- The Washington Times - Tuesday, November 7, 2006

ASSOCIATED PRESS

The Supreme Court was asked yesterday to cut 21 years from a man’s 46-year sentence for raping a teenager, in one of two cases the court dealt with involving long prison terms.

At issue is whether a 2004 ruling that limits a judge’s discretion in sentencing should apply to older cases.

A Washington state judge sentenced Lonnie Lee Burton in 1994 for rape of a 15-year-old boy, robbery and burglary. Defendants convicted of multiple crimes ordinarily receive sentences that run concurrently, but the judge ordered consecutive prison time for each crime to form the lengthy sentence.

Eighteen states joined Washington in asking the court to refrain from applying the ruling to older cases, saying that to do otherwise “would potentially open a staggering and immeasurable number of sentences” to challenges.

The 2004 decision in a case that also came from Washington held that a defendant’s constitutional right to a jury trial forbids a judge from deciding facts that add to a prison sentence.

Burton’s lawyer, Stanford University law professor Jeffrey Fisher, told justices that the 9th U.S. Circuit Court of Appeals was wrong to conclude that the 2004 decision was not retroactive.

Justices appeared more concerned yesterday with procedural issues that could doom the case rather than the larger issue of retroactivity.

In yesterday’s other case, the court debated the scope of a powerful federal law-enforcement tool that lengthens prison terms of repeat offenders who commit violent crimes.

The federal government argued that a Florida man’s jail term should be increased from no more than six years under federal sentencing guidelines to a mandatory minimum of 15 years under the Armed Career Criminal Act.

The federal law calls for harsher penalties when a defendant has three prior violent felony convictions. Congress enacted the law during the crack cocaine epidemic of the 1980s as police struggled with high levels of gun violence.

But one of Alphonso James Jr.’s convictions was for attempted burglary, which his lawyer argued should not automatically be considered a violent crime. Craig Crawford, an assistant public defender in Orlando, Fla., asked justices to overrule the 11th U.S. Circuit Court of Appeals on this issue.

The Supreme Court could broaden the law’s impact by finding that all attempted burglaries meet the law’s requirements.

To be included under the career criminal law, conduct must involve a “serious potential risk of physical injury to another person.”

Justices asked attorneys on both sides at what point does someone attempting to commit a burglary present a serious potential risk of physically injuring someone else.

Is a hammer thrown through a window enough? asked Justice John Paul Stevens, describing the circumstances in James’ attempted burglary.

“Congress wanted to treat the frustrated burglar the same” as the burglar who completed his crime, said Jonathan Marcus, an assistant in the Justice Department solicitor general’s office.

Decisions in both cases are expected before July.


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