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July 6, 2014

Interesting account of guidelines accounting facing former NOLA mayor at upcoming federal sentencing

This lengthy local article, headlined "Emotions aside, Nagin sentence likely to come down to math," effectively reviews some of the guideline (and other) factors likely to impact the federal sentencing of former New Orleans mayor Ray Nagin this coming week.  Here are excerpts:

Under the rules, Nagin starts with a base “offense level” of 20 because he was an elected official who took multiple bribes but otherwise has no criminal history — facts that, with the jury verdict, are now undisputed.

The other major factors that will add points to his offense level include the financial “loss” the court assigns to his actions, the court’s judgment as to whether he was an “organizer or leader” in “criminal activity” that involved at least five people, and whether Nagin is found to have obstructed justice by lying to investigators and to the court.

There is some gray area in all of these questions. For instance, the monetary loss can be calculated to include not only bribes paid and received, but also the proceeds of any contracts that resulted from bribes. At a minimum, however, Berrigan will almost certainly find that the loss was greater than $200,000, as the jury convicted Nagin of taking more than that amount in bribes. That would bring his offense level to 32, but it could go significantly higher depending on whether Berrigan decides to include the profits of some or all of the contracts Nagin signed....

Experts say the question of financial loss is among the thorniest in calculating guidelines. The amount of bribes paid is an imperfect measure, for contracts awarded on the basis of bribes are presumed to be inflated to cover the cost of the payoffs. At the same time, the contractor usually completes the work outlined in the contract, making it unfair to count the entire value of the contract as a loss. In Nagin’s trial, the government did not present evidence to show that those who bribed Nagin failed to perform....

Other questions are similarly nuanced. If Berrigan finds Nagin obstructed justice by lying to investigators and to the jury, as prosecutors say he did on more than 25 occasions, the offense level would jump another two points. And if she finds he took a leadership role in a scheme involving five or more people, that would add as many as four more points. Though it’s clear that Nagin’s criminal conduct involved more than five people, experts say there may be wiggle room in that question, too....

Depending on how the judge rules on those questions, Nagin’s final offense level could be as low as 32, or as high as 40 or more. Based on those numbers, the guidelines would call for a sentence ranging from 10 years at the low end to as much as 30 years or even life. A filing by Nagin’s lawyer, Robert Jenkins, suggests that probation officers came up with an offense level of 38, which translates to a range of 20 to 24 years.

Jenkins asked Berrigan to consider a downward departure from that figure based on Nagin’s lack of a criminal history and an argument that the crimes of which he was convicted constituted “aberrant” behavior for an otherwise upstanding citizen. But prosecutor Matt Coman argued in an opposing motion that the guidelines already take into account the mayor’s unblemished past, which they do. Meanwhile, Coman said it was laughable to consider Nagin’s criminal conduct as an aberration, considering that he was convicted of multiple bribery and fraud schemes that unfolded over a period of years....

Apart from applying her own analysis of the guidelines, Berrigan also has some ability to go outside the recommended range, experts said. She could grant a “downward variance” on some basis she deems appropriate, provided that she explains it and the variance is not too great. Federal law spells out a number of factors a judge may consider, from the need to protect the public from further crimes to the deterrent effect of the sentence.

July 6, 2014 at 11:53 PM | Permalink

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Comments

Shouldn't a crime cause a harm? Can a crime cause a benefit? If it does, doesn't that benefit represent one of the rarest mitigating factors. If the benefit is great enough, should the government be forced to compensate the defendant for it?

Example, the contract is below market cost, the government actually owes the defendant a bonus for his sharp dealing.

And as to aggravation for lying to the government, 1) violates the Fifth Amendment; 2) possible true only after government no longer allowed to lie to the public and to the defendant, as in an undercover agent tries to bribe the official; 3) demand the list of the lies uttered by the prosecutor to past defendants. This government has no legitimacy, except at the point of a gun, and most of its crimes are made up, fictitious crimes designed to go after the assets of productive males. As such, defendants have a duty to mislead it, and to resist the onslaught of the vile feminist lawyer and its male running dogs.

About this judge without self evident comment.

Ashton R. O'Dwyer, Jr. January 27, 2014 at 9:49 pm

I have NOTHING to say “good” about Helen “Ginger” Berrigan. When I was practicing law, she was always an unpredictable “pain” to admiralty and maritime lawyers, who were used to “the Rules being followed”. Berrigan made her own Rules, and didn’t follow them from case to case. She FUCKED me “royally” in my civil rights case arising out of the abduction, brutalization, torture and false imprisonment by State actors following KATRINA. If I had been a NEGRO pimp or drug addict things may have been different, because Berrigan has NEVER met a Negro she didn’t like. Then, to add insult to injury, she filed the Disciplinary Complaint against me, which resulted in my disbarment in Federal Court. Only “problem”, SHE DIDN’T READ THE COMPLAINT (which I aver was drafted by Duval or his wife/clerk) before she signed and filed it, OR SHE WOULDN’T HAVE SIGNED AND FILED IT, so replete with falsehoods was it. This treachery, which she was a willing participant in will all be revealed in “the Book”, which remains a work in progress. Bottom line: She is UNBELIEVABLY OVERRATED and will bend over backwards to cut Nagin “slack” that he doesn’t deserve, so her “legacy” in the Negro Community will remain intact. Ashton O’Dwyer.
- See more at: http://slabbed.org/2014/01/27/judge-berrigan-bans-electronic-devices-from-nagin-courtroom/#comments

Posted by: Supremacy Claus | Jul 7, 2014 12:14:41 AM

Ouch a Roo, Supremacy. This pretty much explains your contempt for Legal Beagles .

Cant say I blame you much. A Federal judge is about as clise to God Like as we can get to om this planet.

Discounting Generals, and President of USA, they have a ton of power.

Posted by: Midwest Guy | Jul 7, 2014 11:37:54 PM

When the lash makes a come back, judges will be first, especially appellate judges, then legislators. These internal traitors are not even human. They should not be killed because that would just make their replacements happy, and there is no end to the replacements. They need the lash. To deter.

Posted by: Supremacy Claus | Jul 8, 2014 2:33:47 AM

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