COURTS MUST RECONSIDER SOME SENTENCES FOR OFFENDERS

SAN FRANCISCO - Driving home the impact of a recent U.S. Supreme Court
decision, the highest court in the West on Monday cast doubt on the
validity of sentences already handed down in the most serious federal drug
cases.

On a 3-0 vote the 9th U.S. Circuit Court of Appeals overturned a Humboldt
County man's sentence for marijuana crimes, holding that he was not
eligible for 10 years to life in prison, as a San Francisco federal judge
had assumed, but for a maximum of five years.

The decision could upset "a gigantic class of cases," said Steven Kalar, a
defense lawyer and authority on the fallout from the Supreme Court ruling.

Kent Scheidegger, of the conservative Criminal Justice Legal Foundation,
said the crime was one of the most common types of federal prosecution.

The reason for the 9th Circuit's reversal: The judge rather than the jury
determined the critical factor in arriving at the longer sentence - the
quantity of marijuana. Judge Vaughn Walker found that Kayle Nordby was
responsible for 1,000 or more plants.

Walker didn't mess up. When he sentenced Nordby on March 25, he did what
was required under federal sentencing guidelines that have been used in
half a million cases since 1989.

But on June 26, the U.S. Supreme Court put the guidelines on shaky ground.
It declared, in an appeal from New Jersey known as the Apprendi case, that
a jury must determine beyond a reasonable doubt the truth of almost all
factors used by prosecutors to boost sentences.

Several Supreme Court justices among both the five-person majority and
four-person minority warned of what Justice Sandra Day O'Connor, a
dissenter, called "colossal" implications.

The Nordby decision, which is binding on all federal courts in California
and eight other states, was among the first to apply the Apprendi ruling in
a defendant's favor.

The opinion returning the case to Walker for re-sentencing was issued by
representatives of the 9th Circuit's left, right and center and was written
by Sr. Judge William C. Canby Jr. of Phoenix.

According to Erwin Chemerinsky, a law professor at the University of
Southern California, as of the end of August, 36 federal and state court
opinions had grappled with Apprendi.

At least one other high-ranking court, the 6th Circuit, threw out a
sentence. The opinion issued two weeks ago said Nancy Jo Rebmann's proper
sentence for heroin distribution was no more than 30 months and could not
be increased to 24 years on the basis of a trial judge's finding that her
crime caused her husband's death.

But most courts have been reluctant to throw out sentences.

For example, a federal judge in San Diego ruled in July that Apprendi would
not affect drug penalties.

Many of the courts have ruled that violations of the Apprendi doctrine were
mere "harmless error" - in carjacking, firearms and drugs cases - because
of a variety of circumstances such as admissions by defendants.

The 9th Circuit said "harmless error" could not be applied to Nordby
because he consistently maintained he wasn't responsible for more than
2,000 marijuana plants found on land he owned.

At least two other cases raising Apprendi issues are pending in the 9th
Circuit.

In one of those, the federal public defender's office in Sacramento
recently amended its appeal to argue that, under the Apprendi decision,
Vidal Garcia-Contreras should have been sentenced to a maximum of two years
for illegal reentry into the United States. He was sentenced to more than
seven years because he had an aggravated felony conviction on his record,
but the accuracy of the record never was proved to a jury.

On Friday, the first in a group of Sacramento-area cases involving the same
issue as the Nordby case is set for sentencing before U.S. District Judge
Garland E. Burrell Jr.

Federal prosecutors are asking Burrell to sentence Javier Mora to 17 years
in prison "in light of Apprendi," about four years less than they would ask
for without Apprendi.

Paul Seave, the U.S. Attorney in Sacramento, said some sentences will be
negotiated with defense counsel "on a case-by-case basis." "The sentences
will be long, regardless, and the public's interest will be served. That's
the important thing," he said.

He predicted few retrials.

As for upcoming cases, he said drug quantities will be included in
indictments and other charging documents and presented to juries for their
determination. That practice already has been instituted in federal drug
prosecutions in San Francisco, according to a spokesman for the U.S.
Attorney in that city.

Contact Claire Cooper and Denny Walsh of the Sacramento Bee in California
at http://www.sacbee.com.)