Posted on 10/03/2004 2:34:40 PM PDT by Former Military Chick
Shirley Maye Rollow would have been better off if she had never taken the witness stand. Rollow, 55, testified in her own defense to federal charges of possessing and distributing pseudoephedrine for making methamphetamine. An Oklahoma City jury found her guilty in October 2002 of nine felony counts.
Had Rollow been sentenced on just those convictions, federal guidelines would have recommended a sentence of 10 to 16 months in prison, said her attorney, Bill Zuhdi.
But Rollow was sentenced to 15 years when a judge added prison time because of enhancements that were never proved to a jury. One of those enhancements: "obstruction of justice" for allegedly giving untrue testimony.
Monday, members of the U.S. Supreme Court will return to the bench and begin deciding whether enhancements such as those added to Rollow's sentence violate the U.S. Constitution.
At stake is the fate of thousands of federal inmates and defendants, including dozens convicted or awaiting sentencing in Oklahoma.
'Socked with enhancements' Rollow exercised her right to testify and was then punished for perjury without a formal trial, Zuhdi said, adding that the jury never concluded she was lying or obstructing justice.
"She wasn't charged with testifying falsely or perjury," Zuhdi said. "She never had a chance to defend herself against it, and then she gets socked with this enhancement."
Her sentence was further boosted by the amount of pseudoephedrine and because she reportedly functioned as a "leader and organizer" of the crime, even though a jury had never considered the enhancements.
U.S. Attorney Robert G. McCampbell, head federal prosecutor in Oklahoma City, noted that a jury found Rollow guilty of the underlying crime before she was sentenced.
During sentencing both sides have a chance to present evidence on the enhancements and have the right to object before a decision is rendered by a judge.
"There's due process," McCampbell said. "There's a hearing and both sides can put on evidence."
In Rollow's case, a judge found a preponderance of the evidence indicated the enhancements occurred. The standard is much lower than the "beyond a reasonable doubt" needed for a guilty verdict in a trial.
"There's no jury there," Zuhdi said. "She's denied a jury trial and that's the way it is with all federal enhancements."
Tough sentencing laws struck down The Supreme Court called into question Rollow's sentence and that of thousands of others this summer when it struck down tough sentencing laws in Washington state.
The court's 5 to 4 ruling in Blakely v. Washington said any factor, other than a prior conviction, that increases a criminal sentence must be admitted to by the defendant in a plea deal or proved to a jury beyond a reasonable doubt.
Although the court said it wasn't expressing an opinion on similar federal sentencing guidelines, the ruling had an immediate impact on the federal courts.
Federal prosecutors were thrown into the position of defending two decades worth of federal guidelines.
The guidelines meet constitutional muster and are much fairer than the previous system, McCampbell said.
"One of the key advantages to the guideline system is transparency," said McCampbell, who is chairman of the U.S. Attorney General's Advisory Committee's Sentencing Guidelines Subcommittee.
"Before the guidelines, two similarly situated defendants in two different courtrooms could receive two different sentences and no one knew why," he said.
Decision becomes basis for appeals In the federal Western District of Oklahoma Court in Oklahoma City, more than a dozen prisoners have cited Blakely as a basis for new appeals.
When the Blakely decision was handed down, about 8,000 cases were pending appeal on sentencing issues and more than 50,000 cases awaited sentencing in district courts.
Since the Blakely ruling, federal judges in Oklahoma City have sentenced 72 defendants. In most cases the judge's primary sentence followed the guidelines.
"I have consistently ruled that until the Supreme Court finds the guidelines unconstitutional, I'm not going to do so," U.S. District Judge David L. Russell said last week. "That would be presumptuous."
Russell then sentenced Jermaine Dion Washington to prison for eight years and nine months for taking a 12-year-old girl to Denver so she could work as a prostitute. Washington's sentence included about four years for enhancements such as the threat of violence.
Russell said if the Supreme Court decides all federal guidelines are unconstitutional and sentencing is up to the judge's discretion, he would give Washington 15 years in prison.
Russell's optional sentence made the point that the guidelines don't always hurt defendants.
"That deal can cut both ways depending on the case," said Washington's attorney, Joseph G. Shannonhouse.
If Blakely applies to federal guidelines, courts could be facing thousands of cases to reconsider, said private defense attorney David Henry.
"It's likely they'll all be brought back to be resentenced," Henry said. "Some might be released because there's going to be sentences that are so low without the enhancements that they've already served their prison time."
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Monday: The U.S. Supreme Court will hear arguments in two cases added to its docket in the aftermath of its June 24 decision in Blakely v. Washington.
The decision: The court ruled that factors increasing a criminal sentence must be admitted to by the defendant or proved to a jury. The decision was applied only to Washington state.
Disputed federal guidelines: Federal sentencing rules, developed since the 1984 Sentencing Reform Act, use a points-based system. Crimes have a base value and judges add points (and time) for aggravating factors, such as the use of a gun or a defendant's leadership role. Often the enhancements are tacked on without being proved to a jury or admitted to by the defendant.
Potential effect: If the federal enhancements are found to violate the Constitution, thousands of federal convicts might receive sentence adjustments.
Sounds like what happened to the Branch Davidians.
That ain't right
ping
"[...] But thus do I counsel you, my friends: distrust all in whom the impulse to punish is powerful!
They are people of bad race and lineage; out of their countenances peer the hangman and the sleuth-hound.
Distrust all those who talk much of their justice! Verily, in their souls not only honey is lacking.
And when they call themselves "the good and just," forget not, that for them to be Pharisees, nothing is lacking but--power![...]"
(Thus Spake Zarathustra by Friedrich Nietzsche - chapter on tarantulas )
I agree and know several folks in the Feds who got stiff enhancements of many years added on for allegations never proven.
They call it relevant conduct.
This could really topple to 1987 Sentencing Guidelines....fwiw.
If the judge is allowed to effectively pronounce you guilty of offenses that were not proven to the jury (or worse yet, never brought up in the actual trial, and for which your lawyer was never able to argue) then the Constitution is effectively dead
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