Justices to weigh appeal

Man who pleaded guilty to threatening ex-wife argues sentence imposed
by Mobile federal judge is invalid

Friday, January 11, 2008

By BRENDAN KIRBY
* Staff Reporter*

A California man convicted of sending more than 200 threatening e-mails
to his former wife in Baldwin County will get a chance to make his case
for a shorter sentence to the highest court in the land.

The U.S. Supreme Court decided this month to hear the appeal of Richard
Israel Irizarry, who pleaded guilty in Mobile in 2004 to a federal
charges of making interstate threats. Chief U.S. District Judge Ginny
Granade sentenced him to the maximum prison term allowed by law, five
years.

That was nine months longer than the maximum under federal sentencing
guidelines. Irizarry's lawyer argues that the sentence was invalid
because the judge did not notify the defendant that she was
contemplating a longer sentence.

The 11th U.S. Circuit Court of Appeals found against Irizarry in 2006,
ruling that the notification standard no longer applied as a result of a
2005 Supreme Court decision that made the guidelines advisory.

In technical terms, Granade's sentence was a "variance" from the
guidelines, not a "guidelines departure," according to the Atlanta-based
11th Circuit.

"I'm delighted the Supreme Court has agreed to review the case," said
defense lawyer Arthur Madden of Mobile. "I look forward to arguing it."

Madden's deadline for submitting written arguments is Feb. 14. The
Solicitor General's Office in Washington, which argues in front of the
high court on behalf of the Bush administration, will then have an
opportunity to respond. Madden said he expects to make oral arguments to
the justices in April.

According to testimony, Irizarry's wife fled to South Carolina in early
2000 after an abusive marriage and filed for divorce. She later moved to
Robertsdale and married another man.

Irizarry began sending e-mails from libraries and other public buildings
to his former wife's e-mail account beginning about November 2001. Court
records show that he ultimately sent 255 messages that were increasingly
threatening.

When police arrested Irizarry in December 2003, they found maps of the
Mobile area in his car and other information suggesting he planned to
track down his former wife.

Irizarry, 42, is serving his sentence in a federal prison in California.

Supreme Court cases are so rare that many lawyers never become involved
in one.

"It's like lightning in a bottle," said Greg Bordenkircher, first
assistant U.S. attorney and criminal division chief in Mobile.

Constitutional scholars said the Irizarry case met criteria that
justices look for: It concerns an unsettled area of the law on which
various appellate courts have rendered differing opinions.

Doug Berman, a professor at Ohio State University's law school and
veteran Supreme Court observer, said lawyers and judges have proceeded
with uncertainty since the ruling in United States v. Booker made the
guidelines advisory. It "upset the apple cart on so many other issues in
terms of what procedurally has to happen," Berman said.

Even if the high court sides with Irizarry, the best he could hope for
would be a new hearing, after which Granade could impose the same
punishment.

"It's not compelling a specific result," said Assistant U.S. Attorney
Steven Butler, who prosecuted the case. "Our position wouldn't change."

The Solicitor General's Office urged the Supreme Court to bypass the
case, but its arguments appeared to side with Irizarry on the merits.

Berman said prosecutors stand to gain from a notice requirement, since
defendants have generally benefited from the Booker ruling. "All
litigants involved are eager to get this notice," he said.