Court Backs Sentencing Reviews

The U.S. 9th Circuit Court of Appeals ruled Wednesday that thousands of inmates in California and eight other Western states could challenge prison sentences imposed before the U.S. Supreme Court freed judges from mandatory sentencing guidelines.

Wednesday’s ruling by the 9th Circuit, based in San Francisco, is the latest from federal appeals courts sorting out the effect of a landmark Supreme Court ruling that sentencing guidelines were no longer binding on federal judges.

To eliminate disparities in federal sentences across the country, Congress in 1987 imposed guidelines instructing judges to raise or lower sentences based on factors, such as the amount of money or drugs that changed hands in a narcotics case. The high court in a January decision, U.S. vs. Booker, however, ruled that only a jury could determine facts used to set penalties.

Judges, however, were allowed to continue to consult the sentencing guidelines on an advisory basis.

However, the Booker ruling was far from clear on how lower courts should treat the cases of prisoners already sentenced under the guidelines. Some federal appeals courts have adopted a strict standard for defendants to win resentencing, though other appellate courts adopted a more liberal yardstick.

The 9th Circuit on Wednesday steered a middle course, saying that the only practical way to find out whether the sentence would have been “materially different” without mandatory guidelines was to go back and ask the original judge.

If the judge concludes that the outcome would have been the same, then the original sentence stands, although it can still be appealed to determine whether it was reasonable, the 9th Circuit said. If the judge decides that the outcome would have been different, they could vacate the sentence and conduct a new sentencing hearing, the court said.

The majority, led by Judge Johnnie B. Rawlinson of Las Vegas, said that sending the cases back to the original judge was the “only practical way [and it happens to be the shortest, the easiest, the quickest, and the surest way] to determine whether” the defendant had been treated unfairly at the original sentencing.

“If we decline to find out what the district court knows ... the defendant will surely feel abused, with some justification, and everyone will be left to wonder about whether the sentencing court might have acted differently,” Rawlinson wrote. “It seems to us that would itself undermine the fairness, integrity and public reputation of the judicial proceedings, something we should try to avoid.”

Professor Laurie Levenson of Loyola Law School said the ruling “puts tremendous responsibility on defense lawyers” to show how the original sentencing would have been different if the guidelines had been advisory. She also expressed concern that there would be a “natural tendency” on the part of the original sentencing judge, already “swamped with work, to say that the original sentence they imposed was appropriate.”

U.S. District Judge Dickran Tevrizian, who has been on the federal bench since 1985, said the ruling would create a lot of work for federal trial judges but was unlikely to lead to a lot of reduced sentences.

“I think in 95% of the cases the judges will say the prior sentence was reasonable,” Tevrizian said in an interview.

Wednesday’s ruling stemmed from the case of Alfred A. Ameline who pleaded guilty in Great Falls, Mont., in 2002 to distributing less than a pound of methamphetamine, which would have carried a 16-month sentence. Under the sentencing guidelines, U.S. District Judge Sam E. Haddon raised the penalty to 12 1/2 years, based on a pre-sentencing report by a federal probation officer saying that Ameline had sold more than three pounds of the drug.

Although all 11 judges on the 9th Circuit panel agreed that Ameline was entitled to resentencing, four judges issued sharp dissents to the overall approach of the majority, and expressed concerns about the possible consequences of the ruling for the administration of justice.

The dissenters, led by Judge Kim Wardlaw of Pasadena, said the majority had abdicated its responsibilities by sending the resentencing controversy back to the lower courts to resolve.

Wardlaw also said the decision created a number of practical problems, such as who would review the sentence when the original sentencing judge had retired.

Wardlaw, a former district court judge in Los Angeles, noted that the recent retirement of her former district court colleague Lourdes G. Baird was “but one of many examples.”

Wardlaw said that the chief judge of the district court would have to reassign any of Baird’s disputed sentencings “to a currently serving judge who cannot possibly answer the question the majority poses because he was not the original sentencing judge.”

“I agree that the majority’s approach is ‘short,’ ‘quick,’ and ‘easy,’ at least for our court,” Wardlaw wrote. “It relieves our docket of ‘literally thousands of cases’.... It relieves us of our obligation to review each of those cases individually.”

Federal trial judges in the nine affected states, already burdened “with their own heavy dockets,” would have to “absorb the avalanche” of reviewing all the cases that would be sent back to them, she said.

Moreover, the majority opinion “leaves open the possibility” that judges reviewing old sentences might not consider all the factors, such as age, education and mental and emotional conditions, that they would take into account in cases decided after the Supreme Court ruling. “Defendants should be accorded the benefit of the discretion district court judges now enjoy,” Wardlaw wrote.

Judges Ronald M. Gould, Diarmuid F. O’Scannlain and Carlos Bea also wrote dissents questioning the majority’s approach.

Bea emphasized that “the current state of the law has engendered some confusion. The circuit courts cannot agree what is to be done, and even within our own circuit, there are numerous and divergent opinions. The result is that the very uniformity in sentencing which the [Supreme] Court strove to preserve, even while dramatically changing the sentencing procedures, is still a distant goal.”

San Diego lawyer Steve Hubachek, who represented Ameline on appeal, said he was “pleased that the 9th Circuit did not join the circuits that place a real onerous burden on defendants before they can get any relief.”

However, he agreed with Wardlaw, and three other federal circuit courts, that defendants in these circumstances were entitled to a full resentencing hearing, not the limited review mandated by this decision.

The Justice Department declined to comment.