A friend of Letts, a law student who studied under Prof. Berman, was in the courtroom for sentencing. He figured out that the Judge could have gotten around the mandatory minimum by applying the safety valve. He wrote the judge and copied the lawyers after the sentencing and told them.

The next day the Judge applied the safety valve under 18 U.S.C. 3553(f) and reduced Lett's sentence to time served -- 11 days. The Government appealed.

In April, a three-judge panel of the federal appeals court in New Orleans reversed Judge Steele. The decision was frank in its admiration for a fine soldier and mechanical in its application of the law. The appeals court did not discuss whether Judge Steele had been right to apply the “safety valve,” saying “reasonable arguments can be made on both sides.” Instead, the panel said that the law simply did not allow Judge Steele to revise the sentence once he had imposed it.

True, there is a rule of criminal procedure that allows judges to “correct a sentence that resulted from arithmetical, technical or other clear error,” so long as they do it within seven days. Math can be fixed. But since Judge Steele’s mistake was in his understanding of his own power to do justice, the panel said, Sergeant Lett must serve five years.

In other words, the Judge could have sentenced him to time served the day of the sentencing, but not the next day.

Prof. Berman, together with the law firm Jones, Day (also working pro bono) will be filing a petition for writ of cert to the Supreme Court.