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U.S. judges await ruling on sentencing guidelines
Tuesday, November 30, 2004

A U.S. Supreme Court ruling expected this week -- maybe as soon as today -- has the attention of every federal judge in the country.

The two cases, United States v. Booker and United States v. Fanfan, challenge the constitutionality of federal sentencing guidelines in place for the last 17 years.

Many experts expect the justices to throw out the guidelines because they allow judges to impose enhanced sentences based on facts not proved to a jury.

In Pittsburgh, most of the 10 judges on the federal bench have been taking a wait-and-see approach on the issue ever since the June 24 Supreme Court decision in Blakely v. Washington.

In Blakely, which set the stage for the current cases, the court threw out a Washington state law under which a judge enhanced the prison term of a kidnapper because he decided the man acted with "deliberate cruelty."

Even though the justices specifically said their decision didn't affect federal guidelines, one Pittsburgh jurist, U.S. District Judge Arthur J. Schwab, has already ruled that the guidelines violate the Constitution.

In a bank robbery case in July, Schwab said he agreed with dissenting Justice Sandra Day O'Connor that Blakely meant the federal guidelines are in jeopardy.

The issue came up in the case of United States v. Nicole Harris, 35, of North Versailles, who pleaded guilty to her role in helping Anthony Williams, Anthony Askew and Maurice Askew rob six banks in the eastern suburbs and Moon in 2002.

Harris pleaded before the Blakely decision came down, and Schwab said her plea might not be valid any longer because the foundation for it was now "eroded."

In the end, it didn't matter. Despite his ruling, she agreed to be sentenced under the guidelines and he gave her a term of 46 months, near the lower end of the range.

"Thus," he wrote, "although this court has declared the U.S. sentencing guidelines unconstitutional under Blakely, the sentence in this case ultimately was crafted under the guidelines, by agreement of the parties."

Schwab's colleagues, meanwhile, have elected to keep the federal guidelines.

Two cases that illustrate the point are United States v. William C. Roberts of Homewood and United States v. James L. Hopson of Sharon.

In sentencing the 28-year-old Roberts to 92 months in prison for gun crimes, Chief U.S. District Judge Donetta Ambrose said in August that the Blakely decision would not affect her rulings.

Ambrose said the Supreme Court has already upheld the guidelines and it's not her place to disregard them.

"I don't believe it is my prerogative to deem [them] unconstitutional," she said. "It is the Supreme Court's."

U.S. District Judge Gary Lancaster, as well as several other judges, said much the same thing.

"Far be it for a district judge to, at best, misinterpret and at worst, appear to overrule the U.S. Supreme Court," he wrote in the case against Hopson. He sentenced Hopson, 30, to 14 years in prison.

First published on November 30, 2004 at 12:00 am
Torsten Ove can be reached at tove@post-gazette.com or 412-263-2620.
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