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May 8, 2013

Feds and Jeff Skilling cut resentencing deal to fix new guideline range at 168 to 210 months

As had been previewed a public notice to victims from the Justice Department last month (noted here), federal prosecutors and former Enron CEO Jeff Skilling have reached a deal concerning unresolved matters before Skilling's resentencing. This Reuters article details the basics of this notable high-profile sentencing development:

Jeffrey Skilling, the former Enron Corp chief executive, could be freed from prison nearly a decade sooner than originally expected, under an agreement with federal prosecutors to end the last major legal battle over one of the biggest corporate frauds in U.S. history.

The agreement calls for Skilling to see his federal prison sentence reduced to as little as 14 years, down from the 24 years imposed in 2006. It could result in Skilling's freedom in late 2018, with good behavior.

In exchange, Skilling, 59, who has long maintained his innocence, agreed to stop appealing his conviction. The agreement would also allow more than $40 million seized from him to be freed up for distribution to Enron fraud victims.

A resentencing became necessary after a federal appeals court upheld Skilling's conviction but found the original sentence too harsh....  Wednesday's agreement, which is subject to court approval, recommends that Skilling be resentenced to between 14 and 17-1/2 years in prison, including time already spent there. Skilling has been in prison since December 2006.

A helpful readers forwarded to me the 7-page sentencing agreement, which can be downloaded below.  Here are the essential pieces of the deal:

The Government and the defendant agree that, based on the previous decisions of the Fifth Circuit with respect to proper calculation of the United States Sentencing Guidelines range and this Court's prior sentencing rulings on October 23, 2006, the United States Sentencing Guidelines provide that the defendant should be resentenced using an adjusted offense level of 36 and a criminal history category of I, resulting in an advisory guidelines range of 188 to 235 months of imprisonment.

For the reasons set forth below as "Relevant Considerations," the Government and the defendant agree to recommend jointly that the District Court apply a one-level downward variance and resentence the defendant using an adjusted offense level of 35, pursuant to the United States Sentencing Guidelines.  Given that the defendant is located in criminal history category I for resentencing purposes, the jointly recommended adjusted offense level will result in a jointly recommended guidelines range of 168 to 210 months of imprisonment.

Neither the Government nor the defendant will seek any variance or departure from the jointly recommended guidelines range.  The Government may allocute at sentencing, but the Government will not take a position regarding the particular sentence the District Court should impose within the jointly recommended guidelines range.

The defendant agrees to waive all potential challenges to his convictions and sentence, including a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, appeals, and collateral attacks, except as set forth [below]....

Neither the Government nor the defendant will appeal a sentence imposed within the jointly recommended guidelines range.  However, the Government and the defendant each reserve the right to appeal a sentence imposed outside this range.

Download Skilling Sentencing Agreement final.cfv

May 8, 2013 at 11:37 PM | Permalink


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So lets look at what the 2012 Guidelines manual has to say about this...

The base offense level would be six or seven. There should be at least a six level enhancement because there were more than 250 victims. This leaves us with a base offense level of 12. 36-12 is equal to 24. Under the economic losses that would mean a loss of between $50 million and $100 million.

I do not think this is all that bad a deal for the government (under the guidelines, I have some issue with those). One could probably argue that he deserved more but to get the case out of their hair it is not a bad deal.

Posted by: Daniel | May 9, 2013 12:22:12 AM

Congratulations to the government for insisting on and getting the strong form of the appeal waiver, to wit, a bar to ALL further challenges his convictions or sentence, including collateral attacks. This means no future claim of IAC, and no Lafler/Frye claim.

I'm delighted to see that my baby has grown up strong, and is being used by DOJ in a big, high profile case. Probably the most encouraging news, from my point of view, is that the Holder DOJ is prepared to keep using strong-form appeal waivers post-Lafler.

I might also note the Pyrrhic victory-quality of Skilling's Supreme Court case. Yes, he did win it, and yes, the result of his win is a 14 year (at least) sentence in a white collar case. May crooks like him always get such "wins."

Posted by: Bill Otis | May 9, 2013 8:46:17 AM

Hm -- this doesn't strike me as very comparable to the use of an appeal waiver in the typical sense, given that Skilling has already had a jury trial and full appeal of his convictions. And it's not even that strong with respect to the re-sentencing, since he can still appeal an upward variance by the court.

Posted by: Flashman | May 9, 2013 7:35:46 PM

Flashman --

But it waives all collateral attack post-Lafler, which is huge -- huge both that DOJ is trying it, and that the court is accepting it (if it does, which seems very likely).

It's a shrewd move by DOJ. They give up a few months in an individual case (while still getting a fat sentence for a white collar crime), and in return get to poke the appeal/collateral review waiver nose under the Lafler tent. That is smart long-term thinking for an institutional litigant.

Posted by: Bill Otis | May 9, 2013 10:06:34 PM

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