WASHINGTON – A federal appeals court ordered a new sentence for a Maryland man convicted of fraud and perjury, for the first time citing a recent Supreme Court reinterpretation of federal sentencing guidelines.
But while a panel of the 4th U.S. Circuit Court of Appeals said Monday that David Hughes deserves a new sentencing, it said the district court did not err when it calculated his original sentence and that it may well reach the same conclusion again.
Local lawyers said the published opinion shows that the Supreme Court’s Jan. 12 decision, in the Booker case, will not create the chaos with federal sentences that some had feared.
“It may not pose any sort of logjam,” said Gary W. Christopher, first assistant federal public defender in Baltimore.
Christopher said there are a fair number of appeals pending in the 4th Circuit, but he anticipates that most will simply be handled with a remand — as was done with Hughes’ case.
The Booker case involved a drug deal for which Freddie Booker saw his sentence of just under 22 years increased to 30 years based on additional facts determined by the judge and not the jury. The sentence was based on the Federal Sentencing Guidelines, enacted by Congress in 1984, that were an attempt to make sentences more consistent.
But the high court said Booker’s sentence violated his right to a jury trial. It agreed with a 7th Circuit ruling that, except for prior convictions, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
As written, the court said, the sentencing guidelines were “mandatory and binding on all judges.” But the justices also said that the best solution to the problem was to get rid of the mandatory nature of the guidelines and make them “effectively advisory.”
A three-judge panel of the 4th Circuit said that, under Booker, courts are still required to consult sentencing guidelines, but are no longer bound by them. As long as a sentence is “within the statutorily prescribed range . . . and is reasonable,” the appeals court judges said they would affirm it.
Hughes was convicted in September 2002 on three counts of bankruptcy fraud and two counts of perjury.
Based on the evidence before the jury, Hughes would have been subjected to a “sentencing level” of 10, which carries a recommended sentence of six to 12 months, the appeals court said. But at sentencing, District Judge Peter Messitte enhanced Hughes’ level to 22, and levied a 46-month sentence.
The appeals judges did not criticize Messitte, saying he “followed the law and procedure in effect at the time of Hughes’ sentencing.” But under Booker, that sentence constituted clear error and must be reconsidered, they said.
But the appellate court also said that “the district court did not err in its initial calculation of the guideline range,” and said it should consider that range “as well as other relevant factors” before imposing a new sentence.
Hughes’ attorney, William C. Brennan Jr., said Tuesday he was pleased with the opinion, which “now allows the courts to exercise reasonable discretion when imposing a federal sentence.” He said he does not think the Booker ruling will result in an influx of sentence appeals.
A spokeswoman for the U.S. Attorney’s Office in Maryland echoed Brennan’s prediction.
“We anticipate that there will be a number of such cases, but there will not be a dramatic impact,” said Vickie LeDuc, the spokeswoman.
The Justice Department said earlier this month that it was “disappointed” with the Booker ruling, and it was standing by that statement Tuesday, said department spokesman John Nowaski.
But he added that the department hopes that courts will continue to use the sentencing guidelines, and that it looks forward to working with congressional committees on this issue.
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