supreme Court reviews the issue again in October, Brownlee said.
But with an eye to the Supreme Court's decision to reconsider the question this fall, the 4th Circuit also recommended that trial judges impose an alternate sentence - using the federal sentencing guidelines as "advisory" - in case the Supreme Court finds that the federal guidelines are unconstitutional.
"Frankly, I think the 4th Circuit had mercy on all the district judges," Jones said of the ruling. "The nightmare of changing the system has a lot of ramifications."
The federal guidelines were first enacted in 1987 as an attempt to impose uniformity in sentencing around the country. They evolve each year based on new legislation.
Should the Supreme Court decide that federal sentencing guidelines are unconstitutional under Blakely, that could mean defendants who have been sentenced since the decision came out and had their sentenced enhanced by a judge would have to be resentenced, Jones said.
The 4th Circuit was trying to prevent the burden that would place on the court system with the two-sentence recommendation, Jones said.
But Jones pointed out that a Supreme Court ruling would not likely come out until months after the October hearing, and that thousands of defendants around the United States will likely get sentenced between now and then.
But Roanoke attorney Randy Cargill sees potential challenges of the 4th Circuit's recommendation that judges sentence a defendant twice in light of Blakely.
Cargill pointed out that the essence of Blakely was that defendants are constitutionally entitled to have allegations against them determined by a jury, not a judge. So he argued that even an alternative sentence - imposed by a judge - seems to violate the spirit of Blakely and could be open to challenge.