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APPEALS COURT TELLS JUDGE TO RESENTENCE PARAPLEGIC

SHARE APPEALS COURT TELLS JUDGE TO RESENTENCE PARAPLEGIC

The 10th Circuit Court of Appeals has come down hard on a Utah federal judge who, a year ago, came down hard on a paraplegic, sending the handicapped man to prison for the maximum time under the law.

The court has ordered U.S. District Judge Dee V. Benson to sentence Mark Fisher again, this time deciding whether the man's handicap is an extraordinary one, making it clear whether the handicap impacts the sentence and outlining his reasons.Fisher, 25, fell out of a tree when he was 16. The fall left him paralyzed from the waist down. The paralysis, in turn, led to ulcers and colon and bladder infections.

Fisher pleaded guilty last year to one count of distributing LSD. When he appeared before Benson in April 1994 for sentencing, his attorney argued that Fisher's health problems made prison unfeasible. The prisons weren't set up to provide him with the constant, sophisticated care he needed.

Attorney Gerald McPhee asked Benson to impose a milder sentence of home confinement, so Fisher could stay in Salt Lake City near his physician and family.

Federal law allows a a lighter sentence if a defendant has severe physical problems.

But Benson imposed the maximum sentence under the law and told Fisher he wished he could impose a harsher one. He also told Fisher that prison should teach him to "stop your whining and complaining about your condition in life."

Benson's remarks about not being in the rehabilitation business "is a rejection of the philosophy and mandate" of federal sentencing law, the appeals court said in its 14-page ruling. Benson's remarks also made it clear that he didn't know about a 1990 10th Circuit ruling outlining the process for sentencing the handicapped, the three-member panel con- cluded.