Irving Heard Flurry of Sentence Appeals as He Left Bench : Justice: Irony is evident as a federal judge who quit in protest of new sentencing rules was besieged by criminals seeking leniency.

A little more than four years ago, Donanciano Hernandez-Escarsega drew a 40-year prison sentence for marijuana smuggling.

Hernandez was hit with an uncommonly long sentence, but he was convicted of various charges in connection with a plot to smuggle an uncommon amount of marijuana, nearly four tons, from Mexico to the United States.

Recently, however, his lawyer made a stirring and heartfelt plea before outgoing U.S. District Judge J. Lawrence Irving to cut the term in half--asking, plain and simple, for mercy.

The lawyer was using a little-known federal court rule in which a criminal is allowed to return to the court where he was convicted, after all appeals are exhausted, and beg for leniency.

And he was making the appeal to a judge who is the nation’s first to resign over frustration with rigid new sentencing guidelines that radically curtail the discretion of federal judges--including the elimination of appeals for mercy like those lodged by Hernandez.

Hernandez wasn’t the only criminal asking Irving for leniency just before he left the bench--his last day was Dec. 31. The judge was confronted with a flurry of pleas, perhaps a dozen, to reconsider lengthy prison terms. Even one such plea has become uncommon.

In most, if not all cases, including Hernandez’s, Irving balked at the attempts, which were no more than a naked appeal to a judge’s heart and soul.

As Irving heard a succession of those pleas, many lawyers involved said there was an irony at work.

Technically called Rule 35 of federal criminal procedure, the obscure rule is, like Irving himself, on the way out because of the new guidelines.

The controversial guidelines, which took effect in November, 1987, use a point system, based mainly on the severity of a crime, to determine a sentence.

A person’s background, role in the crime, past record, remorse--none of these can be used to reduce the sentence below a minimum term.

The U.S. Supreme Court ruled in January, 1989, that the new rules were legal.

But last September, Irving announced that he was resigning because he could no longer impose the rules in good conscience, particularly in cases involving youthful, first-time drug offenders who were being sentenced to lengthy terms without the possibility of parole.

When the guidelines came along, the old Rule 35 had to go.

The thrust of the guidelines is to reduce disparity in sentencing by cutting back on a judge’s discretion. The whole point of old Rule 35 is to encourage that discretion.

A new Rule 35, enacted in a package with the guidelines, permits only the prosecution to ask for a sentence reduction, and then solely when the government seeks to reward a convicted inmate who has become an informer. Defense attorneys have no right to ask for a reduced sentence.

The only cases left to be decided under the old rule are those from the mid-1980s that are still working through their final appeals.

The old rule says that only the judge who imposed the sentence can reconsider it. So, during December, many of the most sensational names to appear in Irving’s courtroom during his eight years on the bench rushed their attorneys back before the judge.

There were the lawyers for Anthony Gray, guilty of trying to kill a Border Patrol agent; attorneys for Francisco Javier Caro-Payan, another convicted marijuana smuggler; others for William Risley, convicted of phoning bomb threats against airliners, and for Hernandez and several others.

In an interview, Irving declined to talk about specific cases. But he said the old rule was “excellent” and suggested the new one was unfair.

Under the new guidelines, Irving said, “You sentence them and they’re gone. They’re history.

“And now only the government has it,” Irving said, a reference to the power to request a sentence reduction. “And I don’t think that’s fair.”

He said he used the old Rule 35 power “like most federal judges I ever talked to,” as a monitoring tool.

“You give a particular sentence, tell (the prisoner) at sentencing, ‘I’ll follow your progress, and if you behave and can convince me you really are turning your life around, or will turn it around, I’ll consider a reduction in sentence.’ ”

In about 80% of the cases in which he made that sort of speech from the bench while sentencing, Irving said, he later ordered a reduction in sentence. Exact figures are not available but he estimated that, overall, he ordered a cut for some 15% of the 1,600 offenders he sentenced in his eight years on the bench, or about 240 people.

“I don’t remember the last time some judge gave away the store on a Rule 35 for someone who deserved some relief,” said Ronald Frant, a San Diego lawyer who has been in practice 14 years and was one of the attorneys for Caro-Payan, the convicted smuggler. “This was not an abused rule.”

The rule allowed a judge to trim a sentence based on any of three factors--new evidence, a change in circumstances or belated compassion. “All of those are very valid reasons for reducing a sentence,” said Eugene Iredale, a San Diego criminal defense attorney. “Do we miss it? Very much.”

The thinking behind the old rule, as an American Bar Assn. report said in 1980, was that “sentencing is a human process.”

Since judges are people and people make mistakes, a judge should be able to give a sentence a second look, the report said.

The thinking behind the new guidelines, however, is to remove the human element from sentencing, because that can promote disparity in sentencing.

Under these guidelines, judges simply add or subtract points based on the nature of the offense, the accused’s criminal history and acceptance of responsibility. The point total translates into a sentencing range from which the judge then chooses.

The total term an offender receives is the total he or she will serve because the guidelines also eliminated parole. Without the chance to ask for a reduction under the old Rule 35, the only potential cut is a 15% break for good time.

For instance, an offender sentenced to 10 years in prison will serve at least 8 1/2 years.

“The guidelines, all the hype with the war on drugs--and believe me, I don’t say drugs are wonderful--there’s a hysteria that has swept the country with all of this, and it has caused some devastating effects,” defense lawyer Frant said.

Hernandez’s attorney, Los Angeles lawyer Mark O. Heaney, called the change in Rule 35 “unfortunate.”

“I don’t know what the concern is, that you can’t allow a judge to take another look at a sentence down the line,” he said.

Particularly, Heaney said, in a case where the sentence is for 40 years. Under the pre-guidelines rules, the 40-year term meant that Hernandez would serve two-thirds of it, or about 27 years, before he walks free.

Heaney offered an eloquent soliloquy at a hearing on Dec. 17 that mixed references to James Joyce, Harvard business school and elusive notions of justice, a plaintive plea that silenced even the other lawyers in the courtroom. He begged Irving to spare Hernandez from an “eternity in prison.”

Arrested in August, 1985, Hernandez was indicted in 1986, along with 13 others, on charges linked to an intricate scheme to smuggle marijuana from Mexico into the United States.

Prosecutors charged that Hernandez financed and supervised the scheme. The indictment accused him of conspiring to import five planeloads of marijuana, 7,900 pounds, from October, 1983, through March, 1984.

It also charged him with engaging in a “continuing criminal enterprise” by smuggling marijuana from 1977 to 1985, when he was arrested.

Few smuggling cases, however, are colored by the specter of brutal violence.

The jury in the case accidentally saw a note that suggested Hernandez could have been implicated in the death of his former girlfriend, Rosemary Rosales. The note, which was made by a prosecution witness, was inadvertently left with evidence in the case the jury was allowed to see.

According to court records, the note read: “Rosemary Louisa Rosales . . . Born 6-3-52 . . . Died 9-3-81 . . . Was murdered in Monterey Park on September 3, 1981 . . . Jan. 1979 Rosemary came back (and) talked about almost being killed in Mexico by Don (Hernandez) and him having a hole dug for her.”

Early in the trial, Irving had specifically ruled that no evidence was to be presented in the case about Rosales’ death. After jurors saw the note, he told them to ignore it.

Hernandez “emphatically denies” any involvement in Rosales’ death, Heaney said in a legal brief he filed last month with the San Diego federal court.

On Aug. 20, 1986, a jury found Hernandez guilty on all counts. On Oct. 24, 1986, Irving sentenced him to the 40-year term on the “enterprise” count and to lesser terms on the other charges.

At the sentencing hearing, Irving said he hoped the 40-year term would deter further trafficking in what he called “poison.”

On Oct. 4, 1989, the U.S. 9th Circuit Court of Appeals, the San Francisco-based federal appellate court, affirmed his conviction. On June 25, 1990, the U.S. Supreme Court declined to hear the case.

At the Dec. 17 hearing, Heaney made his case for “some mercy, some leniency and some compassion.”

He told Irving that a “specter of violence” settled into the case “early on, colored it.”

It “lingered throughout the case, and I think that in some respects it turned into something more than perhaps it really was . . . .”

Hernandez “made his choice to get involved in marijuana smuggling, and like everyone else he has to face the consequence of that choice,” Heaney said. “But I think it is fair to say, Judge Irving, that the world of options for Don Hernandez were never that great.

“I mean, the choice for him was never, ‘Do I pursue my M.B.A. degree at Harvard?’ Or, ‘Do I smuggle pot?’ His choices were far more confined. He chose unwisely.”

Hernandez currently is behind bars at the federal prison in Lompoc, near Santa Barbara. “I take full responsibility for my actions,” he said in a letter Heaney presented to Irving, adding that his conviction was a “source of great shame and sorrow to me.”

Heaney said he remembered the vision James Joyce had of eternity in “Portrait of an Artist as Young Man.”

Quoting from the book, Heaney said Joyce pictured a little bird picking away, one grain at a time, at a mountain of sand a million-miles high and a million-miles wide.

“ ‘How many eons upon eons of ages before it had carried away all, yet at the end of that immense stretch of time, not even one instance of eternity could be said to have ended,’ ” Heaney said, quoting Joyce.

“I think,” Heaney told Irving, “that the interests of justice in this case can be preserved without requiring Don Hernandez to spend this kind of an eternity in prison.” He suggested a reduction to a 20-year term.

Immediately after Heaney spoke, Assistant U.S. Atty. Michael Lasater, who prosecuted Hernandez, commended the lawyer for his eloquence. “But eloquence doesn’t decide what justice should be,” Lasater said.

The 9th Circuit court found the sentence legal and “virtually nothing had changed,” Lasater said.

“Unfortunately I don’t know too many Harvard M.B.A. candidates,” Lasater said. “But I imagine that a minority of them have amassed smaller fortunes than Don Hernandez amassed in his 15 years as a drug runner.”

A purported “functional illiterate,” Hernandez had somehow acquired “literally millions of dollars” in real estate, which he has forfeited to the government, Lasater said.

Lasater urged Irving to keep the sentence at 40 years.

In a decision issued Dec. 28, Irving turned Hernandez down flat.

Nothing in the books, even the old rules, requires a judge to explain a Rule 35 decision. Irving offered none.