Judge calls for high court guidance on mandatory sentencing ruling

Saturday, April 9th 2005, 12:11 pm

By: News On 6

DENVER (AP) _ A man sentenced under mandatory sentencing guidelines that were declared unconstitutional by the U.S. Supreme Court earlier this year lost his appeal, but sparked strong dissent among judges who said sentencing since the ruling shows defendants should get the benefit of the doubt.

The case of Sergio Gonzalez-Huerta, who was sentenced in March 2004 to 57 months in prison for an immigration violation, is one of hundreds of cases being examined in the wake of the high court's January ruling that declared sentencing guidelines advisory, not mandatory.

Three judges noted Friday that about one in seven defendants sentenced after the high court's ruling have received sentences below the sentencing guidelines _ showing that judges are using discretion _ which means Gonzalez-Huerta and others like him should receive the benefit of the doubt.

The judges of the 10th U.S. Circuit Court of Appeals heard the case at the University of Oklahoma College of Law March 7. Although such sessions generally feature three-judge panels, the Norman hearing was heard by 12 appellate judges.

The majority ruled Gonzalez-Huerta's constitutional rights had not been violated because his sentence, on the lower end of the sentencing guidelines, was reasonable.

The appellate court however applied a tougher standard of review to Gonzalez-Huerta's case because he had not raised the issue while before the lower court. The three judges, while agreeing with the decision, disagreed with the review standard and said Gonzalez-Huerta's case should have been sent back to the lower court for resentencing.

``When Gonzalez-Huerta was sentenced, no one in the courtroom _ neither the district court nor counsel _ knew of or applied the correct law,'' Judge Mary Beck Briscoe. ``There was no reason for the district court to give serious consideration to whether a sentence other than that suggested by the guidelines was appropriate.''

Another judge also disagreed with the majority opinion and said the Supreme Court should clarify how the law should be applied, noting that at least one appellate court assumes that defendants were unjustly sentenced under the guidelines, while other appellate courts make it almost impossible to win an appeal.

``This wide ranging circuit splits results in the disparate treatment of criminal defendants throughout the nation,'' Judge Carlos Lucero wrote. ``Such uneven administration of justice cries out for a uniform declaration of policy by the Supreme Court.''

Since 1987, defendants in federal criminal cases had been required to be sentenced according to a complex, nationwide formula that assigned jail time based on several factors, including criminal history.

In a pair of opinions in January, the Supreme Court held that making the sentencing guidelines mandatory violated a defendant's Sixth Amendment right to a jury trial because they required judges, rather than juries, to decide which of those factors applied.

Gonzalez-Huerta was arrested in New Mexico for possession of a controlled substance and then indicted for re-entering the U.S. illegally after being deported in 2000. He had served a prison sentence for a burglary committed in California in 1994.

The maximum sentence for his offense was 20 years, with no mandatory minimum sentence. The guidelines called for a minimum of 57 months because of Gonzalez' criminal history.

Gonzalez-Huerta argued his clean record prior to his burglary conviction and clean record in the two years before he was arrested in New Mexico should have been considered at sentencing.