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August 4, 2008

Practitioner’s Notes: Don’t Get Trapped by a Sentencing “Floor” – the Importance of the Order in which Co-Defendants Are Sentenced

In a multi-defendant case, there’s one factor that is not discussed by the guidelines but, in practice, has the potential to have a dramatic effect on your client’s sentence:  the order in which the co-defendants are sentenced.  How so? 

Intra-case proportionality is, like gravity, an unseen force that will have an important impact on where your client comes to rest.  Most judges employ their own personal rough sense of justice – consciously or not.  As important as downward departures and § 3553 are, there is one almost immutable reality:  the ringleader is not going to get less time than the mid-level supervisor, who is not going to get less time than the mope.  (The one arguable exception is where criminal history categories are materially different.)  If you represent the ringleader, once the less culpable defendants are sentenced, you are at the mercy of the job the other defendants’ attorneys did.

Take, as a hypothetical, a scenario where there are two defendants – the President of a company and the accountant who helped her cook the books.  You represent the President, and you are a superstar of creative sentencing arguments.  You can make the Son of Sam appear as sympathetic as the Dalai Lama, and Marie Antoinette appear as charitable as Mother Theresa.  You use downward departure motions like Jedi mind tricks, and can exploit § 3553 with the best of them.  Yes, you are that good.  Now, had you ensured that your client was sentenced before the accountant, perhaps you could have convinced the Judge that the non-custodial sentence your client so desperately wants is far more appropriate than the minimum guidelines range of 37 months.  The sky (or the floor in this case) would be the limit. 

But, instead, the Judge’s Deputy schedules the sentences randomly, and the accountant happens to go first.  The accountant doesn’t have a lot of money, and is represented by a mediocre defense attorney, who walks his client into sentencing without preparing a sentencing submission, and does a ho-hum job extolling his client’s virtues.  His client gets 16 months.  Now, it’s your turn.  Even though you put together the most compelling sentencing submission of all time, and the Judge’s law clerk actually cries while reading it, guess what?  It won’t matter.  Your client is going to do more than 16 months.  Probably substantially more.  After all, and as the Judge will probably ask you:  How can your client get less time than the accountant when your client was the mastermind and ringleader? 

This type of situation happens all the time.  Once a floor is created by a sentence imposed on a less culpable co-defendant, the Judge’s discretion is greatly constrained by practical considerations of proportionality. 

The converse is also true.  If a more culpable defendant is sentenced before a less culpable one, and the former’s attorneys achieve a fantastic result, the latter can benefit greatly because he can draft off their efforts.  So, to go back to our hypothetical, if the President was facing a minimum of 37 months, and you convince the Judge that 13 months is more appropriate, then the accountant, who was facing a guidelines range of 24 to 30 months, can feel pretty confident that he will receive substantially less than 24 months, and likely less than 13 months, because you’ve plowed the road for his attorneys.  Moreover, the less culpable defendant doesn’t necessarily take the same risks by going second.  Just because the ring leader isn’t deserving of sympathy, doesn’t mean that the little fish isn’t.

The key is to try to work with the Judge’s Deputy and the other defense attorneys – even if some of the defendants have cooperated against the others – to arrange it so that the co-defendants are sentenced in order from most culpable to least, assuming of course you can all agree on what that order is.  That way, everyone can build off the others’ efforts and each sentence lowers the ceiling for the next co-defendant, but no one’s sentence creates a floor.  Admittedly, you will not always be able to do so.  But if it works, you help ensure that the Judge retains the maximum flexibility and discretion to consider your client’s unique situation and render a fair sentence. 

Matthew Queler 

Proskauer Rose

August 4, 2008 at 08:58 PM | Permalink

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Comments

Interesting post. Thanks.

Posted by: Not the same | Aug 5, 2008 10:54:55 AM

This is exactly right, and I would also add from personal experience while clerking that the ringleader also hurts by going last because he ends up looking even worse after the judge has read all the lower-level defendant's presentence reports. During my clerkship the judge had a multi-defendant case in which the highest-ranking defendant was sentenced first, and the judge gave him a substantial downward variance. After reading the next four or five defendants' PSRs, however, and listening to their stories at their own sentencing hearings about how the ringleader hatched the plan and bullied his employees into going along with it, the judge was much less favorably inclined toward the ringleader and often said that if he had sentenced the ringleader last, he would have imposed a much higher sentence.

Posted by: Anon | Aug 7, 2008 3:35:56 PM

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