After a jury convicted him last year, former Dynegy executive
Jamie Olis was eligible for a relatively light sentence of six
months in prison for his part in a natural-gas trading scheme. He
wound up getting 24 years - the longest sentence in the history of
securities fraud - because the judge was required to take into
account the amount of shareholder losses, valued at $100 million.
Now the US Court of Appeals for the Fifth Circuit is considering
whether the case should be sent back to Houston for resentencing in
light of the recent Supreme Court decision to throw out the
guidelines used to calculate Mr. Olis's sentence.
The case is being watched closely by many in the legal community
who see it as one of the worst examples of the restrictions placed
on federal judges by the now-defunct sentencing guidelines.
Whether the case will be remanded could portend the path of
hundreds of other cases on appeal. But even if those cases do make
it back to trial courts, how will judges determine appropriate
'The closest thing to chaos'
Since the high court's ruling in January, the federal court
system has been reeling from uncertainty. As trial judges wrestle
with how to sentence new cases without the help of guidelines,
appellate judges are struggling with how to handle the crush of old
cases sentenced with guidelines.
"Judges are still generally following the guidelines with new
cases. But figuring out what to do with all the cases that have been
sentenced under the old guidelines is the closest thing to chaos you
can describe," says Douglas Berman, a law professor and expert on
the federal sentencing guidelines at Ohio State University in
Columbus. "It's going to take a while for the lower courts to sort
through all the issues the Supreme Court has left them with."
Indeed, at least two circuit courts of appeal - in New York and
San Francisco - have asked lawyers to hold off on filing appeals
until judges can offer some guidance in the coming weeks.
Congress enacted the federal guidelines in 1987 to give judges a
sentencing range for particular crimes. Initially, judges could go
outside those guidelines for extenuating circumstances, but Congress
has continued to cut back on judges' discretion - so much so that
the high court finally found, in United States vs. Booker, that the
mandatory guidelines violated a defendant's Sixth Amendment right to
a fair trial.
Change in practice vs. change in law
The ruling now makes the guidelines advisory. But district judges
around the country are questioning what that means as they proceed
with new sentencings.
"In light of the Supreme Court's holding, this court must now
consider just how 'advisory' the Guidelines are," wrote US District
Judge Paul Cassell in a recent opinion involving an armed bank
robber. He sentenced the Utah man to 188 months - the exact time
called for under the guidelines.
"In all future sentencings, the court will give heavy weight to
the Guidelines in determining an appropriate sentence," he wrote.
"In the exercise of its discretion, the court will only depart from
those Guidelines in unusual cases for clearly identified and
In fact, Judge Cassell's sentence is typical of how other judges
are responding to the Booker decision. …