O’CONNOR

In a decision made in part by retired U.S. Supreme Court Justice Sandra Day O’Connor, a federal appeals court yesterday upheld the conviction of a Providence man on crack cocaine and gun charges but sent his case back to Providence for resentencing.

O’Connor, 78, who retired from the Supreme Court in 2006, was part of a three-judge panel that heard arguments in Anthony Lipscomb’s case in May, when O’Connor was sitting by designation on the Boston-based 1st U.S. Circuit Court of Appeals. She was in Boston for a two-day stint at the invitation of the court’s only Rhode Islander, Senior Circuit Judge Bruce M. Selya.

O’Connor did not write the Lipscomb opinion, but she did decide it along with Chief Judge Sandra L. Lynch and the decision’s author, Circuit Judge Juan R. Torruella.

Lipscomb, 29, of Chad Brown Street, was convicted by a jury in 2005 on charges of possession with intent to distribute 5 or more grams of crack cocaine, possession of a gun in furtherance of a drug trafficking crime, and possession of a gun by a convicted felon. U.S. District Judge William E. Smith sentenced him to 16 years and 3 months in prison.

On appeal, Lipscomb’s lawyer argued that Smith had made several errors leading up to and during the three-day trial. The 1st Circuit rejected those arguments in upholding Lipscomb’s conviction.

But the appeals court agreed to send the case back to Smith to consider imposing a different sentence in light of the Supreme Court’s ruling in Kimbrough v. United States. In that December 2007 ruling, the high court said judges could deviate from federal sentencing guidelines based on a disparity that, until recently, treated 1 gram of crack the same as 100 grams of powder cocaine.

That 100-to-1 ratio did not mean crack sentences were 100 times longer than those for powder. (The ratio resulted in sentences 3 to 6 times longer for crack). But it did mean that selling 5 grams of crack triggered a mandatory minimum sentence of 5 years, while it took 500 grams of powder cocaine to trigger that same minimum sentence.

Since Lipscomb was sentenced before the Kimbrough ruling, Smith “might have imposed a lesser sentenced had [he] known that it was permissible to deviate from the 100-to-1 crack/powder ratio based on a disagreement with policy,” the 1st Circuit said.

Smith has disagreed with the 100-to-1 ratio in the past. In 2005, for example, Smith sentenced a Pawtucket man, Joshua J. Perry, on a crack offense, saying he would not “blindly apply” the 100-to-1 ratio and that a 20-to-1 ratio “makes the most sense.”

Federal prosecutors appealed that sentence while challenging then-Chief U.S. District Judge Ernest C. Torres’ decision to substitute a 20-to-1 ratio in two similar cases. The 1st Circuit overruled Torres in a 2006 decision written by Selya, saying judges could not categorically substitute one crack/powder ratio for another based on general policy disagreements — but that judges could consider the type of drug and the projected guideline sentence on a case-by-case basis.

The 1st Circuit recently said that ruling was in keeping with the Supreme Court’s Kimbrough decision. That is the legal framework that Lipscomb will face when he goes back before Smith seeking a new sentence.

The remainder of yesterday’s ruling addressed a variety of challenges to Lipscomb’s conviction. For example, the 1st Circuit upheld Smith’s denial of motions for acquittal. The defense had argued that the case hinged on the testimony of two detectives who said Lipscomb had 35 grams of crack — an amount they said was consistent with an intent to distribute the drug. But under cross-examination, the detectives admitted it was possible for that amount to be for Lipscomb’s personal use.

The 1st Circuit said the jury could have discounted the detectives’ testimony, but it chose not to. Also, the court noted the detectives testified that Lipscomb showed no signs of being under the influence of crack when he was arrested, and the police didn’t find a crack pipe on him. Also, the court cited evidence that Lipscomb was carrying a loaded handgun and $1,400 in cash.

“Based on this evidence, we conclude that a reasonable jury could have found Lipscomb guilty beyond a reasonable doubt,” the 1st Circuit said.

Thomas M. Connell, spokesman for the U.S. Attorney’s office, said, “Expert advocacy on the part of [Assistant U.S. Attorney Donald C.] ‘Skip’ Lockhart resulted in the affirmation of the conviction, which was well earned despite the peripatetic legal claims.”

Lipscomb’s court-appointed lawyer, George J. West, said, “Obviously, the Kimbrough resentencing will be very important to Mr. Lipscomb. We will review the opinion and proceed from there.”

West said that in preparing to argue the case before Justice O’Connor, he read Jeffrey Toobin’s book The Nine: Inside the Secret World of the Supreme Court, and he reviewed O’Connor’s exchanges with lawyers during oral arguments in other cases.

“It was very challenging and interesting from a lawyer’s point of view to appear before that panel,” West said. “It was a great opportunity to appear before a Supreme Court justice.”

efitzpat@projo.com