Federal Judge in Miami Rules Sentencing Guidelines
Unconstitutional
Dan Christensen
Daily Business Review
07-21-2004
Following the U.S. Supreme Court's landmark ruling throwing out Washington
state's criminal sentencing guidelines, U.S. District Judge Donald L. Graham in
Miami has become the first federal judge in South Florida to declare a key part
of the federal sentencing guidelines unconstitutional.
Graham ruled Monday in the case of Dr. Paul Elliott, a Florida physician
convicted in March on 22 counts of health care fraud and a single count of
obstruction of justice. Prosecutors had charged Elliott with submitting more
than $300,000 in bogus bills to Medicare.
His defense lawyers, Richard G. Lubin and Tama Beth Kudman of West Palm Beach,
Fla., had asked Graham to reject the government's demand that he hike Elliott's
sentence based on allegedly "relevant conduct" not proven at trial.
"Over the government's strong objections Judge Graham has now declared that part
of the guidelines to be unconstitutional, meaning the ability to enhance a
defendant's sentence for certain unproven conduct," Lubin said. Graham's office
confirmed that he'd ruled from the bench on Monday, but declined further comment
until the judge issues a written opinion.
With enhancements, Elliott was facing 27 to 33 months under the federal
guidelines. But now he faces 12 months or less, Lubin said.
Earlier this month, the 18 active federal judges of the Southern District of
Florida, including Graham, gathered in closed session to figure out how best to
safeguard the integrity of sentences meted out in South Florida in light of the
Supreme Court's June 24 ruling in Blakely v. Washington. Chief Judge
William J. Zloch did not respond with comment before deadline.
But they seem to have decided to each go their own way on the issue of whether
Blakely applies to sentencing in federal cases. While some Southern
District judges have flatly said it does not apply, others are hedging their
bets and are handing down two alternative sentences in same cases -- one based
on the federal sentencing guidelines and one not based on the guidelines.
Criminal defense attorneys who practice in the federal courts in South Florida
say confusion reigns, as different federal district and appellate courts
announce different positions on the issue. One Fort Lauderdale attorney has
filed an unusual motion asking the Southern District judges to decide en banc
whether Blakely affects federal sentencing. Across the country, the
sentencing of thousands of federal defendants has been called into question
since the split 5-4 ruling last month. The high court struck down the sentencing
guidelines used by Washington state. The court said trial judges could not
"enhance" -- meaning add prison time -- to a defendant's sentence using
aggravating facts not proven to a jury. That violated the Sixth Amendment right
to trial by jury, the court held.
The justices explicitly did not pass judgment on the constitutionality of the
federal sentencing guidelines -- which are similar to guidelines used by various
states. But the implications have not been lost on the lower federal courts.
Indeed, in the four weeks since Blakely was decided, four federal
appellate courts -- the 5th U.S. Circuit Court of Appeals in New Orleans, the
6th Circuit in Cincinnati, the 7th Circuit in Chicago and the 2nd Circuit in New
York -- have ruled on the matter. And the 9th Circuit in San Francisco has
appointed a study committee.
The 5th Circuit adopted the position, advanced by the U.S. Department of
Justice, that Blakely does not affect the federal sentencing guidelines.
The 6th and 7th circuits held that Blakely does apply, while the 2nd Circuit
took the rare step of certifying questions to the Supreme Court about the extent
to which it applies.
LOCAL JUDGES SPLIT
Federal district judges in South Florida and around the country also have issued
conflicting rulings.
In general, federal judges under the national sentencing guidelines consider
enhancing sentences based on factors such as the amount of illegal drugs or
economic losses involved in a crime. Enhancements also can be applied if a
defendant can be shown, by a preponderance of evidence, to have been a leader in
the crime or to have abused a position of trust.
Here's a partial scorecard of federal judicial actions in South Florida. It was
compiled with the help of South Florida criminal defense attorneys:
While not going so far as to toss out any part of the federal guidelines, U.S.
District Judges James Lawrence King in Miami, Jose A. Gonzalez Jr. in Fort
Lauderdale and K. Michael Moore in Miami have stated that they will not enhance
sentences absent a jury finding about any aggravating facts or proof beyond a
reasonable doubt.
In contrast, U.S. District Judges James I. Cohn and William P. Dimitrouleas,
both in Fort Lauderdale, have held that Blakely does not apply to federal
sentencing under the guidelines.
In the case of former Accutel Communications chief executive Arne Soreide, Judge
Cohn cited the Supreme Court's explicit statement that its ruling did not apply
to federal sentencing rules. Soreide was convicted by a jury this month on 68
counts of fraud, money laundering and tax violations.
But as a "prophylactic" in case the high court extended its application of
Blakely, Judge Cohn ordered the jury that convicted Soreide to return today
to determine whether facts presented by Assistant U.S. Attorney Neil Karadbil in
support of an enhanced sentence were proved beyond a reasonable doubt.
Meanwhile, Southern District Chief Judge Zloch and U.S. District Judges Kenneth
L. Ryskamp and Donald M. Middlebrooks in West Palm Beach have taken the creative
approach of handing down alternative sentences -- depending on whether the
guidelines survive or not. In these cases, the judges issued one sentence that
relied on the guidelines and one that did not.
In another approach, U.S. District Judges Federico A. Moreno and Adalberto
Jordan in Miami are pondering expedited briefings on the matter received from
prosecutors and defense lawyers.
U.S. District Judge Cecilia Altonaga in Miami is punting. Apparently hoping that
the issue will be resolved soon, she has put off issuing any sentences until
next month in cases where Blakely issues are involved.
Defense attorneys are distressed.
"The uncertainty is not good for anyone - the courts, the government or the
defense," said criminal defense attorney Steven E. Chaykin, a partner at
Zuckerman Spaeder in Miami. "The amazing thing about this case, unlike any
before, is it doesn't really give us the answers," said David O. Markus,
speaking for a group of about 160 private attorneys who represent indigent
federal defendants when the Federal Public Defender's Office has a conflict.
"Judges are doing different things. Defense lawyers are doing different things.
Prosecutors are doing different things." Markus is a partner at Hirsch & Markus
in Miami.
REQUEST FOR EN BANC RULING
In the hope of pushing the Southern District toward a clearer and more unified
stance, Fort Lauderdale-based attorney and sentencing specialist Benson
Weintraub on Friday filed papers seeking an extraordinary public hearing by the
active judges concerning what to do about Blakely.
"The district judges should collectively assemble en banc to consider, as
quickly as counsel may be heard - (1) the constitutionality of the guidelines;
and (2) establishment of a uniform standard, at least in this district, for the
manner and process of post-Blakely sentencing," Weintraub wrote.
"To promote the administration of justice with fairness and consistency ... the
sentencing judge may wish to share the legal issues in this case with a full en
banc panel," according to the motion.
The last time such an en banc gathering occurred was in 1988, when the court
convened in U.S. v. Bogle to consider the constitutionality of sentencing
guidelines enacted by Congress to curb disparity between sentences issued by
different judges. The Southern District ruling en banc found the guidelines to
be unconstitutional, but that judgment was later overturned.
Weintraub's motion for an en banc hearing was filed in the otherwise
unremarkable case of U.S. v. Mehrzad Arbane, an Iranian convicted in May
of conspiracy and smuggling more than five kilograms of cocaine.
Arbane, whom Weintraub represents, is to be sentenced Aug. 27. Prosecutors want
his sentence enhanced based on other alleged drug shipments. If prosecutors
succeed, Arbane faces 235 to 293 months in prison.
But Arbane's attorneys are challenging the sentence enhancement based on
Blakely. If U.S. District Judge Ursula Ungaro-Benages in Miami decides that
Blakely blocks any sentence enhancement, the guideline range for the base
offenses is only 121 to 151 months in prison, Weintraub said.
While Ungaro-Benages is considering the merits of Arbane's constitutional
challenge, she has rejected Weintraub's parallel request for an en banc hearing.
"She did not explain herself," Weintraub said in an interview. "My impression,
based on speaking with my colleagues, including judges, is that she did it
because the court agreed earlier [in its closed session] that each judge would
address the Blakely matter individually."
But Weintraub isn't giving up. Soon, he said, he intends to ask the court to
enunciate a uniform sentencing policy, either in an administrative order from
Chief Judge Zloch or via an en banc hearing.