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August 24, 2007

Michael Vick's plea agreement and statement of facts

Now available thanks to the Richmond Times-Dispatch's website are PDF copies of Michael Vick's official plea agreement and summary of the facts.  Both documents make for very interesting reading.

Booker/guideline fans may be especially intrigued by various sentencing sections of the plea agreement.  in particular, it appears that the section 2 of plea agreement stipulates to an upward departure under USSG 5K2.0 in order to get the ultimate offense level to 13 for a guideline range of 12-18 months. 

The Washington Post provides some more of the basics in this new story.

August 24, 2007 at 02:59 PM | Permalink

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Comments

The timeline is very unfortunate for Vick. Apparently, despite the story in the Washington Post that you linked to which suggested that Vick would not agree that he participated in dog fighting or gambling, he has in fact stipulated that he participated in dog fighting in April, 2007 but denies receiving any gambling proceeds.

The reason the timing is bizarre is that he has been involved in this operation since 2001, yet never admits to killing any dogs until April, 2007, just weeks before his cousin is arrested for marijuana and provides the address where the dog fighting occurred. This is really unbelievable timing that his cousin just happens to get arrested for an unrelated matter just weeks after the first time Vick participated in killing any dogs (although he admitted to being aware that other dogs had been killed in 2003, I believe). Had his cousin been arrested just a month earlier, Vick never would have killed the dogs.

It is the torture and killing of the animals that resulted in the upward departure to 15 points (13 with the acceptance of responsibility... therefore 12 to 18 months) but it doesn't say what the point level would have been in the absence of the upward departure but surely it would have been in a range where Vick could have received probation. Even if it was only a 2 point departure, that would have left him at 11 points in which he could have received only 4 months in prison (+ 4 months home confinement... the same as Jamal Lewis).

For him to agree to an upward departure for conduct not covered by the guidelines must mean he was under unbelievable pressure to accept the deal. It also makes me wonder, in light of the Washington Post story that we was not going to admit to killing dogs, whether he did not in fact participate in killing the dogs but had to agree to it as part of the deal, in order to avoid more serious charges (i.e. RICO) if he declined the deal. I know this is a probably a stretch since if he told his lawyers that he didn't kill the dogs but was agreeing to it for plea purposes, his lawyers would technically be suborning perjury to allow a client to admit to facts he doesn't really believe his client did. (Although maybe not.... innocent defendants plead guilty all the time with their attorney's full knowledge that their client doesn't really believe they are guilty so maybe it isn't subornation.)

How often does a defense attorney allow a client to admit to facts he believes his client did not in fact commit because the plea deal requires it?

Posted by: Dr Bill | Aug 24, 2007 5:22:49 PM

For him to agree to an upward departure for conduct not covered by the guidelines must mean he was under unbelievable pressure to accept the deal

What does this mean? Numbered paragraph 1 of the plea agreement indicates that Vick could face up to 5 years. That would likely finish Vick's career. The US Attorney's office was probably not willing to offer him a deal in terms of recommending a low sentence unless he had some reasonable assurances that Vick would have trouble arguing for no prison time at all.

Strangely (to me, at least), the plea agreement states that neither side can argue for a downward or upward departure (with one exception) beyond what's stipulated in the plea agreement, but the agreement says nothing about arguments regarding the judge's post-Booker discretion to impose any sentence between the maximum and minimum (there seems to be none). Vick could sign this agreement, and his attorneys could still make any arguments they want to the effect that a reasonable sentence is one with no prison time at all (or with a relatively light sentence).

I don't know Judge Hudson's tendencies, but anything between 0 and 5 years is on the table, apparently (though I doubt judges often sentence in excess of the government's recommendation)

How often does a defense attorney allow a client to admit to facts he believes his client did not in fact commit because the plea deal requires it?

What's your basis for suggesting that this may have happened with Vick?

Posted by: | Aug 24, 2007 5:40:51 PM

I also believe he'll be getting an upward adjustment for major/leader participant in the offense, although not covered by the plea agreement.

Posted by: bruce | Aug 24, 2007 5:46:56 PM

Normally, I would think that no defendant would agree to an upward departure for conduct that is not even covered by the guidelines. Why would you do that unless you were threatened with additional charges? You could agree to disagree on the upward departure in the plea agreement and argue the point in front of the judge but to just stipulate to it...?

As you suggest the govt wanted him to go to jail and they were threatening to overindict (my opinion) with the dreaded RICO statute so Vick was forced to agree to a departure that no defendant would normally agree to. The threat of the additional charges is the unbelievable (and unfair in my opinion) pressure I referred to.

Despite what I have heard in the press about Hudson's lack of mercy, the 5 years max is as a practical matter irrelevant... it is the guidelines that count. Judges who reject plea agreements and instead sentence to legal maximums will find that not many defendants (nor defense lawyers) will be entering plea agreements with the government if they draw that judge. That judge will find himself trying a lot of cases and will find his docket very crowded very quickly. US Attorneys do not like it when judges reject their plea agreement because they also will find it difficult to negotiate future plea deals when this judge is drawn. (Why would you as a defendant enter into a plea agreement if you knew that your judge had a habit of ignoring them?) I would be shocked and disappointed if Vick gets anything other than 1 year and a day.

As for How often does a defense attorney allow a client to admit to facts he believes his client did not in fact commit because the plea deal requires it?, as I indicated in my post, the Washington Post today indicated that Vick was going to deny any involvement in killing dogs. It turns out he did not deny. Based on my own experience, I am aware of many defendants who are compelled to admit to facts that they privately claim are not true in order to make the deal happen. I am suspicious that this might have happened in this case based on the Washington Post story. I was just wondering what it means for a defense attorney to allow a client to falsely agree to facts (that his client previously denied to him). I don't know that it happened here but surely it does. Of course, the defense lawyer ultimately does not know what happened. Perhaps his client originally lied to him. I have no difficulty believing that Vick originally told his lawyers that he never killed a dog. Perhaps he was lying then and is telling the truth now. Who knows?

Posted by: Dr Bill | Aug 24, 2007 6:12:10 PM

VICK certainly does qualify for the 3B1.2 enhancement; however the statutory cap is 5 years.

VERY DISTURBING: The forfeiture amount has not been determined, but VICK waives direct review of the later determination. This should have sounded a loud alarm.

PROJECTED SENTENCE: 4 YEARS.

Personal Observation: 2 Years is adequate to achieve the goals of 18 USC Sec. 3553.

Posted by: Ron Humphreys | Aug 24, 2007 10:01:31 PM

If Vick studies this the entire time he is in prison, he might understand it when he gets out or shortly thereafter.

Is it intentionally confusing to prevent the public from understanding it, and thereby preventing any meaningful debate on it?

I don't mean to sound like a jerk, really, I don't, but I still don't get it and still don't understand how confusion can be a deterrent.

Posted by: George | Aug 24, 2007 11:28:55 PM

As I read the guidelines, 3B1.2 is applied for a reduction not enhancement in the case of a mitigating role. Why are you suggesting it applies to Vick as an enhancement.

If Vick has a deal for 12-18 months and the government agrees to recommend the lower end of the range and there is already an upward departure built-in to the agreement for non-guideline conduct, it would be shocking for the judge to give him 4 years. Unfortunately with a plea deal, the defendant for all practical purposed gives up his appellate rights so the judge would not have to defend such an above guideline sentence to the appeals court (unless for some strange reason the government appealed the sentence).

Roger Cossack suggested today that there could be a delay in sentencing to allow Vick to actually do all the cooperating he says he will do in the plea agreement. The reason for such a delay is that if his cooperation is particularly effective in assisting shutting down other dog fighting operations, he could get a further reduction and may not serve any actual prison time, but just probation and home confinement. Of course, this would be in the hopes of facilitating a return to the NFL more quickly. This is not me speaking but Roger Cossak on ESPN's website.

Posted by: Dr Bill | Aug 24, 2007 11:56:41 PM

Why is the public so concerned with the issue of whether the case will end Vick's career? Some of the commenters on this website have talked about this. If I was doing five years in prison I would not be looking forward to some great game against Philly in 2012. I would be thinking about hearth and home, wife and kids, getting back to the ranch with family, friends, and my faithful dogs.

Celebrity sentencing is different. Actors, athletes, musicians, models, and socialites receive exhaulted status and command awe in this country. Did Vick abuse a position of trust? Man's best friend (the dog not the pusher) trusts his master. Or did he abuse or use special skills when he slammed a dog to the ground to kill it? Dog fighting is 'cultural'-- how does that argument fit in or fall out of sentencing guidelines?

Home confinement following jail would perhaps end a career. A prohibition from being within 100 yards of a pet would prevent either Vick or the live falcon from sharing Atlanta stadium on Sunday afternoons. Should there be an animal abuser offender list like they have for sex offenders? That would allow a neighbor to decide not to live next door to Vick and if one does, the neighbor could take precautions and not to let Fido out loose to drop stool samples at night. What kind of restitution does Vick owe and to whom? What other kinds of relevant behavior should the Judge consider? If he kills a dog for not performing, how is he when the lineman misses a block and he is blindsided by a linebacker? How was he around the live falcon mascot?

I hope there is some creative sentencing here. America needs the drama.

Posted by: M. P. Bastian | Aug 26, 2007 7:36:13 AM

I hope there is some creative sentencing here. America needs the drama.

?

Posted by: | Aug 27, 2007 7:46:27 AM

I respond to this comment:

COMMENT: "As I read the guidelines, 3B1.2 is applied for a reduction not enhancement in the case of a mitigating role. Why are you suggesting it applies to Vick as an enhancement."

RESPONSE: I meant to cite to USSG 3B1.1, where I opine that VICK qualifies for a 4-level enhancement. Subsection (a) applies. Why? 1) He acquired the property, provided financing and 2) directed the actions of many others, and finally 3) he utilized a corporate entity for his activities, among other things. The full text of 3B1.1 reads as follows:

Chapter 3 Part B - ROLE IN THE OFFENSE
§3B1.1. Aggravating Role
Based on the defendant’s role in the offense, increase the offense level as follows:

(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.

(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.

(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b) , increase by 2 levels.


Posted by: Ron Humphreys | Aug 28, 2007 9:43:25 AM

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