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Cases test new flexibility of sentencing guidelines

The longest-ever sentence for securities fraud is among many old cases under review because of a high court ruling.

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In fact, Judge Cassell's sentence is typical of how other judges are responding to the Booker decision. Earlier this month, Judge Ricardo Hinojosa, chairman of the US Sentencing Commission, testified before the House Subcommittee on Crime, Terrorism, and Homeland Security about the impact.

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He reported that as of Feb. 4, the Sentencing Commission had received and analyzed sentencing documents in 733

cases since Booker and found that judges had followed the guidelines 90.9 percent of the time. Only 7.8 percent of the cases were sentenced below the guidelines and 1.3 were sentenced above.

"At this point we only have a brief snapshot, but it seems that while judges have been given the discretion to deviate from the sentencing guidelines, they are not doing so in the vast majority of cases," says Kirby Behre, a former federal prosecutor and coauthor of the book "Federal Sentencing for Business Crimes."

While that may indicate to some that judges believe the sentences to be fair, Mr. Behre says it may also be because many of the judges who have come on the bench since 1987 have known no other system. In addition, he says, they have been under constant, sometimes blatant, pressure by Congress to strictly follow the guidelines.

That does not bode well for the hundreds of cases on appeal right now. "It might be a paper victory to have your case remanded, but it's going to be a huge uphill battle to get your sentence changed," says Behre.

Which cases are eligible for appeal

Initially, legal experts worried that tens of thousands of cases - all those that have undergone sentencing since Congress enacted the federal guidelines - would be affected by the high court's ruling. But the Booker decision appears to apply only to those cases already on appeal at the time of the Supreme Court's decision.

"A lot of people already in prison had high hopes that their sentences would be reduced after the Booker decision," says Tim Lynch, director of the Cato Institute's Project on Criminal Justice in Washington. "But for the vast majority that is not going to happen."

David Porter, an assistant federal defender in Sacramento, has two such cases on appeal right now. He is hoping to get both remanded for resentencing, but says the difficulty is finding cases that qualify. The easier cases include those in which the trial judge indicated that he or she did not want to give the sentence prescribed under the guidelines, but had no other choice.

That is at the heart of the debate in the Olis case. The government argued in front of the 5th Circuit that Olis will receive the same sentence if his case is remanded, and points to a statement made by US District Judge Sim Lake to back it up: "The court concludes that this sentence is warranted not only by the letter of the sentencing guidelines, but by the need to deter others from committing similar crimes and to assure society that the law will punish those who commit such crimes."

But Olis's lawyer countered that during that same sentencing, Judge Lake lamented that he lacked discretion to give a lighter sentence.

There is no word on when the court of appeals will decide the case.