Appeals court
overturns
drug term

The court throws out the
5-year sentence of a
convicted LSD seller

---

By Bruce Dunford
Associated Press

A Hawaii man convicted in 1999 of selling the hallucinogenic drug LSD is the beneficiary of recent U.S. Supreme Court and appeals court rulings against judges adding time to drug traffickers' sentences following a conviction.

The 9th U.S. Circuit Court of Appeals in San Francisco 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.

On Aug. 9 the appeals court had ruled in another case that a 17-year practice of judges adding time to sentences is unconstitutional because it violates a defendant's right to a jury trial.

That decision was based on a June Supreme Court opinion that requires juries to decide facts that determine potential sentences, not judges.

Hitchcock's case is just one of thousands of cases in nine Western states that could be affected.

His Honolulu attorney, Sarah Courageous, could not be reached immediately for comment.

Under federal sentencing guidelines and based on Hitchcock's criminal history, the appeals court said Hitchcock's sentence should have been eight to 14 months.

"It appears Hitchcock has served more than the maximum provided under the applicable guideline range," the court said.

Under a 1984 federal law, judges could hold hearings after a jury conviction and, based on a preponderance of evidence, determine if more time could be added to the sentence based on the amount of drugs involved.

The appeals court said such determinations must be found by a jury beyond a reasonable doubt, the same weight of evidence required for a conviction.

In its ruling yesterday, the appeals court rejected Hitchcock's motions that his conviction be set aside because of the involvement of military authorities and that evidence seized at his home be suppressed because the search warrant inadvertently had the wrong date.

Investigators went after Hitchcock in 1998 after Marine Benjamin Lake was caught selling LSD at the Kaneohe Marine base and identified Hitchcock as his supplier.