Freddy Duarte, who burglarized the home of U.S. Magistrate Robert Johnston in June 2005, stands in District Judge Donald Mosely's courtroom Wednesday. Duarte's sentencing was postponed to Monday. Photo by Clint Karlsen.

District Judge Nancy Saitta may yet impose a sentence of life without parole on a habitual thief who admitted burglarizing a federal judge's home and stealing his wife's car, a prosecutor said Wednesday.

But 28-year-old Freddy Duarte's defense lawyer, Michael Villani, said it would not be just for Duarte, who has no violent history, to be sentenced to spend the rest of his life in prison.

Outside the courtroom Wednesday, Villani highlighted the fact that Pascual Lozano last week was given a life sentence with the possibility of parole after being convicted of killing a 9-year-old girl in a gang shooting.

"You want to compare him to Mr. Duarte?" Villani said. "You can't compare Freddy Duarte to Mr. Lozano. I hope you can't."

Life without the possibility of parole is the maximum option for Duarte's charges. If Saitta gives him that sentence, she will have gone beyond what prosecutors and the defense are recommending.

Prosecutors and Villani last month negotiated a conditional plea agreement that would allow Duarte to plead guilty to being a habitual criminal and serve 10 years to life for the June 2005 burglary of U.S. Magistrate Robert Johnston's home and another robbery.

Duarte was scheduled to be sentenced Aug. 30; but after Johnston harshly criticized how police and prosecutors handled the case, Saitta postponed sentencing for three weeks.

Johnston wants the maximum sentence for Duarte, who has pleaded guilty to more than five felonies and three gross misdemeanors related to property theft since 1997.

After the federal judge blasted the more lenient recommended sentence last month, Saitta said, "I have some rather grave concerns about the (plea) agreement. I am continuing this sentencing so I might gather more information."

The sentencing was rescheduled to Wednesday, but Saitta was absent and District Judge Donald Mosely was filling in for her. Mosely said he had spoken with Saitta on Tuesday about Duarte's case.

"She said, 'Do what you got to do,' " Mosley said.

But Mosley took a pass, saying he does not allow conditional pleas in his courtroom. He postponed the sentencing again, so Saitta can have the final say on Monday.

Johnston said he's frustrated with how long it is taking to send Duarte to prison.

The burglary, in which Duarte also took Johnston's federal badge, robbed Johnston and his family of their "peace of mind," he said.

Johnston said Wednesday he is convinced Duarte should serve life without the possibility of parole and that the negotiated plea deal "just smells."

"I think Mr. Duarte needs to be put out of circulation, out of burglary," Johnston said.

District Attorney David Roger said Johnston had no input into the negotiation of the plea agreement and that the number of felonies on Duarte's record warrants a habitual criminal charge.

A person can be classified as a habitual criminal if they have three prior felony convictions. The state statute provides for a sentence of life without the possibility of parole, or life with the possibility of parole, or 10 years to 25 years in prison for a habitual criminal conviction.