Tuesday, September 27, 2011

Sensible sentencing alternatives for high-profile defendant involved low-level fraud

I want to praise the district judge involved in this notable federal sentencing story, headlined "Former UCA president avoids prison time for fraud," for saving taxpayer money on wasteful prison costs.   Here are the details:

Former University of Central Arkansas president Lu Hardin said Monday that he was hooked on the slots the first time he played them more than a decade ago, and that his gambling compulsion and mounting debts led him to lie to school trustees to tap into bonus money he had been promised.

U.S. District Judge James Moody sentenced the one-time rising political star to five years of probation and 1,000 hours of community service, but no prison time.  Hardin, 60, pleaded guilty earlier this year to falsifying a document that persuaded trustees to give him early access to a $300,000 bonus so he could pay off gambling debts.

Moody said he was convinced Hardin was "genuinely remorseful and humiliated" by his own actions.  Federal sentencing guidelines suggested a sentence of nine to 12 months in prison, but Moody was not bound by that recommendation.

A major factor in Hardin's reduced sentence was his cooperation on a separate federal investigation. Hardin has spoken to the FBI and agreed to testify if the investigation, which a prosecutor would not detail, leads to any charges.  An FBI spokesman also declined to comment.

After a career as an Arkansas state senator and the state's higher education director, Hardin became president of the Conway university in 2002.  During a six-year tenure, he oversaw dramatic growth in the university's enrollment, endowment and prestige.  Trustees approved the $300,000 bonus in full public view....

Only his wife knew about the thousands of dollars of gambling debts he racked up, Hardin said. To pay them off, he made what he called a "horrendous mistake" by forging letters to persuade trustees that he could draw early on the bonus, which was supposed to have been paid to him over five years, according to federal court documents....

Hardin's attorney, Chuck Banks, said his client is a "model person" who paid back the almost $200,000 he collected from the scheme on his own.  He argued that Hardin's history of public service and his past medical problems, including a melanoma that left him blind in his right eye, merited leniency.

Moody sided with Banks.  Although Hardin's actions were criminal, he had a history of good behavior and he didn't believe Hardin would commit another crime, Moody said.  As part of his community service, Hardin will be required to continue attending Gamblers Anonymous meetings and to teach classes about fraud.

Hardin was president of UCA for six years before he resigned in 2008 after the scandal broke.  He received a much-criticized $670,000 contract buyout, and became president of Palm Beach Atlantic University in June 2009, but resigned from that job a week before pleading guilty in March....  After pleading guilty, he surrendered his law license and lost his right to vote. 

This is a great example of a low-level white-collar offense in which the direct and collateral consequences of the federal prosecution and conviction are themselves likely sufficient punishment in light of the nature of the crime and history of the offender.  I often believe a very big fine and lots of community service would be both adequate and effective punishment for low-level white-collar frauds, and I wonder if any readers have any problems with a non-prison, below-guidelines sentence in a case like this.

September 27, 2011 in Booker in district courts, Criminal Sentences Alternatives, Offense Characteristics, White-collar sentencing | Permalink | Comments (3) | TrackBack

Monday, September 26, 2011

New call for a (long overdue?) legislative and USSC fix to Booker

Matt Miner, who not long ago served as former Republican staff director for the Senate Judiciary Committee (and now is a partner at White & Case), has this notable new commentary on federal sentencing in today's National Law Journal.  The piece is headlined "It's time to fix our sentencing laws; Years after the Supreme Court put the ball in Congress' court, commission can finally spur action."  Here are excerpts:

The U.S. Sentencing Commission is confronting a challenge to its own existence.  Critics of the commission's budget and inaction on sentencing reform have begun to call for massive cutbacks and even full elimination of the commission.  Yet unlike other agencies that face similar crises, the commission has the power to propose reforms to justify and strengthen its role.

For more than six years — since the U.S. Supreme Court invalidated parts of the federal law governing sentencing policy in Booker v. U.S. — courts have increasingly disregarded the federal sentencing guidelines.  At the same time, racial disparities have increased. The Supreme Court called for policymakers to respond, stating, "The ball now lies in Congress' court."  But more than a half-decade later, neither Congress nor the commission has acted.

The time for action is now, and the commission has the opportunity to urge changes to restore order to our system.  Given the impact of the commission's reports on crack-cocaine sentencing — resulting in passage of the Fair Sentencing Act — a commission-led Booker-fix proposal could be a game changer....

Since Booker, courts have drifted farther from guideline-based sentences, with many courts applying the guidelines less than half the time.  Even more troubling, racial disparities in federal sentencing are on the rise.  According to a recent commission report on demographic disparities post-Booker, the difference in sentences given to black versus white defendants has "been increasing steadily since that decision."

Sadly, racial and educational disparities have grown in a system that is increasingly determined by the judge a defendant draws.  Making matters worse, appellate judges find themselves out of the sentencing business due to the lack of a meaningful appellate standard and the broad discretion retained by district courts....

The appetite for reform appears to have returned.  Conservative law professor William Otis has called for a rewrite of the 1984 Sentencing Reform Act to once again make the guidelines mandatory, albeit with certain enhancements decided by a jury.  And past commission chairman William Sessions, a federal judge, has proposed a grand reform to broaden the discretion given judges under the guidelines, while also restoring certainty and consistency to the system by making the guidelines "presumptive" rather than merely "advisory."

Although such reforms may take time, the commission should immediately recommend basic reforms such as codifying an appellate standard to replace the language struck down by Booker.  The Supreme Court made clear that the standard that existed before the 2003 Feeney amendment would withstand constitutional challenge, and that standard is a worthwhile place to start.  More recent Supreme Court decisions, including U.S. v. Rita, provide further components that could be added to the old appellate review standard, including a presumption of reasonableness for properly calculated sentences within the guidelines.  Additionally, the commission should dem­and reforms that require judges to provide a heightened justification for any major departure from the prescribed guideline sentence.

In the absence of congressional action, federal courts will continue to struggle to apply constitutional principles to fill gaps in the sentencing statute.  In essence, courts will be left to legislate from the bench.

I share Mr. Miner's interest in having the US Sentencing Commission and Congress playing a much more active role in managing and bringing greater legal order to the post-Booker sentencing system.  I also think the "lack of a meaningful appellate standard" is a part of the systemic problem with the status quo.  But I think this commentary overlooks at least three critical realities that must play a central role in any future sentencing reform work by the USSC and Congress:

  1. Crime rates are at historic low levels and have been continuing to trend down since Booker (basics blogged here and here);
  2. Federal prison populations are at record high levels, and the resulting overcrowding and costs must be addressed as soon as possible (as the US Justice Department stressed in its recent letter to the USSC);
  3. Before Booker and perhaps now even more after Booker, the defendant's luck in which prosecutor he draws matters a lot more than what judge he draws (which, as noted here, USSC stats always show).

For me, these three critical realities suggest (at least) three essential guideposts for future federal sentencing reform: (1) "Do no harm": we cannot figure out what is "working" with crime reductions, but we should make extra sure any federal sentencing changes do not reverse national crime trends; (2) "Reduce federal incarceration": we cannot afford stuffing a lot more federal prisoners into limited (and expensive) prison space, and thus we should make extra sure any federal sentencing changes do reverse the system's hyper-incarceration tendencies; (3) "Better regulate prosecutors first": initial USSC efforts to limit the impact of prosecutorial discretion have not really worked, and the USSC and Congress ought to start with prosecutorial guidelines/regulations if there is a genuine concern with enduring federal sentencing disparities.

September 26, 2011 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, September 17, 2011

Record-long 50-year prison sentence for Medicare fraud imposed in Florida

As detailed in this Miami Herald article, late yesterday a "federal judge socked a convicted Miami healthcare executive with a 50-year prison sentence, the longest term ever imposed on a Medicare fraud offender."  Here are the notable details:

New York transplant Lawrence Duran once ran a multimillion-dollar mental health company in Miami, lobbied Congress for his industry and tooled around town in a Maserati. His next stop: federal prison — likely for the rest of his life.

On Friday, a federal judge slammed Duran, 49, with a 50-year prison sentence for orchestrating a staggering $205 million scam at his Miami-based chain of mental health clinics.   The sentence may end up being the longest prison term ever imposed on someone convicted of Medicare fraud.

Duran’s lawyer, Lawrence Metsch, had urged the judge to be realistic and give him a sentence between 20 and 25 years, arguing that 50 years means a “death sentence because he would die in prison.”  But the judge, after a three-day sentencing hearing, sided with the government’s push for the extraordinarily high sentence, saying there is a “critical need for deterrence against healthcare fraud” in South Florida, the nation’s capital of Medicare corruption.

Previously, the highest Medicare fraud sentence was 30 years — given in 2008 to a Miami physician, Ana Alvarez-Jacinto, convicted in an HIV-therapy scheme.

After the sentencing, Duran shook his lawyer’s hand and then smiled to tearful relatives, as he shuffled in shackles out of the courtroom escorted by U.S. marshals.  His ex-wife, Carmen Duran, and his only sibling, Kenia Duran Ramirez, said the judge’s sentence was not a “fair assessment” of the former executive’s life, saying his work for the mentally ill was “not all bad.”

This year, Duran and his girlfriend, Marinella Valera, co-owners of American Therapeutic Corp., pleaded guilty to a variety of conspiracy, fraud and money-laundering charges after they failed to reach plea deals with the Justice Department.  

Duran, in custody since his arrest last October, was probably his own worst enemy during the sentencing hearing. Although he showed remorse for running American Therapeutic as a criminal enterprise for eight years, he also admitted he tried to steal as much money as he could from the taxpayer-funded Medicare program.

His company collected $87 million in Medicare payments after submitting $205 million in bogus bills, which he generated by paying kickbacks to recruiters to supply patients suffering from dementia, Alzheimer’s and addictions.  He admitted they could not have benefited from his company’s purported group therapy sessions.  Justice Department attorney Jennifer Saulino called Duran a “cold, calculating man” who exploited both vulnerable patients and the government’s healthcare program for the elderly and disabled....

Duran’s girlfriend, Valera, 40, a therapist, is scheduled to be sentenced Monday. Prosecutors plan to urge the judge to give her a 40-year prison sentence.  A total of 34 people, including American Therapeutic employees, doctors, therapists, nurses and recruiters, have been charged in the massive fraud case, which is being investigated by the FBI and Health and Human Services-Office of Inspector General.

September 17, 2011 in Booker in district courts, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (2) | TrackBack

Monday, September 12, 2011

Lawyers spar in briefing before Rajaratnam's sentencing for insider trading

This New York Times piece, headlined "Rajaratnam Lawyers Call Sentence Request ‘Grotesquely Severe’," reports on the last round of briefing before the scheduled sentencing of convicted trader Raj Rajaratnam.  Here are some details:

Federal prosecutors and lawyers for Raj Rajaratnam filed their second round of sentencing briefs on Friday, setting the stage for later this month when a federal judge will announce the former hedge fund manager’s prison term.

Mr. Rajaratnam is set to appear before Judge Richard J. Holwell in Federal District Court in Manhattan on Sept. 27.  The government has requested a term of 19 and a half to 24 and a half years.  “Rajaratnam is arguably the most egregious offender of the insider trading laws prosecuted to date,” federal prosecutors said in their court filing.

Defense lawyers said the government is overreaching by requesting a “grotesquely severe” sentence. “The government asks the court to ignore Raj Rajaratnam the human being and to sentence a caricature instead,” Mr. Rajaratnam’s lawyers said. “This court’s role is not to validate a prosecutorial public relations effort, nor is it to single out one man to serve as the whipping boy for Wall Street misdeeds.”

In May, a jury convicted Mr. Rajaratnam, the co-founder of the Galleon Group hedge fund. He was found guilty of generating illegal gains of $64 million by trading on confidential information about publicly traded companies including Intel and Goldman Sachs.

Mr. Rajaratnam’s lawyers at Akin Gump Strauss Hauer & Feld made several arguments in asking Judge Holwell for leniency.  They said that the illegal trades in question accounted for only 1 percent of his trading activity.  They argue that the sentence is disproportionate to the sentences imposed in other insider trading cases, and greater than the average sentence for violent crimes, including kidnapping and sexual abuse.  They also insist that the government’s requested sentence “would guarantee Mr. Rajaratnam’s death in prison” because of the 54-year-old’s medical issues.

The government urged Judge Holwell to reject the arguments presented by Mr. Rajaratnam’s lawyers.  On the issue of the Mr. Rajaratnam’s health, the government challenged the defense to disclose exactly what medical issues would justify a lenient sentence.

I found the defense reply sentencing memo, which runs more than 50 pages, available at this link.  I cannot yet find a link to the Government's filing.

September 12, 2011 in Booker in district courts, Procedure and Proof at Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (2) | TrackBack

A Fifth Circuit reminder that not all federal defendants like the guidelines being merely advisory

One (of many) under-discussed aspects of the post-Booker system is that, in percentage terms, the number of above-guideline sentences have gone up more than the number of below-guideline sentences since the guidelines became adviosry.  Roughly speaking, though the number of below-guideline sentences have increased about 50% post-Booker, the number of above-guideline sentences have increased nearly 100% post-Booker.  

Though the absolute number of above-guideline sentences remain relatively small, the decision late last week from the Fifth Circuit in US v. Pizzolato, No. 10-30729 (5th Cir. Sept. 9, 2011) (available here), provides a useful reminder that not all federal defendants benefit from the guidelines now being merely advisory.  Here is how the Pizzolato opinion starts:

Defendant-Appellant Matthew B. Pizzolato pleaded guilty to multiple crimes related to his conduct in running a fraudulent “Ponzi” scheme. The plea agreement recommended an applicable sentencing range of 151 to 188 months under the Federal Sentencing Guidelines (the “Guidelines”).  The district court disregarded the plea agreement’s recommendation and imposed the statutory maximum sentence of 360 months.  Appellant argues that the Government breached the plea agreement by providing the district court with facts and arguments supporting a longer sentence than the parties agreed upon.  We find no merit to defendant’s arguments and affirm.

September 12, 2011 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (2) | TrackBack

Wednesday, September 07, 2011

Newest federal sentencing data run from US Sentencing Commission now available

The US Sentencing Commission has some fresh new federal sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:

Third Quarter FY11 Quarterly Sentencing Update:  An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the third quarter of fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published September 6, 2011)

The new data largely show the continued trend of a very slow migration away from guideline ranges, with federal prosecutors, not federal judges, continuing to be the primary driving force behind below-range sentences.  Indeed, the latest quarter of data reveal a record high percent of government-sponsored below-guideline sentences (27.7%), coupled with a relatively low percentage of judge-initiated below-guideline sentences (16.9%) .  

The changes in the latest quarter of data could merely reflect changes in types of cases sentenced: e.g., the processing of relatively more immigration and non-crack drug cases will likely always drive up the relative percentage of government-sponsored below-guideline sentences because fast-track and cooperation departures are much more common that judge-initiated variance in those types of cases.  Nevertheless, there is still an notable patter reflected in all of the last three quarters of data: government-sponsored below-guideline sentences increased roughly 10% over this period, while judge-initiated below-guideline sentences have decreased roughly 10% over this same period.

September 7, 2011 in Booker in district courts, Data on sentencing, Detailed sentencing data, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, August 30, 2011

Barry Bonds' federal sentencing now set for December

As detailed in this MLB.com report, a "sentencing date of Dec. 16 has been set for Barry Bonds, whose conviction for obstruction of justice was upheld in federal court last week."  Here is more background:

A seven-time Most Valuable Player who set the single-season and career home run records during his 22-year career, Bonds was convicted of obstruction but the jury could not come to a consensus on any of three counts of making false declarations.  The charges were based on Bonds' 2003 testimony before the Bay Area Laboratory Co-Operative (BALCO) grand jury, in which he denied knowingly using performance-enhancing drugs.

According to the indictment against Bonds, the maximum penalty for the obstruction charge is "10 years maximum imprisonment, $250,000 fine, three years supervised release, $100 special assessment fee."  But federal sentencing guidelines reportedly suggest 15-21 months, and previous BALCO sentences suggest Bonds could be given house arrest.

Illston, who has presided over the cases brought by the BALCO investigation, previously sentenced cyclist Tammy Thomas to six months of home confinement and track coach Trevor Graham to one year of home confinement.  Thomas was convicted of three counts of making false statements and one count of obstructing justice but was acquitted of two perjury charges.  Graham was convicted of one count of giving false statements, and the jury deadlocked on two other charges.

Illston ruled Friday that the record showed Bonds "endeavored to obstruct the grand jury" when he rambled and talked about friendship, fishing and being a "celebrity child" when asked whether trainer Greg Anderson ever had injected him with anything.  The defense still could appeal the conviction.

The government has yet to announce whether it will retry any of the charges that wound up in a hung jury.  While two wound up in favor of acquittal, according to jurors, Count Two -- also relating to whether Bonds received injections from Anderson -- was 11-1 in favor of conviction.

I am going to mark the December 16 date on my calendar in pencil; these high-profile sentencings have a tendency to get postponed for various reasons.  But I am already looking forward to seeing how the parties seek to apply 3553(a) to Bonds in their sentencing submissions. 

Related recent Bonds posts:

August 30, 2011 in Booker in district courts, Celebrity sentencings | Permalink | Comments (1) | TrackBack

Thursday, August 11, 2011

"Kids for Cash" judge gets 28-year (way-above-guideline?) federal prison term

As detailed in this local Pennsylvania article, which is headlined "Luzerne ex-judge gets 28-year sentence," a judge at the center of a juve sentencing scandal will now likely spend the rest of his life in prison. Here are the basics:

A disgraced Luzerne County judge was sentenced to 28 years in federal prison Thursday for his conviction on charges of taking hundreds of thousands of dollars in payments in connection with the operation of the counties' juvenile center.  The ex-judge, Mark A. Ciavarella, Jr., 61, was given the harsh sentence after he told the judge that he apologized for unethical behavior but had never taken "cash for kids."

He was found guilty in February of twelve counts of racketeering, conspiracy, fraud and filing false tax returns.  The jury acquitted him on 27 other counts of bribery and extortion, as he pointed out to the judge before he was sentenced.

Ciavarella, for years the head of juvenile court in the county, was charged with the former president judge there in a 2.8 million dollar scheme to enrich themselves through their control of juvenile justice in Luzerne County.

The other ex-judge, Michael T. Conahan, 59, pleaded guilty and is awaiting sentencing, as are other key conspirators in the plot, including the builder and an owner of a for-profit juvenile detention center that was at the heart of the corruption....

Juvenile justice advocates, in criticism later affirmed by the State Supreme Court, said Ciavarella ran a kangaroo court for teens and children, shipping them to the facility with no regard for fairness.  Prosecutor Gordon Zubrod told the sentencing judge, Edwin Kosik, that Ciavarella had sold kids wholesale and deserved to be sentenced "for the rest of his natural life."

Based on prior reports about the calculated guideline range in this imposed prison term appears to be way above the applicable guideline range.  It wll be interesting to see if an appeal of the sentencing to the Third Circuit is on the horizon.

August 11, 2011 in Booker in district courts, Offense Characteristics | Permalink | Comments (24) | TrackBack

Tuesday, July 19, 2011

Seeking information on large number “other government-sponsored departures” in federal child pornography cases

Among my projects for this summer is to try to better understand just how most federal child pornography cases are process and sentenced.  An early bit of data-mining with the help of an able research assistant prompts the request/inquiry in the title of this post.  Specifically, I am curious about the stories/reasons surrounding one notable data point from the US Sentencing Commission, namely the significant number of child porn cases involving so-called "other" government-sponsored downward departures.

As federal sentencing practitioners know, the vast majority of downward departures recommended by federal prosecutors stem from early pleas in "fast-track" districts under § 5K3.1 or from because a defendant provided "substantial assistance" and benefitted from a motion under § 5K1.1.  But according to FY 2010 data from the USSC, zero child porn defendants got a fast-track break and only 57 of 1,886 child pornography cases (3%) involved a substantial-assistance downward departure.

But, these same FY 2010 USSC data document a comparative large number “other government-sponsored departures”: over 10% of child pornography cases in FY 2010 (195 cases out 1,886) involved a below-guideline sentence based on some "other" government-sponsored departure.  (This represents roughly triple the number of such departures in all other cases in which only about 3.5% of dispositions involved an "other" government-sponsored downward departure.)   Moveover, it appear that a trend toward regular use of "other government-sponsored [downward] departures" in child porn cases is picking up speed: in the USSC data for the first half of FY 2011, we see the government has sponsored "other" downward departures in nearly 15% of all cases (132 of 911 total cases).

Notably, Table 25 of the USSC 2010 Sourcebook of Federal Sentencing Statistics available here compiles the reasons given by sentencing courts for downward departures from the guideline range. The Commission makes no table publicly available reporting reasons given by the government for sponsoring an "other" downward departure.   I asked my research assistant to see if cases reported on Lexis and Westlaw provide any qualitative information about these departures, but the online databases provide little insight on just when the government has sponsored a downward departure or the specific factors motivating the prosecutor to sponsor these types of departures.

These data and realities prompt a range of follow-up questions.  I wonder if there any internal guidelines (or external transparency) concerning this growing group of cases.  I wonder if prosecutors in certain districts or circuits use these kinds of "other" government-sponsored downward departures more than others.  I wonder if the USSC can effectively identify and report (and codify) the reasons most often given for these kinds of departures.  I wonder if this trend will continue and expand to other kinds of cases.

I could go on and on, but for now I hope I have with this post effectively explained the phenomenon I am trying to better understand.  I also hope at least a few federal prosecutors and/or defense attorneys may with experiences with these kinds of departures may be able to help me understand just what is now often going on in these cases.

July 19, 2011 in Booker in district courts, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Thursday, July 14, 2011

Fascinating (and Posnerian classic) opinion on diminished capacity, child porn, and sentencing theory

Judge Posner provides today's must-read circuit opinion in US v. Garthus, No. 10-3097 (7th Cir. July 14, 2011) (available here).  Judge Posner's opinion for the Seventh Circuit in Garthus packs in so much of interest in a tight 13 pages, I have a hard time deciding which part to exceprt.  So, here is just the very start of the opinion along with just one of many interesting passages (with cites removed) to whet everyone's appetite for the whole opinion:

The defendant pleaded guilty to federal crimes of transporting, receiving, and possessing child pornography and was sentenced to 360 months in prison. The guidelines sentencing range was 360 months to life; the statutory minimum sentence was 180 months; he was 44 years old when sentenced.  His appeal challenges his sentence on several grounds, of which the one most emphasized by defense counsel is that the district court improperly failed to consider her argument that the defendant had had “diminished capacity” to avoid committing the crimes, a ground recognized by the sentencing guidelines as a possible justification for a lower sentence....

Why diminished capacity in this sense (or senses) should be a mitigating factor in sentencing is obscure.  The diminution makes a defendant more likely to repeat his crime when he is released from prison.  That is especially so when the crime involves compulsive behavior, such as behavior driven by sexual desire.  Such behavior requires active resistance by the person tempted to engage in it, if it is to be avoided; and diminished capacity weakens the ability to resist.  One of the defendant’s experts opined that the defendant’s ability to resist could be strengthened substantially with medication and therapy.  But both defense experts believed, and defense counsel argued, that he wouldn’t get proper treatment in prison.  That is very damaging to the argument that he won’t recidivate, since by virtue of the statutory minimum he will spend many years in prison and when released may be unable to resist his criminal impulses because his condition will not have been treated effectively in prison.

From a “just deserts” standpoint, diminished capacity argues for a lighter sentence, but from the standpoint of preventing recidivism it argues for a heavier one.  The heavier sentence may not deter a criminal from repeating his crime when he is released (that is implied by saying he has diminished capacity), but it will reduce his lifetime criminal activity by incapacitating him for a longer time than if he received a lighter sentence.

How to choose?  The sentencing guidelines do not embody a coherent penal philosophy. “The [Sentencing] Commission’s conclusion can be summarized thus: since people disagree over the aims of sentencing, it is best to have no rationale at all.”  Andrew von Hirsch, “Federal Sentencing Guidelines: Do They Provide Principled Guidance?,” 27 Am. Crim. L. Rev. 367, 371 (1989).  In the case of diminished capacity the guidelines have embraced a just-deserts theory; but why it has done so — why it has in this instance elevated just-deserts considerations over the interest in preventing recidivism — is not explained.  In any event, under the Booker regime a sentencing judge can adopt his own penal philosophy. And so he can disregard the guidelines’ classification of diminished capacity as a mitigating factor, regard it as an aggravating factor, or regard it as a wash.

July 14, 2011 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (14) | TrackBack

Notable recent resentencing opinion on career offenders and Kimbrough discretion

I recently received a copy of a notable resentencing opinion from US District Judge Gregory Presnell, who long ago already secured a place in my Sentencing Hall of Fame.  The opinion in US v. Vazquez, No. 6:04-cr-212-Orl-31 (M.D. Fla. June 28, 2011) (available for download below), covers a number of modern federal sentencing issues and reviews a remarkable procedural history for a single low-level drug defendant.

Specifically, way back in 2005 just six months after the Booker ruling, Judge Presnell originally imposed a sentence of just over nine years in prison after refusing to essentially double the defendant's sentence, as the guidelines' career-offender provisions urged, based on two old convictions.  On the government's appeal, this sentence was vacated, with the Eleventh Circuit holding that policy-based criticism of the career-offender guidelines was not permitted.  Judge Presnell then imposed a substantially higher sentence (15 years in prison), a sentence which was upheld by the Eleventh Circuit.  But upon further appeal, the Solicitor General switched positions and argued that the Eleventh Circuit had misinterpreted Kimbrough, and the case was ultimately returned to Judge Presnell for another resentencing.

In this latest opinion, Judge Presnell explains all this history and accounts for the current state of the law within the Eleventh Circuit.  He then reimposes the original sentence, less another 20 months for post-sentencing rehabilitation under Pepper.  Notably, the opinion reports that "the parties agreed that a 20-month reduction would be appropriate to account for the Defendant’s post-sentencing rehabilitation."  Slip op. at 10 (emphasis added).  

There is now such great irony represented by this (finally!) final Vazquez sentence: by virtue of federal prosecutors fighting the original 110-month sentence so effectively from the outset, along with SCOTUS rulings along the way, the defendant here was able ultimately to secure an extra 20 months off his original below-guideline sentence, and federal prosecutors now apparently agree that a sentence even below that originally imposed is now just and proper.  And, assuming the defendant gets his 15% good-time credits for time already served, it would seem he is due to be released from prison not long after his sentence was finally resolved.

Download Vazquez_resentencing_order_from_Judge Presnell 

July 14, 2011 in Booker in district courts, Booker in the Circuits, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, July 13, 2011

"Blaine hacker who terrorized neighbors gets 18 years in federal prison"

The title of this post is the headline of this interesting local article from Minnesota reporting on an interesting federal sentencing proceeding for an (interesting?) cyber-criminal who ultimately received an above-guideline sentence.  Here are the details:

Federal prison sentences aren't computed this way, but the 18 years Blaine hacker Barry Ardolf was sentenced to Tuesday works out to one year for every 39.3 days of hell he put his victims through.

Matt Kostolnik told a judge that the 707 days his family spent living next to Ardolf were days of dread and fear.  Ardolf had waged a cybercampaign of terror against them, all because they called the cops after the man planted what they called a "wet kiss" on their young son's lips.  "I felt like me and my family were under attack.  I went numb that day," Kostolnik told U.S. District Judge Donovan Frank of the day of the kissing incident, which occurred the day after they moved into a house on a cul-de-sac next to Ardolf. ...

Ardolf, 46, then a technician at Medtronic, was a "certified ethical hacker," according to the bumper stickler above his bed, who used his skills to hack into the Kostolnik's wireless router.  He then opened email accounts in Kostolnik's name to send lewd and threatening messages to several people in the Kostolniks' lives.  Some emails threatened the vice president and other elected officials, while other messages, to Kostolnik's co-workers and bosses at the downtown Minneapolis law firm where he worked as a lawyer, included child pornography....

The sentence was less than the 24-year, five-month term that Assistant U.S. Attorney Timothy Rank had asked for.  The seasoned prosecutor, who has stared down murderers, told Frank that Ardolf's capacity for "ruthless cruelty" ranked him among the most dangerous people he'd ever prosecuted.

Defense lawyer Kevin O'Brien had argued that while Ardolf's conduct was bad, the man himself wasn't.  A sentence of no more than 6-1/2 years was appropriate, he argued. O'Brien is Ardolf's court-appointed "stand-by" counsel; the defendant fired his second attorney this year and declared that he wanted to represent himself....

Ardolf was charged in June 2010, agreed to a plea deal, rejected it, was indicted on more charges, went to trial and then halted the trial after a couple of days to plead guilty.  Then, on the eve of his sentencing in March, he told Frank he wanted to withdraw his guilty plea and get a "do-over" trial.  The judge rejected his arguments, setting the stage for Tuesday's proceedings....

Dressed in orange jail antimicrobial clothing and sometimes wearing two pairs of glasses simultaneously, Ardolf, a widower, began his comments by apologizing to the Kostolniks, his own three children and his family, some of whom were in the courtroom.   But he spent most of his time talking about himself, a trait that had prompted Rank to complain at a hearing in May that Ardolf was a narcissist unable to show true remorse or feeling for his victims....

He reeled off a list of recent prison sentences he'd read about in the paper -- including the 10-year sentence meted out to former auto mogul Denny Hecker this year -- and said that relatively speaking, his crime wasn't as bad as those of some people sent to prison for terms less than what he was facing. "I didn't kill anyone," he said.

Even O'Brien stretched to explain Ardolf's behavior, saying that when he first met him, he found him to be "too arrogant, not willing to listen.  The question now is, What is a reasonable sentence for such unreasonable acts?" O'Brien asked.  He acknowledged that Ardolf has "done some bizarre, hurtful acts."

Ardolf had pleaded guilty to unauthorized access to a protected computer, two counts of aggravated identity theft, possession and transmission of child pornography and making threats to the vice president.  Frank said he'd gotten a handful of letters on Ardolf's behalf; a common theme: the man didn't seem the same after his wife died suddenly two days before her 38th birthday....

Frank noted that when Ardolf's points were computed, the guidelines called for a maximum of 15 years and eight months.  But the judge said a harsher punishment -- 216 months, or 18 years -- was called for. "Anything any less than that would not serve the purposes of justice," he told Ardolf, who stood before the judge, hands clasped in front of him.

July 13, 2011 in Booker in district courts, Offender Characteristics, Offense Characteristics, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

Friday, July 08, 2011

Interesting substantive reasonableness ruling from Eighth Circuit

In an interesting sentencing ruling today in US v. Shakal, No. 10-3019 (8th Cir. July 8, 2011) (available here), reveals yet again how hard it is to get a within-guideline sentence reversed as substantively unreasonable if and when a district judge provides a thoughtful explanation for his sentencing decision. Here are a few key paragraphs from the ruling:

Yahya Muhumed Shakal pleaded guilty to four counts of aiding and abetting the preparation of false federal income-tax returns. At sentencing, Shakal argued that his experiences in Somalia during the violent Somali civil war entitled him to a sentence well below the advisory Guidelines range. The district court denied Shakal's request, and sentenced him to a Guidelines sentence of 72 months' imprisonment. Shakal now appeals, urging that the district court's sentence is substantively unreasonable. We affirm....

The record clearly shows that the district court considered Shakal's violent experiences during the Somali Civil War, including witnessing the murder of his father and the rapes of his sisters. Indeed, the district court agreed with Shakal's counsel that Shakal and his family had "been through hell," and conceded that "[t]he real issue is going to be . . . how should that affect his sentence this morning."

Also, the district court considered but rejected Shakal's sentencing-disparity argument. Specifically, Shakal maintained, as he does now, that a "Mr. Mohamed" initially taught Shakal how to fraudulently request the fuel tax credit on tax returns, and that Mohamed received only 18 to 24 months at sentencing (from a different judge). The district court responded to this argument by first acknowledging that it had read through Mohamed's entire file the night before Shakal's sentencing, but ultimately concluded that Mohamed's case differed greatly from Shakal's in that Mohammed's tax scheme cost the United States Government only $44,000, far less than Shakal's $2 million haul....

[In addition, as the sentencing transcript shows,] the district court not only considered Shakal's personal history and circumstances in fashioning a sentence but reduced the sentence it would have otherwise assessed Shakal in light thereof.  Therefore, the district court did not abuse its discretion in sentencing Shakal to 72 months' imprisonment.

July 8, 2011 in Booker in district courts, Booker in the Circuits, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, May 13, 2011

If "most egregious and horrific" kiddie porn offender gets 15 years, what should mere downloaders get?

The question in the title of this post is inspired by this local article concerning a federal sentencing in Pittsburgh yesterday, which is headlined "Tough sentence ends 'Stephen's Group' child pornography case." Here are the basics:

The eighth and final person found guilty of participating in an international child pornography ring wept and apologized in federal court in Pittsburgh yesterday.  "It was outrageous, my conduct, and I deeply regret having done it," said Dave Dean, 43, of Texas and Arizona.  "It's clear I have a serious problem."

Dean's regret didn't keep him from receiving one of the tougher punishments handed out to the eight members of "Stephen's Group": 15 years in prison and a lifetime of [supervised release].  U.S. District Judge Arthur Schwab said Dean's case was the "most egregious and horrific" of the child pornography cases heard in his court. "The court is not willing to risk the chance that the defendant will re-offend," he said in handing out the sentence.

Dean and the others were part of a cabal led by Stephen Sims, 57, of San Leandro, Calif. Sims was the self-professed "den mother" who vetted people wanting to join the Internet group and had them send him images and videos of child pornography to prove they weren't police officers.  The group used social networking sites to exchange images and videos.

John Morton, director of U.S. Immigration and Customs Enforcement, which is involved because many images came from overseas, said after Dean's sentencing that the group traded images of children as young as infants being raped and tortured.  "There is little in this world that is more depraved than this," he said.

I am not prepared to assert without more information about this case that the "depraved" defendant involved in the "most egregious and horrific" kiddie porn offense here was lucky to only get a 15-year prison term.  But I know that there are lots of far less aggravated child porn downloading cases in which the federal sentencing guidelines call for prison terms much longer than 15 years, and thus this case provides yet another example of the challenges of developing and imposing consistent and proportional sentencing terms in these types of cases. 

May 13, 2011 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Thursday, May 12, 2011

What insider trading sentence for Raj Rajaratnam would avoid "unwarranted" disparity?

I had not been following closely the trial of Raj Rajaratnam, but the conviction of the founder of the Galleon Group on all counts of insider trading (basics reported here) now turns the case into a interesting federal sentencing story.  And this new Reuters piece, headlined "Factbox: Prison sentences in insider trading cases," prompts the question in the title of this post.  Here are the facts reported by Reuters:

The Galleon Group founder could face up to 25 years in prison when he is sentenced in July, although prosecutors said on Wednesday that [Raj Rajaratnam] could get 15-1/2 to 19-1/2 years in prison under federal sentencing guidelines.  Following is a list of punishments meted out to defendants in other high-profile insider trading cases:

IVAN BOESKY -- Boesky, the famed Wall Street stock speculator of the 1980s, was sentenced to three years in prison in 1987 after pleading guilty to a criminal charge related to insider trading.  Boesky, who faced a maximum penalty of five years, cooperated with prosecutors in their probe of trading firms that resulted in charges against more than a dozen people.

MARK KURLAND, ROBERT MOFFAT AND ALI HARIRI -- All three pleaded guilty in the sweeping Galleon probe. Kurland, a former senior managing director at New Castle Funds LLC, was sentenced in May 2010 to two years and three months in prison. Kurland admitted to trading on information he got from Danielle Chiesi, also a former New Castle employee who became a central figure in the Galleon investigation.  Chiesi has pleaded guilty and is awaiting sentencing.  Moffat, a former International Business Machines Corp executive, was sentenced to six months in prison for tipping Chiesi about an impending IBM deal with Advanced Micro Devices Inc.  Hariri, a former executive at chipmaker Atheros Communications Inc. received an 18-month sentence in November for tipping a former Galleon employee.

SAM WAKSAL -- The founder of biotechnology company ImClone Systems Inc. was sentenced to seven years in prison after pleading guilty to insider trading in 2002.  The scandal also ensnared Waksal's father as well as lifestyle entrepreneur Martha Stewart, who was convicted of lying to federal agents about her sale of ImClone stock.  She served five months in prison.

JOSEPH NACCHIO -- Nacchio, the former CEO of Qwest Communications, was sentenced to six years in prison, later reduced by two months, after he was convicted in a 2007 trial of 19 counts of insider trading in selling $52 million in Qwest stock.  A judge also ordered Nacchio to forfeit $44.6 million and pay a $19 million fine.

JOSEPH CONTORINIS -- Contorinis, a former hedge fund manager, received a 6-year sentence in December for his role in providing tips on impending mergers, such as the 2006 buyout of the supermarket chain Albertsons Inc.

HAFIZ NASEEM -- A judge sentenced Naseem, a former Credit Suisse Group investment banker, to 10 years in prison after he was found guilty in February 2008 of participating in a $7.5 million scheme to leak inside information about pending corporate deals.

RANDI AND CHRISTOPHER COLLOTTA -- Randi Collotta, a former Morgan Stanley lawyer, received a sentence of 60 days in prison on nights and weekends for passing along tips to her husband about impending merger deals.  Her husband, Christopher, got a sentence of 6 months' home confinement.

So, based on this (incomplete) list, it appears that nobody has received more than a decade for insider trading and that sentences of six year or much less are more common for this crime.  Does this entail that the sentencing judges in Raj Rajaratnam's case ought to feel a special statutory obligation to impose a below-guideline sentence based on Congress's instruction in 18 USC 3553(a)(6) to consider at sentencing "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct"?

May 12, 2011 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (1) | TrackBack

Sunday, May 01, 2011

Guest thoughts on the Ninth Circuit's recent significant child porn sentencing work

In the last few weeks, the Ninth Circuit has issued two significant federal child porn sentencing opinions in Apodaca (discussed here) and Henderson (discussed here).  I invited Joshua Matz, who authored a Harvard Law Review comment on the Second Circuit's big Dorvee case (noted here) and who hosted me at an HLS event last month, to author a guest-post on these cases.  Here is his effort:

Powerful Shots Across the Commission’s Bow on Child Porn Guidelines — This Time from the Ninth Circuit

It is no secret that the federal child porn sentencing guidelines have sustained withering criticism from the academy and district courts.  Motivated in part by a surge in federal prosecutions, commentators have strongly encouraged the Sentencing Commission to revisit guidelines widely decried as unduly severe and unmoored from empirical evidence.

In two recent cases, the Ninth Circuit staked out an aggressive position amongst these critics — first raising the specter of aggressive review for substantive reasonableness in US v. Apodaca, and then holding in US v. Henderson that district courts are free to vary from § 2G2.2 based solely on policy disagreement with that guideline.  These opinions likely will transform child porn sentencing practice in the Ninth Circuit and signals to the US Sentencing Commission that its failure to produce meaningful reform justifies unilateral judicial action.

The Ninth Circuit hardly stands alone.  In US v Dorvee, an opinion issued last May, the Second Circuit overturned a within-Guidelines sentence under U.S.S.G. § 2G2.2 as substantively unreasonable.  Its opinion sharply assailed the guideline’s empirical foundations and inability to achieve either parsimony or proportionality in sentencing.  A few months later, in US v. Grober, the Third Circuit affirmed a district court child porn sentencing opinion that mounted a sustained assault on the relevant guidelines provisions by discussing thirteen days of expert testimony presented to the lower court.

In Apodaca, the Ninth Circuit reprised many of these themes while exploring a defendants’ claim that his within-Guidelines term of lifelong supervised release was substantively unreasonable.  Focusing on the Guidelines’ failure to distinguish between contact and possession-only offenders — notwithstanding studies that strongly suggest different recidivism rates — Apodaca raised serious questions about the empirical support for a choice to treat these groups similarly.  Invoking Kimbrough in a concurring opinion, Judge William Fletcher went farther and argued that the Commission did not act in its “characteristic institutional role” when it failed to translate § 3583(k) into sentences appropriate to § 3553(a)-relevant subtypes of child porn crimes.  Because the Guidelines impose the same terms of supervised release on a broad range of offenders, he argued, they raise concerns about empirical support, similar treatment for dissimilar defendants, and focusing on particular characteristics of the offense and the offender.

The most surprising thing about Apodaca is that it affirmed the sentence below, turning aside at the last minute from its forceful criticism by finding that available evidence falls short of conclusive proof.  Given that the court identified only a single study questioning strong empirical support for different recidivism rates — and that a co-author of that single study has disowned the suggestion that his work disturbs a scholarly consensus — the ApodacaCourt’s own reasoning could easily have justified reversal of the sentence below.  Instead, the Court merely observed that additional evidence might provide “grounds to find that sentencing an individual like Apodaca to a lifetime term of supervised release is substantively unreasonable.”

This challenge, which defense counsel should treat as an invitation to press their empirical case in the district courts, suggests that the Ninth Circuit has joined the Second and Third in its willingness to searchingly explore the underlying justification for child porn sentences in light of § 3553(a)’s framework.  Indeed, the court’s use of substantive reasonableness review grounded in statutory principles of parsimony, proportionality, individualization, and empirical support mirrors Dorvee and participates in an important trend in appellate review of the Guidelines.

These same methods of reviewing a guideline should also play a significant role in post-Hendersonsentencing.  By holding that § 2G2.2 does not reflect the Commission’s “characteristic institutional role” and permitting variance based purely on policy disagreement, the Ninth Circuit opened the door to searching district court review of § 2G2.2’s rationality as both an exercise in administrative rulemaking and a guide to reasonable sentences in particular cases.  Judge Berzon actively encouraged such reflection and criticism in her concurring opinion, writing separately “to emphasize that unjust and sometimes bizarre results will follow if § 2G2.2 is applied by district courts without a special awareness of the Guidelines anomalous history.”

Now that district courts are required by Henderson to “appreciate” their Kimbrough discretion, and given the partial overlap between critiques of § 2G2.2 and § 5D1.2, trial counsel arguing the infirmity of child porn guidelines can simultaneously achieve two goals: (1) elaborating empirical and § 3553(a) grounds for future appellate findings of substantive unreasonableness and (2) providing district judges with concrete information relevant to a determination of whether their Kimbrough discretion ought to be exercised to vary from § 2G2.2 as a matter of policy.

These developments point to an explanation for why the Apodaca Court stayed its hand from an outright finding of substantive unreasonableness.  In that case, Judge William Fletcher concurred and called upon the Commission and Congress to “address the undifferentiated treatment of the dissimilar groups of sex offenders covered by § 3583(k) and U.S.S.G. § 5D1.2(b)(2).”  Just one week later, the Ninth Circuit essentially allowed each district judge to place § 2G2.2 under review.  These opinions strongly signal to the Commission that its policy statements are lacking and that, if it wants its Guidelines to avoid rougher judicial treatment in the future, the Commission should embrace the opportunity for reform provided by an upcoming reassessment of its child porn guidelines. In the interim, courts wielding Kimbrough discretion and substantive reasonableness doctrine will refine their own careful assessment of the Commission’s efforts.

May 1, 2011 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Monday, April 25, 2011

Latest USSC federal sentencing data shows uptick in within-guideline sentences

I am pleased an intrigued to see that the US Sentencing Commission has some fresh new sentencing data now up on its website.  The USSC's latest data report, which can be accessed here, is described this way:

First Quarter FY11 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first quarter of fiscal year 2011. (Published April 19, 2011)

The new data continue to show remarkable stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that around 55% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in over 25% of all cases.  Most notably, these latest numbers reveal a slight uptick in the total number of within-guideline sentences apparently as a result of a slight downtick in the number of judge-initiated below-guideline sentence.  

April 25, 2011 in Booker in district courts, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, April 15, 2011

US Sentencing Commission releases final FY10 federal sentencing data and annual report

Though I am hoping to finally get my golf clubs some work this weekend, I know I also will be giving my printer something to do because the US Sentencing Commission has just posted on its website a bunch of new sentencing data and analysis.  Specifically, here is the e-mail notice I just got via the USSC:

Commission releases FY2010 Annual Report & FY2010 Sourcebook.  In this publication the Commission separately reports, for the first time, data for "Child Pornography" offenses, reflecting the fact that these cases now account for more than 2% of all cases reported to the Commission in fiscal year 2010.

View FY2010 Annual Report & FY2010 Sourcebook

I hope to mine some interesting stories from this new federal sentencing materials in the next few days.  Readers/commentors are welcome and encouraged to help the effort, as there is a lot of "there there" in these new USSC documents.

April 15, 2011 in Booker in district courts, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, April 08, 2011

Judge Mark Bennet thoroughly explains why he is stil going to use 1:1 ratio in crack sentencings

In a week full of important crack sentencing news, I think the most interesting development come from Iowa in the form of a lengthy new opinion by US District Judge Mark Bennett in US v. Williams, No. CR 10-4083-2-MWB (D. Iowa Sept. 27, 2010) (available for download below). I could say so much about so many notable passages in this 82-page opinion, but I will be content to let the first paragraph and the conclusion of the Williams opinion speak for itself:

Defendant Billy Williams, Sr., came before me on March 15, 2011, for a presentencing hearing on his motion for downward variance, objections to the presentence report, and other legal issues, following his guilty plea to four crack cocaine charges.  Although there were numerous other issues to be resolved in the course of Williams’s sentencing, this Memorandum Opinion And Order focuses exclusively on the issue of whether I should continue to adhere to my prior determination that a 1:1 crack-to-powder ratio is appropriate to calculate the guideline sentencing range for crack cocaine offenses, or should now adopt the roughly 18:1 ratio adopted by the Sentencing Commission on November 1, 2010, pursuant to a congressional mandate in the Fair Sentencing Act of 2010.  When I first learned that the 2010 FSA was about to be passed, I just assumed that I would change my opinion from a 1:1 ratio to the new 18:1 ratio, because I assumed that Congress would have had persuasive evidence — or at least some empirical or other evidence—before it as the basis to adopt that new ratio.  I likewise assumed that the Sentencing Commission would have brought its institutional expertise and empirical evidence to bear, both in advising Congress and in adopting crack cocaine Sentencing Guidelines based on the 18:1 ratio.  Failing that, I assumed that the prosecution would present at the presentencing hearing in this case some evidence supporting the 18:1 ratio.  This Memorandum Opinion And Order addresses whether my modest expectations have been fulfilled and whether I should now also adopt the 18:1 ratio adopted in the amended Sentencing Guidelines....

Make no mistake: I believe that the replacement of the 100:1 crack-to-powder ratio of the 1986 Act and associated Sentencing Guidelines with the 18:1 crack-to-powder ratio of the 2010 FSA and the November 1, 2010, amendments to the Sentencing Guidelines was a huge improvement, in terms of fairness to crack defendants.  While such incremental improvement is often the nature of political progress on difficult social justice issues — and, in this instance, the increment is perhaps unusually large — an incremental improvement is not enough to make me abdicate my duty to “[c]ritically evaluat[e] the crack/cocaine ratio in terms of its fealty to the purposes of the Sentencing Reform Act.” See Whigham, ___ F. Supp. 2d at ___, 2010 WL 4959882 at *7.

Performing that duty here, I must reject the Sentencing Guidelines using the “new” 18:1 ratio, just as I rejected the Sentencing Guidelines using the “old” 100:1 ratio, based on a policy disagreement with those guidelines, even in “mine-run” cases, such as this one.  I must do so, because I find that the “new” 18:1 guidelines still suffer from most or all of the same injustices that plagued the 100:1 guidelines, including the failure of the Sentencing Commission to exercise its characteristic institutional role in developing the guidelines, the lack of support for most of the assumptions that crack cocaine involves greater harms than powder cocaine, the improper use of the quantity ratio as a “proxy” for the perceived greater harms of crack cocaine, and the disparate impact of the ratio on black offenders.  I also find that the “new” guidelines suffer from some additional concerns, in that they now create a “double whammy” on crack defendants, penalizing them once for the assumed presence of aggravating circumstances in crack cocaine cases and again for the actual presence of such aggravating circumstances in a particular case.

In one respect the “new” 18:1 guideline ratio is more irrational and pernicious than the original 100:1.  When the 100:1 ratio was enacted, Congress and the Sentencing Commission did not have access to the overwhelming scientific evidence that they now have.  This overwhelming scientific evidence now demonstrates that the difference between crack and powder is like the difference between ice and water — or beer and wine.  Can anyone imagine a sentence that is many times harsher for becoming legally intoxicated by drinking wine rather than beer?  Of course not.

I also reiterate that the proper methodology, in light of my policy-based rejection of the 18:1 ratio in the Sentencing Guidelines, is to calculate the guideline range under existing law (i.e., using the 18:1 ratio) and any appropriate guideline adjustments or departures, including the “new” adjustments for aggravating and mitigating circumstances, but then to calculate an alternative guideline range using a 1:1 ratio, again including appropriate guideline adjustments or departures, again including the “new” adjustments for aggravating and mitigating circumstances.  The court must ultimately use or vary from that alternative guideline range based upon consideration of the 18 U.S.C. § 3553(a) factors in light of case-specific circumstances.

I will sentence defendant Billy Williams, Sr., accordingly.

Download 10cr4083.dno305.Williams.newcrackratio.040711

April 8, 2011 in Booker in district courts, Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (11) | TrackBack

Wednesday, April 06, 2011

Fifth Circuit makes former Enron CEO Skilling's SCOTUS victory Pyrrhic

As detailed in this Reutersreport, "[f]ormer Enron Chief Executive Jeffrey Skilling was unsuccessful in his latest bid to overturn his criminal conviction as a U.S. appeals court called any errors in his trial 'harmless.'"  Here is how the Fifth Circuit's opinion in US v. Skilling, No. 06-2088 (5th Cir. April 6, 2011) (available here), gets started:

Former Enron Corporation CEO Jeffrey K. Skilling was convicted of conspiracy, securities fraud, making false representations to auditors, and insider trading.  After we affirmed his convictions, the Supreme Court invalidated one of the objects of the conspiracy charge — honest-services fraud — and remanded, instructing us to determine whether the error committed by the district court in submitting the honest-services theory to the jury was harmless as to any of Skilling’s convictions.  Because we find that the error was harmless, we affirm the convictions.  In addition, for the reasons stated in our previous opinion, we vacate the sentence and remand for resentencing.

So while Skilling's trip to the Supreme Court created some important new federal criminal law, it appears that he will get no substantive relief from the SCOTUS ruling in his favor last year.  That all said, Skilling's High Court success might not end up being completely for naught, as he still has a resentencing ahead and perhaps he can contend that he deserves some measure of sentencing credit for his troubles.

Meanwhile, I would be surprised if resentencing is the next development in the long-running Skilling saga.  I would expect Skilling's lawyers to seek en banc and/or certiorari review of today's Fifth Circuit panel holding.  But if further review of his convictions are not forthcoming, then Skilling's case will become a high-profile resentencing proceeding; as some may recall, the Fifth Circuit reversed in a prior opinion a key guideline determination that led in part to Skilling's original 24+ year (within-guideline) prison term.

UPDATE:  Over at White Collar Crim Prof blog, Ellen Podgor has this lengthy new post titled "Commentary on Skilling Remand Decision."

April 6, 2011 in Booker in district courts, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (8) | TrackBack

Sunday, April 03, 2011

Detroit's Granny Valjean gets probation and home confinement for Social Security fraud

Last week I asked in this post what would seem a fitting federal sentence for an elderly woman who fraudulently received nearly $120,000 in Social Security benefits over a 20-years period and used the funds to raise and support her grandkids.  Here is the news report on her actual sentencing:

In the end, the judge showed her mercy.  Mary Alice Austin, a Detroit grandmother who admitted she stole from the government because she needed money to help raise her five grandchildren, avoided a prison sentence Friday when a federal judge gave her probation instead.  But Austin will have to pay back $119,000 in restitution and will serve four months in home confinement on a tether.

U.S. District Judge Victoria Roberts issued the sentence after Austin, 67, pleaded for her freedom.  She faced 10-16 months in prison for unlawfully receiving her son's disability checks while he was in prison.  "Please understand me. Please," a frail-looking Austin said at her sentencing.

Austin told the judge she still has a mentally ill son in an institution to look after.  She also talked about the struggles she faced in raising five grandchildren and said desperate times forced her to make a bad choice.  "I am remorseful," Austin said.  "I got scared.  I got very scared."

According to court records, Austin paid someone to pose as her mentally ill son so she could continue receiving his disability benefits while he was in prison.  From 1990 to 2009, Austin received nearly $120,000 in benefits -- about $6,000 a year, records show....

At Austin's sentencing, Assistant U.S. Attorney Blondell Morey conceded Austin doesn't present a threat to the public but pushed for prison time.  "I think basically Ms. Austin is a good woman, but she did some bad things. ... And she needs to be punished."

April 3, 2011 in Booker in district courts, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (8) | TrackBack

Friday, April 01, 2011

Another extraordinary sentencing opinion from Judge Jack Weinstein in multi-defendant crack case

A number of helpful readers have made sure that I did not miss yet another extraordinary sentencing opinion from the desk of US District Judge Jack Weinstein. The opinion in United States v. Bannister, No. 10-CR-0053 (E.D.N.Y. Mar. 24, 2011) (available for download below), runs over 125 pages and here are excerpts from the conclusion (with cites omitted):

Several of the sentences in this case, imposed only because of statutory minima, are disproportionate to the crimes committed and the backgrounds of the defendants.  Their excess causes particular concern when applied to youthful defendants.  That concern is multiplied by their imposition upon young defendants subject to abuse, poverty, drug and alcohol addiction, unemployment, illiteracy, and learning disability, largely attributable to their backgrounds.

Had the defendants been raised by cohesive, adequate families, most of the difficulties they encountered would probably never have come to pass.  Well-resourced, attentive parents would have had the knowledge, ability, and insight to protect their children from many of the difficulties that befell these defendants in their youth, to obtain assistance to deal with their psychological and physical problems, and to obtain crucial opportunities for education, work, and personal growth.  Even those with learning disabilities would likely have been provided available resources to overcome their impairments at public expense. That the defendants were born into circumstances without such support is at the center of this tragedy.

As part of defendants‘ sentences, it has been ordered that every reasonable effort be made to provide counseling, drug and alcohol treatment, gambling rehabilitation, anger management therapy, education, and job training while defendants are incarcerated and during supervised release.

Considering the limited resources devoted to such rehabilitative measures, however, it is by no means clear that these aids will be effectively provided.  When the defendants are released from prison, they will probably have to return to all of the problems that led them to engage in crime.  Whatever tenuous connection they retain to the lawful, supportive world will likely be diminished after years of forced separation in prison.  Incarceration will make entry into the job market more difficult.  Remaining will be the root problems that have largely brought them to this pass: poverty; dysfunctional families; mental and physical problems; legal and de facto housing segregation; segregated and inferior schools; and an economy that appears to have little need or concern for low- and semi-skilled workers.  Such individuals constitute a permanent underclass with almost no opportunity to achieve economic stability, let alone the American dream of upward mobility.

These problems are concentrated among low-income African Americans, but they affect the country as a whole.  Our rates of imprisonment, income inequality, and unemployment are either the highest or among the highest of the world's advanced economies, while our rates of food security and life expectancy are among the lowest.

Significant reforms are needed in our sentencing regime.  The Fairness in Sentencing Act of 2010 reduced the dubious 100:1 powder/crack ratio to a 17.8:1 ratio.  It did nothing to remove the sentencing regime's dependence on arbitrary drug quantities — not just with regard to crack cocaine but other drugs as well — that bear little relationship to the harm a defendant has done to society or to the danger of his inflicting further harm.  Harsh, disproportionate mandatory sentences impose grave costs not only on the punished but on the moral credibility upon which our system of criminal justice depends.

Judges approach the grave responsibility of sentencing criminals with all the thoughtfulness and limited insight that their knowledge and wisdom can muster.... Mandatory minimum sentencing provisions, leaving no alternative but lengthy incarceration, prevent the exercise of this fundamental judicial duty.  Such laws are ― overly blunt instruments, bringing undue focus upon factors (such as drug quantities) to the exclusion of other important considerations, including role in the offense, use of guns and violence, criminal history, risk of recidivism, and many personal characteristics of an individual defendant.  It is difficult to conceive of a system of mandatory minimum sentences that could effectively anticipate and provide for such factors.

For nonviolent, low-level drug crimes, the goals of incarceration — general and specific deterrence, incapacitation, retribution, and rehabilitation — could in most cases be achieved with limited incarceration, through a system of intense supervised release utilizing home visits; meetings with parole officers; a combination of counseling, drug and alcohol treatment, education, job training, and job placement; and electronic monitoring to prevent flight, promote positive choices, and deter and detect incipient crime. Such a regime would likely be more effective in reducing crime and much less costly than imprisonment.  Given discouraging economic, social, and psychological conditions, it seems doubtful that the long sentences of incarceration imposed will appreciably reduce crime.

Pragmatism and a sense of fairness suggest reconsideration of our overreliance on incarceration. Though defendants are hemmed in by circumstances, the law must believe that free will offers an escape.  Otherwise, its vaunted belief in redemption and deterrence — both specific and general — is a euphemism for cruelty.  These defendants are not merely criminals, but human beings and fellow American citizens, deserving of an opportunity for rehabilitation.  Even now, they are capable of useful lives, lived lawfully.

Download U.S._v._Bannister_Statement_of_Reasons_FINAL

April 1, 2011 in Booker in district courts, Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (18) | TrackBack

Monday, March 28, 2011

Notable Enron insider trading sentencing outcome and reasoning

This Bloomberg report, headlined "Ex-Enron Broadband Executive Sentenced for Insider Trading," caught my attention for a number of reasons.  Here are the details:

Former Enron Broadband Services executive Rex Shelby was sentenced today on an insider trading charge linked to the investment fraud that destroyed the world’s largest energy trader 10 years ago.  Shelby, 59, pleaded guilty to one count of insider trading and was sentenced to three months in a federal halfway house and three months of house arrest. Shelby will also forfeit about $2.6 million in profits from the illicit trade.

Shelby’s lawyer Ed Tomko told a judge that Shelby has also agreed to forfeit another $1 million to resolve related Securities and Exchange Commission charges. He faced a maximum of 10 years and a fine of $1 million on the one count before reaching his plea deal. He’ll be in probation for two years, including the six months of combined confinement....

U.S. District Judge Vanessa Gilmore sentenced Shelby to half the number of months confinement that he’d agreed to in a plea deal.  “Mr. Shelby’s actions ultimately did not cause the downfall of Enron,” she said.  “Only a few individuals at the pinnacle of Enron knew of the fraud.”

Gilmore said she moderated the sentence to fit Shelby’s role and the punishments given to others in the Enron fraud scheme.  She said the fact Shelby has for the last eight years devoted himself exclusively to working on his defense, in “self-imposed home confinement"”, was also a consideration in her decision....

Shelby and six other EBS executives were indicted in 2003 on charges they helped the parent company’s senior management, including Enron’s former Chairman Kenneth Lay and Chief Executive Officer Jeffrey Skilling, deceive analysts and investors about the unit’s capabilities and financial performance.

The executives were accused of misrepresenting EBS at a January 2000 analysts’ conference, where they portrayed it as one of Enron’s “core’’ units, worth about $50 billion. In reality, the division struggled to launch products and never earned a profit.

Enron’s stock soared from $54 a share the day of the analysts’ conference to $72 a share the following day. Shelby sold 150,000 shares on the price increase, reaping gross proceeds of just under $10.7 million, according to his plea.

Shelby had long maintained he sold the shares to diversify his portfolio and not based on any inside knowledge of an alleged conspiracy to inflate Enron’s stock price. To avoid a trial on broader conspiracy and fraud charges, which had been set to begin this past January, Shelby pleaded guilty to one count of insider trading in November....

Shelby’s sentencing marks the end of the Enron Broadband case, which yielded mixed results for the government. Two of the seven originally indicted EBS executives -- Kenneth Rice and Kevin Hannon, who each served as president of the division at one time -- pleaded guilty before trial and testified against former colleagues.

The remaining five executives, including Shelby, were tried together in Houston federal court in 2005. That trial ended with no convictions and a smattering of acquittals, as jurors failed to reach verdicts on scores of counts. None of the men were completely exonerated at that trial, and the government vowed to streamline its case and retry them all on narrower charges.

To avoid that retrial, former CEO Joseph Hirko pleaded guilty to a reduced charge in late 2008 and served about 16 months in prison, forfeiting $7 million. Ex-strategy chief F. Scott Yeager appealed the government’s retrial attempts and in 2009, the U.S. Supreme Court ruled he couldn’t be retried based on his partial acquittal by the first jury.

I have highlighted above one particular passage of this account of the sentencing because I cannot recall hearing of another case in which a judge expressly identified that the time/energy spent by the defendant defending himself as a mitigating sentencing factor.  I do not mean to critique the use of this factor, as much as just to note it here and to welcome comments about whether others have a strong view, concerning in this case or others, as to whether the time/energy spent by a defendant defending himself ought to be viewed as a mitigating sentencing factor.

March 28, 2011 in Booker in district courts | Permalink | Comments (6) | TrackBack

Saturday, March 19, 2011

Programmer sentenced to eight years for taking code from Goldman Sachs

Though some might hope that lots of people who once worked for Goldman Sachs would be facing prison, this New York Times story is about just the notable sentencing a former Goldman programmer.  Here are the details:

A former Goldman Sachs computer programmer convicted of stealing source code from the firm was sentenced on Friday to more than eight years in prison, capping a case that had shone a rare spotlight on the world of lightning-fast computer-driven trading.

A federal jury in Manhattan in December found the programmer, Sergey Aleynikov, guilty of stealing proprietary code that places trades using computer algorithms that spot tiny discrepancies in stock prices. Such trading earned Goldman about $300 million in 2009.

Before leaving Goldman for a new job at a start-up, Teza Technologies, federal prosecutors had claimed, Mr. Aleynikov secreted the code onto a server in Germany to get around the investment bank’s security systems.

The prison term, while at the low end of federal sentencing guidelines, was four times what probation officials had recommended. Prosecutors had asked for as much as 10 years.

Both the defense and the prosecution cited the recent case in Manhattan of Samarth Agrawal, a trader at Société Générale, who was convicted of stealing proprietary code from its high-frequency trading business. Mr. Agrawal was sentenced in February to three years in prison, less than the government’s request.

“It is unprecedented for the government to seek a sentence five times as high as probation recommends and for the court to impose a sentence four times as high,” said a defense attorney, Kevin H. Marino....

But Judge Denise L. Cote of the Federal District Court in Manhattan likened his crime to “economic espionage.” Mr. Aleynikov’s conduct, she said, “deserves a significant sentence because the scope of his theft was audacious — motivated solely by greed, and it was characterized by supreme disloyalty to his employer.”...

Mr. Aleynikov has been in jail since March 2, when the judge revoked his bail. The decision to incarcerate Mr. Aleynikov before his sentencing was prompted by a letter from federal prosecutors, who warned that Mr. Aleynikov had dual citizenship and posed a flight risk.

March 19, 2011 in Booker in district courts, Offense Characteristics | Permalink | Comments (3) | TrackBack

Friday, March 18, 2011

Latest chapter in notable federal acquitted conduct case from DC

As detailed in this local piece from the Washington Times, which is headlined "D.C. man gets 18 years for $600 drug deal," a notable federal criminal case involving acquitted conduct finally resulted in a sentencing outcome yesterday.  Here are some of the specifics:

More than three years ago, a federal jury acquitted Antwaun Ball on racketeering and conspiracy charges that he led a violent drug gang in the Congress Park neighborhood in Southeast Washington, convicting him solely of a $600, half-ounce drug deal.

But at Ball's long-delayed sentencing Thursday, U.S. District Judge Richard W. Roberts disagreed, saying he saw clear evidence of a drug conspiracy before sentencing Ball, 40, to more than 18 years in prison for his conviction of the 2001 hand-to-hand drug transaction. The judge's ruling in federal court in Washington shines a light on a little known practice called acquitted conduct sentencing that lets judges mete out tougher prison terms based on conduct jurors rejected.

Arguing Ball was the ringleader of a gang called the Congress Park Crew, prosecutors pointed to, among other things, testimony from cooperating witnesses in the federal drug case as well as guilty pleas by people who said they saw Ball dealing drugs and carrying guns.  Assistant U.S. Attorney Gilberto Guerrero Jr. argued that Ball caused "havoc" in Congress Park that "destroyed people's lives."

Meanwhile, Ball's defense attorney, John Carney, cited testimony of people who worked with Ball on various community projects in Congress Park, including a former U.S. Parole Board commissioner, Janie Jeffers, who called Ball "a catalyst" for improving the neighborhood.

Mostly, Mr. Carney pointed to the words of a juror in the case, Jim Caron, who died not long after writing a letter to the judge after the trial. "Conspiracy? A crew? With the evidence the prosecutor presented, not one among us could see it. Racketeering? We dismissed that even more quickly," Mr. Caron wrote.  "This is one of the few times we know exactly what the jury was thinking," Mr. Carney argued. Prosecutors disagreed: "That's one person's perspective," said Mr. Guerrero.

Defense lawyers also argued in court memos that if the judge relies on acquitted conduct, Ball unfairly would get a prison term far longer than what he'd receive under the federal sentencing guidelines.  But prosecutors pointed out that those guidelines are advisory, not mandatory, and that selling five or more grams of crack cocaine by law carries a sentence anywhere from five to 40 years in prison.

Judge Roberts said the "stark duality" of Ball's persona was "confounding and tragic."  And he said while he respected the jury's verdict, he couldn't turn a blind eye to what he called "clear and convincing" evidence that Ball was part of a long-running conspiracy to deal crack cocaine in Congress Park.  The judge did not otherwise address Mr. Caron's letter, which was later cited by Gilbert S. Merritt Jr., senior judge on the 6th U.S. Circuit Court of Appeals, in an unrelated case in Kentucky involving acquitted conduct issues.

Judge Roberts said his reliance on acquitted conduct in determining a sentence for Ball was proper.  He also gave Ball credit for the time he's served since being locked up in April 2004, and he reduced his sentence by 15 months because of delays in carrying it out....  A co-defendant in the case, David Wilson, was sentenced to 45 years in prison last week.  He was convicted in two murders and on drug charges.

In a sentencing memo, prosecutors called for a 40-year sentence for Ball on the basis of, among other things, "ample evidence" that Ball was the leader of a criminal conspiracy. Other "acts of violence, witness intimidation and other obstructive acts," prosecutors argued, "show what a true danger Ball is."  The prosecutors also said they were asking for a tougher sentence for Ball not on the basis of acquitted conduct, but uncharged conduct — or actions the jurors were never asked to consider.

By contrast, defense attorneys called the jury verdict a "virtually total rejection" of the government's case against Ball.  Ball's sentence is likely to be appealed.

I am pleased to see that the acquitted conduct issue has been preserved by Ball's counsel and that he apparently has plans to appeal his client's sentence.  Though the DC Circuit has upheld the constitutionality of acquitted conduct sentencing since Blakely and Booker, at some point in some way some circuit has to question at least the substantive reasonableness of a sentence that is greatly elevated on the basis of acquitted conduct.  And such a ruling may be what is needed to convince the Supreme Court that this issue merits re-examination in light of Blakely and Booker.

Some older posts on the Ball case and acquitted conduct sentencing enhancements:

March 18, 2011 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Friday, March 04, 2011

Is Pepper starting to add spice to federal sentencing proceedings?

The significant ruling by the Supreme Court this week in Pepper (basics here) has already impacted a on-going federal sentencing articles and projects of mine, and I am wondering if and how the Pepperruling is impacting on-going federal sentencing proceedings.  I suspect more than a few litigants with pending sentencing appeals are filing letters of supplemental authority based on Pepper, and perhaps some district courts have already referenced the ruling in sentencing decisions.  (Recall that there are, on average, more than 300 federal sentencings taking place every day in federal courts around the nation.)

I hope readers might use the comments to this post to report on any early impact from Pepper, and I also hope anyone who come across a sentencing opinion that has some Pepper added will send it my way.

Related posts on the Pepper ruling by the Supreme Court:

March 4, 2011 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, March 02, 2011

Will Pepper prompt many more federal sentencing judges to focus on post-offense rehabilitation?

The significant federal sentencing ruling by the Supreme Court today in Pepper (basics here) is only technically concerned with whether district judges are permitted to consider evidence of a defendant's post-sentencing rehabilitation at a re-sentencing following an appellate reversal of a defendant's original sentence.  But in the course of saying that district judges do have authority to consider this kind of evidence, Justice Sotomayor' opinion for the Court highlights reasons why any evidence of a defendant's rehabilitation is a critically important concern for an initial sentencing decision in which a district judge is seeking to comply with the statutory instructions of  18 U.S.C. §3553(a). 

Consider in this context these passages (with some cites omitted) from the Pepper opinion:

[E]vidence of postsentencing rehabilitation may be highly relevant to several of the §3553(a) factors that Congress has expressly instructed district courts to consider at sentencing.  For example, evidence of postsentencing rehabilitation may plainly be relevant to “the history and characteristics of the defendant.” §3553(a)(1).  Such evidence may also be pertinent to “the need for thesentence imposed” to serve the general purposes of sentencing set forth in §3553(a)(2) — in particular, to “afford adequate deterrence to criminal conduct,” “protect the public from further crimes of the defendant,” and “provide the defendant with needed educational or vocational train-ing . . . or other correctional treatment in the most effective manner.” §§3553(a)(2)(B)–(D).... Postsentencing rehabilitation may also critically inform a sentencing judge’s overarching duty under §3553(a) to “impose a sentence sufficient, but not greater than necessary” to comply with the sentencing purposes set forth in §3553(a)(2)....

Pepper’s postsentencing conduct also sheds light on thelikelihood that he will engage in future criminal conduct, a central factor that district courts must assess when imposing sentence.  See §§3553(a)(2)(B)–(C); Gall, 552 U.S., at 59 (“Gall’s self-motivated rehabilitation ... lends strong support to the conclusion that imprisonment was not necessary to deter Gall from engaging in future criminal conduct or to protect the public from his future criminal acts” (citing §§3553(a)(2)(B)–(C))).  As recognized by Pepper’s probation officer, Pepper’s steady employment, as well as his successful completion of a 500-hour drug treatment program and his drug-free condition, also suggest a diminished need for “educational or vocational training ... or other correctional treatment.” §3553(a)(2)(D).  Finally, Pepper’s exemplary postsentencing conduct may be taken as the most accurate indicator of “his present purposes and tendencies and significantly to suggest the period of restraint and the kind of discipline that ought to be imposed upon him.”  Ashe, 302 U.S., at 55. Accordingly, evidence of Pepper’s postsentencing rehabilitation bears directly on the District Court’s overarching duty to “impose a sentence sufficient, but not greater than necessary” to serve the purposes of sentencing. §3553(a).

As the question in the title of this post is designed to highlight, one could readily replace the word "postsentencing" in these passages with the word "post-offense" without any loss of meaning.  All the substantive reasons why the Court says sentencing judges should be concerned with postsentencing rehabilitation apply with equal force — and maybe with even greater force — to post-offense rehabilitation.  (Indeed, the cite/quote from the Gall opinion in this context, a case concerning only post-offense rehabilitation, reinforces the point that a majority of Justices views these considerations comparably.)

Since Booker (and even before Booker), it has been common for federal defense attorneys to stress evidence of a defendant's post-offense rehabilitation before an initial sentencing.  And since Booker (and especially since Gall), some (many?) federal district judges have been inclined to give some (or even considerable) weight to such evidence.  But I have always sensed that some (many?)  federal district judges have been unwilling to give too much (or even any) weight to such evidence.  I am certain Pepper will prompt defense attorneys to be even more aggressive when presenting and making arguments based on post-offense rehabilitation.  But, as my post title suggests, I am less sure if Pepper will lead many more federal sentencing judges to focus on such evidence when discharging, as Pepper puts it, their "overarching duty to 'impose a sentence sufficient, but not greater than necessary' to serve the purposes of sentencing.  §3553(a)."

Related posts on the Pepper ruling by the Supreme Court:

March 2, 2011 in Booker in district courts, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

SCOTUS rules in Pepper, again stressing sentencing discretion after Booker

The Supreme Court handed down its biggest federal sentencing case of the Term to date, ruling in the Peppercase about the consideration of post-sentencing rehabilitation at a federal resentencing proceeding.  The full opinion is available at this link, and here are the (no-so-simple) basics of the ruling in terms of how the Justices voted:

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and GINSBURG, JJ., joined, and in which BREYER and ALITO, JJ., joined as to Part III.  BREYER, J., filed an opinion concurring in part and concurring in the judgment.  ALITO, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part.  THOMAS, J., filed a dissenting opinion.  KAGAN, J., took no part in the consideration or decision of the case.

Here is the key paragraph from the start of the opinion for the Court by Justice Sotomayor: 

We hold that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range.  Separately, we affirm the Court of Appeals’ ruling that the law of the case doctrine did not require the District Court in this case to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at petitioner’s prior sentencing.

The ultimate outcome here is not too surprising, but there seems to be a lot of "there there" in this opinion.  (For example, the first part of the opinion of the Court stresses the old 1949 Williams ruling and repeats over and over that federal judges even after modern sentencing reforms have broad discretion to consider all factors relating to the defendants.)  Blog posts will follow with some quick thoughts and perhaps some deeper thoughts in the hours and days ahead.

March 2, 2011 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, January 26, 2011

Notable comments about federal sentencing trends from Senator Charles Grassley

A helpful reader pointed out to me that US Senator Charles Grassley had these notable comments about federal sentencing law and practice at the end of this lengthy statement prepared for today's Senate Judiciary Committee hearing on fraud prosecutions:

Finally, Mr. Chairman, I'd like to note that regardless of the substantive laws we pass, the investigative and law enforcement resources appropriated, and the prosecutions brought so far, criminal fraud will not be adequately deterred unless we revisit the Supreme Court's decision in United States v. Booker.  In that case, the Supreme Court held that mandatory Sentencing Guidelines violated the Sixth Amendment.  Now that the Guidelines have been held to be merely advisory, the disparity and unfairness in judicially imposed sentences that we sought to eliminate on a bipartisan basis are returning, especially in two areas: child pornography and fraud cases of the type we are discussing today.  If potential fraudsters view the lenient sentences now being handed down as merely a cost of doing business, efforts to combat criminal fraud could be undermined.

Supporting this position is a Reuters analysis of 15 insider trading cases that were brought by the United States Attorney in New York in 2009 and 2010, which concluded that in 13 of them, or 87 percent, the sentences imposed were lighter than the terms prescribed by the Sentencing Guidelines, and seven, nearly half, contained no prison term.  By contrast, in other cases, New York federal judges issued sentences below those called for in the guidelines 57 percent of the time, in itself a shocking change from the system that the Sentencing Reform Act of 1984 created until the Supreme Court's Booker decision. Nationwide, 42 percent of all federal sentences were below the guidelines.  Federal judges often seem not to understand the seriousness of these crimes.  At one sentencing proceeding in an insider trading case, Judge Alvin Hellerstein said, "[T]here are no victims in this crime, at least not in any real sense."  Rather than imposing a sentence in keeping with the guidelines of 37 to 46 months, he noted that the defendant was an accomplished academic with an autistic son, and gave three years' probation.  Most of the defendants who received lenient sentences did not cooperate with the government.  As a result, defense lawyers are now arguing that to avoid disparity, their non-cooperating insider trading clients should also receive sentences below the guidelines.

January 26, 2011 in Booker in district courts, Federal Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, January 06, 2011

Two 2011 must-reads for sentencing fans from the Duke Law Journal

A little law review surfing proved fruitful this afternoon when I discovered that the January 2011 issue of the Duke Law Review is already available on-line and it includes these two must-reads for sentencing fans:

January 6, 2011 in Baze and Glossip lethal injection cases, Booker in district courts, Death Penalty Reforms, Federal Sentencing Guidelines, Recommended reading | Permalink | Comments (0) | TrackBack

Monday, December 20, 2010

New law review article on post-Booker disparity makes headlines in Boston

20judges_graphic1a__1292845527_0238 This morning's Boston Globe has this effective new article reporting on this important new academic research just published in the Stanford Law Review about post-Booker sentencing realities in the District of Massachusetts.  The Globe article is headlined "Disparity cited in sentence lengths; Analyst studying Hub’s US judges alleges bias risk," and it does a nice job summarizing the basic findings of Professor Ryan Scott's just published article titled "Inter-Judge Sentencing Disparity After Booker: A First Look."  Here are excerpts from the Globe coverage:

Since the US Supreme Court struck down mandatory sentencing guidelines five years ago in a landmark ruling, the difference in the average sentences of the most lenient and most severe federal judges in Boston has widened, according to a new study that says the trend threatens to undermine fairness.

Now that the guidelines are only advisory, the three most lenient jurists impose average prison sentences of slightly more than two years for all crimes, said the study in the Stanford Law Review published this week.  The two toughest impose average sentences double that.

The findings are troubling, said the author of the study, Ryan W. Scott, an associate professor at Indiana University’s Maurer School of Law, because they raise the specter of defendants getting markedly different punishments depending on the politics and biases of the judges before whom they appear.  "It offends our notions of equality and consistency and the rule of law that an offender’s sentence should depend on which judge happens to be assigned to the case," Scott, who analyzed 2,262 sentences imposed by 10 judges in Boston, said in an interview.

Scott uses the letters A through J to identify the judges when comparing sentencing patterns, and declined to identify them by name.  But he describes four judges who have increasingly set sentences at below guideline ranges as "free at last judges."  He calls two whose sentencing patterns have remained largely unchanged "business as usual judges."

The "free at last judges" sentence defendants below the guideline range three or four times as often as they did before the Supreme Court ruling — as much as 53 percent of the time, he wrote.  The "business as usual judges" sentence below the guidelines at essentially the same rate they did before the ruling — as little as 16 percent of the time.

Thus, the effect of a judge on sentence length has increased in importance, Scott said. But it still pales in comparison with other factors, he said, including the crime for which a defendant was convicted, the offender’s criminal history, and what the advisory sentencing guidelines recommend.

Two of the US district court judges whom Scott studied, Nancy Gertner and William G. Young, said they welcomed his analysis, a draft of which has been circulating in legal circles for several months.  But both judges, whom Scott thanks in the 68-page article for cooperating, said he gives short shrift to the importance of tailoring sentences to individual defendants....

Chief Judge Mark L. Wolf, the top judge in the Massachusetts district court, said he has no idea which judge he is in the study.  But he acknowledged that he has increasingly sentenced some defendants, particularly those accused of dealing crack cocaine, below the guideline ranges since the framework became advisory, he said.  Wolf is among many federal judges who have long criticized the disparity between the harsh punishments for dealing crack and the less severe penalties for powdered cocaine, a disparity the federal government has narrowed in recent years.

Although Wolf has sentenced more drug offenders to less than the guidelines recommend in recent years, he said, he has increasingly sentenced white-collar offenders to more than the guidelines advise....

The Supreme Court rulings [in Booker and its progeny] transform[ed] what had been a mandatory framework into an advisory one.  But that has caused the difference in the length of the average sentence imposed by the most severe and most lenient judges in Boston to grow, Scott writes.

Before the Booker case in 2005, the difference stood at 15 months, in cases where crimes carried no mandatory minimum sentences, according to Scott’s findings. Since the three Supreme Court rulings, the difference has grown to almost 40 months.  "I’m just pointing out that the differences among judges have become more stark since Booker, and that’s a worrying development," Scott said.

Another federal judge in Boston, Patti B. Saris, has been nominated by President Obama to be a member and chairwoman of the Sentencing Commission.  The Senate Judiciary Committee recently voted, 18-1, to confirm her nomination.  The full Senate is expected to vote shortly.

Even the most casual follower of federal sentencing developments since Booker should not be surprised by the findings in the Scott study.  Indeed, Justice Breyer himself candidly acknowledged when he invented the Booker advisory guideline remedy that this system likely would increase disparity, and he stressed that it was up to Congress to decide whether an alternative system to the one he was creating to deal with constitutional problems with sentence-enhancing judicial fact-finding was to be preferred. That Congress has left the Booker advisory system entirely unchanged now for six full years continues to surprise me much more than empirical documentation of increased post-Booker sentencing disparities.

Perhaps one reason Congress has not responded to Booker legislatively is the sense, even among the most ardent fan of mandatory federal sentencing guidelines, the increased disparity since Booker is not really such a bad thing in light of the alternative ways of reforming the federal sentencing system.  We got an advisory system in the first place largely because federal prosecutors balked at the prospect of having to comply with the new constitutional requirements for proving up sentence enhancements set out in Blakely, and there has been little evidence in the last six years that federal prosecutors have become bigger fans of Blakely rights.  Moreover, as Scott's research shows, even with the effect of a judge on sentence length has increasing after Booker, legally relevant factors like the defendant's crime and criminal history still are the principal drivers of sentence lengths.  Thus, to paraphrase Pangloss from Candide, perhaps despite increased disparity, after Booker we may be living in the best of all possible federal sentencing worlds.

December 20, 2010 in Booker and Fanfan Commentary, Booker in district courts, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, December 03, 2010

Notable new sentencing opinion from Judge Gertner for low-level crack dealer

Long-time readers know that  and today US District Judge Nancy Gertner long ago earned her place in my Sentencing Judges Hall of Fame by effectively exploring a range of important issues through detailed sentencing opinion in the immediate wake of Blakely and Booker.  And I am pleased now to report that, though basic sentencing law is now more settled, Judge Gertner continues to write opinions that knock important sentencing issues out of the park. 

Earlier this week, for example, she produced a fascinating discussion of post-Booker sentencing issues through a 26-page decision in US v. Wigham, No. 06cr10328-NG (D. Mass. Nov. 30, 2010), which can be downloaded below.  Sentencing fans will want to read the opinion in full, and here is a snippet to whet the appetite:

Once I determine that a Guideline sentence does not apply, I must then decide what sentence is appropriate to meet the statutory sentencing purposes of 18 U.S.C. § 3553(a) as Booker directs. See 543 U.S. at 224.  In this regard, I will use the approach which I used in other drug sweep cases, described in United States v. Garrison, 560 F. Supp. 2d 83 (D. Mass. 2008).  In Garrison, I evaluated and compared the sentences imposed on men picked up in the same sweep, the same geographical area, with the same charges -- including sentences imposed by other judges -- to the case of the defendant before me.  In effect, Garrison makes the sentences of individuals imposed by other judicial officers function as precedent for my sentence, part of a common law of sentencing.

The government criticizes the Garrison approach, arguing that it will somehow exacerbate disparity in this jurisdiction and cites to a recent article by Professor Ryan Scott ("Scott"), Inter-Judge Sentencing Disparity After Booker: A First Look (Ind. Legal Studies Research, Paper No. 140, 2010), which reflected concerns about Massachusetts federal sentencing. As I describe below, Scott’s article defines disparity in terms of the extent to which District of Massachusetts judges are following the Sentencing Guidelines.  Following the Guidelines, it suggests, promotes the kind of sentencing consistency that the Sentencing Reform Act aimed for.

I disagree with the premise, as I describe below. S imilarly situated with respect to the Guideline categories does not necessarily mean similarly situated with respect to the defendant’s actual role in the criminal endeavor or his real culpability.  Guideline categories (like career offender guidelines) are frequently over broad, giving the same "score" to individuals who are not remotely similar and ignoring critical differences between them (their role in the offense, their mens rea) that should bear on punishment. In any event, in this case, the government’s position touting the Scott article was ironic. It agreed that the Guideline sentence is far too high for Whigham.

To the extent that Scott's findings suggest differences in the approach to the Guidelines among the judges in Massachusetts, they should be carefully evaluated, which I do below. The critical question is what these disparities reflect -- whether they reflect the untutored preferences of particular judges, as often occurred pre-Guidelines, or real jurisprudential differences involving Guidelines that are problematic.  In my judgment, they reflect the latter; the good faith, reasoned evaluations of Guidelines and facts.  Even before Booker, the Guidelines contemplated that district court judges would depart from the Guidelines on occasion, that the Commission would consider these departures and amend the Guidelines, if appropriate, allowing for a collaborative evolution of Guideline law.  After Booker, more of the work of that evolution is to be done by the appeals courts than the Commission -- determining which approaches are "reasonable" and which are not.

In the short term, until there is precedent in the areas in which there are real issues, like the career offender and crack cocaine Guidelines, differences in approach across cases are unavoidable.  That is all the more reason for using the Garrison approach, at the very least, looking carefully at the sentences given to individuals in a given sweep, in the same geographic area, in roughly the same time period, having the same role in the offense.

Let me be clear -- in answer both to Professor Scott and the critics of advisory Guidelines: When I choose not to follow the Guidelines, it is not because I simply disagree with them and seek to substitute my own philosophy of sentencing.  It is because the Guideline at issue is wholly inconsistent to the purposes of sentencing under 18 U.S.C. § 3553(a).  And when I assign a non-Guidelines sentence, I am likewise not picking a number out of the air, but keying what I do, to the extent possible, with the sentences and reasoning of other judges, and the evidence that I have been given.  Finally, I write decisions so that my reasoning is clear and may usefully serve as precedent to others.

Download WhighamSentMemoNov30th2010AMENDED

December 3, 2010 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (21) | TrackBack

Tuesday, November 30, 2010

"Most federal judges not comfortable with tough guidelines"

The title of this post is the headline of this article about federal child porn sentencing realities appearing in today's Pittsburgh Post-Gazzette.  Here is how it gets started:

Before Richard Leo Smith III could ask for leniency for possessing child pornography, a federal judge in Pittsburgh signaled he would grant it.  The judge disagrees with guidelines that recommend a minimum of more than six years in prison.  "The guideline is largely the product of congressional directives," U.S. District Judge Gary Lancaster said recently, before sentencing Smith, 28, of Indiana Township to 2-1/2 years in prison.

A survey this year suggests a similar scenario plays out frequently across the country. About 70 percent of federal judges think sentencing guidelines for possession or receipt of child pornography are unreasonable.  The U.S. Sentencing Commission intends to review the guidelines.  The stakes could hardly be higher: years of defendants' lives vs. the safety of children.

Public defender Penn Hackney, who represented Smith, told Lancaster that uncertainty about the guidelines put him in a bind.  Some federal judges limit sentences to probation in such cases; others hand out 10 years or more in prison.  "This landscape is so shifting, I don't know what to ask for anymore," Hackney said.

Some related prior federal child porn prosecution and sentencing posts:

November 30, 2010 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, November 19, 2010

Federal judge cutting deal to avoid prison time for drugs, guns and stripper activities

As reported in this piece in the Atlanta Journal-Constitution, which is headlined "Federal judge to plead guilty in drug case," senior U.S. District Judge Jack Camp appears to have worked out a sweet plea deal following his arrest on various drug and gun offenses.  Here are some of the specifics:

Senior U.S. District Judge Jack Camp, whose arrest on charges of buying drugs and his relationship with a stripper shocked the state's legal community, will plead guilty Friday to federal charges, his lawyer said.  “We’ve reached a mutually agreeable resolution of the case,” Atlanta attorney Bill Morrison said Thursday.  Morrison would not disclose the specific charges the judge would plead guilty to.

Camp, 67, is scheduled to enter his plea in Atlanta before Senior U.S. District Judge Thomas Hogan, a judge from Washington who was assigned the case.  On Thursday, Hogan disclosed Camp's decision to enter a guilty plea in an entry on the court's online docket sheet.

In a court filing Thursday, federal prosecutors indicated Camp will plead guilty to at least one felony charge -- aiding and abetting a felon's possession of cocaine, a painkiller and marijuana.  The filing did not disclose whether Camp will enter pleas to other charges.

Camp could avoid prison time if, as expected, his agreement with federal prosecutors does not require him to plead guilty to the most serious charge against him — being an illegal drug user who was found in possession of a handgun — said Steve Sadow, an Atlanta defense attorney who is not involved in the case.  Federal sentencing guidelines recommend at least five months in prison for that charge, Sadow said. If Camp pleads guilty to lesser charges, he could receive probation, home confinement or time in a halfway house, he said.

Camp, a member of a prominent Coweta County family, was appointed to the federal bench by President Ronald Reagan in 1988.  He was serving as chief judge when he took senior status at the end of 2008.

Camp was arrested in early October, and a detailed affidavit by an FBI agent accused the judge of buying cocaine, marijuana and prescription painkillers.  The affidavit said Camp shared the drugs with an exotic dancer he met last spring at the Goldrush Showbar in Atlanta.

Camp, who is married, met the dancer when he purchased a private dance from her, the affidavit said.  He returned the next night and purchased another dance and sex from her, and the two then began a relationship that revolved around drug use and sex, according to court records.

The stripper began cooperating with the FBI, and on Oct. 1 she asked Camp to follow her to a drug deal to protect her.  Camp agreed, saying, "I'll watch your back anytime. ... I not only have my little pistol, I've got my big pistol so, uh, we'll take care of any problems that come up," the affidavit said.

Though federal practitioners can and should correct me if I am wrong, I believe it is fairly uncommon that a defendant involved in a series of drug transactions with the involvement of firearms will be able to cut a plea deal that enable him to potentially avoid any prison time. I am not directly asserting that Judge Camp is getting special treatment, but I do think the judge's own familiarity with the ins-and-outs of federal criminal law and practice likely played a significant role in how this case is getting resolved.

In the end, I will be surprised if any plea deal here locks in a specific sentence of Judge Camp. Assuming the deal leaves Judge Hogan with some sentencing discretion, I would not be surprised if Judge Camp still may face some hard time. (And perhaps readers might want to give Judge Hogan some early sentencing advice via the comments.)

Related post (which generated lots of comments):

UPDATE:  This new AP report provides details on the basics of the plea that was entered today:

U.S. Senior Judge Jack T. Camp pleaded guilty to the felony charge of aiding and abetting a felon's possession of cocaine when he bought drugs for the stripper, who was secretly cooperating with authorities. He also pleaded guilty to two misdemeanors: possession of illegal drugs and illegally giving the stripper his government-issued laptop.

Camp, 67, faces up to four years in federal prison when he is sentenced March 4, but he is likely to get less time. Camp also agreed to resign from the bench and cooperate with any questions authorities may have regarding the cases he handled while he was being investigated.

When a judge asked Camp if the charges were accurate, he replied, "I regret ... I am embarrassed to say it is, your honor." Neither he nor his attorneys offered any explanation for his actions.

November 19, 2010 in Booker in district courts, Celebrity sentencings, Drug Offense Sentencing, Gun policy and sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Thursday, November 18, 2010

"Ghailani Still Faces Stiff Penalty for Bombings"

The title of this post is the headline of this lengthy and effective new CBS News piece discussing some of the sentencing issues following yesterday's conviction (on only one of 285 counts) of a former GITMO detainee tried in civilian court.  Here are excerpts:

When he is sentenced in January, al Qaeda operative Ahmed Khalfan Ghailani, 36, faces a minimum 20 years of imprisonment, and a possible life sentence, for his conviction Wednesday for his role in the 1998 U.S. embassy bombings in East Africa.

In the first federal terrorism trial of a former detainee at the prison camp at the U.S. naval base in Guantanamo Bay, Cuba, a civilian jury found Ghailani guilty, but only of one of 285 counts levied against him: conspiracy to destroy buildings and property of United States by means of an explosive.

Although the jury determined Ghailani had a hand in a conspiracy that resulted in death, the panel found him personally not guilty on all 224 murder counts -- 11 for those who died in truck bombing of the American embassy in Dar es Salaam, Tanzania, the focus of his trial, and for the 213 people who died in nearly simultaneous explosion in Nairobi, Kenya, on Aug. 7, 1998.

"At the start of this trial, we believed Ahmed was truly innocent of all these charges," lead defense attorney Peter Quijano said outside the Lower Manhattan courthouse Wednesday evening. "We still truly believe he is innocent of all the charges."...

The jury found Ghailani not guilty of four other conspiracy counts, including the top count of the indictment, al Qaeda's global conspiracy to kill Americans, which would have guaranteed the same life sentence being served by four men convicted in the embassy bombings conspiracy in a 2001 trial.

U.S. District Judge Lewis Kaplan, who presided over the month-long trial, scheduled Ghailani's sentencing hearing for January 25, 2011, at 11 a.m. "He will face, and we will seek, the maximum sentence of life without parole when he is sentenced in January," said Preet Bharara, U.S. attorney for the Southern District of New York, in a written statement....

The jury was told that Ghailani was captured in Pakistan in July 2004, but was provided no information about his alleged activities while a fugitive for six years following the Africa bombings or anything about his six years in custody.

He spent two years in a secret CIA prison overseas, where he was subjected to "enhanced interrogation techniques" his lawyers called torture. Then he was moved to Guantanamo for three years before his transfer to the U.S. last year. He has been held in the high security wing of the Metropolitan Correctional Center adjacent to the courthouse....

Over the course of the past month, the jury heard 13 days of testimony and evidence, with 50 prosecution witnesses and hundreds of government exhibits, and two days of closing arguments.  More than a third of the witnesses, including embassy bombing survivors from Africa and FBI agents, had previously testified in the 2001 trial. The defense called no witnesses, nor did the defendant testify....

The government has achieved more than 200 convictions in terrorism-related prosecutions since 9/11 and a 90 percent conviction rate, according the the NYU Center on Law and Security, which tracks theses cases....

With Ghailani facing a 20 year minimum sentence, his attorneys plan to argue that he should get credit for six years served in U.S, custody, a consideration with other al Qaeda suspects detained as "enemy combatants" prior to seeing their legal situations resolved in federal court, such as Jose Padilla and Ali al-Marri.  The defense teams also plans to file a motion for a new trial on the one conspiracy count for which Ghailani was convicted.

If prosecutors fell short, they failed to persuade all the jurors that Ghailani knowingly and willfully participated in the overall al Qaeda conspiracy or that he knew its lethal goals in East Africa.  "We never disputed that he engaged in certain conduct," Quijano said of Ghailani.  "The question both strategically as well as legally, was whether there was proof that he knew."

Unsurprisingly, most of the immediate post-verdict discussion has been about what this result means for the Obama Administration's apparent interest in trying many former GITMO detainee in civilian courts. But, also unsurprisingly, I am immediately interested in the array of unique (and not-so-unique) sentencing issues that Judge Kaplan will be facing. The Government will surely emphasize so-called "acquitted conduct" as part of its advocacy for an LWOP sentence, and I have a feeling prosecutors will adopt an approach to guideline calculations that will have the advisory range urge life as well. Meanwhile, the defense seem likely to urge the minimum sentence of 20 years (as well as credit for time served), and it is especially interesting to speculate about how both sides will spin arguments around all the 3553(a) factors. In other words, sentencing fans, stay tuned.

November 18, 2010 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, November 12, 2010

Sarah Palin hacker get a federal year-and-a-day sentence

As detailed in this CBS News report, "David Kernell, the 22-year-old man who hacked into Sarah Palin's e-mail during the 2008 presidential campaign, was sentenced Friday to a year and a day, with the judge recommending a halfway house instead of prison."  Here is more of the details:

Kernell hugged family members and friends after hearing the sentence. He declined comment as they left the courthouse with his attorney....

The Republican former vice presidential candidate and her daughter Bristol testified at the trial in late April that the hacking, followed by Kernell's online bragging and providing the password and Palin family telephone numbers to others, caused them emotional hardship. Palin previously declined comment about Kernell's sentence and said it should be up to the judge. 

The prosecutors' pre-sentence filings said Kernell, a Democratic legislator's son, had posted online that he found "nothing that would derail her campaign as I had hoped, all I saw was personal stuff, some clerical stuff from when she was governor ... And pictures of her family ... I read everything, every little Blackberry confirmation ... all the pictures, and there was nothing..."

U.S. District Judge Thomas W. Phillips rejected a recommendation by prosecutors that Kernell be sent to prison for 18 months.

Kernell will not start the sentence until the Bureau of Prisons decides the location of his confinement, probably in about 45 days. "They usually take the recommendation but they are not required to," the judge said.

Kernell, smiling at times after the sentence was announced, spoke during the hearing and apologized. "I am not going to make any kind of excuses," he said.  "I'd like to apologize to the Palin family."  Kernell said that "for the rest of my life I am going to be ashamed, feel guilty for what I have done."

The judge also said Kernell should get mental health treatment based on defense comments Friday that he has had conditions including depression since he was 11.

Kernell was convicted of unauthorized access to a protected computer and destroying records to impede a federal investigation. Jurors acquitted him of wire fraud and deadlocked on an identity theft charge.

November 12, 2010 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Saturday, October 30, 2010

Decorated Vietnam vet gets way below-guideline sentence for child porn

This notable local article from South Dakota, which is headlined "War vet sentenced 18 months for child porn," reports on another interesting and notable federal sentencing case involving a child porn downloader. Here are the fascinating details:

A decorated Vietnam veteran with no criminal history and only a vague memory of his crime will spend 18 months in a mental health facility for dabbling in child pornography.

The unique circumstances in the case of 65-year-old Truman Wages led U.S. District Judge Lawrence Piersol to deviate from federal sentencing guidelines -- and his own judicial philosophy -- by trimming what would have been a five-year prison sentence to 18 months in a secure mental institution. "Frankly, the public needs to see that if you engage in child pornography, you're going to go to prison," Piersol said at the Parkston man's sentencing on Friday.

The judge agreed, nonetheless, with the assessments of Wages by defense lawyer Tim Langley and forensic psychiatrist Ricardo Ascano.  Namely, that the near-suicidal veteran with a deteriorated memory does not represent a threat to the community. "This is not a pedophile," Langley said. "This is a person who can't even give a reasonably coherent account of what he was trying to do when he stumbled onto these things."

What investigators found during a 2008 search of Wages' home and property were nearly 100 CDs with some pornography on them. Among them were three discs containing child pornography.  Prosecutor Jeff Clapper said that one of the 10 videos contained footage of an adult male engaging in sex acts with a 1-year-old child. "He didn't just view it on the Internet, he downloaded it, saved it and put it on a disc," Clapper said.

Ascano's psychiatric profile showed Wages to prefer adult women overwhelmingly as sexual partners, evidenced by a collection of adult pornography and a wandering sexual history that includes more than 200 female partners.  Part of each monthly disabled veteran's check goes to support some of his children in Mexico, Langley said.

When asked to explain his foray into child pornography, Wages said he had probably stumbled across the material while searching for an herbal cure for erectile dysfunction.

Wages earned a Silver Star, a Bronze Star and a Purple Heart for his service in Vietnam, Ascano said, and has suffered from post-traumatic stress disorder since.  Veteran's Affairs clinics in California and Arizona diagnosed him with depression, anxiety and schizoid personality disorder, Ascano said, and he attempted suicide in 1993. The deterioration in his memory stems from a long-term refusal to take medications for his Type II diabetes and hypertension. He refuses, the doctor says, because he is "parasuicidal."...

Clapper recommended a higher sentence than Piersol ultimately issued, but said the serious crime came about in a "highly unusual" manner.  Wages' use of pornography increased with his age, Clapper said, alongside his self-imposed isolation and depression. "We've got a person who has lived a hypersexual life, and later in life he isn't able to live that way anymore," Clapper said.

October 30, 2010 in Booker in district courts, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Thursday, October 28, 2010

Noting that the circuits are getting behind below-guideline kiddie porn downloading sentences

This morning's Legal Intelligencer has this new piece discussing the Third Circuit's important Grober ruling from earlier this week (discussed here).  The piece is headlined "Appeals Courts Criticize Child Porn Sentencing Guidelines," and here is how it gets started:

As the sentencing guidelines for child pornography crimes have grown increasingly harsh, a strong trend has developed among federal judges to reject the proposed prison terms as draconian. Now two influential federal appellate courts -- the 2nd and 3rd Circuits -- have joined the trend and declared that the child pornography guidelines are seriously flawed, or at least that a trial judge wouldn't be wrong for thinking so.

One of the key flaws cited by many of the judges is that the harsher penalties were imposed directly by Congress, every time the guideline was amended, rather than the usual process in which the Sentencing Commission studies an issue and proposes changes that are then subject to congressional approval. Prosecutors have been fighting the trend by urging trial judges to follow the guidelines and sometimes by taking appeals from those who don't.

But a decision in May from the 2nd Circuit and another this week from the 3rd Circuit suggest that the Justice Department may be waging a losing battle, and that trial judges are now freer than ever to reject the child pornography guidelines in cases where the judge sees the suggested punishment as too harsh.

In United States v. Grober, the Justice Department urged the 3rd Circuit to reverse an extraordinary ruling by U.S. District Judge Katharine S. Hayden that said the proposed sentence of nearly 20 years for David Grober was "outrageously high." Hayden, who sits in New Jersey, set out to explore how the guidelines had gotten so harsh and ultimately held hearings over 12 days that led her to conclude that they were unworkable and unfair.

Among the flaws cited by Hayden were a series of "enhancements" that, in her view, would apply in almost every case, as well as a failure to distinguish between defendants whose crime involved nothing more than downloading images as opposed to those involved in producing, selling or trading in illegal images. Ultimately, Hayden issued a 46-page opinion that declared the guideline was not worthy of deference. Instead of imposing a term of 235 months, she imposed a term of 60 months.

Now the 3rd Circuit has voted 2-1 to uphold Hayden's ruling, strongly rejecting the Justice Department's argument that Hayden had abused her discretion.

October 28, 2010 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Wednesday, October 27, 2010

"Sarah Palin E-Mail Hacker Seeks Probation, Feds Want 18 Months"

The title of this post is the headline of this Wired story about my favorite high-profile (and low-importance?) sentencing story. Here are excerpts:

David Kernell, the Tennessee student convicted of hacking into Sarah Palin’s personal e-mail account, has asked the court to forgo a prison sentence and give him probation for his crimes.

Kernell, 22, was convicted earlier this year of misdemeanor computer intrusion and a felony count of obstruction of justice. The jury found him not guilty of a wire-fraud charge and hung on a fourth charge for identity theft, after four days of deliberating.

The convictions carry a maximum sentence of 20 years in prison and a possible fine of up to $250,000. Federal sentencing guidelines recommend a sentence of between 15 and 21 months in prison. The government is seeking 18 months. Kernell, scheduled to be sentenced in Tennessee on Nov. 12, was found to have deleted evidence from his hard drive to thwart investigators, in the most serious charge.

In a motion filed with the court (.pdf) on Wednesday, his attorney asserted that although his client might have deleted evidence, this should be balanced against the fact that he didn’t destroy the computer entirely or get rid of it.

“The proof showed that Mr. Kernell very quickly took actions that resulted in the evidence being preserved,” defense attorney Wade Davies wrote.  He also said that his client’s behavior was an “aberration” from his normal conduct and that the “public humiliation, trial and felony conviction” his client had endured were enough to deter him from future crimes.  “General deterrence has been achieved in this case by educating the public that accessing another’s e-mail account is conduct that violates federal law,” Davies wrote.

In prior posts, I have suggested that some kind of creative shaming sanction or community service might be especially appropriate in this case --- e.g., it would seem be fitting for the defendant here to be ordered to create a YouTube video explaining the harms of hacking and perhaps a "beware of hacker" pop-up on David Kernell's social media pages. 

Especially if tonight's great World Series Game 1 match-up does not live up to the hype, perhaps readers can suggest some other creative and tech-savvy sentencing possibilities for this case in the comments.

Some related posts:

October 27, 2010 in Booker in district courts, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Tuesday, October 26, 2010

Split Third Circuit affirms way below-guideline sentence in major(?) child porn ruling

A split Third Circuit panel has a long and dynamic set of opinion in a federal child porn sentencing case in which I was actually called as an expert witness at sentencing.  The litigation and ruling in US v. Grober, No. 09-1318 (3d Cir. Oct. 26, 2010) (available here), merits extended discussion, but for now I will quote for the start of the majority opinion and the end of the dissent.  First, the start of the majority opinion:

It is an unassailable proposition that “[c]hild pornography harms and debases the most defenseless of our citizens.” United States v. Williams, 553 U.S. 285, 307 (2008).  We believe that, and the District Court believed that.  Nonetheless, the Court was deeply concerned about the sentence the government said the Court should impose on defendant David Grober under the child pornography Guidelines. It recognized, on the one hand, the tension between a mechanical application of those Guidelines and the “outrageously high” sentence –- indeed, the “truly remarkable punishment” -– of 235-293 months of imprisonment they advised, and, on the other, a fair and reasonable sentence that does justice.  Determined to take a long and hard look at the child pornography Guidelines in an effort to understand why Congress and the Sentencing Commission did what they did and whether it made sense both as an objective matter and as to the defendant, the Court embarked on a careful study of how the Guidelines range urged on it by the government came to be. It took evidence over twelve days, heard extensive oral argument and considered extensive written submissions, and rendered a lengthy oral opinion at sentencing and a forty-six page written opinion thereafter explaining in great detail how it arrived at what it believed to be the correct sentence for this defendant.  All of this is to be much admired.

There is a flip side, however, when a district court devotes such an extraordinary amount of time and attention to an issue so clearly troubling it and so freely expresses its concerns on the record, reaching out for whatever might assist it in assuaging those concerns.  The flip side is this: in the unusual case, such as this, in which a district court arguably does too much rather than too little, there is much more grist for the mill, as here the government points to everything the District Court did and did not do and everything it should and should not have done.  After this microscopic examination –- but without ever challenging the substantive reasonableness of the ultimate sentence imposed –- the government has found what it describes as procedural error. We will affirm.

And here is the end of this dissent:

As I noted at the outset, the District Court labored mightily to impose a just sentence upon David Grober.  That effort was animated by a candid fear that Congress’s zeal to address the proliferation of child pornography has resulted in penalties grossly disproportionate to the culpability attendant to this type of crime.  Even accepting that premise, it is still wrong for a sentencing court to: (1) categorically reject the validity of a Guideline by impugning generally the plea bargaining system; (2) punish a party for failing to present “evidence” it never should have presented in the first place; (3) mischaracterize a defendant’s crimes of conviction; and (4) use a categorical rejection of a Guideline as a proxy for ignoring some of the relevant § 3553(a) factors. Because each of these errors is manifest on this record, I would vacate Grober’s judgment of sentence and remand for a new sentencing hearing.

October 26, 2010 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Monday, October 25, 2010

Remarkable opinion with postponement of resentencing in notorious Irey case

Regular readers will likely recall the Irey case, in which a split Eleventh Circuit panel initially affirmed, but thereafter decided en banc to reverse, a lengthy (but still well below-guideline) sentence given to a middle-aged man for what all agree was an "utterly gruesome" sex offense.  A helpful reader today sent me a copy of the latest Irey opinion and order entered on Friday by U.S. District Judge Gregory Presnell.  This opinion, which represents just the latest remarkable chapter in a remarkable case, can be downloaded below.  Here is the opinion's introduction and conclusion:

This matter comes before the Court on the Unopposed Motion for Continuance of Resentencing Hearing Pending Review in United States Supreme Court (Doc. 80).  As the motion’s title suggests, the parties seek to have this Court delay its resentencing of the Defendant, William Irey (“Irey”), on the chance that the Supreme Court will grant his petition for writ of certiorari, due to be filed on October 27, 2010.  As things now stand, this Court is obligated by the July 29, 2010 decision of the United States Court of Appeals for the Eleventh Circuit (henceforth, the “July 29 Order”) to impose a 30-year sentence on Irey.  Given that Irey is in the early stages of serving the 17-and-a-half-year sentence originally imposed by this court, there is no pressing need to impose the longer sentence — a fact apparently recognized by the Government, which does not oppose the motion.  For these reasons, the motion will be granted, and the resentencing will be continued.

Under normal circumstances, that would be the end of the matter. But these are not normal circumstances.  The July 29 Order raises a host of important issues, a fact recognized both by the Defendant in the instant motion and by the appellate court in the order itself.  The pendency of the petition for a writ of certiorari provides the Court with a rare opportunity to respond to certain aspects of the appellate decision, prior to its possible review by the Supreme Court, with information that only the undersigned possesses.  In addition, the July 29 Order has certain implications that affect the courts that are tasked with the imposition of criminal sentences — implications that might not be apparent to the parties themselves. The Court believes that a discussion of these points may assist the Supreme Court in determining whether the petition ought to be granted.

It is for these reasons, and not out of any disrespect for the Circuit Court’s authority to reverse the sentence I imposed, that I will take this opportunity to respond to certain portions of the July 29 Order....

I normally conclude the sentencing process by coming back to a consideration of the need for the sentence imposed to promote respect for the law and to provide just punishment for the offense. 18 U.S.C. § 3553(a)(2)(A).  These are subjective factors that overlay the other statutory considerations.  As I said at the sentencing, “I just do the best I can under the circumstances.  It comes down to my view of what promotes respect for the law and provides just punishment. And here, as indicated, I think that a thirty year sentence . . . is greater than necessary to accomplish the statutory objectives.” (Tr. at 61).

The Circuit Court acknowledged that I properly calculated the guideline score, committed no procedural error, and gave thorough and thoughtful consideration to the statutory sentencing factors.  Nevertheless, after demonizing Irey with over 100 references to uncharged conduct (child abuse), the Circuit Court either misconstrued or exaggerated my comments, or took them out of context, considered numerous facts and arguments never presented to me, and concluded that there were no mitigating circumstances to justify any sentence other than the 30-year guideline sentence.

This is an extraordinary and unprecedented result.  The Circuit Court has effectively usurped my sentencing discretion and raised serious questions regarding Irey’s right to due process.  I concede that the majority opinion has raised valid concerns about the reasonableness of the sentence I imposed.  Were this case remanded to me for re-sentencing, I would take these concerns into account and exercise my discretion accordingly.  But as it now stands, I will not be given that opportunity.  Nor, it appears, will Irey be given the opportunity to confront the facts and arguments raised for the first time on appeal, which resulted in a 12 and a half year increase in his sentence.

In his separate opinion, Judge Tjoflat states that the majority opinion’s approach — i.e., resentencing defendants on appeal — does “immense and immeasurable institutional damage.” Irey III at 1267. In my opinion, it also undermines the basic tenets of sentencing law developed over the past five years, and opens a Pandora’s box of new sentencing issues. I regret that my sentencing of this defendant — including any errors I made in doing so — appears to have led to this result.

Download Irey FINAL post-sentencing opinion with Apps

By my lights, this opinion stands as a de facto amicus brief in support of a cert petition that has not yet even been filled.  As such, this opinion is quite unusual, and I wonder if commentors think it should be lauded or lamented.

Related posts on Irey case:

October 25, 2010 in Booker in district courts, Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Friday, October 22, 2010

"Mini-Madoff" gets mini-sentence that should still be a functional life sentence

As detailed in this Reuters piece, which is headlined "Mini-Madoff Nadel Sentenced to 14 Years Prison," another high-profile Ponzi-schemer faced the sentencing music yesterday.  Here are the basic details:

Arthur Nadel, a fund manager whose $168 million fraud was one of several that collapsed in the declining economy and left hundreds of investors without their money, was sentenced to 14 years in prison on Thursday.

Nadel, 77, dubbed "mini-Madoff" in his home state of Florida after epic swindler Bernard Madoff, was excoriated as "evil" and "a loser" by one of his victims during the sentencing proceeding in U.S. District Court in New York.

"Arthur, you are an evil person," said businessman Michael Sullivan of Barrington Hills, Illinois.  "I assume you are a narcissistic psychopath" and "just a weak child seething with anger and loathing" who had "little success in life until you founded your fraudulent funds."

Judge John Koeltl rejected as too long U.S. prosecutors' requested sentence of between 19-1/2 years and 24 years, citing Nadel's age and a heart ailment.  But Koeltl said Nadel orchestrated a "massive fraud" on investors, "many elderly and who lost the fruits of their lives," adding that "it caused financial difficulties to the victims and those close to them."...

Looking thin and frail with one of his sons present in the back of the court, Nadel stood in prison garb and told the judge that he had read letters submitted to Koeltl by many of his 390 victims. "Their anger and outrage became mine at myself," Nadel said.  "I blame only myself for my acts."

His court-appointed lawyer had asked the judge to imprison Nadel for just five years, given his life expectancy, so that he would not die in prison.

I suppose it is possible that Nadel will live into his 90s and perhaps live out this 14-year federal prison sentence.  But odds are that Arthur Nadel, like Bernie Madoff, will die in prison.

October 22, 2010 in Booker in district courts, Offender Characteristics, Offense Characteristics, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (2) | TrackBack

Thursday, October 21, 2010

Judge Bright laments post-Booker crack sentencing realities in Iowa

Concurring in part and dissenting in part in an Eighth Circuit opinion in US v. Brewer, No. 09-3909 (8th Cir. Oct. 21, 2010) (available here), that is not otherwise that notable, Judge Myron Bright has a lot to say about disparties in crack sentencing approaches in the Northern District of Iowa. Here is part of his opinion:

Who could have guessed that President Eisenhower’s decision nearly sixty years ago to create a national system of interstate highways would have an effect on sentencing in Iowa today?  Well, it has.  In the Northern District of Iowa, cases arising on one side of the interstate go to one district court judge while cases arising on the other go to a second judge. And one active judge uses a 1:1 ratio between crack and powder cocaine when sentencing violators of crack cocaine laws while the other follows the sentencing guidelines -– which here applied a 33:1 ratio.  So in the Northern District of Iowa, the location of the crime relative to the interstate is a significant factor in crack cocaine sentencing. In my view, the difference in sentences between similar offenders should not depend on which side of the interstate a crime was committed or where the offender was arrested. See United States v. Ayala, 610 F.3d 1035, 1037-38 (8th Cir. 2010) (Bright, J., concurring) (discussing the need to reduce sentencing disparity in the post-Booker era).

For Brewer’s crime of possessing, conspiring, and delivering approximately 150 grams of crack cocaine, the guidelines recommended a sentence of 30 years to life.  That’s the same recommendation as if Brewer had committed second-degree murder. Unfortunately, equating crack cocaine with murder is not uncommon. See Robert Perkinson, Texas Tough: The Rise of America’s Prison Empire 336 (Metropolitan Books 2010) (Texas Tough) (“In 1995, the average federal prison term for a crack offense surpassed that of murder.”).  Brewer requested a variance from the harsh crack cocaine guidelines on the basis of the disparity with powder cocaine and he cited a decision by Judge Bennett of the Northern District of Iowa who utilizes a 1:1 crack/powder ratio.

The court imposed a 370-month sentence.  That’s 30 years and 10 months. The district court denied Brewer’s request for a variance, stating “I did consider and reject the request for a variance based on the disparity in punishment between crack cocaine and cocaine.  As I looked at the statutory factors under 18 U.S.C. 3553(a), I determined that, on balance, this sentence was not out of the range of reasonableness and is fully supported by the evidence.”

The majority affirms, concluding that the district court was not required to vary downward on the basis of the crack/powder disparity.  But I believe the district court’s decision does not reflect a reasoned and informed exercise of discretion.  The district court cavalierly applied a guideline which often does not comply with § 3553(a) in the mine-run case, treats Brewer like a murderer, and results in unwarranted intra-district disparity.  Sadly, the interstate and corresponding judicial assignment made a substantial difference at Brewer’s sentencing.

October 21, 2010 in Booker in district courts, Booker in the Circuits, Drug Offense Sentencing, Kimbrough reasonableness case, Who Sentences? | Permalink | Comments (15) | TrackBack

Monday, October 04, 2010

Helping a district judge send a sentencing message to unscrupulous landlords

A helpful reader sent me a copy of a recent notable white-collar sentencing decision by US District Judge Mark Bennett in US v. Miell, No. CR 07-101-MWB (D. Iowa Sept. 27, 2010) (available for download below). There are many notable passages in this 105-page(!) opinion, and I have spotlighted the first paragraph and a notable footnote here:

In Little Dorritt (1855-57), Charles Dickens portrayed a greedy landlord as repeatedly urging his rent collector to “squeeze” the inhabitants of his most squalid property, even though the rent collector believed that he had already “squeezed” them dry.  Although this defendant’s properties were not squalid, there is nevertheless a disturbingly Dickensian quality to this case: The defendant, who owned hundreds of rental properties in Cedar Rapids and Linn County, Iowa, and, consequently, was himself worth many millions of dollars, engaged in a fraud scheme involving renters’ damage deposits over many years to “squeeze” an extra few hundred dollars each from people that he thought were too economically vulnerable or unsophisticated to contest his claims.  His damage deposit fraud scheme involved creation of fake and inflated invoices for repairs to and cleaning of his rental properties to justify claims and judgments against renters’ damage deposits. He also engaged in another fraud scheme to obtain insurance payments for repair of hail damage to the roofs of more than a hundred of his rental properties based on fake or inflated invoices, whether or not the roofs in question had actually been repaired.  The defendant pleaded guilty to eighteen counts of mail fraud arising from these schemes. He also pleaded guilty to two of three counts of perjury and was convicted by a jury of two counts of filing false tax returns. I write this sentencing decision to explain why I find that the defendant’s conduct warrants an upward departure or variance in his sentence for these offenses, from an advisory guidelines sentencing range of 168 to 210 months to 240 months, the statutory maximum sentence for the mail fraud offenses....

I am not sure that I have ever imposed a sentence to send a “message” to others or, in the parlance of sentencing lingo, as a “general deterrent.”  Certainly, in the daily ritual of sentencing drug defendants in our court to lengthy mandatory minimums, there is no anecdotal or empirical evidence that sentencing to “send a message to others” actually “works.”  In my view, it not only does not work as a general deterrent, but federal sentences in drug offenses — especially for the vast majority of addict defendants who are the daily grist of federal drug sentencing — are so harsh that these sentences themselves promote fairly widespread disrespect and undermine our citizens’ confidence in the fairness of federal sentencing.  That would probably be a risk worth taking if these sentences actual worked, but they don’t.

In this case, however, while “sending a message” is not my motivation or intent to any major degree, I hope that this sentence sends a seismic shockwave to every unscrupulous landlord who has repeatedly, unfairly, and unlawfully withheld renters’ damage deposits. You know who you are.   As this topnotch federal prosecution shows, the long arm of the United States Department of Justice, backed by endless resources, is here to seize you whether you are an inner-city slumlord, a college town landlord with a history of ripping off college students, a rural property owner, or an unscrupulous landlord working your scam anywhere in between.

Download Miell.MemopReSentencing 

October 4, 2010 in Booker in district courts, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

Monday, September 20, 2010

Notable dissent from Ninth Circuit denial of en banc review of probation sentence for "big-time thief"

As detailed in this post from back in February, a split Ninth Circuit panel in US v. Edwards, No. 08-30055 (9th Cir. Feb. 16, 2010) (available here), upheld as substantively reasonable a probation sentence given to convicted fraudster Duncan Edwards, whom the dissenting judge described as a "big time thief.”   Today, as detailed in this order, the Ninth Circuit has denied en banc review in Edwards, and that decision prompted a notable dissent by Judge Gould (which was joined by three other judges).  That dissent gets started this way:

In his cogent dissent from the majority decision of our three-judge panel, Judge Bea persuasively catalogs the laundry list of analytical errors committed by the district court at sentencing.  See United States v. Edwards, 595 F.3d 1004, 1018-25 (9th Cir. 2010) (Bea, J., dissenting).  I will not restate all of those errors here. Instead, I write to emphasize a larger and recurrent problem: our court’s practice of uncritically affirming unreasonably lenient sentences for white-collar criminals renders the Sentencing Guidelines a nullity, makes us an outlier among the circuit courts, and impairs our ability effectively to review sentences for substantive reasonableness.  Our “rubber-stamp” approach to reasonableness review permits district courts to abuse their sentencing discretion by paying lip service to appropriate sentencing considerations while paying inadequate heed to the substance of those considerations.  Hence we can end up with people like Edwards who engage in fraud and other criminal activities intended to cause extremely large monetary damages, yet who spend token and inadequate time, or even not one day, in jail.

Although we owe deference in the area of sentencing to a district court’s “superior position to find the relevant facts and judge their import,” Edwards, 595 F.3d at 1016 (internal quotation marks omitted), in the area of white-collar crime we should be circumspect to draw careful boundaries around that deference.  Because of the nature of their crimes, white-collar offenders are uniquely positioned to elicit empathy from a sentencing court. See United States v. Ruff, 535 F.3d 999, 1007 (9th Cir. 2008) (Gould, J., dissenting) (“[D]istrict courts sentencing white collar criminals can more often identify with the criminal . . . . But, socioeconomic comfort with a criminal convict is not a sufficient reason to show such extreme leniency . . . .”); Kenneth Mann et al., Sentencing the White- Collar Offender, 17 Am. Crim. L. Rev. 479, 500 (1980) (concluding from a survey of federal judges that they evinced particular “understanding” and “sympathy” “for the person whose position in society may be very much like their own,” and that “factors intimately related to the defendant’s social status do receive weight in the judges’ thinking” about sentencing).  And while judges take seriously violent crime and are forced by congressional mandatory minimums to take seriously drug crimes, there is latent risk in the case of white-collar sentencing that an “it’s only money” rationale will result in undue leniency for serious offenses.  I have no doubt that Edwards made a persuasive presentation to the district court that he was an unhealthy, aging retiree repentant of past frauds.  Such cases are precisely when we should most rigorously review a sentence’s reasonableness to ensure that the justifications relied on at sentencing are supported by objective evidence in the record. See Michael M. O’Hear, Appellate Review of Sentences: Reconsidering Deference, 51 Wm. & Mary L. Rev. 2123, 2141-49 (2010) (criticizing appellate deference to trial judge assessment of demeanor evidence at sentencing on the basis of the “emerging consensus in the legal and social science literature that people generally do a poor job in evaluating demeanor evidence,” and concluding that a defendant’s demeanor “seems about as likely to lead the trial judge astray as to facilitate good decision making”).  We know that often criminal defendants who commit other types of crimes will serve some hard time.  White-collar offenders like Edwards should not escape the same punishment simply because they are better-positioned to make a sympathetic presentation to the district judge.

I have bolded two phrases in this dissent because these lines appear to make a case for the Ninth Circuit to embrace and apply a more rigorous form of reasonableness review especially in white-collar cases.  Obviously, Judge Gould's advocacy here did not convince a majority of Ninth Circuit judges, and I am curious to hear whether readers like the idea of special approaches to reasonableness review in special kinds of sentencing cases.

September 20, 2010 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, September 14, 2010

"Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC’s 2010 Report"

The title of this post is the title of this notable new paper from a set of criminologists that is now available via SSRN. Here is the abstract:

The U.S. Sentencing Commission (USSC) released a report in March 2010 concluding that racial disparity in federal sentencing has increased in the wake of the U.S. Supreme Court decisions in U.S. v. Booker (2005) and U.S. v. Gall (2007).  In light of this USSC report, we provide an alternative set of analyses which we believe provides a more complete and informative picture of racial, ethnic, and gender disparity in federal sentencing outcomes. We first attempt to replicate the USSC’s models.  Then we present alternative models of sentencing outcomes across three time periods spanning FY 2000 to 2009.

We find that post-Booker/Gall race/ethnic/gender disparity in sentence length is generally comparable to pre-2003 levels.  Our findings mainly diverge from the USSC’s because of: 1) the USSC’s decision to include non-incarceration cases in the sentence length analysis (as sentence lengths of 0), since more racial disparity appears to be manifest in the incarceration decision than in sentence lengths, and 2) the inclusion of immigration offenses in the USSC’s analyses, since comparatively greater disparity affecting black males is observed among immigration offenses.  We also extend the USSC report by: 1) presenting analyses that compare post-Booker sentence length disparity with disparity before the 1996 U.S. v. Koon decision, and 2) presenting an analysis of disparity in departures/deviations from the Guidelines.

September 14, 2010 in Booker and Fanfan Commentary, Booker in district courts, Detailed sentencing data | Permalink | Comments (24) | TrackBack

Wednesday, September 08, 2010

"Federal Judges Go Easy On Tax Cheats, Pornographers And Prostitutes"

The title of this post is the provocative heading give to this post at a Forbes blog called "Taxing Matters" and authored by Janet Novack.  Here is an excerpt of the analysis of the latest US Sentencing Commission data (previously discussed here) that follows under this heading:

The latest numbers from the U.S. Sentencing Commission provide new evidence that at least some Federal judges don’t like handing out stiff jail sentences to tax cheats. Since the Supreme Court ruled in U.S. v. Booker in 2005 that the Commission’s tough-on-white-collar-crimes sentencing guidelines weren’t binding, the Commission has tracked the frequency with which judges hand out lighter penalties than the guidelines call for.

In the first nine months of fiscal 2010, federal judges cited Booker to sentence 13.4% of all federal convicts to below guideline terms.  Tax cheats?  Thanks to Booker, they got below guideline sentences 29% of the time.  One of the few things that seemed to offend the jurists more than putting tax cheats away: the very, very long guideline sentences for pornography and prostitution. There, judges used Booker to sentence below range 34% of the time.

But there’s a big difference. In the tax cases where they used Booker to go low, judges handed out a median sentence of just five months — a year less than minimum.  That amount of time can be served in home confinement.  By contrast, the judges who sentenced below the minimum in pornography and prostitution cases still meted out a median prison term of five years — 37 months below the guideline minimum.

Before you decide to cheat on your taxes, however, be forewarned: Two Midwestern tax lawyers told me Wednesday that they haven’t seen such leniency in their cases and believe sentencing varies greatly by region.  Indeed, while below guideline figures aren’t published by type of offense for each district, they are for all offenses. In the Southern District of New York (Manhattan) judges used Booker to sentence below range in 41% of all cases, whereas in Arizona, Nevada and the Eastern District of Texas, judges cut defendants a Booker break only 5% of the time.

Some (very and somewhat) related posts:

September 8, 2010 in Booker in district courts, Data on sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, September 07, 2010

Mining (and spinning?) the latest, greatest sentencing data from the US Sentencing Commission

The US Sentencing Commission has some fresh new sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:

Third Quarter FY10 Quarterly Sentencing Update:  An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced through the third quarter of fiscal year 2010.  The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published September 3, 2010)

The new data continue to show a very slow and very steady migration away from guideline ranges: over the nearly 60,000 federal cases sentencing in this period, just under 55% of all federal sentences fell within the calculated guidelines range.  Prosecutors, who requested departures or variances in nearly 26% of all cases, continue to be the primary driving force behind below-range sentences, but judges now go outside the guidelines on their own almost 20% of the time (with 2% of all cases having judges imposing above-range sentences and 17.6% of all cases prompting judges to impost below-range sentencing).

My simplistic take on the latest, greatest data is to note simply the remarkable stability in the operation and application of the advisory federal guideline sentencing system as we see this slow and steady, but still relatively slight, migration away from the guidelines.  Moreover, as the title of this post suggests, I think these data could be mined and spun in all sorts of ways. 

If I wanted to tell a story of the demise of the guidelines, I could focus on some outlier guidelines or some outlier districts.  It appears from this latest data run that significantly less that half of all child porn sentences and white-collar sentences for crimes like tax fraud and money laundering are imposed within the calculated guidelines range.  Similarly, in districts as varied as the Eastern and Southern Districts of New York to the Districts of Delaware and Minnesota and Utah to the Middle District of Tennessee to the Western District of Virginia, significantly less than half of all sentences are imposed within the guideline ranges.

But if I wanted to tell a story of the persistence and enduring importance of the guidelines, I could focus on other guidelines and other districts.  It appears that in more than four out of every five drug and immigration sentences are sentenced within the guidelines or below the guidelines based on prosecutors' substantial assistance or fast-track departure recommendations.  Similarly, in districts as varied as the Eastern and District of Virginia and Texas to the Districts of South Dakota and New Mexico to the Middle District Georgia, nearly three-quarters of all sentences are imposed within the guideline ranges.

In sum: "The federal sentencing guidelines are dead!  Long live the federal sentencing guidelines!"

September 7, 2010 in Booker in district courts, Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (10) | TrackBack

Friday, August 06, 2010

Another judicious comment from the judiciary on Judge Kopf's "Brief and Modest Proposal"

Regular readers may recall this engaging post from last week concerning providing federal sentencing data for particular judges, titled "'A Brief and Modest Proposal' ... an original essay from US District Judge Richard Kopf."  That post in turn prompted a detailed response from another federal district judge, US District Judge Edmund Sargus, which is reprinted in full in this post.  Both posts have generated a lot of terrific comments (see here and here), including one that I received via a cc:d e-mail from a circuit judge that I have been permitted to reprint:

Dear Ed,

I read your letter to Professor Berman in his blog.  I liked what you wrote.

Here's another thought.  As was the case pre-guidelines, let the probation officer get all the statistical information he/she can on sentences imposed by other federal judges on somewhat similarly situated offenders.  Let the probation officer and judge visit and discuss what would be fair in the circumstances.  Let it be a sentence resting on an informed discretion.


Myron H. Bright

Related posts:

August 6, 2010 in Booker in district courts, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Wednesday, July 28, 2010

"A Brief and Modest Proposal" ... an original essay from US District Judge Richard Kopf

I am very pleased to be able to reprint a timely e-mail that landed in my in-box this afternoon from Richard G. Kopf, United States District Judge for the District of Nebraska.  Here is the Judge's wind-up and pitch:

I read Professors Masur's article entitled "Booker Reconsidered" and your post about his article [available here].  After that reading, a thought occurred to me that has been percolating in my muddled mind for some time.  Hence, the following "Brief and Modest Proposal."  Feel free to post if you like. Take care.


A Brief and Modest Proposal

Although it has the data and although it releases data on a court-by-court basis, the United States Sentencing Commission has never publicly released information on the extent to which individual federal judges sentence within or outside the Guidelines.  I propose that the Sentencing Commission annually release sentencing statistics for each federal judge who sentenced a significant number of offenders during that year.

For much of their history, compliance with the Guidelines was very high.  So long as the Guidelines were essentially binding in most cases and aggregate compliance rates remained elevated, one could make a reasoned argument that providing sentencing statistics on individual judges was unnecessary and perhaps unfair.  But the Supreme Court has changed all that by significantly increasing the discretion of federal judges when it comes to sentencing.

Since the Supreme Court’s reordering of the federal sentencing process, compliance with the Guidelines is on a steady downward trend, albeit not as drastic as feared.  This trend has caused the Attorney General, scholars and some judges to worry (1) that disparities caused by irrelevant factors (race, gender, class and so forth) are increasing and (2) that a fair number of sentencing decisions are driven by idiosyncratic beliefs that, while well-motivated, are not empirically supported or are contrary to reasoned sentencing policy. Indeed, these concerns are finding a public voice.  See, for example, the New York Times editorial entitled "Rethinking Criminal Sentences" published on July 28, 2010. ("As a general principle, sentences for the same federal crimes should be consistent. As the Justice Department notes in its report, a sense of arbitrariness — sentences that depend on the luck of getting a certain judge — will 'breed disrespect for the federal courts,' damaging their reputation and the deterrent effect of punishment.").

By making individual sentencing statistics available, federal judges will be held publicly accountable for the exercise of their new found discretion, and that might have the beneficial effect of causing judges to think more deeply about the sentences they impose and explain more clearly the reasons for those sentences.  Perhaps more importantly, armed with this data, outside scholars who seriously study these things will be better informed and therefore better able to provide a reasoned critique of the federal sentencing process in this post-Booker world.  In short, it is time for federal sentencing judges like me to pay the piper.

Richard G. Kopf,  United States District Judge

July 28, 2010 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (30) | TrackBack