Federal Judges Wrestle With 15 Challenges on Sentencing

The judges of the U.S. District Court in Los Angeles will convene in an unusual joint hearing this month to consider constitutional challenges to comprehensive new federal sentencing guidelines that have threatened to bring judicial chaos to the court’s staid domain.

Chief Judge Manuel L. Real has directed that judges of the court meet en banc in Pasadena on April 18 to consider at least 15 challenges to the new guidelines, billed as the most significant reform of federal sentencing procedures in the nation’s history when they took effect last November.

The guidelines, which establish a fixed range of penalties for specified federal crimes, have become the target of similar legal challenges throughout the nation, but nowhere is the impact of the legal uncertainty likely to be as great as in Los Angeles.

With 32 active and senior judges, California’s central district is the largest in the country and the likelihood that the judges will be unanimous on the constitutionality of the guidelines within their courtrooms is virtually nil. Thus for many defendants, the issue of whether they will be sentenced under the relatively harsher new guidelines or under prior statutes may depend, at least for the immediate future, on which judge is assigned to their case.

Face Re-Sentencings

Moreover, judges whose rulings on the constitutionality of the guidelines are overturned by appeals courts or the U.S. Supreme Court--whichever way the court rules--now face the prospect of having to re-sentence all those defendants sentenced under their prior ruling.

“Here, we have so many judges that the possibilities are almost astronomical, perhaps even geometrical,” U.S. District Judge Terry J. Hatter Jr. said. “I’m just not going to sentence under the guidelines until the matter is resolved.”

The guidelines have sparked irritation from some judges who see them as an affront to the broad discretion they have traditionally exercised in fixing sentences, and criticism from many defense lawyers unhappy with the elimination of parole, the virtual elimination of probation for many offenses and stiffer sentences for white-collar crimes.

But most of the present legal debate turns not on the desirability of the guidelines but on whether Congress violated the separation-of-powers doctrine of the Constitution by delegating its power to set sentences to the U.S. Sentencing Commission, an arm of the judiciary.

The purpose of this month’s hearing is to provide a single occasion on which all the judges can hear an array of views on the sentencing procedures. But only those judges who have challenged cases before them will rule on the constitutionality issue, and those rulings will apply only within their courtrooms until the U.S. 9th Circuit Court of Appeals rules on behalf of federal courts throughout the West. A final appeal to the Supreme Court could take a year or more.

Because the guidelines apply only to crimes committed after Nov. 1, only three defendants have been sentenced so far under the guidelines in Los Angeles.

The rapidly growing number of cases in which sentencing has been delayed pending legal challenges span a broad spectrum of federal crime, and attorneys say they point up some of the conflicts that are bound to erupt in trying to tailor a fixed point system of criminal penalties to the endless variabilities of human behavior.

Some Disparities

Among the cases that illustrate the disparities:

- A retired wrestler who was known as the “Masked Marvel” during his television career, Ron Emmett, pleaded guilty last week in a case involving the sale of stolen credit card access codes. His lawyer will argue that the guidelines, if held constitutional, should dictate a relatively lenient sentence by calculating the amount of the fraud as the amount of money Emmett actually earned, about $2,000. Prosecutors will argue, however, that the fraud should be calculated on the basis of telephone company losses of $170,000.

The difference could be substantial. If it is calculated as the defense hopes, Emmett could receive anything from probation to six months. The prosecution’s version would carry a sentence of 10 to 16 months.

“Without the guidelines, I think that a court could see this offense, this defendant, for what it really is, which is I think a relatively minor offense,” Emmett’s lawyer, deputy federal public defender Victor M. Chavez, argued.

- Bryan Roger is charged with robbing four South Bay area banks in a case that prosecutors said might ordinarily have resulted in a plea bargain for an eight- or nine-year sentence. But because Roger had two other bank robbery convictions in the mid-1970s, the guidelines automatically classify him as a career criminal and require a 20-year, no-parole sentence.

“For obvious reasons, most people can’t voluntarily commit themselves to 20 years without parole in federal prison, so the plea fell through,” said Assistant U.S. Atty. John L. Carlton.

“Congress has made a determination for reasons it knows best that people who are like this man are the kinds of people who commit most of the crimes, and should be put away for a long period of time,” Carlton said. “We looked and looked at this case and found no basis for a departure from the guidelines. The guidelines were clear. He fit right in. And much as you might be surprised at the sentence, given what you might have expected under the old regime, there’s not much we can do about it.”

(Under the guidelines, judges can sentence either below or above the ranges specified, but in order to do so they must make findings that a case involves factors not adequately considered by the commission when it drafted the guidelines.)

- William T. Smith, charged with 12 bank robberies, pleaded guilty to four robberies that occurred before the guidelines took effect. The judge could, under the pre-guidelines law, sentence him to up to 100 years. But Raul Ayala, a deputy federal public defender, said he will probably end up doing less time than he would if sentenced under the guidelines.

Some attorneys said the guidelines do an effective job of quantifying the variables that go into sentencing--while eliminating the broad disparity that has plagued the sentencing process in the past.

A good example is the case of Nicholas Fahed Chamaley, who was convicted of possessing $12,000 worth of counterfeit travelers checks. The guidelines set that offense at a base level of 6, which is adjusted upwards based on the dollar amount of the offense.

Chamaley had only cashed one $100 check, and his lawyer argued that that should be considered in determining the amount of the fraud. But Assistant U.S. Atty. Steven E. Zipperstein successfully countered that the guidelines require a calculation based on how much he intended to use--all $12,000. That bumped the offense up to level 9.

Level Increased

The level was increased another two points because Chamaley had attempted to destroy the checks when the Secret Service arrived to arrest him. But because he had accepted responsibility for his crime shortly after his arrest, he moved back down to level 9.

Level 9 carries a sentencing range of 4 to 10 months in prison, and U.S. District Judge Harry L. Hupp on March 28 imposed the minimum of four months, citing the fact that Chamaley had cashed only one of the checks.

“Unlike the situation in San Diego (where the judges have split on the guidelines, two upholding them, two throwing them out), we have not seen a flurry of motions challenging the constitutionality of the guidelines, and I think the reason is that defense lawyers are looking to the results in their cases and seeing that they may get, in certain cases, better results under the guidelines,” said James Berliner, the prosecutor who is coordinating challenges to the guidelines for the U.S. attorney’s office in Los Angeles.

“So far, we haven’t had any serious problems in trying to implement the guidelines,” Berliner added. “They’re a little bit complicated, but we’re just taking each new issue as it comes in and trying to resolve it in a consistent manner.”

Concedes Confusion

U.S. District Judge Alicemarie H. Stotler, who was in charge of training judges in Los Angeles on the guidelines, conceded that there is likely to be confusion in the early stages until the Supreme Court rules on the constitutional issues.

“The uncertainty probably is more far-reaching than we’ve realized,” Stotler said, but she predicted that judges will become more comfortable with the guidelines as they learn how to use them.