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March 2, 2009

Might sex offender (and former federal judge) Samuel Kent possibly avoid all jail time?

Thanks to law.com, everyone can access this terrific new piece from the Texas Lawyer, headlined "What's Next for Samuel Kent in Wake of Guilty Plea?".  Though many parts of the article might merit commentary, this passage discussing Kent's sentencing prospects really got my attention:

Three criminal defense lawyers say that Kent most likely will receive at least some prison time. "Lying to Congress, lying to a judge, lying to the 5th Circuit, lying to the FBI -- they're all serious obstruction charges," says Mike Uhl, a former federal prosecutor who is now a partner in Dallas' Fitzpatrick Hagood Smith & Uhl.  "I'll be surprised if he gets straight probation."

A look at the federal sentencing guidelines seems to indicate why Kent took a plea deal: It was the only chance he had at avoiding a lengthy prison sentence, Orwig says.  If a jury had convicted Kent of obstruction "then he's looking at 15 to 20 months" minimum in prison, Orwig says.  If he pleads and accepts responsibility, he's eligible for a federal sentencing guidelines reduction, putting Kent in range for a "split sentence" that would allow him to serve half of his sentence in alternative incarceration such as home confinement or a halfway house.

But Marlo P. Cadeddu of Dallas' Law Office of Marlo P. Cadeddu, who is an expert on federal sentencing issues, says there's a chance Kent could avoid prison.  To do so, Kent would have to request that Vinson depart from the federal sentencing guidelines and give him an additional two-level sentence reduction beyond what is contemplated in the plea agreement.  Kent could ask Vinson for a guideline departure on the ground his safety would be threatened in prison because he has sentenced thousands of criminals.

However Vinson may not want to give Kent a sentence he wouldn't give to someone who wasn't a federal judge who committed a similar crime. "They don't want it to look like he's getting a benefit that a regular person wouldn't get," Cadeddu says.

Am I the only one who feels that, in light of Kent's admission to repeated non-consensual sexual contact with his employees, it is problematic that one might work through the 3553(a) sentencing factors and still conclude "there's a chance Kent could avoid prison"?  Kent's sex offenses have to be relevant conduct in his obstruction crime, and that fact should take non-prison sentences off the table. 

As I indicated in my first post on this case, Kent already seems to be getting a huge break based on the fact that the feds were willing to accept a plea to just an obstruction charge and were willing to promise not to seek a sentence of more than three years in prison.  Given all of Kent's admitted criminal conduct and the serious harms to the victims of his conduct, I think the 3553(a) sentencing factors have to call for some prison time for Kent.  Indeed, given how tough sentencing has become for state and federal sex offenders, Kent should consider himself very lucky that he may be only looking at years rather than decades for his various crimes.

Related posts on the Kent proceedings:

March 2, 2009 at 10:21 AM | Permalink

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Comments

I also find it interesting that the article describes "15 to 20 months" as a "lengthy prison sentence". Of course, that is, in fact, a long time to be incarcerated (try it some time!). But I wonder if we would describe such a sentence as "lengthy" if it were given to some schlub for illegal reentry, or violating probation by filing false income tax returns, or accessory to health care fraud, rather than to a federal judge (for obstructing justice by lying about sexual assaults that he apparently admits committing). As Doug has been pointing out, Judge Kent and thousands like him give out much longer sentences like candy for crimes that are often comparable or less egregious than Judge Kent's.

Posted by: Observer | Mar 2, 2009 10:43:25 AM

This is the system you asked for and have gotten it. I would bet my mortgage (not a sub prime one either) that he doesn't serve any prison time. He will be in a halfway house at best. This is the time for older white males to commit crimes, especially sex crimes, and get out of jail free! You asked for discretion!

Posted by: Kelly | Mar 2, 2009 11:25:20 AM

Evey BOP inmate was sent to prison by a Federal Judge. This fact, and the security concerns that flow from this fact, will no doubt be a factor in Judge Vinson's decision whether to place Kent among those who may very well have a grudge against him or what he previously represented. To put Kent in prison will also be a tremendous burden to the BOP staff. Judge Vinson will have to consider these safety concerns as well as the fact that Kent has already lost a great deal (his job, his reputation) and may still lose more (his retirement, perhaps). Kent can in no way be considered to have gotten off easy if he avoids prison. Like so many others who have found themselves in federal court, he has lost a great deal merely by obtaining his status as a convicted felon.

Posted by: Steve | Mar 2, 2009 11:33:34 AM

Kelly, your lack of knowledge is showing. Many older white males are getting 5 or more years in federal prison simply for downloading the wrong dirty pictures off the internet and then not being able to get prosecutors to give them a sweet plea deal. And, if the federal prosecutors had struck a tougher plea bargain in this case --- as I think they should have --- Kent would be looking seriously at least that amount of time.

It is not judicial discretion that concerns me in the Kent case (yet), it is prosecutorial discretion. And, unlike judicial discretion, which is subject to appellate review, the decision to cut Kent a sweet deal here cannot be reviewed in any open forum. This is the "system" I have been complaining about for years: judicial discretion over-regulated, while prosecutorial discretion is under-regulated!

Posted by: Doug B. | Mar 2, 2009 12:02:45 PM

Looking at it the context of Miranda, why didn't he take the 5th? Why lie? A judge of all people should know better. Does it imply that most judges think someone who exercises their right to remain silent are guilty? Does it imply the pressure to avoid the appearance of guilt trumps the constitutional right even when speaking makes the government's job a slam dunk? If a judge can be so easily trumped, where does that leave everyone else? Maybe the fundemental implication is that the right to remain silent is merely a clause on a piece of paper.

Posted by: | Mar 2, 2009 12:03:29 PM

"Like so many others who have found themselves in federal court, he has lost a great deal merely by obtaining his status as a convicted felon."

Steve, I completely agree. And, for that reason and others, I think that a lot of the lengthy sentences handed down in federal court, especially for non-violent offenses, violate the parsimony provision of section 3553.

But I think the question being asked is whether, although these factors apply to all sorts of federal felons, they are being taken more seriously in this case, and if so, why.

The BOP security angle you suggest is one interesting potential reason, but it would seem to me that BOP could find a small, minimum-security unit somewhere for him. (I mean, I doubt some Jeffrey Skilling type is going to shiv him in the yard.)

Posted by: Observer | Mar 2, 2009 12:28:20 PM

This guy raped two women, and prosecutors accepted a deal of less than 3 years? people get obscene sentences for child porn or possession of crack cocaine, and they alow this guy to plea down to obstruction of justice? Would he even be required to register as a sex offender?

Posted by: E | Mar 2, 2009 2:14:31 PM

Let me start by saying I don't know what evidence the government had in this case. That being said, rape is often one of the hardest cases to prove, especially when there is no physical evidence. This could have been a case where it would boil down to his word against theirs. And there are severance issues to be considered, so both allegations of rape might not even have been tried at the same time. So the prosecutors got a plea to the charges they had good evidence on and also got a partial admission to the wrongfulness of his conduct towards the two women. He did not admit to rape. He did not admit to sex. He admitted to sexual contact. Assuming the federal definition of sexual contact is the same as the one in Ohio, what he admitted to would be called sexual imposition here, and is a misdemeanor. So for all the talk about a federal judge getting a deal too good to be true, it is quite possible that the deal is simply a reflection of a lack of evidence beyond the word of his accusers.

Posted by: Keith B. | Mar 2, 2009 4:29:59 PM

"Would he even be required to register as a sex offender?"

Corey over at Sex Crimes had a post on this a few days ago. IIRC, his conclusion was "yes" although it's debatable.

Posted by: Daniel | Mar 2, 2009 6:16:11 PM

E, he didn't "rape two women." Where did you get that?

Posted by: George | Mar 2, 2009 7:48:39 PM

Observer,

Typically, one might expect a defendant with Kent's background who has been convicted of obstruction to be housed in a minimum security prison. A minimum security prison has the lowest security level and Kent's designation to one would probably ease any concerns that BOP staff might have with respect to Kent's safety. In this case, however, the BOP would be required, in accordance with its own regulations, to consider Kent's sexual contact, which I assume is set out in the Statement of Facts, as a public safety factor and house Kent in a low-security facility, at the least. While such placement is not as risky as a medium or high-security facility, it might still create some safety concerns on the part of the BOP staff. I anticipate we will either hear these arguments at sentencing or at least read about them in the defense filings.

Posted by: Steve | Mar 2, 2009 9:15:25 PM

Doug, I know more than you think about these things. Using the Commission's data on their website, only 50% of pornography and tax offenders are sentenced within the guideline range, and the vast majority of the rest of the cases are sentenced below the guideline range. Given that most defendants in these areas are white males (again from the Commission's data). True, a lot of defendants are getting the five year pornography mandatory minimum, but there are many instances in cases that don't involve the mandatory, that defendants are getting probation.

Your lack of knowledge shows when you say that defendants are being convicted of child pornography for downloading the wrong pictures. The prosecution must prove intent and knowledge to get a conviction. By simply clicking on the wrong site will not get you a five year prison term. There are no instances of people having ONE picture being convicted federally, these defendants typically have hundreds of images. Hard to say it's a "mistake" in those instances.

Posted by: Kelly | Mar 3, 2009 10:09:24 AM

We are a strong faith Christian family and my twenty year old son got cut with looking at porn stuff. He never contacted anyone or intended to. Now I got an attorney and waiting to see what they find on his computer. He is so inacent and had never had any contact with any one. What is going to be his future

Posted by: Zolo | Nov 1, 2009 11:35:24 AM

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