Highest court to weigh local ruling

Monday, April 14, 2008

By BRENDAN KIRBY
Staff Reporter

The U.S. Supreme Court on Tuesday will hear oral arguments on an appeal
from Mobile that could affect the way federal judges sentence criminal
defendants across the country.

The case focuses on a California man who stalked his ex-wife across the
country. Richard Israel Irizarry, 42, admitted that he sent the woman, who
had moved to Baldwin County, 255 threatening e-mails.

Federal sentencing guidelines called for a prison range that topped out at
51 months, just over four years. But Chief U.S. District Judge Ginny
Granade, determining that Irizarry was a threat, sentenced him to the
five-year maximum allowed by law. Among the factors she cited was that
when police arrested Irizarry in December 2003, they found maps of the
Mobile area in his car and other information suggesting the he planned to
track down his ex-wife.

Irizarry appealed, arguing that the judge should have given him advance
notice that she was considering a sentence beyond the range set forth
under the guidelines.

The case may matter little to Irizarry, personally. Even if he wins, the
most he likely could hope for would be a nine-month reduction in his
sentence.

The impact on sentencing practices in federal cases could be significant,
however. In the fiscal year that ended in September, federal judges
sentenced more than 6,000 people to sentences that were outside the range
recommended under the guidelines.

"We're talking about this happening thousands of times, so this will have
a real big impact," said Deborah Young, a sentencing expert at Samford
University's Cumberland School of Law in Birmingham.
"This will probably have a bigger impact on more people's lives than a lot
of things the Supreme Court rules on."

On appeal, the 11th U.S. Circuit Court of Appeals in Atlanta upheld
Irizarry's sentence, reasoning that the Supreme Court's 2005 decision in
Booker vs. United States gave judges wide discretion that previously
mandatory guidelines had severely restricted.

Under the old system, judges had to sentence defendants within a range set
by the U.S. Sentencing Commission except in narrow circumstances. In those
instances, judges had to cite one of those specific exceptions, and
lawyers had notice.

Since the Booker decision, though, judges have been free to sentence
defendants to any prison term up to the maximum set out by law.
Irizarry's lawyers argue that even with judges' newfound discretion, they
need to give lawyers notice when they intend to impose sentences outside
of the guidelines.

"The need for notice would seem to be more important" than before, said
Mobile lawyer Arthur Madden, who represented Irizarry and plans to argue
the case in front of the high court.

One unusual aspect of the case is that the Bush administration taken a
view closer to Irizarry's. Although asking the high court to uphold
Irizarry's sentence on grounds he would have gotten the same punishment
with or without notice, Solicitor General Paul D. Clement has filed
written arguments asserting that judges should provide notice when they
are considering imposing a nonguideline sentence.

Young, the Cumberland professor, said she was somewhat surprised by the
government's position. But she noted that prosecutors would stand to
benefit more than defense attorneys. Statistics from the U.S. Sentencing
Commission show that when judges impose nonguideline sentences, it is
lower than that range 90 percent of the time.

"I think we're looking for clear guidance on the rules," said Greg
Bordenkircher, the criminal division chief at the U.S. Attorney's Office
in Mobile. "If there's going to be notice given, it should be given both
ways."

The Supreme Court on Tuesday will hear a third view. Lawyers the justices
appointed to take the position articulated in the appeals court decision
filed a brief arguing that requiring special notice could force judges to
have to hold additional hearings. That could result in judges returning to
a rigid application of the guidelines, they wrote.

"A notice rule would impose a significant burden on trial judges," the
brief states.


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