Federal judges must warn of plans to impose sentences that exceed guidelines

June 14, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Supreme Court nullified yesterday the FTC five-year prison term of a Burtonsville man -- a $35,000-a-year government employee convicted of pocketing nearly $1.4 million from government funds he oversaw.

The 60-month sentence imposed on William J. Burns, a former financial supervisor with the Agency for International Development, was overturned because the judge had not warned Burns that he might get a sentence that long.

By a vote of 5-4, the court ruled that a federal judge who is thinking about a longer sentence than is specified in official federal sentencing guidelines is required, by law, to tell the individual involved so that defense lawyers can take preventive action.

The ruling brought the first dissenting opinion by the court's newest member, Justice David H. Souter. Unlike some of the dissenting opinions of his more senior colleagues when the court splits 5-4, Justice Souter chose not to use strong language or emotional phrases to condemn the majority.

The government's case against Burns was based on evidence that he used his post as a financial adviser for AID -- the chief foreign aid agency of the government -- to divert federal money from an unused travel account to a bank account in the fictitious name of "Vincent Kaufman."

He was accused of justifying the payments by noting that "Kaufman" had moved furniture for the agency. Burns, prosecutors said, used the money to pay for a high style of living. Even Burns' lawyer had told the justices that the government had enough evidence against his client "to sink a ship."

Burns' conviction was not at issue yesterday. The ruling was limited to his sentence. Under official guidelines, which a probation officer urged the trial judge to follow, Burns stood to get a sentence of between 30 and 37 months.

The judge, however, used backup authority provided by federal law to raise the sentence by 23 months beyond the guideline ceiling, to a total of 60. The judge concluded that Burns should be punished more severely because his crimes continued for six years, because his actions disrupted government functions, and because he covered up his crimes by the added crime of evading $475,685 in federal taxes on the embezzled money. The judge had given no hint of his intentions before sentencing.

The Supreme Court did not specify what new sentence the judge must impose but did rule that Burns and his lawyers must be told if more than the guideline maximum is contemplated. It sent the case of Burns vs. U.S. (No. 89-7260) back to lower courts.

Justice Thurgood Marshall's opinion was supported by two of the court's more conservative members, Justices Anthony M. Kennedy and Antonin Scalia.

Justices Harry A. Blackmun and John Paul Stevens -- liberals, like Justice Marshall, on many issues -- also supported it.

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