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November 27, 2007

Eleventh Circuit affirms 30-year(!) sentence for white-collar offense

The White Collar Crim Prof Blog details here that the Eleventh Circuit yesterday affirmed (in this unpublished opinion) the conviction and 30-year (within-guideline) sentence of first-offender Chalana McFarland.  As the panel's per curiam ruling explains, "McFarland and her co-conspirators defrauded mortgage lenders and insured depository financial institutions by inflating the fair market values of properties which were then used to secure fraudulent loans for straw buyers."

McFarland seemed to have a strong substantive reasonableness argument that the imposition of a 30-year guideline sentence was greater than necessary in light of personal mitigating factors.  McFarland's appeal brief (available here) devotes 13 pages to a detailed argument based on the 3553(a) factors that her sentence is unreasonable.  And the Eleventh Circuit has rejected a presumption reasonableness for guidelines sentences and even assert that there are "many instances were the Guidelines range will not yield a reasonable sentence." US v. Hunt, 459 F.3d 1180, 1184 (11th Cir. 2006). 

However, the Eleventh Circuit is still yet to find a within-guideline sentence unreasonable, and McFarland would have seemed to be a good candidate for such a ruling.  Instead, the panel provides this uninspired explanation of its rejection of McFarland's appeal:

At the sentencing hearing, the district court first correctly calculated the Guidelines sentence. McFarland does not challenge that calculation.  The court then explicitly recognized a duty to consider the factors listed in 18 U.S.C. § 3553(a).  The court also considered McFarland’s argument as to why a sentence below the Guidelines range might be appropriate.  In rejecting her arguments, the court explained that, due to specific factors listed in § 3553(a), he believed a Guidelines sentence to be appropriate.  We agree.  Accordingly, we find the sentence to be reasonable.

I hope McFarland considers seeking en banc review and further appeals.  This decision seems like an indirect reputation of Hunt and also seems in tension with the Supreme Court's work in Rita.

UPDATE:  Commentors to this post seem interested in more explanation for my concern that thie Eleventh Circuit's work here seems in tension with Rita.  This view builds in part on my list of important post-Booker ideas suggested by a close reading of the Rita opinion, especially the ideas that:

November 27, 2007 at 09:50 AM | Permalink

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Comments

Maybe it's in tension with what Rita says, but not with the lazy review process that Rita actually sanctions. I'd be surprised if the S.Ct. got involved.

Posted by: YesBut | Nov 27, 2007 10:27:44 AM

Prof: I don't read anything in Rita that says the sentencing court's "reasons" have to pass muster with anyone but the appellate court, nor is there any requirement that the reasons make sense, be detailed, or otherwise make law professors happy. What "tension" am I missing?

Posted by: dweedle | Nov 27, 2007 10:55:41 AM

This is by far the biggest example of what is wrong with our system. How do those two US attorneys sleep at night standing there arguing this is a reasonable sentence. Are they brainwashed into thinking that is is reasonable?

I agree with your comments they should not give up and continue to fight. It is not like they were asking for no jail time they said 10 years would be reasonable.

I really wish someone could ask the President why 30 months for his friend was unreasonable but 30 years for this young lady is reasonable.

Posted by: | Nov 27, 2007 11:03:57 AM

Perhaps Gall and Kimbrough will say something interesting and this will be GVR'ed. Perhaps not. It's in tension with the "sufficient but no greater than necessary" provision of 3553(a), and in tension with Prof. Berman's desire to see district judges write really long sentencing opinions and to have appellate courts require that, but not in tension with Rita, as I think "YesBut" points out.

Posted by: | Nov 27, 2007 11:16:54 AM

Sentences like this one make me physically ill when I think of our "justice" system. Sounds like a local case where a white collar defendant, similar to this young lady, was sentenced to 30 years for bank fraud because he "stole people's dreams". WTF is that?

And as far as "How can those 2 US Attorneys sleep at night?" The answer is: very well, since they have no souls and will garner a nice promotion when this is all done. Pigs.

Posted by: babalu | Nov 27, 2007 12:16:51 PM

I think that you folks that are condemning the US Attorneys don’t know what you are talking about.

First of all, the US Attorneys are defending a position taken by their “client” and endorsed by the lower court. Even if you disagree with it, we are not in a position where the lower court reached its decision via some evil machinations. They are not defending torture or detention without trial. (That is another department.) Save your ire for attorneys that attempt to take matters away from courts or juries altogether.

Representing the government on an appeal based on an extensive record below is fairly easy and doesn’t result in a loss of sleep. The court that one is arguing to has full access to the record and can, inquire into it on its own. It owes no deference to what the individual attorneys claim. Instead, their proffered interpretations of the law are on equal footing with that of the defendant. Unless you are arguing that somehow attorneys for the government can (and did) hypnotize the court into doing something then your critiques of the attorneys are misplaced.

11:03:57 AM, In the post-Booker sentencing Post-Booker “Reasonable” is a term of art, and so what you might think is “reasonable” isn’t necessarily what “reasonable” means. As other commentators point out, this is a work in progress, and it might very well be GVRed.

Posted by: S.cotus | Nov 27, 2007 1:51:45 PM

S.cotus: U.S. Attorneys, like all prosecutors, have a duty to seek justice, not the maximum sentence possible. A 30 year sentence for a first time offender in a white collar mortgage fraud case, without more (i.e. proceeds used to fund terrorism, narcotics ring, child-rape club) is per se unreasonable taking into account all the 3553(a) factors, and any prosecutor who seeks such a sentence should be disbarred.

Just because it is easy to seek and cause an injustice, and just because you know a court of appeals will sustain it, does not make it right. 30 years is excessive for murder (and exceeds the maximum sentence for murder in most civilized countries).

The overriding problem is that the system (and particularly the 11th Circuit it seems) makes it way too easy for unethical, overreaching prosecutors to sleep at night.

Posted by: bruce | Nov 27, 2007 2:28:10 PM

US Attorneys are defending a position taken by their “client”

But isn't this a situation where the attorney and the client are one in the same? You can seperate them if you wish, if it helps you sleep better. (maybe that's how they sleep - rationalizing their own existence)

But US Attorneys who do bad, unjust things and argue for unjust sentences, and then moan that they are just doing their jobs are THE problem. To argue that a first time non-violent offender convicted of a financial crime deserves to spend the rest of her life in prison only to die alone in a cage requires a special kind of soulessness, one they long ago lost the capacity to see for themselves. But those around them see it.

Most people, when asked to do something immoral or wrong at work, would quit. But when dealing with the Feds, it seems there's no shortage of cogs who would gladly do it, then put the blame on their "client".

"I'm sorry, I was just doing my job as instructed to the best of my abilities. It wasn't my fault"
- Nuremberg Military Trials

Posted by: babalu | Nov 27, 2007 2:47:54 PM

To argue that a first time non-violent offender convicted of a financial crime deserves to spend the rest of her life in prison only to die alone in a cage requires a special kind of soulessness, one they long ago lost the capacity to see for themselves.

Really? That's incredible. I don't think all of them do, but certainly people like Skilling and Lay fit those criteria, and I don't think it would be soulless to argue that they deserve to die alone in cages. Financial fraud can ruin the lives of real people... and this is certainly not a "there but for the grace of God go I" sort of situation for most people.

I can understand that some people think that financial crimes aren't quite as bad as violent crimes, but I'm not comprehending the total revulsion at the idea of harsh sentences for such crimes. Perhaps babalu and others can hold onto their venom and explain a bit more.

Posted by: | Nov 27, 2007 4:46:20 PM

babalu: such is the nature of prosecutors. It's not just US Attorneys, it's state prosecutors, too. In fact, in my experience, AUSA's are much more reasonable and fair-minded, and will do the right thing, far more often than their state assistant DA counterparts (who only care about career advancement). I think the primary reason state DA's and ADA's are worse than AUSA's is because they deal with victims on a one-to-one basis far more often; AUSA's usually have intermediaries such as FBI agents. When the victim has the phone number to your office, they're going to nag you several dozen times per day to "put him away for ever and throw away the key." Eventually, the prosecutors are working, in large part, to just shut the victim up so he/she will quit calling and leave him alone. Either way they're not going to sleep at night, whether it's from moral qualms or phone calls from victims and their families, whining about adequate retribution. I resent them, but in part I understand why state prosecutors always seek the maximum penalty.

But AUSA's don't have that excuse. The victims usually don't have the direct line to their office, and in many federal crimes, the only victim is the United States of America (common 18 USC 371 conspiracy always identifies the US as the victim in the PSR).

Here's my theory: I think, on average, a federal indictment is backed up by much more supporting evidence than a state indictment. Not very many federal indictments rest solely on an affidavit of a complaining witness, the crimes are normally more complex, and the FBI, IRS, or whatever agency has usually gathered a large amount of evidence -- Title III phone taps, lots of interviews (binders full of FBI 302's), search warrants that actually secured tangible evidence. I'm certainly not saying all federal defendants are guilty, but the chances are certainly greater than on the state level. Cops arrest whomever and whenever they feel like, Federal law enforcement agents are far more educated and thorough in their investigations (in my personal experience dealing with state and federal law enforcement). You'll never see a federal indictment based entirely on the testimony of an FBI agent that the defendant had glassy eyes and slurred speech and the smell of alcohol on her breath.

As such, AUSA's expect defendants to plead out. Most AUSA's were once state prosecutors, so they know first hand that federal cases typically have stronger evidence backing up the charges. There might be suppression issues, there may be overreaching in the charges, but the defendant is usually guilty of something. When defendants assert their innocence and refuse to try to work out some sort of plea deal, the AUSA gets pissed off and feels entitled to seek the maximum sentence as a result of the defendant's obstinance in the face of compelling evidence.

That being said, it's no excuse, and AUSA's should be conscious of what they're doing. Quite often AUSA's should move for downward adjustments, even after the defendant made the government go through a long, contentious trial (which was his 6th Amendment right, not a last-ditch act of spite towards the government as it is often viewed, particularly in light of 3E1.1(a) and (b) of the USSG, with the whole "Acceptance of Responsibility" bullshit). This should be done entirely out of their duty as a prosecutor to seek justice.

The prosecutor in this case had an ethical duty to tell the court, on behalf of the united states, that a below-guideline sentence should be given. 12-24 months is more than adequate. For most white collar criminals, simply being caught is far more than enough punishment, and probation is sufficient. Had this defendant received 5 years' probation, justice would have been done.

To seek a hugely unreasonable, unfair, unjust sentence and then hide behind "guidelines" and lazy appellate courts who see their job as preserving judgments is even worse than the Nuremberg defense because the Nazis' job was to kill innocent people and commit genocide. If the job of a prosecutor is to get a conviction and the highest sentence possible, then the Nuremberg defense would be their bad excuse. However, the job of a prosecutor is to seek justice and not the highest sentence possible. So the Nuremberg defense doesn't really apply. "I was just doing my job" is not accurate -- your job was to seek justice.

Posted by: bruce | Nov 27, 2007 4:53:50 PM

Bruce: This is a within guideline sentence, so your argument that it is "per se unreasonable" doesn't fit according to the Supreme Court — there is a presumption that it is reasonable at the appellate level.

Further, after reviewing the facts, it is a reasonable sentence for the conduct involved. It is based on the unchallenged multi-million dollar loss attributable to this defendant's extensive and lengthy pattern of fraud. A defendant who was a practicing lawyer, who also presumably took an oath to uphold the laws of the United States at some point before her greed got the better of her. This sort of defendant, who steals with a Mont Blanc pen instead of a 9mm, ought not to get a special break just because they tend to be richer and whiter (and thus more cuddly) and are able, because of their status, to commit crime without the aid of firearms. The old refrain about "harmlessness" is a tune played clumsily by the white collar defense bar that is sour to the ear of ever person that works for a living. A thief is a thief and, in fact, I would argue that it is MORE reprehensible for a someone such as a licensed attorney, with education and privileges that other citizens do not have, to steal based solely on her naked greed and take advantage of her position of trust.

Fraud damages thousands of victims, employees, consumers, stockholders, and taxpayers -- often to an extent more detrimental than a prison filled with common burglars. The consistency and proportionality of 2B1.1 makes sure that we do not return to the bad old days of a slap on the wrist and cocktails at the country club after the fine is paid with a big fat check. Justice bought and paid for. No more.

Most importantly, unlike a lot of crime, there is no doubt of the positive deterrent value of such consistent sentencing for white collar offenses. If you don't think this makes a difference I suggest you Google the term "compliance" and see how successful white collar crime reforms have been. And since the federal government is woefully, pitifully under-investigating and under-prosecuting white collar offenses, the deterrent value is important. It's one of the few real criminal law triumphs in the last 10 years, capped with the happy day that Skilling was sent away for the rest of his natural life — but now the greedy thieves and their shameless mouthpieces want to roll back the clock. I am not surprised.

This woman was personally responsible for over 100 fraudulent mortgages over a period of 3 plus years. Not exactly aberrant behavior. It is thanks to people like this defendant that each year thousands of families' finances are ruined, that businesses fail sending employees and stockholders down the drain, and markets are effected in substantial ways. Financial hardship is a leading factor in suicide, divorce, and other torments of the soul. These are real victims with real harm, not some joke. White collar apologists like to suggest this is a victimless offense — just numbers on paper. Tell me Bruce, is your bank account, your car, your home, your credit — just numbers? Not important?

Millions upon millions in losses and dozens and dozens of victims who lost everything. All so this rich woman could get so much richer. For YEARS she did this — till she was caught. No remorse, she denies the obvious to this day, and she claims foul now?

HA!

The guideline range was LIFE and she was only saved because the judge failed to give her consecutive sentences, as he could have done, she should consider herself lucky.

Posted by: dweedle | Nov 27, 2007 4:58:10 PM

Also, in respones to the penultimate anonymous poster, victims of financial/white collar crimes are always partially at fault. If you lost everything because you put all your money into nothing but Enron stock, you are an idiot, didn't properly diversify, and are partially at fault for losing everything. If you give out your SSN, mother's maiden name, and all other personal info to spammers or leave it sitting in your garbage can, you're partially at fault.

It's not like rape where someone holds you down and violates you. 95 times out of 100, you did something dumb that allowed someone to take advantage of you. It's not an excuse for their behavior to be used at the guilt/innocence phase of the trial, but comparative negligence should be taken into account at sentencing.

Posted by: bruce | Nov 27, 2007 5:10:48 PM

Bruce writes: To seek a hugely unreasonable, unfair, unjust sentence and then hide behind "guidelines" and lazy appellate courts who see their job as preserving judgments is even worse than the Nuremberg defense because the Nazis' job was to kill innocent people and commit genocide.

This comments thread degenerated rather quickly.

Posted by: | Nov 27, 2007 5:26:38 PM

dweedle: First of all, taking into account all the 3553(a) factors, 30 years is per se unreasonable for this crime. A presumption of reasonableness, as the court sanctioned in Rita, was major backtracking to the point of overruling the basic premise of Blakely/Booker. Even with a presumption of reasonableness, applying all the other 3553(a) factors makes 30 years per se unreasonable for mortgage fraud, no matter how much money was lost.

I categorically reject your argument that we punish some people far in excess to make up for those committing similar crimes who are not being prosecuted to deter them.

I'm not saying white collar crime has no victims. But to say fancy, sophisticated mortgage fraud causing $100,000 loss is criminally/culpably/morally the same as forcibly breaking into someone's home, and robbing $100,000 from them at gunpoint is like saying downloading a Brittney Spears album is no different than walking into a record store and stealing the album, jewel case and all. It's a frivilous appeal to emotion that sounds good if you don't think about it logically or rationally.

Totally ignoring white collar criminals and bailing out their companies (with taxpayer dollars!) from the losses they cause is one thing. I'm glad those days of the great Savings and Loan scandals seem to be gone. But looking solely at the dollar value the government claims was "lost" (which, by the way, is always greatly inflated) and stating that there is no difference between the alleged white collar crime and someone who used firearms and violent force to forcibly rob that same amount of money from a bank or home is just an asinine comparison.

You sentence people, not crimes.

99% of white collar criminals should be made to repay any losses they caused, lose their jobs and professional licenses, and be placed on probation for 5-10 years, and given a meaningful fine. Coupled with the initial arrest and embarassment, it's more than sufficient. As a taxpayer, I want prisons to be filled up ONLY with people who pose a physical danger to society.

Posted by: bruce | Nov 27, 2007 5:39:18 PM

Anonymous: I'm not invoking the Nazis, I'm only responding the above statement regarding the Nuremberg defense.

It's funny how people troll comments for the first reference to "the Nazis" and then categorically claim "this thread has degenerated" regardless of the context. I did not say "prosecutors are Nazis" nor did I say "prosecutors are worse than Nazis." Read what was actually stated, in the context of the previous post re: the Nuremberg Defense.

Posted by: bruce | Nov 27, 2007 5:43:35 PM

Thanks for the insight bruce. Your posts always educate me. And to everyone else, as the poster of the Nuremberg comment, I wanted to say that I did not in any way compare ADA's to nazis either. I'm sure (or I hope) that the vast majority of them are solid people. I was making a point about these specific ones.

I was also making a point that in the face of an obvious and glaring miscarriage of justice, relying on the guidelines is akin to the Nuremberg defense. Agree with it or not. That was my point.

I didn't catch the news but I'm certain their pretty faces were all over it, basking in the glow of victory with a nice soundbite about justice. This was a big case, and there was alot of pressure to win and to win BIG. Justice had nothing to do with it.

But simply, no one deserves to die in a cage because they stole something. We don't do that to most murderers. It's not a matter of guidelines, it's not a matter of the victims getting vengeance, it's a matter of right vs wrong.

And the fact that the judge didn't give her consecutive sentences? Well, he is clearly a compassionate man, isn't he. Isn't he?

I'd bet dollars to donuts the prosecution asked for consecutive sentences.

Posted by: babalu | Nov 27, 2007 6:22:32 PM

One type of disparity created by the guidelines is that defendants who create a paper trail are overpunished compared to those who don't. For example, if a pickpocket were for some reason to be sentenced under the Federal guidelines, they might be sentenced based on a loss of a few hundred dollars, even though common sense would say that they are responsible for many times more than that.

Additionally, since the fraud guidelines are not inflation adjusted, fraudsters suffer from bracket creep, just as we all used to on our income taxes.

Posted by: William Jockusch | Nov 27, 2007 8:22:20 PM

William: nobody forces crimnals to keep paper trails. They should either encrypt it with PGP and a high, 4096-bit key so the gov't cannot get it (although they can arguably try to subpoena the password which would not count as 'testimonial' for purposes of taking the 5th), or just NOT keep a paper trail. I've never felt much sympathy for the "paper trail disparity" argument.

I am surprised that people don't structure their crimes to fit within the guidelines. I really have tremendous disrespect for a criminal who steals/defrauds $100,005 dollars when anything over $100,000 would put them in a different sentencing bracket. It's not like the guidelines are secret, nor are the dollar amounts so random or obscure that the very fact that the theft was in that amount would be incriminating (like depositing $9,999.99 to avoid filing a Currency Transaction Report... even though the limit is actually anything OVER $10,000).

Posted by: bruce | Nov 27, 2007 10:24:23 PM

Bruce: The S&L bailout and prosecutions didn't really make much of an impact, or are you forgetting Enron and Worldcom?

While you might not like it, a stated goal for the guidelines and, for that matter, all federal criminal law is deterrence. It is abundantly clear that the ratcheting up of sentences has had a positive effect on corporate compliance. Do you doubt this? The law doesn't exist in a vacuum and a clear, stated goal of the USSC is to implement policy that will prevent conduct as well as punish it. The real victory of Chapter 8 is that it has CHANGED corporate culture. 15 years ago there wasn't such a thing as a CCO (Chief Compliance Officer), and now, due to the TEETH of the guidelines we are all much better off -- not in some arcane retributive way -- but in our daily lives which are all affected in many ways by corporations and the people that run them.

Again, it is your *opinion* that this is a unreasonable sentence, it isn't "per-se" anything. And, the only reasonableness decision that matters is the appeals court's. That's the law, and since this a law blog, I suspect that's an important fact. My opinion is that this sentence is perfectly reasonable, and I have the USSC, the appeals court, and a district judge that agree with me.

I give you a litany of concrete reasons, including facts about this thief and her ongoing, extensive criminal conduct which resulted in an undisputed loss (unlike your contention) of millions and millions of dollars and you provide nothing but "30 years is pre se unreasonable for this crime." If you were the district judge in this case and this is the best you can do you'd be reversed SO FAST under Rita that your clerks would get whiplash. "I don't care about the facts, I don't care about the thousands of hours of study and research that went into devising the fraud guidelines, I don't care about the millions and millions in losses, I don't care about the hundreds, if not thousands, of victims whose money was stolen, marriages broken, families ruined, I don't care about proportionality, no, it just strikes my fancy that people who commit crimes in suits aren't so bad after all, it's a 'per-se' thing."

Wonderful. I give you factual reasons, you deliver sophomoric pop psychology about how theft isn't really theft when nice people do it from the safety of their plush offices. I mean, they didn't use a gun like some "common" criminal.

The gun only comes into play when the victims end up committing suicide after filing bankruptcy.

Posted by: dweedle | Nov 28, 2007 1:01:21 PM

Prof: Regarding that "Rita Tension" (sounds like the name of Herb Alpert and The Tijuana Brass song), thanks for the update, but I still don't see that it applies in this particular case.

(1) "a guideline sentence ought not be given, and a traditional departure is justified, if the offense or offender is 'atypical'."

Don't see that here. The information contained in the brief about this defendant is, frankly, LESS compelling than most white collar defendants. It's rather vague and clipped. I have seen many offenders with better "beauty packets" attached to their sentencing memos. She was poor, she went to school, she likes people (and puppies also, I bet). Not "atypical".

Here's the problem: I think that people who have an immediate distaste for the sentence in this case may be manufacturing a compelling "atypical" story that simply doesn't exist. I understand why counsel did such spinning, I cash those same checks, but for the purpose of our intellectual debate (tee hee), I think there is a lot of engineering going on to get to a result.

In fact, regarding this defendant's typical-ness, I would go so far to state that she's the poster girl for white collar fraud. Her conduct was extensive and lengthy and it would have continued but for the discovery of the investigators, she used her position to defraud, she continues to display no acceptance. About the only thing that is "atypical" is she had a trial. I'm not aware of "demanding a trial" being a 3553(a) to consider.

(2) "cases involving straightforward, conceptually simple arguments' may generally require only a 'brief' statement of reasons."

What's not straight-forward about this fraud? Again, not to be a pedant, but I think this also is a manufactured way to attack a sentence that some people think is too long. Let's debate that, I'm willing.

This is a very, very straightforward mortgage fraud that is prosecuted every day all around the nation. Even red-mouthed, idiot defense attorneys from Texas have seen their share of these. In fact, this isn't even the most sophisticated mortgage scheme that I have seen in the last year (try line-item frauds on a HUD-1 statement). Secondly, drawing on point (1), there is nothing complex or difficult to understand about the defendant's 3553(a) arguments, they are just not very compelling or "atypical".

(3) "there must be some within-guideline sentence that do not achieve §3553(a)'s objectives and circuit courts have to identify the 'times' when district judges impose sentences that are unreasonable."

Sure, there must be. This isn't one. Give me reasons this is one. Somebody. Reasons that don't involve "it ain't right" or "the sentence is too long" without telling me WHY the sentence is too long for THIS defendant. So far, I have people telling me it's "per-se" unreasonable not to buy the 3553(a) arguments but then, suspiciously, they don't make those arguments -- or even mention them! That's because the facts argued in this defendant's favor are very, very typical, the offense is straightforward, and there isn't any reasonable argument to be made that these facts and circumstances aren't (sadly) nearly identical to the facts and circumstances of hundreds of mortgage brokers, title lawyers, surveyors, developers, real estate agents, and average cowpokes that have tried the same scams only to end up dribbling tears on their lawyers sleeves at the bench (and tears are a bitch to get out of sharkskin, let me tell you).

(4) "some defendants should sometimes prevail with arguments that a 'Guidelines sentence is not reasonable under §3553(a) because it expressly declines to consider various personal characteristics of the defendant.'"

This is really (1) all over again, or rather, this is a confused Court's escape valve. Fine, there have always been cases outside the heartland of a given guideline. Point taken. In this debate when I ask, how is this one of those, how is this not a typical, garden-variety, every-day mortgage fraud? The answer is "30 years is too long".

There is nothing in Rita to address that argument. I do not see the tension.

What I see is, for whatever reason, people believing that it is not appropriate to jail fraud offenders. That's bunkum, IMHO, and attacking the propriety of the 2B1.1 table is not a "3553(a) factor" for this individual defendant.

I am willing to defend 2B1.1, BTW, but I'm not going to be bedazzled into thinking that attacking the basis of a particular guideline independent of those "atypical" facts mentioned has authority in Rita, because I don't read that at all.

If someone wants to posit that this defendant has "atypical" facts compared to other, similar fraud offenders, please do. I don't see any basis. OR if someone wants to continue to argue about the fairness of 2B1.1's table I will oblige as well -- but the two arguments do not intersect here.

Posted by: dweedle | Nov 28, 2007 2:28:39 PM

dweedle: I do not disagree that deterrence is a stated purpose of federal sentencing. Not only that, but I believe deterrence along with incapacitation (for violent criminals likely to re-offend) are the only two truly legitimate goals of incarceration.

But I disagree with your theory (which one has to read between the lines to discern) that some people should be punished extra solely to make examples out of them because too many people are getting away with the crime they've committed. So, Defendant commits X crime and deserves Y punishment; however, you want to sentence Defendant to Y + P, where P is a deterrence premium, on the theory that Y is not enough to deter people from committing X crime. Nobody should be sentenced to extra years in a cage on top of what they reasonably deserve to make an example out of them. It's not fair, and a blatant equal protection violation (under an Olech "class of one" basis). For nonviolent crimes, incarceration is not necessary as a deterence, other punishments can suffice.

As for 30 years being unreasonable... reasonableness is the standard of review for appellate courts to employ. They're locked in to saying a sentence is reasonable if the (arbitrary) guidelines say it is within range. That doesn't mean 30 years for mortgage fraud is not per se unreasonable. Putting someone in a cage for 30 years, surrounded by screaming, banging, yelling, shouting, and threats of physical violence by other people in cages is a horrendous thing to do to a human being, only the most egregious offenses to humanity would warrant such punishment. Simple murder doesn't deserve 30 years of that. Maybe a horrendous premeditated murder for a horrible reason does. Killing a cheating spouse, even after a cooling off period has passed, does not warrant 30 years of that torture.

The problem is we hand out such large sentences... life, life, 100 years, life, 50 years, 25 minimum, 99 years, 500 years, life, 250 years, life, 88 years, 75 years, life, 55 years, 45 years, 300 years, yadda yadda yadda... that 30 years sounds like a below average, soft, reasonable amount of time to lock someone in a cage. With numbers like that, most of which amount to life sentences, what is and is not a reasonable sentence is completely skewed. I think all prosecutors should have to spend 1 year in prison before they're permitted to try cases and recommend sentences. A year is a LONG time.

I think we should sentence people to prison by the day. In terms of nonviolent crimes, one week is more than sufficient for most felonies. A month for very serious ones. A year for the most egregoius. And 80% of nonviolent cases should receive a term of probation. Yes, the dollar amount involved is a sentencing factor, but not the difference between a day and 30 years, regardless of what it is. Note that in the McFarland case, every mortgage was insured, so the government was the victim (it was 1956 money laundering and 371 conspiracy to defraud the USA). No little old ladies kicked out of their homes, or any other "sad" fact used to justify unreasonably long prison sentences.

I'll spare you the statistics about how we have the most people in prison, and the greatest % of a country's population locked up in prison, than any other country at any other time in the history of planet earth. Drugs should be completely legalized and sold over the counter and by the pound (including to children on playgrounds in modified ice-cream trucks with happy music). Only violent criminals should be put in prison.

Again, you sentence people, not crimes.

Posted by: bruce | Nov 28, 2007 5:19:25 PM

"One week is more than sufficient for most felonies."

Okay, now we are getting somewhere, we have stripped away the notion that this argument about "unreasonableness" in this particular case, i.e. that there were atypical facts that make this a fraud, to use the old term, "outside the heartland."

What this is, and what I suspected all along, is a visceral disagreement with incarceration for "non-violent" offenses. While I appreciate your viewpoint on this, I have to disagree. We make decisions on punishments based on harm. A crime that effects hundreds of people and dozens of businesses can have an impact and a harm that I maintain far outstrips the acts of nearly any "violent" offense you can name outside of a mass murder like 9/11. Enron is the most obvious example, but overall the number of victims and the financial hardships imposed by white collar offenses are all important, and that is why 2B1.1 tries to gauge that harm with enhancements for these factors. Further, as a factual point, your notion that this particular offense didn't effect anyone because the loans were insured is dead wrong. You need to read the brief a little closer, beyond the generalized notion that there are serious impacts that are felt by the straw purchasers, small banks and title companies, specifically in this case there were multiple identity thefts. Part of this particular scheme was to use these identities of unknowing victims to secure fraudulent loans. If you have never had a credit issue yourself you have NO IDEA how something like this can effect someone. Being denied credit, home loans, car loans, having to defend judgements.

Just imagine how this might effect someone, particularly someone without the resources and knowledge to repair their own credit. I can see that you don't really take this notion of victimhood in white collar offenses too seriously, but I think you're wrong. It's no joke to suggest these crimes end in real suffering for people and their families.

The punishment should fit the offender, no doubt, and the type of person that commits fraud must be deterred and punished and fines alone are not sufficient.

Posted by: dweedle | Nov 28, 2007 7:22:39 PM

dweedle: I'm not saying there are no victims of white collar crime (although I stand by my earlier comment that a vast majority of the victims contributed towards their harm through their own negligence). There are lots of punishments other than locking people in cages or killing them. Fines. Being stripped of professional licenses (that all but guarantees no recidivism). Public embarassment/shaming. Huge forfeitures and restitution orders. Inevitable loss of high-paying job. And maybe a week in jail on top of that, just to drive it home.

Being put in a dirty metal cage between the Aryan Brotherhood and the Mexican Mafia should not be the default punishment, it should be used only in exceptional circumstances when the defendant poses a continuing and immediate threat to the safety of people and their property. Incarceration is also the most expensive form of punishment to the taxpayer, and as such should only be used when no other punishment will keep society safe. NO MATTER WHAT the defendant did.

Retribution is not a valid goal of sentencing, and the victims should not be permitted to come within 10 miles of the courtroom other than to testify as fact witnesses during the guilt/innocence phase. This whole "victim's rights" movement is a major cause of long sentences.

Posted by: bruce | Nov 28, 2007 9:00:10 PM

The problem lies with the arrogance of the department of justice and the us attorneys. they can overstate loss they can bend the truth with no consequences. They can abuse there power and get away with it. I will give you an example the tale of two acts.
Charles Rangel in NY is pushing the second chance act. He wants to give people a second chance at life something the department of justice forgets they forget people still have to go out and work and make a living and support their families. The second act didn't this administration just lost a case in Miami for their abuse of the patriot act? I think they just had to pay a citizen 2 million dollars for their abuse of this act.

There you have the tale of two acts an elected official trying to help and put people back on their feet and an administration abusing their power in regards to the patriot act.

The problem in sentencing is the arrogant stance taken by the US attorneys my guess is if it was up to a US attorney the right punishment would be to drag the guilty party behind the court house and shoot him or her. That is the mentality these people have and until you change that horrible mentality you will continue to have these issues!

Posted by: | Nov 29, 2007 10:32:55 AM

Dweedle is absolutely correct. 30 years for fraud, and the fact that anyone thinks that is a valid punishment, is indicitive of our deeply sick "justice" system, which reflects the vengeful and sick nature of the society the system is meant to serve.

Posted by: | Nov 29, 2007 12:33:29 PM

Bruce: you and I are in agreement that the victims are well-represented already by the prosecution and have no place in the process. The federal victim's rights act is a stupid piece of legislation.

But you are dead wrong on incarceration on two counts:

(1) no fraud offender is spending time in a "cage" next to a violent criminal; either you know nothing about the BOP or you are being purposefully obtuse. Your poor "non-violent" fraud offenders are going to camps, not prisons, often camps that have no fences around them. These famous "country clubs" are still open and well used.

(2) while you might not agree that retribution is a valid penal consideration, you also fail to address incapacitation and deterrence. In the case of white collar offenses these last two are provable consequences. Incapacitation is obvious, and deterrence is easily seen in the massive popularity of Chapter 8 outside of booger-eating intellectual sentencing circles and the redefinition of compliance in American business. Unlike Michael Milken, the S&L crooks, and the other famous slaps on the wrist that happened 20 years ago, the sentences now have teeth and have inspired real, positive changes in the way corporate citizens and their employees behave.

You like to return to fantasies about cages, but the reality is obvious for anyone willing to look. White collar sentences are only beneficial to this society when they are consistently applied and stiff; otherwise there is little reason for the Skillings of the world to play by the rules.

Posted by: dweedle | Nov 29, 2007 2:44:58 PM

A terrorist today received a 25 year sentence. I would say he is is slightly more dangerous than a white collar criminal.
He gets 25 years the lady gets 30 years both in federal court

Please no one should try and justify the sentences in federal court

The system is broken, The president knows it that is why libby did not go to jail. the supreme court knows it but one of the knuckleheads that wrote the stupid guidelines is on the supreme court do you think he really wants to admit mistake? Every federal judge knows it.

The only people that think there is a need for the guidelines is the department of justice and that is because they want to sentence they want to sentence they don't want a judge to sentence.

Posted by: | Nov 29, 2007 5:06:59 PM

Lets keep in mind that white collar criminals face collateral damage that a violent criminal doesn't. Lets also keep in mind that prison is a much worse place for a white collar offender. Does anyone really think that a 10 year sentence for this poor woman would not serve as a detterant!?

Posted by: DAG | Nov 29, 2007 8:08:01 PM

Dweedle: you're absolutely wrong about all white collar defendants being sent to Club Fed prison camps. Some are, some are not. It depends on a multitude of factors such as sentence, history, whether the judge allowed self-surrender, and others. They're a mathematical formula the BOP uses to determine which prison level the inmate is sent to.

I completely addressed incapacitation and deterrence. Incapacitation is done merely by losing one's white collar job and professional licenses. No other firm would be hiring Skilling as a CFO had he received probation. I addressed deterrence too. The threat of losing these hugely powerful, high paying jobs is more than enough deterrence. Collateral consequences are deterrent factors not taken into account or applicable to the average drug dealer or pickpocket.

Posted by: bruce | Nov 29, 2007 9:19:26 PM

Club Fed? I feel like I've been put into a time machine. Those days are lonnnnnnng gone

If she's doing 30 years, then she's going to a maximum security prison. Period. Motive and risk of escape is too great to put her anywhere else. As her time decreases to 20 years they may put her in a medium. When she gets to about 14 left they'll transfer her to a low. She won't be going to a camp until she had just a few years left. And even then, camp ain't so sweet.

But to everyone: Can you give me the name of 1 or 2 of these Club Fed camps still in existence?

Posted by: babalu | Nov 30, 2007 12:38:44 AM

babalu: there are plenty of BOP "minimum security" FPC's (federal prison camps) around the nation. See BOP website for more info. These are what people usually refer to as "club fed". The stereotype that there are golf courses and big screen TVs in every dorm room is not true, nor has it ever been.

But NOBODY with a 30 year sentence, even if it is a 30 year sentence for "felony excessive kindness and loving of one's fellow man" will be placed at a minimum security facility. The people there are usually serving 5 years or less on nonviolent, usually non-drug related, crimes. Their criminal history is taken into account, as are factors like whether the judge allowed self-surrender. The BOP has lengthy internal regulations (which I believe can also be found on BOP.gov) which details how they make the determination of custody level. 30 years will CERTAINLY be at a medium to high security facility.

Posted by: bruce | Dec 1, 2007 12:21:42 AM

Thanks Bruce. That's what I was saying. I've been in and around many FPC's over the years. I am quite familiar with the BOP system at all security levels. I was referring to dweedle's comment that:

no fraud offender is spending time in a "cage" next to a violent criminal; either you know nothing about the BOP or you are being purposefully obtuse. Your poor "non-violent" fraud offenders are going to camps, not prisons, often camps that have no fences around them. These famous "country clubs" are still open and well used.

I was upset because THAT STATEMENT IS A LIE.

I will challenge statements like that whenever I hear or read them. People who make statements like that need to be educated immediately that they are living in a dreamworld. What they think they know is not true.

I wish judges could spend 1 or 2 nights at each security level prison so they would actually have some perspective.

Posted by: babalu | Dec 1, 2007 5:16:15 PM

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