Over 400 Cases Returned For Possible Resentencing


By Gary Fields
Staff Reporter of THE WALL STREET JOURNAL
January 25, 2005; Page A2

WASHINGTON -- The Supreme Court sent more than 400 cases back to appeals
courts yesterday, instructing the lower courts to decide whether
defendants should be resentenced in light of the high court's landmark
ruling earlier this month overturning mandatory-sentencing guidelines.

The defendants had asked the Supreme Court to review their cases after the
high court in June struck down sentencing guidelines in the state of
Washington that were similar to the federal guidelines. Both sets of
guidelines directed judges to boost sentences based on such factors as the
defendant being a ringleader in a crime or acting with deliberate cruelty.
The court came back Jan. 12 with a ruling that the guidelines were
advisory.

The cases remanded yesterday range from white-collar fraud convictions to
drug cases. For the moment, the justices have returned sentencing
decisions to the lower courts, although appeals on specific aspects of the
recent ruling are likely to wend their way back to the high court in time.

"This is standard operating procedure," said Thomas Goldstein, a
Washington, D.C., lawyer who has often argued before the court. "This is
what they always do when they have cases that raise issues similar to one
they've decided." He added that if the court had more than 400 cases, "It
shows the avalanche the lower courts are going to have to confront in the
wake" of its Jan. 12 ruling.

The decision cited in the orders, U.S. v. Booker, stems from the case of
Freddie Booker, who was charged with possession with intent to distribute
crack cocaine. Based on his criminal history and the quantity of drugs
determined by the jury, the guidelines required the judge to sentence Mr.
Booker to about 18 years in prison.

But the judge concluded by a preponderance of the evidence that Mr. Booker
possessed more crack and that he was guilty of obstructing justice. Those
findings required the judge to impose a sentence of 30 years to life. The
Supreme Court concluded that was unconstitutional.

Gerald Shargel, a New York defense attorney who is representing one of the
defendants whose case has been sent back to an appeals court, said a judge
now has the discretion to look at the sentence given to his client and
say, "That looks a little extreme."

Mr. Shargel raised the sentencing issue for his client, Niels Lauersen,
during his January 2001 trial for mail and health-care fraud.

Mr. Shargel said if only the issues determined by the jury had been used
in his client's sentencing, he would have gotten about six months.
Instead, he was sentenced to more than seven years because of enhancements
added by the judge. Those included the scope of the intended fraud in the
crimes and the fact that Dr. Lauersen had abused his position of trust as
a medical doctor. Mr. Shargel said that during the trial he asked that
potential enhancements to his client's sentence be submitted to a jury.

"I asked it during trial. I asked it in the Second Circuit and I raised it
on the Supreme Court," he said. "And now, it's going to come back for
resentencing. I'm happy for Dr. Lauersen. It presents him with an
opportunity to have the sentence considered in an entirely different
light. It was particularly harsh for one reason, the guidelines."

Write to Gary Fields at gary.fields@wsj.com1
URL for this article:
http://online.wsj.com/article/0,,SB110662130850434963,00.html




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