Pubdate: Mon, 17 Jan 2005
Source: Rochester Democrat and Chronicle (NY)
Copyright: 2005 Rochester Democrat and Chronicle
Contact:  http://www.democratandchronicle.com/
Details: http://www.mapinc.org/media/614
Author: Gary Craig, Staff writer

RULING MAY ALTER SENTENCES

Supreme Court Decision Casts Doubt on Some Federal Cases.

In July 2003, a federal jury convicted a Rochester man of a
drug-possession charge but acquitted him of using a gun as part of the
crime.

Eight months later, U.S. District Judge Charles Siragusa sentenced the
man, Clive Hyman, to 15 years for the drug crime. That sentence
included almost three years for firearm possession, even though he'd
been acquitted of the charge.

Even Hyman's current lawyer, Jon Getz, acknowledged that Siragusa
acted within the law when he increased the sentence. And Siragusa went
to lengths to state on the record that the law required him, as the
judge, to add more years if he found a "preponderance" of evidence
that a gun had been part of the crime -- a different threshold than
that required for the jury verdict.

"The jury had an opportunity to review the evidence and found him 'not
guilty,' and yet the (federal sentencing) guidelines circumvented a
jury's decision," Getz said. "That just seems fundamentally unfair."

A U.S. Supreme Court ruling last week -- a highly-anticipated decision
that ruled the federal sentencing guidelines should be advisory but
not mandatory for judges to follow -- now puts Hyman's sentence and
the sentences of other local defendants in question.

"I'm quite confident there will be quite a few (convicts) that will
make applications to be resentenced," said U.S. District Judge David
Larimer. "I would say scores ... will make an attempt."

The Supreme Court ruled that, if mandatory, the guidelines breached a
defendant's constitutional right to a trial by jury.

The guidelines, in place since the late 1980s, mandated that
sentencing judges consider criminal conduct beyond that proven at a
jury trial or in a plea agreement. Hyman's sentence provides a case
study: A gun was found in the house where he was arrested -- not
enough proof for a guilty verdict that he'd used the gun to traffic
drugs but, under the guidelines, enough evidence to force a judge to
increase his sentence.

There are thousands of cases across the country -- and many in western
New York -- in which federal convicts had their sentences increased
under the guidelines.

Among the local cases that could be at issue are the mortgage fraud
convictions of the Amico brothers and the sentencing of former defense
lawyer Anthony Leonardo Jr., who is now challenging a plea agreement
in which he admitted to conspiracies to commit murder, traffic cocaine
and launder money.

But, by keeping a semblance of the sentencing guidelines intact, the
Supreme Court may have ensured that federal courts will not fall into
sentencing chaos.

In fact, federal prosecutors expect to operate much as before and
don't foresee drastic changes in sentencing.

"I don't see that there's going to be a huge change in our practice,"
said First Assistant U.S. Attorney Kathleen Mehltretter.

The ruling does return discretion to judges but may also spark
Congressional intervention, said defense lawyer Donald Thompson

"The decision lets judges be judges again, rather than accountants,
exactly what Congress doesn't want since it doesn't trust judges to
exercise discretion," Thompson said.

Judge Larimer said he hopes Congress does not rush into the fray but
rather waits to see whether the ruling triggers disparate sentences in
federal courts.

Larimer has been critical of mandatory guidelines, claiming they
hamstring judges.

"I think many of us felt that the guidelines as originally enacted in
1987 were meant to be guidelines," Larimer said. "They were not meant
to be concrete shoes that precluded us from exercising any kind of
judgment.

"One would think judges are selected based upon their ability to make
judgments." 
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MAP posted-by: Richard Lake