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October 20, 2006

Skilling sentencing questions (and predictions?)

Right after Ken Lay and Jeff Skilling were convicted in May, I did this post with first-cut Enron sentencing questions.  With Skilling's sentencing hearing scheduled for this coming Monday, these questions remain timely:

  • What will be the likely offense level and sentencing range for Skilling under the federal sentencing guidelines? 
  • Assuming the guideline range for Skilling is very high, will the government ask for a guideline sentence?
  • Will defense counsel seek a "traditional" departure under the guidelines as well as a variance based on Booker and 3553(a)?

With much time and many developments in this case and in other high-profile white-collar cases (see this Enron sentencing archive), we might now add these questions:

  • How many victims will testify at the sentencing hearing?
  • Will Judge Lake announce a sentence for Skilling on Monday, or take some time to write a sentencing opinion as he did in Olis?
  • Will Skilling be granted bail pending appeal?

Of course, the ultimate question is what sentence will Skilling get.  Anyone brave enough to make predictions in the comments?

UPDATE:  Peter Henning at White Collar Crime Prof Blog adds some thoughts and insights here.  Meanwhile, CFO.com thoughtfully explores here "What Skilling's sentencing means."

October 20, 2006 at 11:07 AM | Permalink

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Comments

As a layman with no specific knowledge of the guidelines, I'd guess 20-24 years - about 3-4x what Fastow got for snitching ... er, cooperating.

Posted by: Gritsforbreakfast | Oct 20, 2006 4:08:56 PM

I predict a sentence above 20 years, and possibly WAY above 20 years. I predict the government will be seeking something more like 25-30 years.

Posted by: Marc Shepherd | Oct 20, 2006 4:48:06 PM

I predict 18-22 years, no bail pending appeal.

Posted by: Ronald Richards | Oct 21, 2006 10:42:49 AM

OK, I'll bite. Offense level & sentencing range? Well, how can the Gov't make the argument that Skilling is criminally liable for the total meltdown of Enron? This has got to be one where the G/L range, if it can be (properly) calculated at all, won't be terribly relevant. In Skillings case, once you exceed 20 years, does it really matter? I think the Gov't asks for a specific sentence - considering the G/Ls and all the other relevant factors - of about 30 years. I would hope that the defense team stays far from the G/Ls language of "departures" and "variances." Their best hope is for a statutory sentence, one fully contemplating all the factors in 3553(a) - and NOT even starting with the G/Ls.

Victims Rights is big now. I am sure that whatever number of "victims" testify, it will be too many from the defense prospective. The more interesting question, in my view, will be - what happens if lawyers, representing groups of "victims" (i.e. stockholders, Enron retirees or California ratepayers) get to "testify" or even speak at the sentencing. Will any of these "vistims" be placed under oath or cross-examined?

I think Lake announces the sentence on Monday and already has the writen opinion ready to go at that time.

My prediction is for a sentence of at least 20 years, remand with no bond pending appeal (but a hearing later). Our current one party system of Gov't (and a large portion of our society) has lost sight of what an effective sentence in a "white collar" crime should look like. Does 20 years really serve to accomplish anything more than 10 years would accomplish? "Sufficient, but not greater than necessary...."

I think, if that happens, Skilling gets designated (initially) to a Medium Security facility - far from Texas.

Time will tell if I was tru;y brave or just naive.

Howard O. Kieffer
Federal Defense Associates
Santa Ana, California
www.boplaw.com
hkieffer@dcounsel.com

Posted by: Howard O. Kieffer | Oct 21, 2006 10:47:25 AM

I have a hard time believing he doesn't get bail pending appeal. He's not a flight risk or a danger to the community. And it seems like there are debatable issues on appeal -- e.g., the propriety of the jury instructions or perhaps even the venue issue.

Posted by: Bobbie | Oct 21, 2006 10:50:27 AM

Quoting directly from Judge Sim Lake’s opinion in the resentencing of Dynegy exec Jamie Olis: “…the purpose of this conspiracy was not to defraud Dynegy or to enrich Olis. Nor did the conspiracy cause Dynegy to file for bankruptcy.”

Using that as his reason to resentence Olis from 24 down to 6 years, let’s do a reverse extrapolation for Skilling.

My prediction: well, it’s the same judge, so start around 20 years, and then add (significantly?) more for intent, and personal enrichment…

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