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| Martha Stewart attends a hearing on the appeal of her obstruction of justice conviction. CNN's Allan Chernoff reports. |
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NEW YORK (CNN/Money) -
Martha Stewart might be able to plant her spring garden after all.
The lifestyle expert, now serving five months under house arrest for lying to regulators about a stock sale and unable to venture freely into her backyard, could be re-sentenced now that a federal appeals court has agreed to send back to a lower court the sentencing portion of her criminal case.
The move does not mean that Stewart will be released from home detention early. That will happen only if Judge Miriam Cedarbaum, the trial judge who presided over Stewart's trial and sentencing last year, decides to set her free.
Federal courts are routinely revisiting criminal sentences in the wake of a recent U.S. Supreme Court ruling that made sentencing rules advisory and no longer mandatory. The remands affect only punishments -- not the underlying convictions.
Some legal experts said Monday that Stewart could seek to be freed from home confinement earlier than her scheduled August release. But if she does, she risks the possibility, however remote it may seem, that Judge Cedarbaum would increase her sentence. They said there's also the public relations fallout to consider: Prosecutors would likely object to a reduced sentence and, to back up their opposition, dredge up all of the reasons why her sentence was justified.
"Martha has so far come out of (her ordeal) smelling awfully rosy," said Douglas Berman, a law professor at Ohio State University and an expert on sentencing rules. "Were I representing Martha, I'm not sure I would consider it in her best interest to go through the rigamarole of resentencing."
Walter Dellinger, Stewart's appellate lawyer, told CNN Friday that he was pleased with the Second Circuit's remand, but declined to comment on the possibility that Stewart's sentence would be reduced.
Sentencing rules in disarray
Stewart appears to be on a comeback after more than three years of personal strife.
The founder of Martha Stewart Living Omnimedia (Research) was convicted a year ago of conspiracy, making false statements and obstruction of justice for lying about her late 2001 sale of stock in ImClone Systems (Research) just before the company disclosed information that sent its share price sharply down. The charges brought against Stewart resulted from an insider trading investigation that followed.
Stewart, who turned a small catering business into a media and merchandising company, has said throughout that she is innocent of the accusations against her.
Last summer. Judge Cedarbaum ordered Stewart to serve five months in prison and five months of home confinement. That punishment was the lightest possible under mandatory sentencing rules.
In a decision handed down in January, the Supreme Court ruled that those sentencing guidelines were unconstitutional and gave judges the freedom to use them as a suggestion, not as a mandatory formula. The guidelines were established two decades ago in an effort to bring uniformity to the criminal justice system.
In recent years, the rules have become more controversial as penalties have increased, particularly those against white-collar criminal defendants in the post-Enron era. Some judges chafed at the severe punishments that the sentencing rules forced them to hand down.
The Supreme Court ruling gave judges more discretion with sentences. Legal experts predicted at the time of the high court's decision that the prison terms of corporate executives, including those already sentenced or behind bars, would be affected. In addition to Stewart, other corporate executives who stand to benefit from the decision include ex-Credit Suisse First Boston banker Frank Quattrone, former WorldCom CEO Bernard Ebbers, and Jamie Olis, a former Dynegy executive who is serving more than 24 years behind bars.
Berman, the Ohio State law professor, said federal courts around the country have reviewed sentences in light of the Supreme Court decision. While he said it's hard to generalize, sentences have been reduced, some substantially. However, judges generally are still following the guidelines, he said.
Stewart was released from prison March 4 after a five-month stay at a minimum-security prison in West Virginia. Now under house arrest, Stewart is required to wear an electronic monitoring bracelet, but is allowed to leave home for up to 48 hours a week to work or go to the doctor.
While at home, Stewart is not allowed to go outside. That restriction means Stewart will not be able to plant her spring garden -- a hope she expressed last fall when she announced she would go to prison early rather than wait until the appeals court decides her case.
Stewart's appeal was argued before the Second Circuit on Thursday. A decision by the three-member panel is not expected for at least a month or longer.
Berman said the appeal was good for Stewart from a public relations standpoint because it brought to the public eye all of the reasons why she thinks she was wrongfully convicted.
A hearing on her sentencing would bring to the fore all of the reasons why her punishment may have been justified.
Berman said Stewart and her lawyers will have to weigh the potential fallout before they decide whether to seek an early release. "She's served the most onerous part of her sentence. Home confinement isn't great, but at least she's out of prison."
Berman said the thought of having an electronic bracelet removed four and half months early may be enough for Stewart to seek a new sentence.
Stewart, in an on-line Q&A with fans this week, called the ankle monitor "somewhat uncomfortable and irritating" and said she wished it could be removed.
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