U.S. judge criticizes sentence guidelines

While imposing life term in Balto. gang case, she calls for scrapping system

July 27, 2004|By Stephanie Hanes | Stephanie Hanes,SUN STAFF

A Maryland federal judge yesterday joined a growing list of jurists who say the sentencing guidelines that have long determined federal defendants' prison terms are unconstitutional.

U.S. District Judge Catherine C. Blake's comments came as she gave a life sentence to Aaron DeMarco Foster, 24, one of the three men convicted in April of operating a murderous drug gang named after the now-razed Lexington Terrace housing complex.

Although Blake's stance is far from unique -- judges across the country, including some in Maryland, have said the recent U.S. Supreme Court decision in Blakely vs. Washington eradicates the guidelines -- her position in this high-profile case reflects what many lawyers see as mounting pressure on the nation's highest court to clarify what is a key component of federal criminal law.

"Until the Supreme Court addresses the specific issue of whether its decision in Blakely has rendered the sentencing guidelines unconstitutional, lower courts are going to continue to struggle with the question of what is left of the guidelines," said Gregg L. Bernstein, a Baltimore defense lawyer.

In the spring, a jury found Foster guilty of conspiracy to distribute crack cocaine, witness tampering, carjacking and use of a firearm in relation to the carjacking. He was tried with Michael L. Taylor, 20, and Keon D. Moses, 21, who were sentenced Friday to life in prison without the possibility of release.

By the federal sentencing guidelines, Foster should have received the same sentence.

But Blake said yesterday that because of the Blakely decision, which sets a higher standard for increasing a defendant's sentence, "I do not see how a guideline system can remain as a constitutional system."

"It is simply necessary to toss out the entire guideline system," she said, adding that she would sentence Foster at her discretion, as if the guidelines didn't exist.

Blakely vs. Washington involved a state case in which a man was sentenced for kidnapping his estranged wife. A judge increased his prison term beyond the maximum, saying the man had acted with "deliberate cruelty," a legal ground in Washington state for increasing a sentence.

In its decision last month, the Supreme Court said the sentence violated the man's rights because he was entitled to have a jury decide, beyond a reasonable doubt, the factors that might lead to more prison time.

Because the federal sentencing guidelines are similar to the Washington state procedures ruled unconstitutional -- federal judges use the court system's weakest standard of proof, preponderance of the evidence, to decide whether a sentence-increasing factor exists -- many judges believe the decision is more than pertinent to the federal system.

Some are throwing out the guidelines. Others have upheld different aspects of the system. Still others have delayed sentencings until they get guidance from appellate courts or the Supreme Court.

Last week, the U.S. Department of Justice asked the Supreme Court to consider the guideline question, and quickly.

"Uncertainty about how to proceed with federal sentencing is straining the resources of federal courts, prosecutors and defense counsel," acting Solicitor General Paul D. Clement wrote in a Justice Department motion.

Locally, the U.S. Court of Appeals for the Fourth Circuit, which includes Maryland, is scheduled to hear arguments about the issue next week.

But for Foster, the debate over guidelines ultimately made little difference.

Prosecutors say that in the early 2000s, the West Baltimore men known collectively as the Lexington Terrace Boys carried out a string of murders -- including killing a witness -- as they staked out territory in the city's drug trade.

Yesterday, Blake referred to what she said was Foster's "willingness to rely on violence," and said she looked at facts of the case such as "the severe beating [of a man] that Mr. Foster was more than willing to inflict for $20 worth of crack."

She sentenced Foster to life, plus an additional seven years in connection with his conviction in a federal drug conspiracy case involving multiple murders.

Blake's decision to scrap the guidelines "wasn't very helpful to Mr. Foster," one of Foster's lawyers, William B. Purpura, said after the hearing.

Foster is scheduled to stand trial in federal court again next year, on capital charges stemming from what prosecutors say were two gang-related murders.

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