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December 7, 2011

"Ex-Gov. Rod Blagojevich sentenced to 14 years"

The title of this post is the headline of this local story reporting on the outcome of the highest-profile federal sentencing proceeding in recent months.  Here is how the piece starts:

Disgraced former Gov. Rod Blagojevich was sentenced Wednesday to 14 years in prison after he made a final plea for leniency, acknowledging his guilt and saying, “I am unbelievably sorry.”

“I believe he did, in fact, accept [responsibility],” U.S. District Judge James Zagel said in announcing how long Blagojevich should spend in prison after being convicted of 18 corruption charges that included attempting to sell or trade an appointment to fill the U.S. Senate seat left vacant by the election of President Barack Obama.

But the judge said the entire state suffered from his actions.  “When it is the governor who goes bad, the fabric of Illinois is torn and disfigured and not easily or quickly repaired,” Zagel said.  “You did that damage.”

Blagojevich slightly sunk his head after the sentence was read.  Wife Patti put her hand up to her mouth, but did not cry, as she has done in previous hearings.  Blagojevich walked up to her and asked, “You OK? Stay strong.”  After court was over, the two embraced in the courtroom and she buried her head in his chest.

Blagojevich will have to surrender Feb. 16.  Under federal sentencing rules, Blagojevich will have to serve 85 percent of his sentence, or just under 12 years in prison, at a minimum.  The ex-governor turns 55 on Saturday.

In deciding the sentence, the judge said he had given credit to Blagojevich for accepting responsibility for his crimes in remarks made Wednesday morning.  “It’s clear he is not blaming” the people around him, said Zagel, adding that he also gave Blagojevich credit for his work on behalf of children while governor in creating the state’s All Kids health-care program.

Referring to comments from Blagojevich’s lawyers in asking for a sentence of no more than 3½ years, Zagel said:  “I don’t doubt his devotion to children, but this is not ... exceptional, in my own experience.  I see case after case where good fathers are bad citizens.  There is no question that the innocent children of felons suffer.  This is tragic, but, as he admits, the fault of this lies with the defendant alone.  Now, it is too late.  “If it is any consolation to his children, he does not stand convicted of being a bad father.”

But Zagel noted the damage caused by Blagojevich “is not measured in the value of money and property.  The harm is the erosion of the public trust in government; [people’s] confidence in and trust in government.”

UPDATEThis press release from the US Attorney's Office for the Northern District of Illinois provides a bit of (curious?) explanation for the application of the guidelines by Judge Zagel:

During the sentencing hearing, Judge Zagel agreed with the government that the properly calculated advisory federal sentencing guidelines provided for a sentencing range of 30 years to life.  He also agreed with the government that the range was not appropriate within the context of this case, and found an “effective” guideline range of 188 to 235 months in prison, which was proximate to the government’s recommended sentence of 15 to 20 years.  The judge further reduced the range to 151 to 188 months after finding that Blagojevich accepted responsibility for his crimes at sentencing.

I hope through future media coverage of this case that I come to better understand just how and why Judge Zagel "agreed with the government that the [30 year to life calculated guideline] range was not appropriate within the context of this case, and found an 'effective' guideline range of 188 to 235 months in prison."   Specifically, I wonder (1) if Judge Zagel formally justified this decision on a "traditional" departure ground or on 3553(a) variance concepts (or both), and (2) just how Judge Zagel decided to move down six offense levels on the USSG Sentencing Table in order to settle on the range of 151 to 188 months.  

I also find notable and interesting that, after giving Blago this six-level downward adjustment under the guidelines AND giving him an extra two-point reduction by giving him (surprising?) credit for acceptance of responsibility, Judge Zagel than decided he should give Blago a sentence in the middle of the then-applicable guideline range.  (For those of you math-challenged like me, I used a calculator to figure out that a 14-year sentence equals 168 months.)

December 7, 2011 at 03:11 PM | Permalink

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One good effect of a tough penalty: deterrence.

"...[E]very law enforcement officer with whom I have ever spoken—not every one but the overwhelming majority of them—believes that capital punishment is a definite and distinct deterrent of murder."---F.D.R.

www.presidency.ucsb.edu

Posted by: Adamakis | Dec 7, 2011 4:21:16 PM

So the judge ruled that the PSR got the Guidelines calculation wrong? If Probation can't properly calculate the Guidelines then how can anyone else anticipate their Guidelines sentence (except to anticipate that the judge will adopt whatever the AUSA argues). More evidence that the prior post about the failings of the Guidelines is correct.

Further, assuming that Blagojevich is a Criminal History I, to get a Guidelines range of 30 to life his offense level must get up to 42. That is the same offense level he would get for murder. The guy is a corrupt slimeball, but something is wrong when the Guidelines program spits out that he substantially similar to a murderer.

Posted by: Paul | Dec 7, 2011 4:37:14 PM

Paul, you nailed it....Interesting how he got 2 levels for acceptance, when he went to trial, then mouthed off...Also the other levels, just kind of fell off..

I have never seen a drug case go this way.. Its always upward we go, lets enhace the sentence...
Judge Camp is the worst case I have ever seen.... Oh well, close enough for government work..

Posted by: Abe | Dec 7, 2011 4:47:25 PM

Abe, I agree that giving Blagojevich credit for acceptance of responsibility makes no sense. Pleading guilty does not guarantee acceptance of responsibility. Defendants can lose acceptance of responsibility for pleading after the AUSA has been forced to work, for demanding Brady material and for disputing the AUSA's guidelines calculation. Blagojevich has spent years proclaiming his innocence on Survivor, Celebrity Apprentice and whatever media outlet would broadcast him. He testified he didn't do it, and the jury rejected his testimony. I suppose the media coverage on this may have not reflected reality, but on the surface it makes no sense.

Posted by: Paul | Dec 7, 2011 5:22:16 PM

Unbelievable that the judge reduced his sentence because of a program he signed into law. That is simply unacceptable.

Posted by: federalist | Dec 7, 2011 6:08:14 PM

I was following a live Twitter feed of the sentencing, and according to the tweets, Blago's apology was pretty complete and unexpected. He apologized to the people of Illinois, to the judge, to his brother for getting him mixed up in the case, to his family, but most surprisingly to the prosecutors, specifically for treating the case like a "boxing match" and going on TV to challenge them, when he knew that they couldn't respond in kind. I think Judge Zagel gave him acceptance points because of the kind of apology he gave today.

Paul - I find it hard to believe that a judge would deny acceptance points for demanding Brady material. As for disputing a guidelines calculation, it depends. If it is a legal dispute about whether a particular guideline applies, then that shouldn't affect acceptance. But if is a factual dispute, such as an enhancement for possessing a gun during a bank robbery, then yeah, that's not accepting responsibility for the full circumstances of the offense...especially if the government now has to call the victim teller at the sentencing hearing to prove that the bank robber had a gun.

Back to Blago - I predicted 12 years, just a little higher than Rezko's sentence. Judge Zagel, however, made a great record listing his reasons for the sentence.

Posted by: domino | Dec 7, 2011 9:35:41 PM

By my research, this is the heaviest criminal sentence ever given to a governor. Was Blago really the very worst?

Posted by: P. S. Ruckman, Jr. | Dec 8, 2011 9:37:24 AM

P. S. Ruckman,

No, the worst avoided sentencing altogether by keeping their political machines intact. You never have to pay the piper if you're the one calling the tune.

As for the sentence, while I do find it somewhat odd to give acceptance credit for a last minute apology and additional credit for a law signed as part of the governor's official duties (I would only give such credit for tasks undertaken outside of any employment role and likely only if the offender managed to completely compartmentalize their clean acts from dirty) I do think 14 years lies within a reasonable zone for the charges. Certainly far more so than the sentence the defense offered up.

Paul,

On the issue of acceptance of responsibility, are you sure you aren't conflating the two level departure for AOR with the additional one level departure that is available for letting the government avoid preparing? I would certainly understand not awarding the third point in the situations you named but would be surprised if they were enough to keep from giving the basic 2 level reduction.

Posted by: Soronel Haetir | Dec 8, 2011 1:55:24 PM

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