Though attorneys for former Providence Mayor Vincent "Buddy" Cianci say they are encouraged by a recent appeals court decision allowing reconsideration of his 2002 sentence, legal experts say it is unlikely the sentence will actually be reduced.
Cianci is currently 28 months into a 64-month prison term for his 2002 federal corruption conviction associated with Operation Plunder Dome. On April 7, the 1st U.S. Circuit Court of Appeals in Boston granted Cianci and two co-defendants new hearings concerning their sentences, based on the January Supreme Court decision from U.S. v. Booker, which struck down mandatory consideration of federal sentencing guidelines.
The ruling deemed mandatory use of these guidelines unconstitutional because it compelled judges to consider evidence not brought before a jury during the actual trial.
Before U.S. v. Booker, federal judges had the "discretion to sentence anywhere within statutory minimums and maximums," according to Indiana University Professor of Law Frank Bowman, who has done extensive work on the Booker ruling. This sometimes included mandatory sentence increases based on facts a jury did not consider or that a judge may not have wanted to apply.
In the Cianci case, U.S. District Judge Ernest Torres added a mandatory additional sentence of two years because he held "position of leadership" when the Operation Plunder Dome offenses were committed. Ultimately, the Boston appeals court granted Cianci re-sentencing because Torres "might well have given a different sentence" had he not been restricted by the mandatory guidelines. This, however, does not suggest that a revised decision will be more lenient or harsh.
While Cianci's lawyer, John "Terry" MacFayden III, told the Providence Journal that he and Cianci are "pleased and heartened" by the Boston appeals court's decision, the general consensus is that Cianci's sentence will not change.
Bowman went on to add, "In Booker, the court says guidelines are unconstitutional as applied but are still set as advisory." Similarly, according to a recent press release by the prosecutor on the case, U.S. Attorney Robert Clark Corrente, "the Cianci case is one of thousands across the country affected by the Booker decision. So we would be cautious about reading too much into this re-sentencing order."
Whether or not Cianci will get a new prison sentence depends on whether Torres felt constrained by the federal sentencing guidelines and how the judge interprets the U.S. v. Booker ruling.
"Decisions hinge more on what the judge's perspective and attitude in these situations are regarding how to view post-Booker and what facts to take into consideration," said Douglass Berman, law professor at The Ohio State University.
Berman went on to add that now, without the federal guidelines, "sentencing determinations in federal cases are subject to greater judicial discretion. There are factors relating to the offense that came into consideration in the old sentencing that are no longer mandatory under the new conditions." Neverthe-less, Berman went on to say that "the guidelines continue to be followed in the majority of cases."
According to David Zlotnick, a law professor at Roger Williams University who is familiar with the Cianci case, "I'd be willing to bet a substantial amount of money that he will get the same sentence." This is because Torres' sentence still fits in the middle of guideline range for a the corruption charge - 57 to 71 months in prison - and Torres denied both the defense's request for leniency as well as the prosecution's request for a 10-year prison term.
"Oftentimes when the sentencing guidelines distort the case, they sentence at the high and low ends of the case. Here the sentence is in the middle, which means that the judge thinks the sentencing guidelines capture the case pretty well," Zlotnick added.
Additionally, Bowman pointed out that even before the Booker ruling, judges could part from the guidelines if they find mitigations not considered. Torres did not do so in the initial sentencing.
Zlotnick also describes Torres as "a mainstream judge (who) tries to apply the guidelines faithfully." Ultimately, Zlotnick suggested that Torres would likely not stray from his initial ruling.
In the end, Berman said there is a certain absurdity and uncertainty in the Booker ruling that makes it hard to predict judicial sentences. While getting rid of the guidelines does limit a judge's power in theory, "anything the judge wants to find appropriate, he can find a hook to include in the sentencing." Berman added.
"Ironically, judges end up having more power," he said. "The constitutional problem they identify and the fix don't seem to be in harmony. It is as if they are trying to make us as confused as possible."
According to Bowman, even though the Booker ruling "in the short term expands federal judicial sentencing discretion," the long-term effects are "primarily dependent on what Congress is going to do."
Congress is slated to review a bill that will attempt to restrict the increased judicial discretion that has come as a result of the Booker ruling. According to Zlotnick, it is highly unlikely that this bill will pass in its current form, although new legislation may emerge by this summer.
