PRISON TIME CUT BY COURT RULING

Terms Beyond Maximum Must Be Determined By Juries

The first ripples of the U.S. Supreme Court's new ruling on sentencing
have reached San Francisco and washed away five years of a Northern
California man's 10-year marijuana sentence.

The high court's June 26 ruling in a New Jersey hate-crime case
required juries, rather than judges, to decide facts that increase a
sentence beyond the maximum term for the crime - contrary to
longstanding practice in federal drug cases. The U.S. 9th Circuit Court
of Appeals ruled Monday that the ruling applies to a determination of
the amount of drugs involved in a crime.

The decision came as no surprise - two other appeals courts have issued
similar decisions, and Justice Department spokesman John Russell said
the department has acknowledged that the Supreme Court decision applies
to sentencing calculations based on drug quantities.

It is still uncertain, however, how far the ripples will spread.
Monday's ruling, binding on federal courts in nine Western states,
affects only defendants who are appealing their convictions and those
who have not yet gone to trial; another Supreme Court ruling may be
needed to decide whether the June 26 ruling applies retroactively and
can be used by thousands of prisoners to reopen their cases.

Defense lawyers say the ruling will become even more momentous if the
high court decides to apply it to all sentence increases imposed by
judges, and not just those that exceed the legal maximum for the crime.

Federal judges have broad authority to sentence a defendant for all
wrongdoing they decide the prosecutor has proven, in addition to the
jury's guilty verdict.

The Supreme Court has upheld such sentences in the past, even when
based in part on charges for which the defendant was acquitted.

That practice could become constitutionally questionable, based on the
reasoning of the June 26 ruling that "it's wrong to convict a person of
one crime and sentence them for another," said USC law Professor Erwin
Chemerinsky.

"There's a whole lot of litigation ahead of us," said Barry Portman,
the chief federal public defender in San Francisco. He said Monday's
ruling would apply mainly to marijuana cases in this area's federal
courts, because convictions for other drugs rarely involve amounts that
require sentence increases.

Federal drug sentences are based in part on the amount of drugs
involved. For "manufacturing" or cultivating marijuana, the minimum
sentence is five years, but it rises to 10 years if the defendant was
responsible for 1,000 or more plants.

Kayle Nordby, a Santa Cruz-area resident who owned land in Humboldt
County, was convicted of manufacturing marijuana on Humboldt property
searched by federal and state police in 1993. Officers seized 2,308
plants, but Nordby admitted only a limited involvement and blamed
outside "guerrilla" growers for most of the operation.

The jury that convicted him beyond a reasonable doubt found only, as
specified in the charge, that he was responsible for a "detectable"
amount of marijuana. Following standard practice, U.S. District Judge
Vaughn Walker then held a sentencing hearing, found - using the less-
stringent standard of more-likely-than-not - that Nordby was
responsible for 1,000 or more plants, and imposed the 10-year minimum
term.

On Monday, the appeals court said the sentence violated the Supreme
Court's recent ruling in the case of Apprendi vs. New Jersey. That
ruling said that any increase in a sentence, above the maximum term for
the crime, must be based on a jury's findings beyond a reasonable
doubt, because of the constitutional right to a jury trial.

Prosecutors normally would be allowed to retry the case and ask a new
jury to determine the quantity of drugs, but that's not an option in
this case because Nordby's conviction was previously upheld and he is
appealing only his sentence, said Judge William Canby in the 3-0
ruling. He said the court must instead order Nordby resentenced to the
five-year term supported by the jury verdict.

"This vindicates what was argued at his trial and two separate appeals:
that they should not be sentencing him for all the marijuana that the
government could find on a hillside and attribute to him," said
Nordby's appellate lawyer, Linda Leavitt.