Sentencing Law and Policy

Military man gets break at federal sentencing

Regular readers know that I support giving defendants credit for prior good works at sentencing, in part because they always gets discredit for prior bad works in the form of criminal history enhancements.  For this reason, I found this local federal sentencing story, headlined "Decorated veteran gets a break at sentencing," quite interesting.  Here are details:

By all accounts, Timothy Pentaleri made quite an impression as a major in the Army Reserves. He apparently made an impression on U.S. District Judge Paul Magnuson, too.   Magnuson decided Wednesday that the decorated veteran deserved a sizable break on his sentence for attempting to kidnap his ex-girlfriend last June at the Minneapolis-St. Paul International Airport.

Pentaleri, 43, of Belleville, Ill., pleaded guilty in December with the understanding that sentencing guidelines suggest a prison term of 7¼ to 9 years.  He waived any appeals, providing the sentence didn't exceed that period.  Assistant U.S. Attorney Erica MacDonald argued that although the guidelines are advisory, they are presumptively reasonable, so Pentaleri should be sentenced accordingly.  But defense attorney Joseph Tamburino argued that his client deserved recognition for his distinguished 22-year military career, genuine remorse, lack of a criminal record, and strong support from family, friends and colleagues.

Military records and letters from supporters describe Pentaleri as one of the top majors in his brigade, "a diplomatic genius" who served in Iraq, Afghanistan and Pakistan.  He was commended for saving the government millions of dollars in port fees by reducing shipping times to Iraq. The Army awarded him a Bronze Star in 2006....

Magnuson credited police and other law enforcement for averting a tragedy. He shaved 15 months from the bottom of Pentaleri's recommended prison term, ordering him to spend six years in prison followed by three years of supervised release.

A new batch of USSC data

The US Sentencing Commission has a new batch of post-Booker sentencing data on its website.  This new data, available here, is the "FY2008 1st Quarterly Sentencing Update," which provides an "extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2008.  The numbers are prepared using data from cases in which the defendant was sentenced by the close-of-business on December 31, 2007 and which were received, coded, and edited by the Commission by March 27, 2008."

Based on a very quick overview, it appear that the data show that well-established post-Booker trends, which have most sentences still coming within the guidelines, persisted through the end of 2007.  But, because the pro-discretion SCOTUS decisions in Gall and Kimbrough were handed down in mid-December, this latest data set does not really reflect the impact of these important rulings.  (The data set to really watch will be the next batch to come from the USSC, which will show whether Gall and Kimbrough changed any of the now long-standing post-Booker realities.)

Federal district judges say the darndest things

For proof that federal district judges cannot do just anything they want at sentencing after Booker, check out the opinion of the Eighth Circuit today in US v. Wysong, No. 07-1025 (8th Cir. Feb. 5, 2008) (available here).  Here is how the brief opinion starts:

Cinthia Wysong pled guilty to one count of possession of pseudoephedrine, knowing or having reasonable cause to believe that the chemical would be used to manufacture a controlled substance, in violation of 21 U.S.C. § 841(c)(2).  At sentencing, the district court varied downward from the advisory guidelines range of 46-57 months to a term of 24 months’ imprisonment, and then suspended the 24- month sentence.  Because federal courts are not authorized by statute to suspend sentences, we reverse and remand for resentencing.

Poetic sentencing justice thanks to Wal-Mart

As first discussed here, the re-sentencing of former Wal-Mart vice chairman Tom Coughlin resulted in an interesting and important post-Gall opinion from U.S. District Judge Robert Dawson.  The full 30-page opinion (available here) merits a close read, and I wanted to highlight this lengthy poetic paragraph at the very end of the opinion:

[T]he Court notes that there has been considerable debate of late concerning the sentencings of criminal defendants such as Gall and Coughlin and the role of the Guidelines in those sentencings. The goal is to reconcile a congressional desire to achieve some semblance of national uniformity in sentencing with a conflicting desire to maintain the discretion of sentencing judges, while not infringing upon the Sixth Amendment right to have jurors decide certain sentencing facts. The debate percolates from the deepest foundations of the criminal justice system, holds its principles to light and inquires into the nature and desirability of forms and degrees of punishment.  That vigorous debate, played out in media and in courts, evidences the nation’s desire for criminal courts that are powerful in their imposition of punishment but not prideful in their formulation of sentences, effective in their determent of crime but not cruel in their measure of retribution, firm enough to apply the forceful hand of the law but merciful enough not to raise the specter of tyranny.  It is the struggle towards that goal that makes the American criminal justice system one of the greatest achievements of this nation’s social evolution and ingenuity. Punishment is imposed parsimoniously and with respectful consideration for the individuality of each peculiar defendant.  A court that mechanically doles out precalculated sentences on a wholesale basis to categories of faceless defendants fails to do justice. A court that succumbs to apathy, bred by repetition, will cease to see defendants as individuals, with pasts and potentials, with humanity and promise.  “It is a terrible business to mark a man out for the vengeance of men,” and “the terrible thing about legal officials . . . is simply that they have gotten used to it.” Gilbert Keith Chesterton, Tremendous Trifles 54-55 (BiblioBazar, LLC 2006) (1909). “[T]he more a man looks at a thing, the less he can see it,” so that “they do not see the prisoner in the dock; all they see is the usual man in the usual place.  They do not see the awful court of judgment; they only see their own workshop.”  Id. at 55.

Another Wal-mart (sentencing) discount for former executive

This article discussing a high-profile federal sentencing in Arkansas provides yet another example of the impact of the Supreme Court's Gall decision on current federal sentencing realities.  Here are some highlights:

A federal court judge Friday gave former Wal-Mart vice chairman Tom Coughlin nearly the same sentence he gave him in August 2006.

After a three-hour sentencing hearing Friday, U.S. District Judge Robert Dawson again sentenced Coughlin to five years of probation and 27 months of home detention with an electronic monitoring device. Added to Coughlin’s sentence Friday was 1, 500 hours of community service....

Coughlin, 58, pleaded guilty in January 2006 to wire fraud and tax evasion, admitting he stole gift cards and equipment from the world’s largest retailer. He also falsified vouchers and invoices in order to pocket the cash.... In giving Coughlin home detention and probation, Dawson departed from federal sentencing guidelines that called for Coughlin to be sentenced to 27 to 33 months in prison.

The government said it asked for prison time for Coughlin because of the severity of the crimes and his abuse of his position of trust in the company. “We believe this was a case that needed prison time,” Assistant U. S. Attorney Christopher Plumlee said after Friday’s proceedings. He said discussions would be held in the Justice Department before the government decides whether to appeal Dawson’s sentence again.

The government appealed Dawson’s original sentence to the 8th Circuit Court of Appeals, which overturned the sentence and sent it back to Dawson for resentencing. Dawson said he declined to send Coughlin to prison because he had no previous criminal record, because Coughlin had a record of community service, and because of the former executive’s public fall from his position in life and the effect it had on him and his family.  Prison would threaten the life of a nonviolent offender, the judge said. Dawson said he believed the sentence “punished the defendant sufficiently but not greater than necessary.”...

Dawson’s original sentence of Coughlin was overturned and remanded in August by the 8th Circuit because his departure from sentencing guidelines did not “fall within the range of reasonableness.” The U.S. Supreme Court, in Gall v. U.S. in December, ruled that appeals courts erred in failing to give district judges leeway in sentencing.  Dawson wrote in a 30-page sentencing memorandum he made public Friday that the Gall case also found the appeals courts erred in requiring extraordinary circumstances to support substantial variations from the sentencing guidelines. Dawson wrote that his sentencing memorandum was a discussion of the impact of the Gall ruling on Coughlin’s case and his justification for departing from the sentencing guidelines in Coughlin’s sentence.

I will post Judge Dawson's new sentencing memorandum as soon as I track down a copy.

UPDATE:  A friendly reader sent me a copy of the opinion, which is a great read (even though my last name is spelled wrong in the second footnote):

Download walmart_sentencing_memorandum.pdf

Feds saying harm to reputation justifies a below-guideline sentence for Bill Lerach

As detailed in this New York Sun article and this WSJ Law Blog post, federal prosecutors "are seeking a two-year prison term for one of the nation's most successful class-action attorneys, William Lerach."  The Sun article explains why this is notable:

Prosecutors said federal guidelines call for a sentence somewhat longer than 24 months, but that the term would be sufficient for Lerach in light of the harm done to his reputation.... Lerach "stands in disgrace before the profession of which he considered himself a national leader," prosecutors said. They did give Lerach credit for coming forward on his own initiative with an offer to plead guilty and for having no direct involvement in the alleged conspiracy "for a considerable time."

Lerach's defense team has also weighed in on the sentence and is presumably seeking the minimum prison term under the plea agreement, 12 months.  However, the defense's precise position is unknown because it has asked that all its papers relating to sentencing, including letters testifying to Lerach's character, be placed under seal.

This news make this case the rare (first?) post-Booker high-profile sentencing setting, at least that I can recall, in which the government is urging a below-guideline sentence for reasons other than cooperation with authorities.  Of course, the government is hardly being a softie here.  As detailed in this WSJ post, the government's sentencing advice may be mandated by the terms of the plea agreement and is still tougher than what Lerach's PSR recommends:

The plea agreement calls for a one to two-year sentence. Within that range, exactly how much is just right is now a source of debate within the federal government.  The U.S. Probation Office has recommended 15 months, but in a court filing yesterday prosecutors asked for two years. Los Angeles federal Judge John Walter is due to sentence the famed securities litigator a week from Monday.  A mere 15 months, prosecutors argue, “does not adequately promote respect for the law, nor does it provide just punishment.”

Two great sentencing opinions from the true heartland

I am pleased this afternoon to spotlight two strong recent sentencing opinions from Chief District Judge Joseph Bataillon in US v. Baird and US v. McCormick.  This summary of Baird comes from a helpful reader:

I don't think you have already posted this case on your cite, but there's a great discussion of Kimbrough and the sentencing guidelines in Judge Bataillon's decision in US v. Baird, No. 8:07CR204, 2008 WL 151258, 2008 U.S. Dist. LEXIS 2338 (D. Neb. Jan. 11, 2008). I believe it is one of the most informative and developed discussions of Kimbrough since the decision came out last month.  In reference to the sentencing guidelines for child-exploitation offenses, Judge Bataillon observes that those guidelines were not developed under an empirical approach, and accordingly he "affords them less deference than it would to empirically-grounded guidelines."

Helpfully, today's McCormick opinion, US v. McCormick, No. 8:04CR218 (D. Neb. Jan. 29, 2008) (available for download below) covers similar post-Gall/Kimbrough ground in the third sentencing experience for the defendant.  The defendant in McCormick was initialy sentences before Booker, then resentenced (to a lower term) between Booker and Gall, but had to be resentenced yet again because the Eighth Circuit had reversed the second sentence.  Particulars aside, as the reader quote above highlights, Judge Bataillon does a strong job describing the current state of federal sentencing law at pp. 7-14 of the McCormick opinion.

Download mccormick_opinion.pdf

Backdating CEO gets 21 months

As detailed in this Bloomberg report, former Brocade Communications CEO "Gregory Reyes, the first CEO convicted by a jury for stock options manipulation, was sentenced to 21 months in prison and ordered to pay a $15 million fine."  Here are more details:

The sentence today by U.S. District Judge Charles Breyer in San Francisco was less than the 24-to-30 month term he said was the maximum under law and the 33-month term prosecutors sought. The judge said he took into account Reyes's contributions to charity in giving the lesser sentence.  The case was about "the failure of a CEO of a publicly traded company to honestly disclose financial information,'' Breyer said.  "It is about lying to his company.''...

Reyes wept as he read a statement to Breyer apologizing for his conduct.  "I'm sorry,'' he said.  "There is much that I regret.  If I could turn back the clock, I would.  There are many things I would do differently.''

Reyes's lawyers asked for a sentence of no more than nine months in a halfway house followed by four months of home confinement with no restitution, according to court filings.  They said a stiffer punishment was unwarranted because Reyes hadn't personally profited from backdated stock options, investors didn't suffer losses and his reputation and family have already been damaged by his legal battles.

During the hearing, Breyer said Reyes deserved more than the minimum sentence because he obstructed justice when he said in a declaration that he didn't backdate options. In sentencing Reyes to less than the maximum, the judge said he was struck by praise given Reyes in 400 letters submitted by his supporters.  "Before this incident occurred, he acted in a way with respect to others, to help the less advantaged people,'' Breyer said.

In response to this press account, I cannot resist wondering whose idea was to have Reyes's statement talk about turning back the clock.  Isn't that just what got him into trouble in the first place?

Jose Padilla sentencing hearing this week

As detailed in this article from the South Florida Sun-Sentinel, a high-profile sentencing hearing begins this week in a Florida federal district court.  Here are the basics:

Since his arrest in May 2002, Jose Padilla has been locked in a military brig without charges, harshly interrogated and, finally, tried and convicted for supporting terrorism.  This week, a Miami federal judge will decide whether the former Broward resident prosecutors call a "trained al-Qaida killer" and defense lawyers describe as an "impressionable Muslim convert" should ever walk free again....

Padilla, 37, Adham Amin Hassoun, 45, and Kifah Wael Jayyousi, 46, were convicted Aug. 16 of three charges in one of the most high profile terrorism trials since the Sept. 11, 2001, attacks.  Federal guidelines recommend a term of 30 years to life for Padilla and life for Hassoun and Jayyousi.  However, [U.S. District Judge Marcia] Cooke is free to deviate from those guidelines and impose virtually any sentences, which is why a bitter court fight is expected.  The sentencing hearing, which begins Tuesday, could last several days because of numerous disputes, including some related to Padilla's 3 1/2-year detention at a South Carolina Navy brig.

Is probation a fitting sentence for backdating convictions?

In this piece in the Wall Street Journal, Holman Jenkins makes the case for a lenient sentence for Gregory Reyes, who is today scheduled to be sentenced on 10 felony convictions related to options backdating at Brocade Communications.  Here is the pitch:

Mr. Reyes didn't benefit from backdating; he didn't have any discernible motive to overpay his underlings who did.... Mr. Reyes's story is not different from those of hundreds of executives who have not been charged and probably never will be charged, including Apple's Steve Jobs. Mr. Reyes's case featured all the ordinary lineaments of backdating, however, plus one: a claim that he conspired with Brocade's human resources department to keep its finance department "in the dark" about the use of so-called lookbacks to price employee options....

As the National Law Journal notes with exemplary precision, "Stock-options backdating is not illegal. It is the failure to properly account for backdating as an expense to the company that got so many in trouble."...

Punishment should fit the crime; dozens of executives have lost jobs over backdating; a few have been asked to disgorge money and sign regulatory settlements that don't require acknowledgment of wrongdoing. Even the trial lawyers have been unable to make a meal out of this scandal, thanks to an absence of demonstrable shareholder harm.

The great flaw in the Reyes prosecution, which was the first of its kind, was the prosecution's attempt to fulfill the media image of backdating, rather than focusing on the venial offense it was.  The government has suggested Mr. Reyes should face 10-20 years.  Judge Charles Breyer, in a recommendation recently unsealed, proposed 15-21 months.  Some law bloggers think it not impossible Mr. Reyes will receive a suspended sentence.

Let's hope so. Because unless we plan to send Steve Jobs and a hundred other executives to jail for backdating, it would be grossly disproportionate to inflict jail on Mr. Reyes.

I am not one of the "law bloggers" referenced in this post, and I am not sure there really is anything that can or should be called a "suspended sentence" under federal sentencing law.  That said, I think this pitch is for a sentence of probation or maybe a very brief confinement term that could be satisfied entirely through home confinement.

Given the various intriguing dimensions of this particular case and white-collar sentencing more broadly, I wonder if readers agree that proportionate justice for Reyes means no prison time at all.  Here are some questions to ponder in this context: Does the fact that DOJ apparently believes that justice demands decades in prison for Reyes a significant consideration in your analysis?  Does the fact that the guidelines suggest more than a year in prison for Reyes a significant consideration in your analysis?   Does the fact that the recent Gall decision calls probation a significant restriction on liberty a significant consideration in your analysis?

With this high-profile sentencing only hours away, I am eager to read both predictions and recommendations in the comments.

UPDATE:  According to this Reuters article, the sentencing of Reyes was postponed today.  The article explains that today "Judge Charles Breyer of U.S. District Court in San Francisco unsealed Reyes' pretrial statements after prosecutors said they needed them to prepare for Reyes' sentencing, which was postponed from Wednesday to an undetermined date."

One (of many) tough questions after Gall and Kimbrough

As I have noted, Gall and Kimbrough leave plenty of questions to consider (and reconsider) in lower courts now that we know the guidelines are really, truly advisory.  Today's New York Sun has this great piece, headlined "Guns Case Is a Test Of Discretion," spotlighting a case that presents one of these questions.  Here is how it starts:

A gun trafficking case out of Brooklyn is emerging as the next test over how much discretion federal judges have in setting prison sentences. 

In two decisions this week, the U.S. Supreme Court offered judges greater leeway in deciding for how long to put criminals away. Neither case addressed the vexing question of whether more time can be tacked on just because the crime occurred someplace urban such as New York City, where the chances seem higher that innocent bystanders will be hurt any time a crime is committed. In other words, if judges are now more free to consider penitence, what then of population density?

That question is already at the center of a legal tug of war over how much prison time an elderly diabetic, Gerard Cavera, will receive for trafficking firearms. The judge in the case, Charles Sifton of U.S. District Court in Brooklyn, has sought to stick Cavera with a longer sentence than even the prosecutors sought.  The judge argues that guns are generally more damaging in New York City than other areas.

Related posts about Cavera and "local conditions" as a sentencing factor:

• Fascinating Second Circuit case reversing above-guideline sentence
• Making sense of the Second Circuit's second thoughts on Booker

Should the Vick and Black sentencings be postponed so the judges and lawyers can review Gall and Kimbrough?

If I were representing either Conrad Black or Michael Vick, I think I would ask for sentencing to be postponed, at least for a few days, so everyone can review and assess what Gall and Kimbrough might mean for their cases.  For a variety of reasons, I somewhat doubt that these sentencing proceedings will be postponed, but I am interested to hear if readers think that they should be.

UPDATE: Vick already has been sentenced, and to 23 months.  Basics from the AJC here.

Padilla sentencing hearing rescheduled

As this AP report details, the upcoming sentencing for Jose Padilla looks like it could be real interesting.  But, as the report also details, the sentencing hearing that had been slated to start this week now has been pushed back to January.

Should "lack of remorse" justify a higher sentence?

This piece from the Canadian Press provides the latest news in the run-up to next week's sentencing of Conrad Black.  Here are some details:

Conrad Black's lack of remorse following his conviction for fraud and obstruction of justice should be factored into next week's sentencing and possibly result in a harsher punishment, U.S. prosecutors said. "To this day, Black maintains his offences of conviction were 'rubbish' and 'nonsense,' and that the criminal justice system is 'essentially a substitute for a wealth-redistribution policy,"' lead prosecutor Eric Sussman said in a court filing late Monday....

Prosecutors said the judge should consider specific comments made in Men's Vogue and BBC Radio - where just last week Black said spending any time behind bars would "compound the injustice" of his criminal trial....

James Morton, president of the Ontario Bar Association, said he believed Judge Amy St. Eve "will be too smart to get really annoyed" on Black's comments, but cautioned making such statements "doesn't sing well."

Most participants and observers of sentencing realities will say that true remorse generally should, and typically will, mitigate an offender's punishment.  But there is more debate over whether a distinct lack of remorse ought to be an aggravating sentencing factor.

Also lurking in the Black sentencing are interesting post-Booker ex post facto issues.  The Seventh Circuit has held that, after Booker, courts should apply the most recent guidelines, but Black's lawyers seems to be fighting the application of harsher guidelines that post-date his criminal activity.

Latest, greatest, post-Rita sentencing statistics

I am pleased to see on the US Sentencing Commission's Booker webpage that the USSC has released its latest quarterly data analysis.  Here is the current description with a link:

FY2007 4th Quarterly Sentencing Update:  An extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2007.  The numbers are prepared using data sentenced by close-of-business on June 30, 2007 and received, coded, and edited by the Commission by November 28, 2007.

(I believe the June 30 reference is a typo, because the underlying data report runs through Sept. 30, 2007.)

This latest data run is interesting in part because the latest quarter reflects the post-Rita universe in the district courts.  Rita was decided on June 21, 2007 and so all the sentencings in the period from July 1 to Sept. 30 were handed down after Rita.  It is also interesting because this last quarter also reflects a period in which the USSC's lowered crack guidelines were still just proposals (not to become effective until November 1, 2007.)

Though most of the data presented in this latest data run are cumulative data for the full fiscal year, Figures A and B seem to reveal that the number of within-guideline sentences went UP after Rita.  However, set in a broader context, the data spotlight (a) the remarkable stability to be found in the post-Booker federal system, and (b) that changes by the US Sentencing Commission to particular guidelines may have the greatest predictable impact on sentencing outcomes.

Needless to say, as my recent article suggests in its title, Rita, Reasoned Sentencing, and Resistance to Change, I am not surprised than not much has changed since Rita.

A profile of Judge Gertner's sentencing courage

Boston Globe columnist Derrick Jackson has this new column entitled "A judge asks the tough questions" discussing Judge Nancy Gertner's decision to give a sentencing break to a defendant who pled guilty to selling small amounts of crack cocaine (basics here).  Here is how it starts:

US District Judge Nancy Gertner joked that she worried about a headline that could have read, "Limousine liberal lets crack dealer off." This was for setting free 37-year-old Myles Haynes last week after 13 months in jail for selling a small amount of crack cocaine in a Boston housing project.

Under federal sentencing guidelines, Gertner could have continued his sentence for another two or so years.  She decided that, with Haynes having children, not being a chronic offender, and having a reasonable enough track record of trying to serve in the military and find gainful employment, it was more important to give him a chance to be a contributing member of his family and society.  Gertner told Haynes from the bench, "When I see your son, I think that public safety requires that you be with your son so that he doesn't follow in your footsteps."

Public sanity requires following in Gertner's footsteps.

Long sentences for a midwestern variation on a modern Rodney King episode

A helpful reader sent me news of this notable federal sentencing story from Wisconsin:

Three fired Milwaukee police officers were sentenced to lengthy federal prison terms today for the beating of Frank Jude Jr. Jon Bartlett, was sentenced to 17 years and four months. Daniel Masarik and Andrew Spengler were each sentenced to more than 15 years....

Bartlett said he had been overwhelmed by everything that had happened since the October 2004 beating and was afraid for his future in explaining his subsequent actions of phoning in bomb threats and trying to buy firearms and ammunition. While he said he accepts responsibility for his actions, he continued to deny that he shoved a pen into Jude's ear. He said he's lost his house, his cars, his motorcycles, his pet, every material object in his life and has been divorced by his wife.  He said that the time he has spent in jail he used to examine his life and has found God and reconnected with his family.....

Bartlett, 36, Masarik, 27, and Spengler, 28, were convicted after a nearly three-week trial in July of conspiring to violate the civil rights of Jude and his friend Harris and of assaulting Jude while acting as officers.  The assaults happened outside an off-duty officers' party at Spengler's house in 2004.  Four other former officers pleaded guilty to federal charges. Two have been sentenced and two are set to be sentenced Dec. 6.  It is the largest criminal prosecution of police officers in modern Milwaukee history.

A state jury acquitted Bartlett, Masarik and Spengler on all but one count in May 2006, setting the stage for a federal investigation — and eventually an indictment — a year ago.  Bartlett, Spengler and Masarik have been jailed since their convictions.  Bartlett already was being held because of two earlier unrelated felony convictions.

Jude, who is biracial, and Harris, who is black, both said their white attackers used racial slurs. From the outset, the investigation was poorly handled.  Suspect officers were allowed to talk with each other or leave the scene, little physical evidence was collected and investigators said they ran into silence from officers who claimed they saw nothing.  Several of those officers later admitted their guilt in the case when the FBI investigated.

Judge Gertner sentences in a holiday mood

The Boston Globe covers a notable sentencing decision by  Sentencing Hall of Famer Judge Nancy Gertner in this article entitled "Judge skips guidelines, releases man in crack case Long prison sentence hurts blacks, she says." Here are snippets:

A federal judge has freed a Boston man who pleaded guilty to selling small amounts of crack cocaine, saying that he dealt the drugs out of desperation and that long prison sentences for such crimes often do more harm to black communities than good. 

US District Judge Nancy Gertner sentenced Myles Haynes to the 13 months he has served in jail since his arrest.  She said that he appeared to be an honest man whose two admitted drug sales were isolated and that lengthy federal prison terms for such crimes are depleting cities of a generation of young black men. "Isn't it time for us to say that there is on the one hand the impact of the drug trafficking and on the other hand the impact of mass incarceration of African-Americans from crack cocaine?" Gertner said from the bench Monday. "To suggest that the public safety requires the further incarceration of Mr. Haynes makes no sense." Gertner then set aside sentencing guidelines that could have kept Haynes behind bars an extra 20 to 28 months.

While federal judges sometimes depart from guidelines, it is rare for them to air such outspoken views from the bench. Glancing at Haynes's 8-year-old son, Myles Jr., in the gallery with the defendant's family, Gertner added, "Indeed, when I see your son, I think that public safety requires that you be with your son so that he doesn't follow in your footsteps."

Crunching the numbers on a presumption of reasonablenss

I was very pleased to learn of this new article on SSRN, which examines empirically the impact of the presumption of reasonableness for within-guideline sentences.  The article by Alex Robbins and Lynda Lao is entitled "The Effect of Presumptions: An Empirical Examination of Inter-Circuit Sentencing Disparities After United States v. Booker," and here is the full abstract:

In the two years since United States v. Booker, the circuits have divided over how to use the Federal Criminal Sentencing Guidelines when reviewing sentences imposed by district courts. Seven circuits have held that a sentence within the Guidelines range is entitled to a presumption of reasonableness on appeal; five have held that it is not.  Although the Supreme Court's recent holding in Rita v. United States allows the courts of appeals to adopt a presumption of reasonableness for within-Guidelines sentences, it does not require them to, and so the circuit split remains.

Using this circuit split as a natural experiment, we undertake what we believe to be the first statistically robust analysis of the effect of a presumption of reasonableness on sentences imposed at the federal district court level.  Specifically, using 145,047 individual-level observations recorded by the United States Sentencing Commission (comprising all recorded federal sentences in all twelve circuits for a one-year period beginning in November 2004 and ending in October 2006), we perform a multivariate regression analysis to determine how a circuit's adoption or rejection of a presumption of reasonableness for within-Guidelines sentences affects the frequency with which district courts impose below-Guidelines sentences.  We find that a circuit's adoption of a presumption of reasonableness decreases the frequency of below-Guidelines sentences by less than one percent, although this result is statistically significant.

Our results do not, however, robustly support the inverse hypothesis that a circuit's rejection of a presumption of reasonableness increases the frequency of below-Guidelines sentences. The effect of such a rejection is insignificant when we control for circuit-specific fixed effects, and appears to be driven almost entirely by the particular behavior of the Second Circuit.  Finally, we are similarly unable to find robust empirical support for the hypothesis that intercircuit differences in sentencing after Booker can be explained simply by a circuit's underlying characteristics.

Remarkable Booker variance for "shameful" jail conditions in NJ

As detailed in this article from the Newark Star-Ledger , a district judge in New Jersey last week granted a variance in response to evidence that prison conditions in a county jail were horrid.  Here are the basics from the news account:

Ruling that overcrowding and poor conditions at the Passaic County Jail are "shameful" and have been ignored for too long, a federal judge has taken the dramatic step of cutting the sentence of a federal inmate being housed there by seven months.  The federal public defender's office in New Jersey has argued for such reductions for years, but the case marked the first time it has been successful, officials said.

U.S. District Judge Katharine Hayden issued her ruling Thursday after presiding over hearings in which the inmate complained of putrid air, mold and other problems and officials acknowledged a deteriorating structure that lacked fire sprinklers and reached 100 degrees on hot days. 

The half-century old jail, located in Paterson, was designed to hold 896 inmates, but houses more than 2,000. Hayden said "the mind boggles" at the living space: 64 are housed in each of the jail's 54-by-40-foot dorm-style units where they sleep, shower, and use toilets that lack ventilation and are six or seven feet away from dining tables.  Hayden said the reduction in the sentence was needed as "a statement that there is a law of reason and fairness behind detention."  The case, she said, "forces the question of how long we continue to turn a deaf ear, mine included.  It has become a tired fact of life in these courtrooms that Passaic County Jail is overcrowded, is breaking down, and is a very rough place to serve time."

A helpful reader sent me a copy of Judge Hayden's opinion, which in part connects this variance to the 3553(a) factor of needing to "promote respect for the law."  The opinion can be downloaded below, and here is a key snippet:

Respect for the moral law that makes the conditions in Passaic County Jail stick in the craw supports a variance, however big or small, as a statement that there is a law of reason and fairness behind detention. "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example." Olmstead v. United States, 277 U.S. 438, 485 (1928)(Brandeis, J., dissenting).

Download sutton_opinion.pdf

A notable Miranda decision about sentencing

The Seventh Circuit issued a notable Miranda decision today, but this one is entirely about sentencing.  Specifically, here is the first paragraph of today's ruling in US v. Miranda, No. 06-4195 (7th Cir. Oct. 26, 2007) (available here):

Luis Miranda pled guilty to one count of bank robbery, in violation of 18 U.S.C. § 2113(a). Miranda has a history of severe mental illness, and at sentencing, he presented considerable evidence of diminished capacity.  Miranda also presented evidence in support of an argument that his criminal history category overstated the nature of his prior criminal history.  He argued to the district court for a below-guidelines sentence based on several factors listed in 18 U.S.C. § 3553(a).  The district court did not directly address these non-frivolous arguments and sentenced Miranda to fifty months of imprisonment, a sentence greater than the government requested. Because the district court did not address Miranda’s principal, non-frivolous arguments before sentencing, we vacate and remand for resentencing.

An amici sentencing brief going to the dogs

Though the dog-days of summer have come to an end, the dog-days of sentencing are just starting to heat up.  Specifically, today I received a copy of a "Brief of Amici Curaie" in US v. Vick, with the friends being a group of "organizations concerned about animal welfare and responsible dog ownership."  This brief runs over 30 pages and can be downloaded below.

There are many interesting facets of this brief, including (1) a section purporting to be "a victim impact statement on behalf of the bad newz kennel dogs, (2) a section arguing that the "agreed upon offense level does not adequately reflect the nature of Vick's conduct nor his role in the offense," (3) a calculation indicating that Vick's guideline offense level should be 20 and his sentencing range 33-41 months, (4) a request that amici have a "brief opportunity to be heard at sentencing."

Perhaps most notable is the precise sentencing recommend in this amici brief: that the court impose a 57-month sentence and a $250,000 fine, and order the forfeiture of the property on which the dog-fighting took place, and that Vick has to pay to renovate and convert his property into a "no-kill shelter for abused and neglected dogs."

Download amici_brief_in_vick_sentencing.pdf

Some related Vick sentencing posts:

• The nitty-gritty on sentencing in the Michael Vick case
• Who knows what guidelines apply to dog fighting?
• Vick being sacked by the collateral consequences of an indictment
• Friday forum: what sentence should Vick get if he pleads guilty?
• A late afternoon Vick update (with federal guideline musings)
• Michael Vick takes a plea deal
• Mid-week forum: is it fair for Vick also to face state criminal charges?

Sentence of two dozen years in terror case

A high-profile terror sentencing took place yesterday in California.  This Sacramento Bee article provides these details:

Hamid Hayat, a 25-year-old cherry packer from Lodi with a seventh-grade education, was sentenced Monday in Sacramento federal court to 24 years in prison for providing material support to terrorists and making false statements to hide his conduct.

On April 25, 2006, a jury found Hayat, who was born in Stockton but has lived nearly half his life with relatives in Pakistan, guilty of undergoing terrorist training in Pakistan and returning to Lodi prepared to wage violent jihad -- or holy war -- against fellow U.S. citizens. He also was found guilty of lying to conceal the training and his terrorist intent when initially questioned by FBI agents....

The prison term is 11 years less than the 35 sought by the government and recommended by a probation officer. On the other hand, it is nine years more than the defense's request for 15, the statutory maximum for the material-support count.

Lies, damn lies, and federal sentencing statistics

This new article from New York Newsday, entitled "Federal judges becoming more lenient at sentencing," has me thinking about the famous quote about statistics.  Though I do not think the post-Booker world has been marked by considerable leniency, the Newsday article does seem to its statistics right and it does a reasonable job providing some context for the statistics it highlights.  Here are snippets:

Emboldened by a U.S. Supreme Court decision that undercut the mandatory sentencing guidelines, local federal judges are showing more leniency in sentencing than most others around the nation, according to government data....

Following the Supreme Court ruling, federal judges in the metropolitan area, including those assigned to the court in Central Islip, have dropped below the sentencing guidelines 17.9 percent of the time , from Oct. 1, 2006, to March 31, 2007, the first six months of fiscal 2007, compared with 6.9 percent for federal courts nationwide, according to statistics compiled by the U.S. Sentencing Commission. The fiscal year runs from Oct. 1 to Sept. 30. In the Eastern District, which covers Brooklyn, Nassau, Suffolk and Staten Island, judges dropped below the guidelines 13.2 percent of the time. In the Southern District federal court in Manhattan, judges went below the guidelines in 21.2 percent of the cases....

Despite the apparent rise in leniency from the bench, legal observers said the courts haven't gone wild in forgoing incarceration. In fact, other statistics show that the metropolitan area's federal judges dished out prison terms in about 84 percent of convictions in fiscal 2006....

"I would say flexible, not lenient," was how one Brooklyn federal judge described the sentencing trends in New York City.  The judge, who asked to remain anonymous because he prefers to be quoted in court, said he believed he and fellow jurists were in the best position to decide the correct sentence.

Latest quarterly post-Booker data from USSC

I am very pleased to see, on the USSC Booker page, the latest quarterly update with the most recent post-Booker sentencing data available at this link. Here's how the USSC describes this data:

FY2007 3nd Quarterly Sentencing Update (Published August 29, 2007): An extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2007. The numbers are prepared using data sentenced by close-of-business on June 30, 2007 and received, coded, and edited by the Commission by August 24, 2007.

Readers are encourage to help me discover if this latest data run includes any really suprising numbers.

Judge Young's take on post-Rita sentencing realities

Yesterday, Judge William Young of the District of Massachusetts, whose sentencing work always merits attention, issued an interesting opinion in United States v. Birkett, No. 06-10139 (D. Mass. Aug. 21, 2007) (available here).  There is a lot of interesting modern sentencing ground covered in Birkett, and this concluding paragraph provides a window into some parts of the opinion:

Th[e] sentence [in this case] protects Birkett’s Sixth Amendment rights by identifying the statutory limit that may be imposed given the facts to which he pled guilty.  Once this was established, the Court was not required to turn a blind eye to relevant conduct that informed the Court as to where the sentence ought fall below that statutory maximum.  In so doing, the Court considered the guidance provided by the Sentencing Commission substantively as it applied to this case and these facts, which included facts of a prior conviction that, while impermissible to raise the statutory maximum, would require a sentence more severe than the “properly” calculated advisory guidelines.  To do otherwise would exemplify the fear that sentencing judges will now apply the advisory guidelines mechanically, thus reducing the sentencing judge’s role to that of a arithmetician.  This is a fear that is only furthered by the Supreme Court’s decision in Rita, which now encourages and insulates a within-guideline sentence.

Effective district court elaboration of post-Rita realities

I have received (and provided for downloading below) an effective "sentencing memorandum" issued earlier this week by US District Judge Dan Polster in US v. Ortiz, No. 1:06-CR-417-004 (N.D. Ohio Aug. 14, 2007).  In Oritz, Judge Polster throughtfully explains his reasoning for imposing a below-guideline sentence in a career offender drug case, and in so doing he takes stock of the state of federal sentencing law in the Sixth Circuit after Rita.  Here is a key paragraph from Judge Polster's work in Ortiz:

Therefore, when one considers the Sixth Circuit’s post-Rita line of decisions, along with the Rita opinion itself, it is clear that the district courts have tremendous sentencing discretion in the final determination of the sentence imposed.  The sentencing courts are to consider the relevant § 3553(a) factors, the advisory Guideline range, and any other nonfrivolous arguments that each side may make, and indeed, may use the Guidelines as an advisory resource.  Ultimately, however, the courts must impose a sentence in accord with § 3553(a)’s parsimony provision, and provide a reasoned explanation of the basis for the sentence.

Download polster_opinion_in_ortiz.pdf

Another notable double-decade sentence for white-collar offender

The Miami Herald report here on the sentencing of "Hector Orlansky, one of two brothers who presided over one of the biggest bank frauds ever in South Florida," who "was sentenced to 20 years in federal prison Friday."  Here are more interesting details:

U.S. District Judge Adalberto Jordan ignored pleas for leniency from Orlansky's lawyer before imposing the sentence.  The judge said he based the sentence on the severity of the crime and his wish to have it serve as a deterrent to other white-collar crime. ''This was not a run-of the-mill white-collar offense,'' Jordan said. "This is a case involving a huge amount of loss. The loss was close to $167 million. That is a staggering sum.''...

Outside the Miami federal courthouse, Orlansky's sister, Marina Handel, expressed anger at the sentencing. ''This is a travesty,'' said Handel, who lives in New Jersey.  "We are an honest and decent family.''

Said U.S. Attorney R. Alexander Acosta in a statement: The "20-year sentence is an important benchmark to our business community that honesty and integrity in commercial dealings must be protected, and that those who cheat face serious consequences.''... The government recommended a sentence at the low end of the advisory sentencing guidelines, which were about 22 years to 27 years. Jordan veered slightly from that, citing Orlansky's age and various health issues. 

Peter Henning at the White Collar Crime Prof highlights here that the "defendant is 62, so this is virtually a life sentence."

Qwest CEO gets six years and mad money

As detailed in this CNN piece, the "former chief executive of Qwest Communications International, Joseph Nacchio, was sentenced on Friday to six years in prison and ordered to forfeit $52 million in stock gains from insider trading."  Also, "Nacchio was fined an additional $19 million in the case presided over by U.S. District Judge Edward Nottingham."

Recent related post:

• Sentencing reqwests in Qwest sentencing

Sentencing reqwests in Qwest sentencing

As detailed in this story from the Rocky Mountain News, today Joe Nacchio, the former Qwest CEO, will be sentenced by US District Judge Edward Nottingham following his April conviction on 19 counts of insider trading.  Here are highlights of what the parties are requesting Judge Nottingham to consider:

Prosecutors are asking Nottingham to order Nacchio to forfeit the $52 million [allegedly grossed on illegal stock sales]....  Prosecutors also want a $19 million fine — the maximum fine of $1 million for each count on which the jury returned a guilty verdict.  And they’re asking for the maximum prison sentence that federal guidelines will allow — seven years, three months. "Any lesser sentence would send a message of tolerance of the egregious behavior proven at trial," Assistant U.S. Attorney James Hearty wrote in the government’s sentencing brief.

Nacchio’s attorneys are asking for a lesser prison sentence, though they have not stated publicly what term they’re seeking. They’ve asked Nottingham to consider two issues when deciding his fate: the health of two immediate family members and Nacchio’s charitable works.  The defense has not said which family members would be affected if Nacchio goes to prison, but they are believed to be his oldest son, David, who has attempted suicide, and Nacchio’s elderly mother.  Nacchio’s lawyers also say his fine should be a maximum of $6 million, and he should be ordered to forfeit no more than $1.8 million — the amount a defense- hired expert has determined was the financial gain Nacchio enjoyed because of the nonpublic, or "insider," information.

A group of local attorneys polled by the Rocky Mountain News predicted Nottingham will sentence Nacchio to five to six years in prison.  They disagreed on the fine and forfeiture, though most said it’s unlikely Nottingham will agree with the defense’s $1.8 million argument.

Any predictions, informed readers?

Going, going, gone ... to federal prison for BALCO leak

Despite notable efforts to get use the Libby commutation to get a reduced sentence, attorney Troy Ellerman received a different kind of Libby treatment when hw was sentenced to 30 month's imprisonment for leaking confidential grand jury testimony of Barry Bonds and other athletes to a reporter.  Lots of interesting details of the sentencing are available in articles from the AP and from Reuters.  Here are some particulars from the AP:

Ellerman initially blamed federal investigators for leaking the testimony and argued that the case against his client be tossed out because of government misconduct. He also lied to a judge about not knowing the source of the leaks. "This affected, and infected every aspect of the judicial system," U.S. District Court Judge Jeffrey White said.

White also rejected Ellerman's argument that he should get a lighter sentence because President Bush commuted former vice presidential aide I. Lewis "Scooter" Libby's 2 1/2-year prison sentence for perjury to probation. White said to do so would open the door to doling out unduly lenient sentences for other white collar criminals.  "If Mr. Ellerman is dissatisfied with his sentence, he should seek a commutation from the president," White said....

Ellerman said the pressures of the high-profile case coupled with alcohol and cocaine abuse were major factors in letting the reporter view the transcripts.  "I did not do this seeking publicity," he told the judge.  He said trying to cover his tracks "took on a life of its own."

He pleaded guilty to four felony counts of obstruction of justice and related charges, and federal prosecutors dropped their case against the two reporters.  They had faced up to 18 months in prison for refusing to divulge the source of the leak.

Judge White also ordered Ellerman to give 10 talks on conduct to law students. The judge didn't fine Ellerman.

Arguments in sentencing former Qwest CEO

As detailed in this AP article, prosecutors "recommended Friday that former Qwest chief executive Joe Nacchio serve a maximum of seven years and three months in prison for completing $52 million in illegal stock sales when his telecommunications company was at financial risk."  Here are more details:

In a brief filed late Friday, government attorneys also recommended Nacchio serve three years probation and be fined a maximum of $19 million.  "Any less severe sentence would fail to provide just punishment, to promote respect for the law, and to protect the public," prosecutor James Hearty wrote on behalf of the legal team.

In a separate brief, defense attorney Herbert Stern asked U.S. District Judge Edward Nottingham to impose an unspecified lesser sentence which he said was warranted because of the effect a lengthy prison term would have on the health of two of Nacchio's family members.  Stern said the situation was explained in detail in a sealed report from the U.S. Department of Probation that was submitted to the judge.

There's no news about whether Nacchio's legal team has filed what Ellen Podgor is calling "The Libby Motion".