Wednesday, July 28, 2004

Drug dealer to battle sentence

By Dan Horn
Enquirer staff writer

A convicted drug dealer from Northern Kentucky will try next month to change how federal judges sentence criminals to prison.

Robert Koch, who is serving a 20-year sentence on drug and firearm charges, won the chance to challenge his sentence Tuesday when the U.S. 6th Circuit Court of Appeals in Cincinnati agreed to hear his case.

Koch's fate could affect hundreds of federal cases because he claims the guidelines judges use to sentence prisoners are unconstitutional.

The 6th Circuit's decision would affect cases throughout its jurisdiction, which covers Ohio, Kentucky, Michigan and Tennessee. It also could set the stage for a U.S. Supreme Court showdown over the constitutionality of the sentencing guidelines.

Koch bases his claim on a Supreme Court decision, Blakely v. Washington, which last month tossed out guidelines in Washington state that are similar to those in the federal system. The guidelines allow judges to increase or decrease prison sentences based on information that was not presented to a jury.

The Supreme Court decision threw the federal courts into chaos because judges and lawyers were uncertain whether the guidelines they had used for more than 20 years were still constitutional.

The 6th Circuit attempted to clear up some of the confusion two weeks ago when a three-judge panel overturned the sentence of a Tennessee woman and declared that judges should no longer use the guidelines.

But that decision was withdrawn last week when the woman dropped her appeal after reaching agreement with prosecutors on a new sentence.

Koch's attorney, H. Louis Sirkin, said his client's sentence is a good test case because the guidelines allowed U.S. District Judge Joseph Hood to add at least 10 years to his prison term.

A jury convicted Koch in 2002 on drug possession, conspiracy and firearms charges, but the judge determined later that he should receive a maximum sentence because the crime involved at least 2,000 pounds of marijuana.

The judge also added time to the sentence after finding that Koch's drug dealing had caused serious physical harm, most notably a shootout that left one man dead.

Sirkin said the evidence does not support those findings and a jury never heard evidence to back them up. The 6th Circuit will hear arguments in the case Aug. 11.

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