Posted on: Sunday, September 16, 2001

Appeals court will rehear drug ruling

Associated Press

SAN FRANCISCO — At the request of every U.S. attorney in the West, a federal appeals court agreed late Friday to revisit a ruling that in August wiped out a major drug-sentencing statute created during the Reagan administration's war against drugs.

The court agreed to rehear the three-judge panel's decision with 11 judges. In an unusually expedited manner, the circuit set oral arguments for Sept. 29.

Every federal public defender in the circuit that covers nine Western states opposed the rehearing.

In August, the judges found that a 1984 drug-sentencing law unconstitutionally allowed a judge, rather than a jury, to increase prison sentences based on the quantity of drugs found.

The case involved Calvin Buckland, who received a 27-year sentence for possessing 17 pounds of methamphetamine in Seattle. The circuit panel said that since the jury was never asked to find how much of the drug was seized, the judge could not automatically increase his sentence by seven years based on his own conclusions on the amount of drugs discovered.

A Hawai'i man convicted in 1999 of selling the hallucinogenic drug LSD also was the beneficiary of the ruling.

The appeals court on Aug. 23 struck down the five-year mandatory minimum sentence that U.S. District Judge Alan Kay had given Mark S. Hitchcock based on the amount of LSD federal agents testified were seized at his home. Under federal sentencing guidelines, the appeals court said Hitchcock's sentence should have been eight to 14 months.

Prosecutors, in their appeal, said the decision could affect thousands of drug defendants. The circuit decision covers federal drug prosecutions in California, Nevada, Arizona, Oregon, Washington, Idaho, Montana, Alaska and Hawai'i.

Defense attorneys said the case was in line with a June ruling by the U.S. Supreme Court that found a defendant was entitled to a jury decision, not a judge's, on whether he acted out of racial bias in an alleged hate crime. Racially motivated hate crimes carry steeper sentences.

The 9th Circuit's initial decision conflicts with three other federal circuit courts of appeals, who have ruled otherwise.