Olsen's legal challenge not likely to delay sentencing in Kiplyn case

Federal prosecutors say next month's sentencing of a prime suspect in the kidnapping and murder of 15-year-old Kiplyn Davis is expected to take place despite his challenge of federal sentencing guidelines as unconstitutional.

According to federal court documents, Timmy Brent Olsen, who was found guilty by a jury last July on 15 counts of perjury and lying to a federal agent, is challenging the federal guidelines he is expected to be sentenced under on Nov. 21.

Olsen is also challenging a pre-sentence report that concludes that although Olsen was tried on lying about what he knew about Davis' murder, there are enough indications that Olsen had a hand in Davis' death to warrant a higher federal sentence. "The defendant (Olsen) believes that the government has not demonstrated by a preponderance of the evidence that Olsen committed, or was party to, a homicide," states an objection motion filed in court.

According to a second motion written by Olsen's attorney, Stephen McCaughey, said recent legislation passed by Congress removes the ability of federal judges to reduce sentences. In particular, the PROTECT (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today) Act of 2003 limited the ability of judges to make downward departures from federal sentencing guidelines for certain crimes involving children and sexual offenses.

"By passing the PROTECT Act, Congress unconstitutionally arrogated to the executive branch both the right to prosecute and the right to sentence defendants," McCaughey wrote. Olsen and his attorney are asking the court for a constitutional review of the federal sentencing guidelines, which could result in an appeal that could take several months to resolve.

Federal prosecutors, however, said they don't expect Olsen's legal challenge to delay his sentencing.

"The sentencing will go forward on the 21st," said U.S. Attorney's Office for Utah spokeswoman Melodie Rydalch. She said her office expects to have a reply to Olsen's motions filed in the next few days.

Olsen stands to face a maximum of five years in federal prison for each of the 15 counts he was convicted on. A jury of six men and six women found Olsen guilty after hearing testimony from former friends that Olsen on several occasions confessed to taking Davis from Spanish Fork High School on May 2, 1995, and taking her up Spanish Fork Canyon where he and a man he identified as David Rucker Leifson raped and killed her and hid her body, which has never been found. Authorities have presumed her dead.