Kansas City, Mo. ? Federal prosecutors are encouraging a judge to sentence former Westar Energy Inc. Chief Executive David Wittig to five years in prison for bank fraud, despite an appeals court decision suggesting the limit is six months.

U.S. District Judge Julie Robinson is scheduled to sentence Wittig on Feb. 5 in Topeka, Kan. Wittig was convicted in July 2003 for loaning $1.5 million to former Topeka bank president Clinton Odell Weidner II, then helping him hide the transaction from bank and federal officials.

It will be the second resentencing in the case. The 10th U.S. Circuit Court of Appeals in Denver has thrown out earlier prison sentences of 51 and 60 months for Wittig, saying Robinson’s calculations in determining the sentences were flawed.

In the most recent decision, a three-judge panel in November said the maximum penalty Wittig could receive under federal sentencing guidelines is six months in prison. The guidelines are not mandatory, but judges are required to justify departing from them.

Late Tuesday, Robinson filed a notice saying she “is contemplating imposing a nonguideline sentence.”

Her announcement came as assistant U.S. Attorney Richard Hathaway filed motions arguing for such an approach.

Hathaway said the appellate panel ignored some key elements of an earlier decision that he said supports the government’s argument for a higher sentence. He said that earlier decision should take precedent.

He also said going outside the guidelines would avoid a potentially unfair sentence.

Prosecutors say Weidner, then-president of Capital City Bank in Topeka, extended Wittig’s line of credit at the bank in 2001 by $1.5 million and Wittig then loaned the money back to Weidner so he could invest in an Arizona real estate deal.

They claim Wittig loaned the money to Weidner in exchange for his future help providing loans to Wittig and other Westar officials wanting to invest in the proposed spin-off of the company’s unregulated businesses, a deal that could have garnered an estimated $30 million to $60 million for Wittig.

Kansas regulators eventually nixed the deal.

In his filing, Hathaway noted that Weidner had an equal role in the scheme and the appeals court has upheld his five-year sentence.

Not giving Wittig a similar term “would create an incredible sentencing disparity,” he wrote. “Wittig, who committed the same crimes as Weidner and had the same background, but who expected to net up to 60 times what Weidner expected to receive as a benefit, asks to receive 1/10th the sentence that his co-conspirator and co-defendant has received.”

Jeff Morris, one of Wittig’s defense attorneys, declined comment Wednesday, saying a response would be filed in the coming weeks.