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August 15, 2008

Important new white-collar opinion justifying below-guideline sentence

As effectively covered in posts from at New York Federal Criminal Practice and White Collar Crime Prof Blog, District Judge Frederic Block issued an important new sentencing opinion in the white-collar case of US v. Parris, No. 05-CR-636 (EDNY Aug. 14, 2008) (available for downloading below).  The opinion is a must-read defies easy summarization, but this starting paragraph provides the basics:

I have sentenced Lennox and Lester Parris today to a term of incarceration of 60 months in the face of an advisory guidelines range of 360 to life. This case represents another example where the guidelines in a securities-fraud prosecution “have so run amok that they are patently absurd on their face,” United States v. Adelson, 441 F. Supp. 2d 506, 515 (S.D.N.Y. 2006), due to the “kind of ‘piling-on’ of points for which the guidelines have frequently been criticized.”  Id. at 510.

Download Parris.pdf

August 15, 2008 at 10:04 AM | Permalink

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Comments

That is beyond belief and incredible. It is the judge, defense, DA all working to overturn the will of the people. There is simply a significant cultural disconnect. To my mind, and the minds of many people who supported such efforts, there is no significant moral difference between what these men did and what pedophiles do. J.H.Christ. People get 50 year sentences for simply looking at one picture of child porn. And yet these guys essentially waltz away scott free. White collar crimes sentencing has run amok all right; it has become to incredibly weak. Disgusting. Just disgusting.

Posted by: Daniel | Aug 15, 2008 11:29:58 AM

What's "patently absurd" is a judge basing a 300 month variance not on a detailed review of the 3553(a) factors, as there is hardly a peep about the nature and characteristics of these two for example (presumably they had no sick grandmothers to take care of or orphans they sponsor), but rather his sense that the fraudsters standing in front of him were not as "bad" as Bernie Ebbers -- and this even after he had to discount the 3553(a)(6) disparity argument completely(see page 14)!

So the "non-disparity, disparity" argument is born -- justifying a 600% variance.

Zheesh.

Posted by: dweedle | Aug 15, 2008 11:44:21 AM

Dweedle. You bring up a point that has concerned me for some time. In essence, what we see happening is that the first sentences that pass reasonableness review are setting the bar for the sentences that follow. So if defense attorneys in a particular field can convince a few judges to deviate from the guidelines, this makes it much harder for later judges to impose a stiffer sentence because such later sentences are now out of the "norm". This development doesn't shock me but I think it's unfortunate and not what the SC had in mind.

I would actually argue that what the judge has done here is an abuse of his authority. It is for the appeals courts to manage whether the sentence imposed is consistent with other sentences on a district-wide or national basis; that's not the trial judges job. His job is to impose a sentence that is consistent with the facts, consistent with the guidelines, and consistent with guidance from the appeals court. It is far too easy for an individual judge, with his limited exposure to cases, to either consciously or unconsciously pre-select referent cases that fit the sentence he or she wishes to impose.

Posted by: Daniel | Aug 15, 2008 12:01:56 PM

Quit crying and let judges judge. That is what the SC wants. Let a judge decide a fair sentence not a spreadsheet or the DOJ stacking things on.

So are you saying 30 years is a fair sentence?

If thes 3 got sentenced to 30 years would you be writing. WOW this judge did a great job 30 years is the right number?

Posted by: | Aug 15, 2008 12:30:40 PM

Daniel, There are a number of problems with your argument. They all seem to indicate that you did not actually read the document. Combined, I question your commitment to American values.

First, it was an AUSA. Second, the government said“many reasonable sentences would fall outside that [guideline] range.” Are you saying that the government is wrong? Did they misapply the law?

Third, the defendant was not sentenced below the statutory minimum. If anything, his sentence was below the guidelines. The USSC by no stretch of the imagination is “the people.”

Fourth, since many of “the people” could not show their love for America by going to law school, I fail to see why they matter.

Fifth, nobody gets a “50 year sentence” just for looking at pictures of child pr0n.

Sixth, You seem to be arguing that we should be spending more money putting this guy in jail because some we are spending a lot of money putting other people in jail? Is that correct.

Seventh, the “people are entitled to nothing.” If a prosecutor does not want to charge someone with a crime, they will just have to take deal.

Posted by: S.cute.us | Aug 15, 2008 1:07:31 PM

Finally, a judge who does his job and is brave enough to face review by the evil DOJ in DC.

Posted by: babalu | Aug 15, 2008 2:16:26 PM

Scutus:

Yes Virginia, the government is wrong here (aren't they always?), but a careful reading of the excerpt also suggests that when the judge hopefully says "the feds agree with me!" what is really being said is "err judge, i suppose someone could see it that way.... please don't find me in contempt, I have opera tickets tonight..." I suggest that your suggestion that Danny didn't read the case is simply a projection, because it's pretty clear that the AUSA was just standing out of blasting range after the loss was already telegraphed.

There are too "people" at the USSC. While it's true that the SentenceTron 3000 ubercomputer (affectionately known as "Hal") is responsible for most USSC policy, there are a few human servents that deliver a CD-ROM of sentencing wisdom to the Commissioners on golden pillows each year, so don't be so dramatic.

Law school is overrated and the keggers suck.

While nobody gets 50 years for looking at child porn because of the stat max the 5th Circuit has already upheld at least two upward variances (one all the way to the stat max) in those type of cases, so while I convict Danny for hyperbole I sentence him to eat a hot fudge sunday (with extra fudge) since he is substantially correct in his assessment that this is a very, very bad sign for people who think disparity is not cool.

Finally, if we weren't paying for these fraud hoods to go to Camp Wackagolfball for 5 years then we'd have to pay to send some other guys to go somewhere else, it's not like BOP is gonna give you some money back.

Posted by: dweedle | Aug 15, 2008 3:59:12 PM

I do have a problem with the discount these two received from consideration of sentences that folks like Ebbers and Skilling received. The judge basically ignored the fact that during/after those cases the perceived seriousness of such crimes increased greatly.

The included table of loss/sentences would be far more valuable if it also included whether they were arrived at pre or post reform.

Posted by: Soronel Haetir | Aug 15, 2008 4:15:22 PM

The table of loss/sentences is also incorrect. Walter Forbes received a 151-month sentence for orchestrating the Cendant fraud, which ended in 1998, long before Sarbanes-Oxley. His subordinate, Kirk Shelton, received the 10-year sentence noted in the table.

Posted by: | Aug 16, 2008 4:52:43 AM

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