Originally created 08/19/04

Court's decision delays rulings

AIKEN - It has been eight months since Travers W. Paine III pleaded guilty in connection with a Medicare fraud scheme, but the former Augusta city councilman might have to wait until the questions surrounding a recent U.S. Supreme Court decision are answered before he receives his sentence in federal court.

The Supreme Court's June 24 decision in a Washington state case has had far-reaching ramifications in the federal court system, calling into question the constitutionality of sentencing guidelines in use by judges since 1987.

"It's monumental," said University of South Carolina law professor Andrew Siegel. "These sentencing guidelines are now very much in doubt, and the proper course for the courts to take is very much contested."

In Blakely v. Washington, the Supreme Court found judges could not determine what are known as "enhancement factors" to increase a defendant's sentence beyond the statutory limits after a conviction. In the federal courts, such factors could include the weight of illegal drugs, whether the court believed the defendant lied on the witness stand, or in Mr. Paine's case, the amount of money the government was defrauded.

Mr. Paine pleaded guilty to charges that he obstructed a federal audit by failing to correct misleading documents given to Medicare auditors. Prosecutors said he owned partial interest in a management company that received Medicare overpayments for mental heath centers it operated.

He faces a fine of as much as $250,000 and a possible five years in prison.

While the Supreme Court's majority opinion said the Washington case did not affect the federal court system, Justice Sandra Day O'Conner said in her dissenting opinion that it could have an impact on the federal judiciary's sentencing guidelines.

"Since that time, we've kind of been in limbo over whether federal sentencing guidelines will be constitutional or not," said Scott Schools, a spokesman for U.S. Attorney Strom Thurmond Jr., whose office prosecuted the Paine case.

As a result, some judges have delayed sentencing until the Supreme Court hears oral arguments in October on whether their decision applies to federal courts.

Mr. Schools said it would be presumptuous to say whether Mr. Paine's sentencing has been delayed by Judge Henry M. Herlong Jr. because of the court decision, but he did acknowledge that "most judges in our district are putting (sentencing hearings) off" until a final decision is issued by the court in October.

Neither Mr. Schools nor the U.S. Department of Justice could say how many sentences are pending in the district or how many sentences have been handed down since the Supreme Court decision, saying they don't keep track of those numbers. But nationally, about 60,000 people are sentenced each year under federal guidelines, including about 1,300 in South Carolina, Mr. Schools said.

Dan Drake, a spokesman for the U.S. Attorney for the Southern District of Georgia, said judges in that district, which includes Augusta, have not delayed sentencing hearings.

"As a matter of fact, we've had some the last few days," he said.

Michael Chesser, an Aiken attorney with experience trying cases in federal court, said "without question" the decision has had a chilling effect on judges going forward with some sentences until the matter is clarified.

"I think that makes perfect sense," Mr. Chesser said. "If the Supreme Court is going to revisit it in the near future, then certainly sentencing is going to be delayed in a lot of these cases."

Reach Stephen Gurr at (803) 648-1395, ext. 110, or stephen.gurr@augustachronicle.com.

Travers W. Payne III has not received a sentence eight months after pleading guilty.

In Blakely v. Washington, the U.S. Supreme Court ruled that juries, not judges, must decide any aggravating circumstances that could increase a defendant's sentence. The Washington state sentencing system that was struck down is similar to that used by the federal courts, putting that system in question. Scores of federal judges across the country are delaying sentencing hearings for defendants until the issue is clarified. The court has agreed to hear arguments in an "expedited review" when it reconvenes in October.


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