Sunday, February 18, 2018

Report that Mueller probe will soon produce another notable conviction and federal sentencing

A couple of month ago, as reported in this post, the investigation by special counsel Robert Mueller produced its first federal conviction when Michael Flynn pleaded guilty to lying to the FBI.   Now the Los Angeles Times is reporting here that another plea and another notable plea deal is in the works for another figure indicted by Mueller's team. Here are some of the basics (along with some sentencing details and a reminder of how economic issues can impact a defendant's decision-making):

A former top aide to Donald Trump's presidential campaign will plead guilty to fraud-related charges within days — and has made clear to prosecutors that he would testify against Paul Manafort, the lawyer-lobbyist who once managed the campaign.

The change of heart by Trump's former deputy campaign manager Richard Gates, who had pleaded not guilty after being indicted in October on charges similar to Manafort's, was described in interviews by people familiar with the case. "Rick Gates is going to change his plea to guilty," said a person with direct knowledge of the new developments, adding that the revised plea will be presented in federal court in Washington "within the next few days."

That individual and others who discussed the matter spoke on condition of anonymity, citing a judge's gag order restricting comments about the case to the news media or public. Gates' defense lawyer, Thomas C. Green, did not respond to messages left by phone and email. Peter Carr, a spokesman for special counsel Robert S. Mueller III, declined on Saturday to comment....

The imminent change of Gates' plea follows negotiations over the last several weeks between Green and two of Mueller's prosecutors – senior assistant special counsels Andrew Weissmann and Greg D. Andres.

According to a person familiar with those talks, Gates, a longtime political consultant, can expect "a substantial reduction in his sentence'' if he fully cooperates with the investigation. He said Gates is likely to serve about 18 months in prison.

The delicate terms reached by the opposing lawyers, he said, will not be specified in writing: Gates "understands that the government may move to reduce his sentence if he substantially cooperates, but it won't be spelled out."

One of the final discussion points has centered on exactly how much cash or other valuables — derived from Gates' allegedly illegal activity — that the government will require him to forfeit as part of the guilty plea.

Gates, 45, who is married with four children, does not appear to be well positioned financially to sustain a high-powered legal defense. "He can't afford to pay it," said one lawyer who is involved with the investigation. "If you go to trial on this, that's $1 million to $1.5 million. Maybe more, if you need experts" to appear as witnesses.

The Oct. 27 indictment showed that prosecutors had amassed substantial documentation to buttress their charges that Manafort and Gates — who were colleagues in political consulting for about a decade — had engaged in a complex series of allegedly illegal transactions rooted in Ukraine. The indictment alleged that both men, who for years were unregistered agents of the Ukrainian government, hid millions of dollars of Ukraine-based payments from U.S. authorities.

In this post after the Rick Gates was indicted along with Paul Manifort, I briefly sketched how guideline calculations could push their possible benchmark sentencing ranges into many years and even decades. Given these realities, I will be very interested to see if and how a plea deal for Gates might set out guideline calculations. As the press report suggests, Gates could and seemingly will be getting his sentence significantly reduced via 5K1.1 of the federal sentencing guidelines by providing "substantial assistance in the investigation or prosecution of another person who has committed an offense."   One cannot help but wonder is any person other than Manifort could be the subject of Gates' assistance to federal authorities.

February 18, 2018 in Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (6)

Saturday, February 10, 2018

Should there be (and will there be) an appeal of federal judge's imposition of "shorter sentence because ... of [defendant's] decision to be sterilized"?

Mf-law-day-bbf-3-5-4-15-300x160In this post a couple of days ago, I noted the remarkable federal sentencing story out of Oklahoma in which a defendant was seemingly seeking a reduced sentence in a fraud case because she followed a judge's suggestion in this order that she consider taking steps to be "rendered incapable of procreation."  This follow up article, headlined "Oklahoma woman gets shorter prison sentence because she got sterilized," the defendant's decision to follow the judge's suggestion seemingly reduced her sentence a few months. Here are the details:

A judge Thursday showed leniency to a drug-using mother of seven because she had surgery to prevent further pregnancies.  Summer Thyme Creel, 34, was sentenced to a year in federal prison and three years on supervised release for passing counterfeit checks.  She was ordered to pay $15,246 in restitution.

Creel voluntarily underwent the medical procedure in November after the Oklahoma City federal judge suggested it in a scheduling order. "She will receive a shorter sentence because she made that decision," U.S. District Judge Stephen Friot said before announcing the punishment.  Friot on Thursday also defended his sterilization suggestion, saying the U.S. Supreme Court "has yet to recognize a constitutional right to bring crack- or methamphetamine-addicted babies into this world."

In his order last June, the judge called Creel a habitual user of crack cocaine and methamphetamine. He wrote in that order she had given up her parental rights to six of her seven children and likely had used illegal drugs while pregnant.  He then wrote he would consider at sentencing medical evidence Creel had undergone a sterilization procedure "if (and only if) she chooses to do so."

Creel had faced up to 16 months in federal prison under sentencing guidelines intended to keep punishments uniform across the country.  Judges do not have to follow the guidelines, though, and the maximum possible punishment for Creel's offense was 10 years in prison.  The unusual order — first reported by The Oklahoman — attracted national and international attention.  The judge has been both praised and condemned.

"When I read the order, I was horrified,” Lynn Paltrow, founder of the National Advocates for Pregnant Women, told The Washington Post. "We find it highly unlikely that this judge has asked any man how many children he fathered and used that in his sentencing determination."  The judge Thursday did not directly comment on the public criticism.

He did state his order last year had made clear that "the decision as to whether to be sterilized would be for Ms. Creel and Ms. Creel alone to make." He also explained he would not have counted it against Creel if she had decided against the procedure. "She would have come before the court in the same posture as any other habitual criminal," he said. "Her fertility would have been a non-issue."

The judge chided a prosecutor for telling him in a sentencing memorandum Creel has "a fundamental constitutional right to procreate." The prosecutor in the memo had cited a 1942 U.S. Supreme Court decision that found unconstitutional Oklahoma's Habitual Criminal Sterilization Act. "This is rather curious," the judge said of the prosecutor's position on the issue. The judge then pointed out the 1942 decision had involved involuntary sterilization. He said the prosecutor apparently overlooked that fact.

Creel was punished Thursday for her involvement in a fraudulent check-cashing ring that used information from stolen mail to manufacture counterfeit checks. "Theirs was a systematic and successful identity theft scheme," the judge said.  She pleaded guilty last year to one federal counterfeiting offense.  She admitted she had passed a $202.22 counterfeit check in 2014 at a Walmart in Moore.

She has prior theft and counterfeit check convictions in county courts but always received probation.  She originally had sought probation in her federal case. That possibility ended when she was arrested for passing a $121.71 counterfeit check at a Hobby Lobby in Midwest City a month after pleading guilty.

She also has tested positive for methamphetamine use — twice — since her guilty plea. The second time, the judge had her jailed pending sentencing. Her defense attorney, Brett Behenna, told the judge Creel has had a tough life and became caught in a cycle of poverty. He said she turned to illegal drugs as an escape....

"I'm sorry for the mistakes that I made," Creel told the judge. Another participant in the scheme, Amber L. Perkins, 43, was sentenced last March to five years in prison and ordered to pay $159,753 in restitution.

This five-page order that the Judge Friot issued in conjunction with the sentencing leaves no doubt that the defendant's sterilization decision was a consequential factors in his sentencing decision. Here are the closing paragraphs of the order:

If anything was clear from the court’s June order, it was that the decision as to whether to be sterilized would be for Ms. Creel and Ms. Creel alone to make.  The short of the matter is that Ms. Creel will get the benefit of her decision to be sterilized.  She will receive a shorter sentence because she made that decision.  But a decision not to be sterilized would not have counted against Ms. Creel for sentencing purposes — she would have come before the court in the same posture as any other habitual criminal. Her fertility status would have been a nonissue.  Moreover, if we assume, as the government urges, that the court’s approach to sentencing in this case might raise a constitutional issue, the court will note that the Supreme Court has yet to recognize a constitutional right to bring crack or methamphetamine addicted babies into this world.

Accordingly, in determining the sentence to be imposed upon Ms. Creel, the court will take into account all of the factors spelled out in 18 U.S.C. § 3553, a determination which will give Ms. Creel the benefit of her decision to be sterilized.

As federal sentencing gurus know, any appeal of this sentencing proceeding would be generally subject to a reasonableness standard of review. Though I have not read the full record, I am still inclined to consider Judge Friot's work here unreasonable because he unduly suggested that sterilization was an essential (and perhaps exclusive) way for this defendant to "earn" a below-guideline sentence. 

I generally believe (and often have argued) that a wide range of considerations can and should be brought to bear as a federal sentencing judge considers, under 18 U.S.C § 3553(a), what sentence will be "sufficient, but not greater than necessary, to comply with the purposes set forth" by Congress.  But it strikes me as highly problematic for a judge, prior to sentencing, to tell a defendant that a reduced sentence will be possible if (and perhaps only if) the defendant engages in specific life-altering personal behavior.  The procreation dynamics here are particularly concerning in light of some ugly history on this front; but I would also be troubled if a judge said to a defendant, for example, I will likely cut you a sentencing break only if you divorce that spouse who pressured you into criminal activity or only if you contractually commit to giving 50% of all future salary to charity.

That all said, and as my post title suggests, I suspect that there will not be an appeal of this sentence by the federal government (or the defense) and so we will not likely see a higher court reviewing Judge Friot's work here.  But, of course, that should not prevent the court of public opinion from chiming in, perhaps using the comments here.

Prior related post:

February 10, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)

Thursday, February 08, 2018

Should (encouraged!?!) sterilization be a permissible federal sentencing factor in mitigation?

The question in the title of this post is prompted by a remarkable federal sentencing story out of Oklahoma reported in this local article headlined "Woman underwent sterilization procedure at judge’s suggestion." Here are the details:

At a judge's suggestion, an admitted drug user involved in a counterfeit check ring underwent a medical procedure preventing her from having more children.

Summer Thyme Creel, 34, had the elective procedure in November after the judge wrote he could consider it at her sentencing if she chose to do so. Her sentencing is now set for Thursday in Oklahoma City federal court.

U.S. District Judge Stephen Friot made the unusual suggestion in an order last June. He noted in the order Creel had given up her parental rights to six of her seven children and likely had used illegal drugs while pregnant with some of them. "I spoke with her in detail about it and she voluntarily wanted to do it," her court-appointed defense attorney, Brett Behenna, said.

A prosecutor is urging the judge not to consider the procedure as a factor at sentencing. "Creel not only has a fundamental constitutional right to procreate ... but she admits that she had an interest in an elective sterilization procedure even before the court's order of June 16," Assistant U.S. Attorney Jessica Perry told the judge in a sentencing memo.

"Furthermore, Creel's decision to have (or not have) additional children is sufficiently removed from the type of criminal activity involved in this case that such a factor is irrelevant to determining a sentence," the prosecutor wrote.

Creel has a lengthy criminal record involving theft and counterfeit check crimes. She is listed in court records over the last two years at addresses in Oklahoma City, Checotah and Lawton. She was charged for the first time in federal court in 2016. A federal grand jury alleged she and others participated in a counterfeit ring that relied on mail stolen from mailboxes.

Creel pleaded guilty a year ago to a single count in the indictment for using a $202.22 counterfeit check at a Walmart in Moore in 2014. Her sentencing has been delayed for a number of reasons, the first time because she couldn't show up in court. She was in the Oklahoma County jail for using a counterfeit check at a Hobby Lobby in Midwest City....

In delaying the sentence the first time, the judge made note of both Creel's criminal past and her history as a mother. "By virtue of a series of relationships with various sires over approximately the last 14 years, Ms. Creel has given birth to seven children out of wedlock," the judge wrote in the June order.

"Comparing the dates of Ms. Creel's periods of habitual use of crack cocaine and methamphetamine ... with the dates of birth of her seven children, it appears highly likely that some of Ms. Creel's children were conceived, carried and born while Ms. Creel was a habitual user of these illicit substances," the judge wrote.

"It comes as no surprise, therefore, that, in 2012, Ms. Creel relinquished her parental rights with respect to six of her seven children 'after an Oklahoma Department of Human Services investigation for failure to protect the children from harm.' Her seventh child was born in 2016," the judge wrote.

The judge then pointed out he can consider at sentencing any information concerning the background, character and conduct of an offender. Finally, he told Creel in his order that at her sentencing she "may, if (and only if) she chooses to do so, present medical evidence to the court establishing that she has been rendered incapable of procreation."

The June order referenced in this story, which runs only two pages, can be accessed at this link.  It closes by noting that Congress has provided via 18 U,S.C § 3661 that "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." I am inclined also to note that in 18 U.S.C § 3553(a)(1) Congress ordered federal judges to consider "the history and characteristics of the defendant" at sentencing.  So there is certainly a statutory basis for Judge Friot to defend his approach to Ms. Creel's case.  I am eager to hear readers' thoughts as to whether Judge Friot's approach is sound and wise even if it may be statutorily defensible.

February 8, 2018 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, February 07, 2018

Sentencing Reform and Corrections Act of 2017 on the agenda for the Senate Judiciary Committee coming meeting

A helpful colleague made sure I saw the exciting news appearing at the very bottom of this agenda for an Executive Business Meeting of the United States Senate Committee on the Judiciary.  After a long list on nominees, we see on that agenda this item:


II. Bills
S.1917 Sentencing Reform and Corrections Act of 2017 (Grassley, Durbin, Graham, Feinstein, Lee, Leahy, Flake, Whitehouse, Klobuchar, Booker)   

I think this notice means that there is now some tangible movement (dare I say momentum) on one very significant federal criminal justice proposal.  Clicking though to the text of S.1917 Sentencing Reform and Corrections Act of 2017, one discovers that this bill has a whole lot of stuff stuffed into its three big sections. For example, "TITLE I — SENTENCING REFORM" includes, inter alia:

Sec. 101. Reduce and restrict enhanced sentencing for prior drug felonies."

Sec. 102. Broadening of existing safety valve....

Sec. 106. Mandatory minimum sentences for domestic violence offenses....

Sec. 108. Inventory of Federal criminal offenses.

Sec. 109. Fentanyl.

And "TITLE II — CORRECTIONS ACT" includes, inter alia:

Sec. 202. Recidivism reduction programming and productive activities.

Sec. 203. Post-sentencing risk and needs assessment system....

Sec. 207. Promoting successful reentry.

Sec. 208. Parole for juveniles.

Sec. 209. Compassionate release initiative.  

And "TITLE III — NATIONAL CRIMINAL JUSTICE COMMISSION ACT" would create another notable federal criminal justice entity.

I can state with confidence that Attorney General Jeff Sessions is surely opposed to the provisions in Title I of this bill, but I he may be supportive of Title II and maybe even Title III. And, of course, since he is no longer in the Senate, Jeff Sessions does not get a vote on legislation, and it will be interesting to see (assuming there is a vote tomorrow of sometime soon) whether there are many (or any) strong opponents of this bill even in this huge form.

February 7, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Tuesday, January 30, 2018

A SCOTUS amicus opportunity to reiterate some of my views on sentence finality

The Supreme Court has three(!) upcoming arguments concerning the proper application of the federal prison term modification rules that Congress set out in 18 U.S.C. § 3582(c)(2): Hughes v. United States and Koons v. United States are due to be argued March 27, and Chavez-Meza v. United States will likely be argued in late April.  The fact that the SCOTUS has decided to take up three cases dealing with § 3582(c)(2) highlights the range of intricate issues that sentence modification motions can present.  And the first of these cases, Hughes, deals with the initial issue of who is even eligible for sentence modification and presents further questions about how to deal with the 4-1-4 divide among the Justices in the leading prior ruling of Freeman v. United States, 564 U.S. 522 (2011).

As readers know, I have written up some of my perspectives on "sentence finality" in an law review article, "Re-Balancing Fitness, Fairness, and Finality for Sentences", and in a number of prior posts (some of which are reprinted below).  I was encouraged recently to channel some of these ideas into an amicus brief in Hughes, and a terrific set of lawyers at Sidley Austin LLP played the leading and central role in making this amicus brief a reality.  Here is the "Summary of Argument" from this just-filed brief:

The standard presumption in favor of finality for criminal judgments need not and should not be elevated over other critical criminal justice interests when a defendant seeks only to modify an ongoing prison sentence based on new legal developments.  See Douglas A. Berman, Re-Balancing Fitness, Fairness, and Finality for Sentences, 4 Wake Forest J.L. & Pol’y 151, 174–75 (2014). Through sentence-modification provisions like the one at issue in this case, see 18 U.S.C. § 3582(c)(2), Congress has expressed its concerns for those other criminal justice interests by creating a significant sentencing exception to the usual presumption in favor of finality.  Appreciating the importance of getting sentences right while an offender is still serving a prison term, Congress has astutely elevated substantive sentencing goals like accuracy, fairness, and uniformity over concerns about finality in this context.  Section 3582(c)(2) serves well the purposes of fitness and fairness: its sentence-modification provisions eliminate unwarranted disparities in federal sentencing, promote the government’s legitimate substantive penological interests, foster societal respect for the criminal justice system, and save long-term costs associated with excessive terms of incarceration.

The question of statutory interpretation presented in this case, i.e., what does the term “based on” mean, should be resolved in favor of clear congressional policy and purpose. Defendants who commit crimes of similar severity under similar conditions should receive similar sentences.  When it is functionally apparent that a particular amended guideline was applicable in a defendant’s case, it ought not matter whether that defendant’s plea agreement contained calculations applying the since-reduced guideline.  A contrary interpretation, one that unnecessarily narrows eligibility for relief under § 3582(c)(2), would turn congressional policy on its head, wrongly elevate finality interests over those Congress sought to champion, and lead to systemic injustice.  The Court should take this opportunity to embrace a broad interpretation of “based on” that comports with overriding congressional policy.  Accordingly, petitioner should be eligible for relief under § 3582(c)(2) because his sentence was “based on” a Guidelines range that has been subsequently lowered.

Some (of many) prior posts on sentencing finality:

January 30, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, January 29, 2018

Mapping out what Beckles left unresolved: Johnson's uncertain impact on the once-mandatory career-offender guideline

Leah Litman and Samantha Jaffe have this great new entry at the Take Care website under the heading "The Mandatory Guidelines Predicament."  It seeks to explain the still lingering issue of how the Supreme Court's 2015 Johnson vagueness ruling still impacts a certain subset of federal prisoners sentenced more than a decade earlier.  I recommend the piece in full, and here is a taste:

In Johnson v. United States, the Supreme Court held ACCA’s residual clause unconstitutionally void for vagueness.  ACCA imposes a 15-year minimum for defendants with three prior “violent felony” convictions.  ACCA’s residual clause defined “violent felony” as any felony that “involves conduct that presents a serious potential risk of physical injury to another.”  The next term, Welch v. United States announced that Johnson was a substantive rule that applied retroactively....

The Sentencing Guidelines contain a provision known as the career-offender guideline. The career-offender guideline helps calculate a defendant’s criminal history score, which, in combination with a defendant’s offense level, yields the defendant’s sentencing range. The career-offender guideline has a residual clause that is worded the same way as ACCA’s (unconstitutional) residual clause. In Beckles, the Court held that the career-offender guideline’s residual clause was not unconstitutionally vague because the advisory federal Sentencing Guidelines are not subject to vagueness challenges.

The Sentencing Guidelines, however, weren’t always advisory.... The pre-Booker Guidelines thus functioned a lot like statutes that impose mandatory sentences.  Nevertheless, there are still differences between the pre-Booker Guidelines and statutes.  Even when the Guidelines were mandatory, the Guidelines explicitly allowed courts to reduce a defendant’s recommended sentencing range if the court determined the defendant’s criminal history “substantially over-represent[ed] the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.”  In other words, even under “mandatory” Guidelines, courts could depart from the sentencing range. In contrast, courts couldn’t depart from a mandatory minimum under ACCA.  The Guidelines also include seven factors that a sentencing court must consider, which builds in flexibility. These factors include the nature of the offense and history of the defendant, the types of sentences available, and how the sentence serves the values of deterrence, incapacitation, retribution, and rehabilitation. That said, in spite of those differences, the pre-Booker mandatory Guidelines functioned a lot like statutory minimums.

Despite the similarities between mandatory Guidelines and statutes fixing sentences, the courts of appeals have not been particularly receptive to challenges to the mandatory Guidelines....  Let’s imagine that the Supreme Court wants to say, at some point, that the mandatory Guidelines’ residual clause is unconstitutionally vague.  It’s not clear how many opportunities the Court will have to do so, assuming it’s even interested.  AEDPA sharply limits the Supreme Court’s ability to review court of appeals’ denials of authorization to file second or successive resentencing motions.  AEDPA does not permit petitioners to file petitions for certiorari from decisions denying authorization to file a second or successive authorization.  The only path to review in the Supreme Court are so-called “original writs,” which are rarely granted and, to date, have remained only a theoretical possibility for reviewing second or successive resentencing motions.

That’s a problem because it is likely that almost all cases involving the mandatory Guidelines will be second or successive resentencing motions.  The Guidelines have been advisory since the Supreme Court’s 2005 decision in Booker, so it’s not likely that many prisoners sentenced *before 2005* have yet to file a single section 2255 motion.

The petitioner in Raybon is one of the rare exceptions, although there is also another, similar case in the Fourth Circuit.  If the Court wants to do something about prisoners sentenced under the mandatory Guidelines, it may want to seriously consider granting certiorari in Raybon even though there’s a vehicle problem.... And acting sooner rather than later is important, given that the essence of these claims is that the prisoners are serving more time in prison than they should be.

January 29, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Monday, January 22, 2018

You be the federal judge: what sentence for Senator Rand Paul's attacker?

As regular readers know, I enjoy following up news of a high-profile conviction by asking what sentence readers think fitting for the high-profile convicted offender.  As detailed in this local article, report, headlined "Rand Paul’s attacker should get 21 months in prison, prosecutors recommend," the case today is high-profile because of the victim (and some motive uncertainty). Here are the latest crime and punishment details:

Federal prosecutors will recommend a sentence of 21 months in prison for the neighbor charged with tackling and injuring U.S. Sen. Rand Paul, according to a court document. The document, posted Monday, also makes clear that the attack was not politically motivated.

Paul’s neighbor, Rene Boucher, told police he attacked Paul because he’d “had enough” after seeing the Republican senator stack more brush on a pile near Boucher’s yard, according to the plea agreement Boucher signed.

Boucher’s attorney, Matthew Baker of Bowling Green, has said he will argue that Boucher should not be put behind bars for the attack on Paul.

The plea deal also envisions that Boucher will make restitution to Paul, who was seriously injured.

Boucher, a 58-year-old retired anesthesiologist, and Paul have lived next to each other for years in an upscale subdivision in Bowling Green, but have reportedly had differences of opinion over property maintenance. Boucher is “very meticulous” about yard maintenance, while Paul “takes a different approach,” Baker told the Herald-Leader last week. “It just became … a point of frustration that boiled over,” Baker said....

Boucher’s plea agreement says Paul was mowing his yard — while wearing headphones for hearing protection — when Boucher saw Paul stacking more brush on an existing pile and lost his temper. Boucher “executed a running tackle” of Paul on Paul’s property, the plea agreement said.

Paul did not see Boucher coming until the last second and was “unable to brace for the impact,” the plea document said. Paul suffered several broken ribs and had to be treated for pneumonia which developed as a result of his injuries....

No date has been set for Boucher to formally plead guilty or be sentenced. The charge against him carries a top sentence of 10 years.

Long-time readers know that Senator Paul has long been an advocate for federal sentencing reforms especially for nonviolent drug offenders; in this case, Senator Paul the victim of a violent crime and perhaps the kind he thinks ought to carry some prison time.  Notably, in this 2013 op-ed, Senator Paul explained his opposition to mandatory minimum drug sentences due in part to the risk they create for federal offenders having "their lives ruined for a simple mistake or minor lapse of judgment."   Arguably Boucher's "running tackle" was just a minor lapse, albeit one that seemingly cause some significant harm to Senator Paul. 

Thanks the the federal Crime Victims' Rights Act, Senator Paul has a "right to be reasonably heard" at Boucher's sentencing and it will be interesting to see if Senator Paul exercises this right and whether he might be inclined to urge any particular sentence.  I surmise that the plea agreement filed today provides that federal prosecutors will seek a sentence of 21 months (likely pursuant to the aggravated assault guideline) while the defense will seek a sentence of probation.  It will be interesting to see what the probation office may end up recommending, and in the meantime I am eager to hear in the comments from various readers:

What sentence would you give to Rene Boucher for his assault on Senator Rand Paul?

January 22, 2018 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (15)

Friday, January 19, 2018

US Sentencing Commission releases new proposed guideline amendments to address synthetic drugs

As reported in this official press release, this morning "the United States Sentencing Commission approved publication of several proposed amendments to the federal sentencing guidelines, including proposals addressing the treatment of synthetic drugs under the guidelines." Here is more about today's USSC action and the broader on-going amendment cycle:

Today’s proposed amendments stem from a multiyear Commission study of some of the more prevalent and dangerous synthetic drugs in the federal system. The proposals adopt a class-based approach for synthetic cathinones and cannabinoids, two types of synthetic drugs studied by the Commission.  The proposal also defines the term “synthetic cannabinoid” and establishes a single marihuana equivalency for each class.

The Commission also proposed an increase to penalties for fentanyl offenses by setting the offense level for fentanyl equal to the higher offense level currently assigned to fentanyl analogues. The proposal provides more exact guideline definitions for the terms “fentanyl” and “fentanyl analogue”.  An enhancement for misrepresenting or marketing fentanyl or fentanyl analogues as another substance was also proposed.

Circuit Judge William H. Pryor, Jr., the acting chair of the Commission remarked, "A growing number of synthetic drugs are being developed and trafficked on the illicit drug market. It is important that the sentencing guidelines account for our most current understanding of the chemical structure, potency and effect, trafficking trends, and community impact of these drugs. These proposals aim to provide greater clarity, guidance, and efficiency in synthetic drug cases."

During the synthetic drugs study undertaken from August 2016 through December 2017, three fact-gathering public hearings were conducted on each drug type. The Commission received testimony from dozens of experts, including federal judges, scientists, law enforcement officers, and emergency medical personnel.... Several other technical or clarifying amendments were proposed today, including an amendment addressing two application issues relating to the immigration guidelines.

Today's proposals join other proposed amendments published in August 2017 that were held over from the previous amendment cycle. The Commission is expected to vote on the full slate of proposed amendments during the current amendment year ending May 1, 2018.

A public comment period on the newly proposed amendments will close on March 6, 2018, with a reply comment period closing March 28, 2018. To inform public comment, the Commission will soon release an online data briefing on synthetic drugs that highlights some of the findings from the Commission’s study. Two public hearings will also be scheduled in February and March.

The intricate details of these new proposed amendment are set forth in this reader-friendly USSC document, and the intricate details of the holdover proposed amendment are set forth in this reader-friendly USSC document. My own cursory understanding of all these proposals suggests to me that the holdover proposal addressing first offenders and alternatives to incarceration may be the only very consequential proposed amendment potentially in the works. But, of course, every possible guideline change can be very consequential to any defendant and any lawyers involved in any case implicating a perhaps-soon-to-be-amended-guideline.

January 19, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Wednesday, January 17, 2018

Lies, damn lies and fascinating statistics in the US Sentencing Commission FY 2017 sentencing data

I just noticed that the US Sentencing Commission last week released its latest standard quarterly data report, and this one is extra exciting because it contains preliminary data on all cases sentenced during fiscal year 2017.  Critically, FY17 runs October 1, 2016 through September 30, 2017, so a good chunk of the data reflect a period in which Attorney General Loretta Lynch was still in charge of the Justice Department.  Still, a majority of the data reflects sentencings after Attorney General Jeff Sessions took over, and the final third of FY 2017 had all sentencings taking place after AG Sessions issued his May 2017 charging and sentencing memorandum directing federal prosecutors to more regularly seek within-guideline sentences.

I provide all this backstory largely as a prelude to highlighting how similar the USSC FY17 data look to FY16 data. I also thought it interesting to compare some of these data to FY13 and FY09, the last two Prez election year USSC data sets. (I am drawing all these data from Table 19, then Table 6 of these USSC data reports.)

USSC FY        Total Sentences (mean in month)     Drug Trafficking Sentences (mean in month)     Immigration Sentences (mean in month)

2009                81,347 (47 months)                                  23,931 (78 months)                                         25,924 (17 months)

2013                80,035 (45 months)                                  22,354 (72 months)                                         24,972 (16 months)

2016                67,740 (44 months)                                  19,231 (66 months)                                         20,052 (13 months)

2017                66,409 (45 months)                                  18,980 (70 months)                                         20,333 (12 months)

One can mine a lot more data from the FY 2017 report to tell a lot more stories about how, at least so far, formal and informal changes by AG Sessions have not yet made a dramatic impact on federal sentencing statistics.  Indeed, one might be heartened by the fact that fewer federal cases were sentenced in FY 2017 than in the last 15 years, and I think fewer federal drug trafficking sentences were imposed in FY17 than in nearly any other year in the past two decades (though the uptick in average sentence is interesting and may prompt a future post). 

Of course, these data may start looking very different in FY 2018 and beyond as new US Attorneys appointed by Prez Trump take over and their new cases make it all the way to sentencing. Still, I think it notable and interesting that the first run of federal sentencing data of the Trump Era shows a continued decline in overall sentences imposed and in drug trafficking sentences imposed.

January 17, 2018 in Criminal justice in the Trump Administration, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (4)

Taking a critical look at recent report on "Federal Prosecution of Commercial Sexual Exploitation of Children Cases"

Guy Hamilton-Smith has this notable new piece at In Justice Today discussing a new Bureau of Justice Statistics report. The BJS report, available here, is titled "Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004-2013." Guy Hamilton-Smith's critical assessment, available here, is titled "New DOJ Report Demonstrates Stunning Disingenuity on Cases Involving Sexual Exploitation of Children." Here is how the commentary starts and additional excerpts with a sentencing bite:

A recent bombshell report from the Department of Justice claims that the number of people prosecuted in federal court for commercial sexual exploitation of children roughly doubled between 2004 and 2013.

The title of the report from the DOJ’s Bureau of Justice Statistics, Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004–2013, conjures the specter of children being forced into sexual slavery. The titling and framing of the report leaves a casual reader with the impression that more and more children are falling victim to commercial sex offenses  —  such as sex trafficking  —  and that DOJ has placed a high priority on prosecuting these offenses.

The actual data contained within the report itself, however, merits no such dramatic conclusion. The DOJ defines the phrase the “commercial sexual exploitation of children” (CSEC) as involving “crimes of a sexual nature committed against juvenile victims for financial or other economic reasons,” the obvious implication being that these “CSEC” defendants are directly involved in the trafficking of children for sexual purposes. However, according to the BJS’ own data, the vast majority of the defendants charged with CSEC offenses were accused, not of producing of child pornography or of child sex trafficking, but of consuming child pornography, including images of cartoon obscenity....

The growth in these types of child pornography prosecutions is not necessarily indicative of an increase in rates of offending.  Rather, it is more likely the result of law enforcement’s ability to secure confessions and convictions with relatively little effort. In the vast majority of these cases, investigators monitor peer-to-peer networks for hash values of images that are known to be child pornography, serve administrative subpoenas on service providers for records associated with those IP addresses, and knock on front doors with search warrants. Defenses are usually slim to none. Guilty pleas are exceedingly common: The BJS data reveals that 92.5% of defendants prosecuted in federal court for possession, receipt, or distribution of child pornography pled guilty.

Including such defendants under the banner of “CSEC” is sloppy at best and disingenuous at worst.  While the DOJ’s commitment to battling commercial sexual exploitation of children is admirable, their framing and presentation of the data as implication of an epidemic is at odds with the numbers themselves.

Underscoring the need for clarity and objectivity is the fact that defendants prosecuted for non-production child pornography offenses are amongst the most harshly punished defendants in all of the federal system. The report indicates that they are the least likely of all federal defendants to be given non-custodial sentences, even over and above violent and weapon offenses, and that "Prison sentences imposed on defendants convicted of CSEC offenses were among the longest in the federal justice system. The mean prison sentence imposed on convicted CSEC defendants increased by 99% from 2004 to 2013, from 70 to 139 months."

Sentences to the north of a decade are routine for CSEC defendants by virtue of the United States Sentencing Guidelines. These provide a recommended “range” in months of imprisonment based on both the severity of an offense and a person’s criminal history. Offenses, depending on specific characteristics of how they are committed, can receive enhancements that result in lengthier terms of imprisonment.

There are a number of significant sentencing enhancements for child pornography cases which are routinely applied. These may have held some rough logic in an era before Google, but they make little sense now. Use of a computer? Enhancement.  More than ten images?  Enhancement.  Distribution, even unintentional distribution, as discussed above?  Enhancement. More than 10 images (note that a video file, regardless of length, is counted as 75 images)? Enhancement.  Sentence enhancements are piled on such that, even for those individuals with no criminal record and no evidence they sexually assaulted a child, the recommended sentences can easily dwarf the statutory maximum sentences.

No other class of offense in the federal system (or, indeed, in many states) is characterized by such extreme sentences.  As courts have noted, there is virtually no empirical or reasoned bases for any of these enhancements beyond naked revulsion and desire for retribution. Some scholars have suggested that such severe punishments represent punishment by proxy. In other words, they are intended to obscure and compensate for the failure of law enforcement to investigate and prosecute actual cases of child sexual trafficking and commercial exploitation. In seeking to justify such draconian punishments even for “end users,” prosecutors and others (including courts) have advanced a market theory  —  that even possession of such images drives a market for child pornography.  The United States Sentencing Commission, in a 2012 report to Congress, noted that such arguments are without empirical support. Notably, similar arguments were made in support of harsh treatment of drug addicts in the 1970’s and 80’s as a way of winning the war on drugs.

Whatever the underlying rationale, the draconian nature of these sentences has attracted attention and push back in recent years, including from an extremely unlikely group: federal judges, some of whom are recognizing the inherent unfairness of enhancements for these types of offenses, and beginning to impose sentences far more lenient than those recommended by the guidelines.

Equating garden variety child pornography defendants with child sex traffickers is an abdication of reason and rationality. Unfortunately, the DOJ has not signaled any intention of reversing course.  Rather, if the trends in the report are any indication, it appears to be accelerating the use of what might justifiably be described as a prosecutorial machine that crushes defendants in child pornography possession cases, while failing to even charge far more culpable defendants.

January 17, 2018 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (5)

Sunday, January 07, 2018

Noticing the continued decline of the federal prison population (for now) ... and a story embedded with intricacies

PrisonPopuGraphicOver at the Washington Post's WonkBlog, Keith Humphreys has this important little discussion of the federal prison population under the headlined "The number of people in federal prisons is falling, even under Trump."  Here are excerpts (with a few lines emphasized for some follow-up commentary):

When states began shrinking their prison populations almost a decade ago, the federal prison system was still growing each year and thereby undermining progress in reducing mass incarceration. But in the past four years, the federal system has cut its inmate population by one-sixth, a decrease of over 35,000 prisoners.

Because criminal justice is mainly the province of the states, the federal prison system holds only about 13 percent of U.S. inmates. Yet that is still a significant number of people in absolute terms: The system held 219,300 inmates at its peak in 2013. Four subsequent years of significant contraction dropped the federal inmate population to 184,000 by the end of 2017.

Obama-era changes to drug crime prosecution and sentencing coupled with a historic level of clemency grants to federal inmates by President Barack Obama helped bring the federal prison system to its lowest population size since mid-2004 and its lowest incarceration rate (i.e., adjusted for population) since the end of 2002.

Given President Trump’s penchant for “tough on crime” rhetoric, some observers may find it surprising that the federal prison population kept dropping under the first year of the Trump administration. The most likely cause is also the most obvious. When a nation is blessed with two decades of falling crime rates, this eventually translates into lower incarceration rates because there just aren’t as many offenders to arrest, charge and imprison.

Whether the federal prison population continues to decline will depend in part on Trump administration policies. Attorney General Jeff Sessions recently reversed the Obama-era policy of avoiding mandatory minimum sentences in low-level drug cases, which could result in some future growth in the federal inmate population even if crime continues to fall.

The other key determinant of the federal prison population’s future is whether Trump will make use of his powers to pardon or commute the sentences of federal inmates. He only did so for one inmate this year, but that doesn’t necessarily mean he won’t grant more clemencies later.

Though it is important and useful to notice that the federal prison population continued its downward trend in the first year of the Trump Administration, it is not quite accurate to attribute this reality to either "two decades of falling crime rates" or to Presidential commutation practices.  For starters, we had falling crimes rates in the decade from 1992 through 2002, and yet the federal prison population more than doubled from less than 80,000 inmates in 1992 to more than 163,000 inmates in 2002.  And we had another decade of falling crimes rates from 2002 through 2012, and yet the federal prison population rose another 55,000 inmates in that period.  And, of course, crimes rates started ticking up significantly in 2015 and 2016.

Moreover, and perhaps even more importantly, there is actually a very limited (and quite unclear) relationship between the FBI's reported reductions in violent and property crimes — which is the data base for "falling crime rates" — and the federal criminal caseload which is primarily made up of drug and immigration and firearm and fraud offenses.  Indeed, in light of the empirics of the opioid crisis — not to mention increased marijuana activity thanks to state legal reforms — there is reason to speculate that federal drug offenses have actually been rising (perhaps significantly) in recent years.  The dynamics surrounding recent crime rates for federal immigration and firearm and fraud offenses are hard to assess, but that very reality is part of the reason it is hard to link federal prison population changes to what we know (and do not know) about crime rates.  But, without any doubt, there are still plenty of "offenders to arrest, charge and imprison" engaged in the activities that serve as the modern bread-and-butter of federal prosecution.  Though there are a range of linkages between various crime rates and various federal prosecutorial policies and practices, it is very hard to see and measure and assess with any confidence how basic criminal offending (especially as to classic state crimes) may directly impact the size of federal prison populations.

What we can effectively see and measure are changes in federal sentencing laws and federal prosecutorial practices, and these changes suggest a set of intricate stories help account for recent federal prison population changes.  For starters, the US Sentencing Commission enacted a set of broad retroactive changes to the federal drug sentencing guidelines, with crack guideline reductions in 2007 and 2011 and the "Drugs -2" reductions in 2014.  These changes reduced the sentences of, and is continuing to lead to the early release of, many thousands of federal prisoners.  In addition, and perhaps even more statistically important for the very latest federal prison data, federal prosecutors after 2012 began decreasing dramatically the number of cases getting all the way to federal sentencing.  According to US Sentencing Commission data, in Fiscal Year 2012, federal prosecutors brought over 84,000 cases to sentencing, whereas by Fiscal Year 2016, federal prosecutors brought fewer than 67,750 cases to sentencing.  And, especially with a slow transition to new US Attorney positions, it may take some time for the new Attorney General to ramp up yearly federal prosecutions (assuming he even wishes to do so).

In other words, the always dynamic stock and flow story of prison populations provides a somewhat more granular understanding of declines in the federal prison population.  Changes to federal sentencing laws made retroactive has had a significant impact on the "stock" of federal prisons.  (Prez Obama's commutations are a small part of this "stock" story, but not until they really got going in 2016, and in the end more than 25 federal prisoners got reduced sentences thanks to retroactive guideline changes for every prisoner who got a commutation from Prez Obama.)  And while guideline changes were reducing the federal prison "stock," it seems the prosecutorial policies announced by Attorney General Holder in 2013 — and perhaps other factors, including decreased national concerns about crime — finally began to reduce what had previously been, for two decades, an ever-increasing federal prison "flow."

I would predict that the May 2017 Sessions charging/sentencing memo could contribute, over time, to increasing both the stock and the flow of the federal prison population.  But other directions coming from Main Justice might complicate this story.  AG Sessions has urged US Attorneys to focus on violent crimes, and there may well be fewer of these cases to bring and they may take more time to prosecute than lower-level drug and gun and immigration cases.  But, of course, the AG has also expressed concerns about drug and gun and immigration cases, and he has been seeking to hire and empower more federal prosecutors in certain arenas.  I will be especially watching how all these developments ultimately impact the US Sentencing Commission's data on cases sentenced (and average sentence imposed) in order to try to predict where the federal prison population may be headed next.

January 7, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Thursday, January 04, 2018

US Sentencing Commission announces public meeting to vote on proposed guideline amendments

As detailed in this announcement, the US Sentencing Commission has scheduled "a public meeting ... for Friday, January 19, 2018, at 10:30 a.m." The announced agenda includes "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."

As detailed in this prior post from mid 2017, the Commission did not to promulgate guideline amendments in the 2016-17 amendment cycle, but did articulate an ambitious set of proposed priorities for 2017-18 amendment cycle (and also release a set of proposed holdover amendments for comment).  So there certainly could be some significant federal sentencing guidelies news emerging from the Commission in a couple of weeks.  Stay tuned.

January 4, 2018 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Tuesday, December 12, 2017

Second Circuit panel reverses as unreasonable way-above-guideline sentence for immigration offense

A helpful reader made sure I did not miss a fascinating Second Circuit panel decision today reversing an above-guideline sentence as unreasonable in United States v. Singh, No. 16‐1111 (2d Cir. Dec. 12, 2017) (available here). Here is how the opinion gets started:

In this case, defendant‐appellant Latchman Singh pleaded guilty to one count of illegally reentering the United States after having been removed following a conviction for an aggravated felony.  His Guidelines range was 15 to 21 monthsʹ imprisonment, and both the government and the Probation Office recommended a within‐Guidelines sentence.  The district court, however, sentenced Singh to a term of imprisonment of 60 months ‐‐ nearly three times the top of the Guidelines range.   

Singh appeals, contending that the sentence was both procedurally and substantively unreasonable.  For the reasons set forth below, we vacate the sentence and remand for further proceedings.  Singhʹs request that we order reassignment of the case to a different judge is denied. 

The opinion goes on to thoughtfully explain its substantive and procedural concerns with the sentence imposed; the discussion defies easy summary and lots of passages could merit highlighting. Here is one from the end of the opinion that seemed especially notable:

ʺSentencing, that is to say punishment, is perhaps the most difficult task of a trial court judge.ʺ  Jack B. Weinstein, Does Religion Have a Role in Criminal Sentencing?, 23 Touro L. Rev. 539, 539 (2007).  While there are many competing considerations in every sentencing decision, a sentencing judge must have some understanding of ʺthe diverse frailties of humankind.ʺ  See Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion).  In deciding what sentence will be ʺsufficient, but not greater than necessaryʺ to further the goals of punishment, 18 U.S.C. § 3553(a), a sentencing judge must have a ʺgenerosity of spirit, that compassion which causes one to know what it is like to be in trouble and in pain.ʺ  Guido Calabresi, What Makes a Judge Great: To A. Leon Higginbotham, Jr., 142 U. Pa. L. Rev. 513, 513 (1993); see also Edward J. Devitt, Ten Commandments for the New Judge, 65 A.B.A. J. 574 (1979), reprinted in 82 F.R.D. 209, 209 (1979) (ʺBe kind.  If we judges could possess but one attribute, it should be a kind and understanding heart.  The bench is no place for cruel or callous people regardless of their other qualities and abilities.  There is no burden more onerous than imposing sentence in criminal cases.ʺ).

To the extent the district court increased Singhʹs punishment because of a perception that in attempting to explain his actions and plead for mercy he did not fully accept responsibility, it committed procedural error.

December 12, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (7)

Curious reminder of limits of empirical evidence showing federal sentencing disparity before modern guideline reforms

ProPublica has this lengthy new article that seems way too eager to suggest that some empirical shenanigans fester below the Supreme Court's 1989 Mistretta opinion upholding the structure of the Sentencing Reform Act of 1984. The full headline and subheadline showcases the ominous theme of this reporting, "Suspect Evidence Informed a Momentous Supreme Court Decision on Criminal Sentencing: The U.S. Sentencing Commission helped send more people to prison for longer terms. It’s a shame it was created to address a nonexistent crisis. Here’s how the Supreme Court got misled."  I fear that ProPublica's valuable push to fact-check SCOTUS opinions has, in this case, led to some problematic assertions about the history of sentencing reform and Mistretta.  Though this blog space is not an ideal setting for nitpicking this long ProPublica piece, the article's start (with one sentence emphasized) provides a flavor for its points and problems:

More than 30 years ago, Congress identified what it said was a grave threat to the American promise of equal justice for all: Federal judges were giving wildly different punishments to defendants who had committed the same crimes.  The worries were many.  Some lawmakers feared lenient judges were giving criminals too little time in prison. Others suspected African-American defendants were being unfairly sentenced to steeper prison terms than white defendants.

In 1984, Congress created the U.S. Sentencing Commission with remarkable bipartisan support.  The commission would set firm punishment rules, called “guidelines,” for every offense.  The measure, signed by President Ronald Reagan, largely stripped federal judges of their sentencing powers; they were now to use a chart to decide penalties for each conviction, with few exceptions.

Five years later, a legal challenge to the sentencing commission wound up before the U.S. Supreme Court.  In a case titled Mistretta v. U.S., the court was asked to consider whether Congress had overreached by taking on what seemed to be a role for the judiciary.  In an 8-1 decision, the justices determined that the sentencing commission was constitutional.  And they took care to say that the commission was also needed — to end the widespread and “shameful” sentencing disparities produced by the biases of individual judges.

Mistretta was a momentous decision, but it’s now clear the high court relied on evidence that was flimsy and even flat-out wrong.  The justices, in issuing the 1989 decision, had cited a single congressional report in concluding that there were disturbing and unacceptable sentencing disparities that needed to be addressed.  That single report, in turn, was based primarily on two studies conducted in the early 1970s, both deeply flawed.

Critically, the Mistretta case legally and practically did not turn at all on whether researchers had adequately proven pre-guideline sentencing disparity or whether Congress relied on "flimsy" evidence when enacting the Sentencing Reform Act.  Constitutional issues, not empirical ones, were the focal point of Mistretta.

To its credit, this ProPublica article does a nice job spotlighting problems with the disparity evidence cited by Congress in the legislative history of the Sentencing Reform Act.  But Kate Stith and Jose Cabranes made this point effectively two decades ago in Fear of Judging, and sentencing reforms in the 1970s and 1980s, at both the federal and state level, were driven by (and could be justified by) a lot more than just concerns about sentencing disparities.  Moreover, and perhaps most important, the few cites by Congress to studies about sentencing disparities were really only the tip of the evidentiary iceberg: as Norval Morris stressed in this great 1977 piece, he started effectively documenting "gross and unjust variations in sentences imposed on convicted criminals" in the 1950s.  As he put it, by the mid 1970s, the decade before Congress enacted the Sentencing Reform Act, "the data on unjust sentencing disparity [had] indeed become quite overwhelming and will ... convince anyone who will take the time to study them."   

In short, I think it deeply misguided to label the concerns about sentencing disparities before modern reforms a "nonexistent crisis," and it is even more problematic to suggest that these concerns were the only reason Congress passed the SRA or the only reason Mistretta came out as it did.  I am always grateful for journalism seeking to thoughtfully unpack federal sentencing reforms and Supreme Court sentencing rulings, and there can and should be continued debate about whether and how modern sentencing reforms may have increased rather than reduced certain types of sentencing disparities.  But the notion that there were not any truly justified concerns about sentencing disparity before modern reforms cannot withstand serious scrutiny, nor can the suggestion that SCOTUS was "misled" by bad data in its Mistretta ruling.

December 12, 2017 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Friday, December 08, 2017

SCOTUS grants cert on two(!) federal sentence reduction issues

The Supreme Court this afternoon issued his new order list which adds seven new cases to its merits docket. Two of the new cases involve (narrow) related federal sentencing issues concerning the application of 18 USC § 3582(c)(2).  Here are the case pages and issues via SCOTUSblog:

Hughes v. United States

Issue: Whether, under Freeman v. United States, a petitioner is eligible for a sentence reduction pursuant to 18 U.S.C. 3582(c)(2) based on a retroactive amendment to the Sentencing Guidelines, when the petitioner was sentenced after entering into a binding Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement that required a specific sentence not expressly tied to the guidelines.

Koons v. United States

Issues: Whether a defendant who is subject to a statutory mandatory minimum sentence, but who substantially assisted the government and received a sentence below the mandatory minimum pursuant to 18 U.S.C. § 3553(e), is eligible for a further sentence reduction under 18 U.S.C. § 3582(c)(2), when the Sentencing Commission retroactively lowers the advisory sentencing guidelines range that would have applied in the absence of the statutory mandatory minimum.

As long-time readers should know, I am not a big fan of undue finality concerns in the sentencing context (see paper here), so my first instinct is to root for SCOTUS to take an expansive view of the reach and application of 18 U.S.C. § 3582(c)(2). But I will need to dig into the particulars of these cases before being ready to make any predictions about where the Justices may want to go with them.  But, as long-time readers should also know, a cert grant on TWO sentencing cases makes me a happy camper no matter what may follow.

December 8, 2017 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, December 07, 2017

Judge "convicts" Michael Slager of murdering Walter Scott and gives him 20 years in federal prison

As noted in this prior post, in federal court there was this week a homicide mini-trial as part of the sentencing of former South Carolina police officer Michael Slager pleaded guilty to a federal civil rights offense as a result of his lethal shooting of Walter Scott.  This lengthy local article, headlined "Former officer Michael Slager sentenced to 20 years in prison for shooting of Walter Scott, reports on the results of the judicial inquisition and ultimate sentencing decision.  Here are a few particulars:

Two and a half years after millions saw a cellphone video of Michael Slager gunning down Walter Scott, the 20-year prison sentence he was handed Thursday will be etched into history as one of the most significant for an American police officer involved in a fatal shooting.

Findings by a federal judge aligned with accusations that observers nationwide had aired against the former North Charleston officer since the footage emerged in April 2015: He committed murder when he shot at Scott eight times as the black motorist ran away. He also later misled investigators and lied during court testimony, the judge determined.

The judge rejected the 36-year-old's claim that Scott's own actions at least initially warranted the gunfire. The decision ended a courtroom battle that has played out since scrutiny befell North Charleston amid a national conversation about police killings. But Slager's penalty on a federal charge of violating Scott’s civil rights may extend that legal fight through appeals. It was more than twice what Slager’s defense team had hoped for, and it came as a surprise to many on both sides of the dispute....

U.S. District Judge David Norton had acknowledged two families who cried in his downtown Charleston courtroom and described how their lives had been torn apart by the shooting. Neither, he said, would be satisfied with Slager’s punishment.  "Judging by (Slager’s) history and characteristics, he has lived a spotless life," he said. "Regardless, this is a tragedy that shouldn’t have happened."...

Slager pleaded guilty in May to the federal civil rights violation for using excessive force. But it was the judge’s responsibility to decide the underlying offense: second-degree murder or voluntary manslaughter.

Norton largely dismissed Slager’s manslaughter argument that the officer had been provoked by Scott’s resistance, calling the motorist’s actions “wrongful” but not deserving of Slager’s reaction. Instead, the officer acted with malice by repeatedly shooting the unarmed and fleeing Scott, the judge said.

In reaching the murder finding, Norton rejected a pre-sentencing report’s recommendation that Slager should serve between 10 and 13 years behind bars.  The judge reduced the penalty from the maximum lifetime term for reasons that had little to do with the shooting: for the way federal and state prosecutors collaborated on his prosecution and the risk of abuse Slager will face in prison because he’s a former police officer.

The sentencing relied on several legal determinations based on Norton’s view of the facts, and in delivering the penalty, he mentioned that he had consulted his wife, a forensic pathologist, in reviewing Scott’s autopsy. Defense attorneys took exception to those comments and the result, but the judge said their complaints would have to be addressed by an appeals court.

Slager will likely get credit for the more than yearlong stint he has already spent in jail. In the federal justice system, there is no parole.

Prior related posts:

December 7, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Wednesday, December 06, 2017

VW executive gets seven years in federal prison for emissions fraud

This Reuters article reports on today's notable white-collar sentencing in the Motor City.  Here are the sentencing basics:

A U.S.-based Volkswagen AG executive who oversaw emissions issues was sentenced to seven years in prison and fined $400,000 by a judge on Wednesday for his role in a diesel emissions scandal that has cost the German automaker as much as $30 billion.

The prison sentence and fine for the executive, Oliver Schmidt, were the maximum possible under a plea deal in August the German national made with prosecutors after admitting to charges of conspiring to mislead U.S regulators and violate clean-air laws.

“It is my opinion that you are a key conspirator in this scheme to defraud the United States,” U.S. District Judge Sean Cox of Detroit told Schmidt in court. “You saw this as your opportunity to shine ... and climb the corporate ladder at VW.”

Schmidt read a written statement in court acknowledging his guilt and broke down when discussing his family’s sacrifices on his behalf since his arrest in January. “I made bad decisions and for that I am sorry,” he said.

U.S. Department of Justice trial attorney Benjamin Singer argued in court that Schmidt was “part of the decision making process” at VW to hide a scheme to fake vehicle emissions results and had opportunities tell regulators the truth. “Every time he chose to lie,” Singer said.

In March, Volkswagen pleaded guilty to three felony counts under a plea agreement to resolve U.S. charges that it installed secret software in vehicles in order to elude emissions tests....

Schmidt was charged with 11 felony counts and federal prosecutors said he could have faced a maximum of up to 169 years in prison.  As part of his guilty plea, prosecutors agreed to drop most of the counts and Schmidt consented to be deported at the end of his prison sentence.

December 6, 2017 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (1)

Monday, December 04, 2017

Latest trial of Michael Slager for killing Walter Scott taking place during his federal sentencing for civil rights offense

As noted in this post from May, after a state mistrial in December 2016, former South Carolina police officer Michael Slager pleaded guilty to a federal civil rights offense as a result of his lethal shooting of Walter Scott.  That resolution all but ensured that continued debate concerning Slager's action would take place during his federal sentencing.  And this local article reporting on the first day of that sentencing highlights that this continued debate is in the form of a kind of mini-trial at sentencing.  Here are some details:

What Walter Scott did during his fatal confrontation with North Charleston officer Michael Slager and what the policeman said afterward quickly became the focus of the first day of Slager’s sentencing hearing.

Slager, 36, already has acknowledged violating Scott’s civil rights by repeatedly shooting the fleeing black man as a bystander filmed the encounter. He pleaded guilty to that in May, but key facts remain in dispute — a point on full display Monday at the federal courthouse in downtown Charleston.

Before hashing out a penalty, a judge must decide this week what underlying offense Slager committed in depriving Scott of his constitutional right to be free of excessive force: murder or voluntary manslaughter. After listening to three government witnesses, the judge gave no initial indication on how he might rule. The proceeding is expected to resume Tuesday morning, possibly with another prosecution witness before the defense takes over.

Prosecutors said Scott was simply trying to escape a traffic stop, and they called eyewitness Feidin Santana to back up their contention that Slager murdered Scott and lied to cover his tracks. They rejected Slager’s explanation for the shooting: that he fired only after Scott took his Taser. “I saw a man just determined to get away and leave,” Santana said of Scott. “Like I say in the video, it was an abuse — something unnecessary.”

It was the second time Santana publicly testified against Slager, whose murder trial in state court ended a year ago with a hung jury. Portions of his latest account in U.S. District Court were geared toward helping Judge David Norton decide whether Scott’s conduct contributed to Slager’s decision to shoot. Prosecutors said no; it was wrong from the moment the officer first pulled the trigger.

But defense lawyers said Scott could have at any point stopped and surrendered, and lead attorney Andy Savage pressed Santana about whether Scott had ever raised his arms and given up. “If that happened,” Santana responded, “we wouldn’t be here.”

Santana’s video footage of the April 4, 2015, killing brought national scrutiny to North Charleston amid a broader examination of police-involved deaths across the country. It also landed Slager in jail on a state murder charge when the cellphone clip emerged publicly three days later.

But the jurors in the state case were unable to agree whether he had committed a crime. At least one of them sat in the courtroom Monday, this time as an observer....

The hearing resembled a trial without the same rules of evidence and procedures that can slow proceedings. And the ultimate arbiter of justice is Norton, who can pick any sentence between no prison time and up to life behind bars.  A pre-sentencing report suggested a term of between 10 and nearly 13 years in prison, but defense attorneys asked the judge Monday for a “significant” departure from those guidelines because of the role Scott played in his own death.

In my prior post about this case after Slager's plea, I calculated based on the government advocating for the court to apply the guidelines for second degree murder and obstruction of justice that Slager would be facing a guideline range of roughly 17 to 22 years of imprisonment. But it would appear that the PSR in this case has urged the court to consider Slager guilty only of voluntary manslaughter for sentencing purposes. Of course, Slager has in fact only pleaded guilty to "a violation of 18 U.S.C. § 242, Deprivation of Rights Under Color of Law," but in the magical world of federal sentencing the offense of conviction still often does not really matter all that much.  In this high-profile case, it will be a judge not a jury tasked with both deciding what crime he really committed and what sentence should go with that crime.

Prior related post:

December 4, 2017 in Advisory Sentencing Guidelines, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

As one former member of Congress enjoys release from prison after five years, another one gets sentenced to five years in Florida federal court

I blog here over the weekend about the resentencing hearing on Friday that allowed former US Representative William Jefferson to officially put federal prison behind him after serving five years and five months. Today, as reported in this local article, another former member of Congress got sentenced to prison in another federal courthouse.  Here are the details:

Former U.S. Rep. Corrine Brown was sentenced Monday to five years in federal prison for fraud and tax crimes that included raising about $800,000 for a sham charity. Brown’s longtime chief of staff, Ronnie Simmons, was sentenced to 48 months in prison, and the charity’s founder, One Door for Education President Carla Wiley, was sentenced to 21 months.

U.S. District Judge Timothy Corrigan said he believed the Democrat used her position in Congress to achieve an “admirable record of service.”  However, he also said she abused the trust of that office in order carry out a criminal conspiracy.

“This is a sad day for everyone,” Corrigan told Brown shortly after sentencing her.  “I was impressed with all the outpouring of support for you, and I think it’s a tribute to all the work you’ve done over the years. That’s what makes this all the more tragic.”...

Corrigan ordered Brown to report to prison no earlier than Jan. 8 to an as-yet undetermined prison, but allowed her to remain free until then.  Brown’s attorney, James Smith of Orlando, argued for probation and said Brown would appeal the sentence.

An appeal may not keep the 12-term congresswoman from going behind bars, however. Federal rules say Brown should begin serving her time while the appeal is pending unless the judge finds the defense is raising substantial issues that are likely to result in a new trial or a sentence shorter than the time he’ll need to decide the appeal.

Prosecutors asked Corrigan for at least five years in prison during a sentencing hearing held last month.  A pre-sentencing report from courthouse staff, which the judge isn’t required to follow, recommended a prison term between seven years, three months and nine years.

That term was based on sentencing guidelines for Brown’s convictions on 18 counts at her May trial.  Jurors found her guilty of charges involving wire and mail fraud, conspiracy, concealing income and filing false tax returns.  Thirteen of the counts Brown was convicted of involved her fundraising efforts for One Door for Education, an organization she falsely described as being a tax-exempt nonprofit supporting projects to help children....

Between 2012 and the start of 2016, One Door received about $800,000 in donations, often from wealthy businesspeople who later said Brown personally approached them and told them One Door would use the money for kids’ causes.  In reality, jurors were told during Brown’s trial, only a tiny sliver of the money was spent on real charity, while more than $330,000 went into party-like events like outings to a Beyonce concert, a Jaguars-Redskins game in Washington and the invitational golf tournament One Door sponsored in Brown’s honor at TPC Sawgrass....

Prosecutors’ argument that the fraud had been significant was underscored by their requests for Corrigan to order the three to collectively forfeit more than $650,000 the government labeled as proceeds from the crime.  In addition, under a separate part of the law involving repaying crime victims for their losses, prosecutors asked for Brown and Simmons to be ordered to make restitution payments totaling $452,000 to donors who gave to One Door.  They also asked for an order making Brown pay $62,000 in restitution to the IRS for lying on her taxes, and an order for Simmons to pay another $91,000 in restitution for a charge involving him alone creating a ghost employee on Brown’s staff payroll....

If Corrigan’s sentence stands, Brown’s imprisonment will end a tumultuous but significant career in which Brown and two others, all elected in 1992, became the first African-Americans that Florida sent to Congress since the 19th century.

December 4, 2017 in Booker in district courts, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (4)

Sunday, December 03, 2017

"Disproportionate Impact: An Impetus to Raise the Standard of Proof at Sentencing"

The title of this post is the title of this student note authored by Anthony LoMonaco recently published in the October 2017 issue of the NYU Law Review.  Here is its abstract:

It is well-known that in a criminal trial, the prosecution must prove culpability beyond a reasonable doubt.  But during the subsequent sentencing phase, the standard of proof is much lower: a preponderance of the evidence.  This relatively low standard can lead to a problem known as “disproportionate impact.”  Disproportionate impact occurs when evidence of additional criminal activity is introduced during the sentencing phase and becomes more determinative of the defendant’s punishment than the actual crime of conviction.  Such evidence can subject criminal defendants to significantly more punishment without the safeguards available at a criminal trial, and it may include uncharged and acquitted crimes.

In response to this issue, some circuit courts fashioned an exception to the preponderance rule, raising the standard of proof to the clear and convincing standard to protect the due process rights of criminal defendants. However, use of this exception was curtailed in all circuits but the Ninth when the Supreme Court rendered the Sentencing Guidelines advisory in 2005.  This Note analyzes the lopsided circuit split surrounding the disproportionate impact exception and challenges the notion that the exception is no longer necessary because the Guidelines have become advisory.

December 3, 2017 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1)

Friday, December 01, 2017

With guilty plea entered, former national security director Michael Flynn now faces (easy?) sentencing

As reported here via the New York Times, "President Trump’s former national security adviser, Michael T. Flynn, pleaded guilty on Friday to lying to the F.B.I. about conversations with the Russian ambassador last December during the presidential transition."  Here are the most basic legal particulars:

Mr. Flynn, who appeared in federal court in Washington, acknowledged that he was cooperating with the investigation by the special counsel, Robert S. Mueller III, into Russian interference in the 2016 election. His plea agreement suggests that Mr. Flynn provided information to prosecutors, which may help advance the inquiry....

Mr. Flynn pleaded guilty to making false statements to F.B.I. agents about two discussions with the Russian ambassador to the United States, Sergey I. Kislyak. Lying to the F.B.I. carries a penalty of up to five years in prison.

Sentencing fans know, of course, that the statutory maximum for any federal offense of conviction typically matters much less than the applicable federal guideline sentencing range. For that reason and others, sentencing fans will want to check out Michael Flynn's "Plea Agreement" and "Statement of Offense" available here via the National Law Journal.  (The folks at Lawfare also have lots of Flynn docs at this link.)  Pages 2-3 of the plea agreement highlight the sentencing story (which serves as the basis for the "easy" adjective in this post title), and here is a snippet: 

A. Estimated Offense Level Under the Guidelines

The parties agree that the following Sentencing Guidelines sections apply:

U.S.S.G. Base Offense Level: 6

Total: 6

B. Acceptance of Responsibility

The Government agrees that a 2-level reduction will be appropriate, pursuant to U.S.S.G. 3E1.1, provided that your client clearly demonstrates acceptance of responsibility, to the satisfaction of the Government, through your client's allocution, adherence to every provision of this Agreement, and conduct between entry of the plea and imposition of sentence....

In accordance with the above, the applicable Guidelines Offense Level will be at least 4....

D. Estimated Applicable Guidelines Range

Based upon the agreed total offense level and the estimated criminal history category set forth above, your client's estimated Sentencing Guidelines range is zero months to six months' imprisonment (the "Estimated Guidelines Range")....

The parties agree that, solely for the purposes of calculating the applicable range under the Sentencing Guidelines, neither a downward nor upward departure from the Estimated Guidelines Range set forth above is warranted, subject to the paragraphs regarding cooperation below. Accordingly, neither party will seek any departure or adjustment to the Estimated Guidelines Range, nor will either party suggest that the Court consider such a departure or adjustment, except as provided in the preceding sentence.

December 1, 2017 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (22)

Sunday, November 19, 2017

"How Congress, the U.S. Sentencing Commission and Federal Judges Contribute to Mass Incarceration"

The title of this post is the title of this recently posted short article by US District Judge Lynn Adelman.  Here is its abstract:

This article argues that each of the major decision-makers in the federal sentencing process, Congress, the United States Sentencing Commission and the federal judiciary contribute substantially to mass incarceration.  The article first discusses how, beginning in the 1960s and continuing for the next three decades, Congress enacted a series of increasingly punitive anti-crime laws. Congress’s focus on crime was inextricably connected to the urban rebellion of the 1960s, and members of both political parties played important roles in passing the harsh legislation. 

Probably the worst of the laws that Congress enacted, and the one that contributed most to mass incarceration, was the mis-named Sentencing Reform Act of 1984 which abolished federal parole and established a commission to promulgate mandatory sentencing guidelines.  The commission proceeded to enact extremely harsh guidelines and virtually preclude sentences of probation.  The article laments how, even after the Supreme Court struck down the mandatory feature of the guidelines, federal judges continue to adhere closely to the guidelines when sentencing defendants.

Finally, the article argues that one of the fundamental problems plaguing federal sentencing is the widespread misconception that the most important indicator of an effective and credible sentencing system is the absence of inter-judge disparity rather than the exercise of informed discretion.

November 19, 2017 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Tuesday, November 14, 2017

US Sentencing Commission releases new report on "Demographic Differences in Sentencing"

Via this webpage, the US Sentencing Commission provides a helpful summary and some key findings from its latest data publication titled ""Demographic Difference in Sentencing." The full 49-page report is available at this link, and here is the USSC's summary and accounting of key findings:

For this report [link in] prior two reports, The Commission used multivariate regression analyses to explore the relationships between demographic factors, such as race and gender, and sentencing outcomes.  These analyses were aimed at determining whether there were demographic differences in sentencing outcomes that were statistically significant, and whether those findings changed during the periods studied.

The Commission once again updated its analysis by examining cases in which the offender was sentenced during the period following the 2012 report.  This new time period, from October 1, 2011, to September 30, 2016, is referred to as the “Post-Report period” in this publication.  Also, the Commission has collected data about an additional variable — violence in an offender’s criminal history — that the Commission had previously noted was missing from its analysis but that might help explain some of the differences in sentencing noted in its work. This report presents the results observed from adding that new data to the Commission’s analysis....

Key Findings

Consistent with its previous reports, the Commission found that sentence length continues to be associated with some demographic factors. In particular, after controlling for a wide variety of sentencing factors, the Commission found:

1. Black male offenders continued to receive longer sentences than similarly situated White male offenders. Black male offenders received sentences on average 19.1 percent longer than similarly situated White male offenders during the Post-Report period (fiscal years 2012-2016), as they had for the prior four periods studied. The differences in sentence length remained relatively unchanged compared to the Post-Gall period.

2. Non-government sponsored departures and variances appear to contribute significantly to the difference in sentence length between Black male and White male offenders. Black male offenders were 21.2 percent less likely than White male offenders to receive a non-government sponsored downward departure or variance during the Post-Report period. Furthermore, when Black male offenders did receive a non-government sponsored departure or variance, they received sentences 16.8 percent longer than White male offenders who received a non-government sponsored departure or variance. In contrast, there was a 7.9 percent difference in sentence length between Black male and White male offenders who received sentences within the applicable sentencing guidelines range, and there was no statistically significant difference in sentence length between Black male and White male offenders who received a substantial assistance departure.

3. Violence in an offender’s criminal history does not appear to account for any of the demographic differences in sentencing. Black male offenders received sentences on average 20.4 percent longer than similarly situated White male offenders, accounting for violence in an offender’s past in fiscal year 2016, the only year for which such data is available. This figure is almost the same as the 20.7 percent difference without accounting for past violence. Thus, violence in an offender’s criminal history does not appear to contribute to the sentence imposed to any extent beyond its contribution to the offender’s criminal history score determined under the sentencing guidelines.

4. Female offenders of all races received shorter sentences than White male offenders during the Post-Report period, as they had for the prior four periods. The differences in sentence length decreased slightly during the five-year period after the 2012 Booker Report for most offenders. The differences in sentence length fluctuated across all time periods studied for White females, Black females, Hispanic females, and Other Race female offenders.

These are really interesting (though not especially surprising) findings, and it will be interesting to see how the US Department of Justice and members of Congress pushing for federal sentencing reform might respond. I will need to take a little time to dig into some of the particular because providing my own assessment and spin, but I have always feared (and wrote an article a long time ago) that differences in the resources and abilities of defense counsel may create or enhance disparities in federal sentencing outcomes in ways that can not be easily measured or remedied.

November 14, 2017 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

Wednesday, November 08, 2017

House members reintroduce the Safe, Accountable, Fair, and Effective (SAFE) Justice Act

As reported in this press release, yesterday "Representatives Bobby Scott (D-VA) and Jason Lewis (R-MN) introduced bipartisan legislation aimed at safely reining in the size and associated costs of the federal criminal code and prison system."  Here is more from the press release about the reintroduction of one of the most progressive federal statutory sentencing reform proposals to make the rounds recently:

H.R. 4261, the Safe, Accountable, Fair, and Effective (SAFE) Justice Act takes a broad-based approach to improving the federal sentencing and corrections system, spanning from sentencing reform to release policies.  The legislation, which is inspired by the successes of states across the country, will break the cycle of recidivism, concentrate prison space on violent and career criminals, increase the use of evidence-based alternatives to incarceration, curtail over-criminalization, reduce crime, and save money....

Similar to the successful reform packages enacted in many states, the SAFE Justice Act aligns the federal prison system with the science about what works to reform criminal behavior.  It reflects the growing consensus among researchers that, for many offenders, adding more months and years onto long prison terms is a high-cost, low-return approach to public safety.  It also looks to the growing number of practices in correctional supervision that are shown to reduce recidivism. 

The SAFE Justice Act will:

  • Reduce recidivism by –
    • incentivizing completion of evidence-based prison programming and activities through expanded earned time credits;
    • implementing swift, certain, and proportionate sanctions for violations of supervision; and
    • offering credits for compliance with the conditions of supervision.
  • Concentrate prison space on violent and career criminals by  –
    • focusing mandatory minimum sentences on leaders and supervisors of drug trafficking organizations;
    • safely expanding the drug trafficking safety valve (an exception to mandatory minimums) for qualified offenders; and
    • creating release valves for lower-risk geriatric and terminally-ill offenders.
  • Increase use of evidence-based sentencing alternatives by  –
    • encouraging greater use of probation and problem-solving courts for appropriate offenders; and
    • creating a performance-incentive funding program to better align the interests of the Bureau of Prisons and U.S. Probation Offices. 
  • Curtail overcriminalization by –
    • requiring regulatory criminal offenses to be compiled and published for the public;
    • ensuring fiscal impact statements are attached to all future sentencing and corrections proposals; and
    • charging the Department of Justice, the Bureau of Prisons, and the Administrative Office of the Courts with collecting key outcome performance measures.
  • Reduce crime by –
    • investing in evidence-based crime prevention initiatives; and
    • increasing funding for community based policing and public safety initiatives.

Original cosponsors of the SAFE Justice Act: Reps. John Conyers, Jr. (D-MI), Mia Love (R-UT), Sheila Jackson Lee (D-TX), Carlos Curbelo (R-FL), Eleanor Holmes Norton (D-DC), Brian Fitzpatrick (R-PA).

Additional information about the SAFE Justice Act:

Prior related post from June 2015:

November 8, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Monday, November 06, 2017

NAAUSA and six other law enforcement groups write to Sentencing Reform and Corrections Act, per the attached letter.

Last week I blogged here about a letter sent to the leaders of the Senate Judiciary Committee on behalf of the Federal Public and Community Defenders to urge passage of legislation to reform federal mandatory sentencing laws.  Today I received a copy of a quite different letter also sent to the leaders of the Senate Judiciary Committee this time coming from the National Association of Assistant U.S. Attorneys and six other law enforcement groups.  Here is how the letter, which can be downloaded below, gets started:

We write to express the opposition of the undersigned organizations to the recently-introduced Sentencing Reform and Corrections Act of 2017 (S. 1917).  We represent federal, state and local law enforcement officers, agents and prosecutors responsible for the investigation and prosecution of drug traffickers and other violent offenders involved in the distribution and sale of dangerous drugs.

The public safety of our communities across the nation would be negatively impacted by this legislation.  The legislation undermines mandatory minimum penalties for drug trafficking and weakens the tools that law enforcement authorities need to enforce the law, prosecute criminals and dismantle domestic and international drug trafficking organizations.  The legislation authorizes the early release of thousands of previously convicted armed career criminals, serial violent criminals, and repeat drug traffickers. And it will make it more difficult for law enforcement to pursue the most culpable drug dealers and secure their cooperation to pursue others in drug distribution rings and networks, domestic and international.

The bill would undermine law enforcement investigatory efforts by giving serious criminals the best of both worlds: less sentencing exposure and the choice to not cooperate with law enforcement in further investigatory efforts.

This is not the time for the Congress to consider changes like these that will impair the ability of law enforcement to take serious drug traffickers off the street.  Violent crime across America continues to grow, and a raging heroin and opioid abuse epidemic shows no sign of ebbing. For the second year in a row, violent crime increased across the United States, according to FBI annual crime data.  Homicides increased by 8.6%, with cities like Baltimore, Chicago, and Kansas City, Missouri witnessing massive increases in their homicide rates.  Meanwhile, a national epidemic of overdose deaths, caused largely by heroin and opioid drug abuse, ravages the country.  No state is immune from the deadly consequences.  Over 47,000 Americans died from drug overdoses in 2014, an all-time high. In 2015 that number rose to 50,000; last year it continued to skyrocket to 64,000 people.  Daily drug overdose deaths, including those from heroin use, exceed those caused by auto accidents.

Download LE Groups Ltr re S 1917 Nov02-2017

November 6, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Thursday, November 02, 2017

With notable advocates, former Gov Blagojevich bringing notable sentencing issue to SCOTUS

As reported in this local press article, headlined "Imprisoned Blagojevich again asks U.S. Supreme Court to hear his case," a high-profile defendant is bringing an interesting sentencing issue to the Supreme Court. Here are the basics:

Ex-Gov. Rod Blagojevich has again appealed his case to the U.S. Supreme Court, his lawyer confirmed Thursday. The former governor’s bid to the high court is among the very few options the imprisoned Democrat has left.

Blagojevich has tried to take his case to the Supreme Court once before. It refused to hear from him early last year, and his new petition is also considered a long-shot. Blagojevich is not due out of prison until May 2024.

The new 133-page filing presents the Supreme Court with two questions: Whether prosecutors in a case like Blagojevich’s must prove a public official made an “explicit promise or undertaking” in exchange for a campaign contribution, and whether more consideration should have been given to sentences handed down in similar cases.

This big cert petition is available at this link, where one can see that Thomas Goldstein and Kevin Russell of SCOTUSblog fame are listed as counsel of record.  And here is how these two astute SCOTUS litigators frame the sentencing issue they are bringing to the Justices in this case:

May a district court decline to address a defendant’s nonfrivolous argument that a shorter sentence is necessary to avoid “unwarranted sentence disparities,” 18 U.S.C. § 3553(a)(6), so long as it issues a sentence within the U.S. Sentencing Guidelines, as the Seventh and Tenth Circuits hold, in conflict with the law of the majority of circuits?

Long-time readers know that I see a whole host of post-Booker 18 U.S.C. § 3553(a) sentencing issues as cert-worthy, but the Justices themselves have not taken up many such cases over the last decade. It is great to see experienced SCOTUS litigators making the case for cert on these kinds of grounds in a high-profile setting, though I think the "long-shot" adjective remains fitting.

November 2, 2017 in Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, November 01, 2017

Federal defenders write Senators in support of federal criminal justice reforms including mens rea reforms

A helpful reader pointed me to this lengthy letter sent to the leaders of the Senate Judiciary Committee on behalf of the Federal Public and Community Defenders to urge passage of legislation to reform federal mandatory sentencing laws. The letter's introduction highlights the themes of a document worth a full read:

Federal Defenders represent most of the indigent defendants in 91 of the 94 federal judicial districts nationwide. Over 80 percent of people charged with federal crimes cannot afford a lawyer, and nearly 80 percent of people charged with federal crimes are Black, Hispanic, or Native American.  Our clients bear the overwhelming, and disproportionate, brunt of mandatory minimum sentences.

Real sentencing reform is desperately needed.  The most significant driver of the five-fold increase in the federal prison population over the past thirty years has been mandatory minimums, particularly those for drug offenses.  The extreme levels of incarceration come at a human and financial cost that is unjustified by the legitimate purposes of sentencing, and that perversely undermines public safety.  The mandatory minimums that Congress intended for drug kingpins and serious traffickers are routinely and most often applied to low-level non-violent offenders.  Moreover, mandatory minimums have a racially disparate impact, and have been shown to be charged in a racially disparate manner.

The decision to charge mandatory minimums, or not, is entirely in the hands of prosecutors.  This provides a single government actor with unchecked power that is wholly inconsistent with traditional notions of legality and due process.  In light of the proven, longstanding problems created by mandatory minimums, they should be eliminated altogether.  Sentencing authority should be placed back in the hands of neutral judges where it has traditionally resided.

Short of those more comprehensive reforms, the Smarter Sentencing Act or the Sentencing Reform and Corrections Act would be a good start.  Both bills, in different ways and to different extents, would reduce mandatory minimums and expand judicial discretion, thus reducing unnecessarily harsh sentences and lessening unchecked prosecutorial power.  Neither bill is perfect.  Congress should pass one or the other, or a combination of the two.  Each of these bills represents a compromise, and should not be weakened any further.

We urge you not to pass the Corrections Act as a standalone measure.  It would provide time off at the end of a sentence only for certain select inmates, and would have little or no impact on the poor and racial minorities who comprise the vast majority of federal prisoners and are most in need of relief.  All inmates should have an opportunity to earn time off at the end of their sentences through demonstrated efforts at rehabilitation.  This too is consistent with traditional notions of punishment. However, the Corrections Act would make incentives to participate in rehabilitative programming unavailable to those who need it most.

We do support the Mens Rea Reform Act of 2017 because it embodies the fundamental principle that a person should be convicted of and punished for a crime only if he or she acted with a guilty mind, and because it would prevent many of our clients with low-level involvement in drug offenses from being over-charged and over-punished for the conduct of others of which they were not aware and that they did not intend.  However, mens rea reform is not a substitute for sentencing reform. True criminal justice reform must tackle the single biggest contributor to injustice in the federal system: mandatory minimum sentences.

November 1, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Monday, October 30, 2017

Appreciating ugly sentencing realities facing Paul Manafort and Rick Gates after federal indictment

The big news in the political world this morning is the indictment of Paul Manafort, President Donald Trump’s former campaign chairman, which flows from special counsel Robert Mueller's investigation into Russian meddling in the 2016 election.  Along for the ride is another Trump campaign official, Rick Gates, who is also facing 12 federal criminal counts thanks to the work of a federal grand jury.  As is my tendency, I will be content to respond to this news with a few sentencing-related observations while leaving it to others to engage in political spin and other forms of legal speculation.

The full 31-page indictment of Manafort and Gates is available via this link, and the 12 federal criminal counts facing them are conspiracy against the United States (count 1), conspiracy to launder money (count 2), failure to file required reports (counts 3 to 9), being an unregistered agent of a foreign principal (count 10), false/misleading FARA statements (count 11) and false statements (count 12). Though a number of these counts, coupled with the narrative of the defendants' actions in the indictment, can sound quite ominous, it is ultimately the money laundering count that should send a Halloween chill down the spine of Manafort and Gates (and, presumably, their defense lawyers).

The money laundering count appears to carry the highest statutory sentencing range (20 years) of all the charges. In addition, because of the large amounts of money involved in these offenses — the indictment alleges Manafort laundered $18 million — the calculated guideline range for this offense is least a decade (and likely more).  In other words, if Manafort were convicted of just the money laundering allegations against him, the "starting point and the initial benchmark" for his sentencing is 10+ years in federal prison. (It is not clear from a quick review of the indictment whether the amounts involved for Gates would drive his guideline range up quite so high.)

Manafort, who is 68 years old, surely would like to avoid any prison time and he certainly does not want to risk spending the rest of his life in the federal pen.  He can, of course, choose to fight all the charges at trial, but I suspect Mueller and his team only moved forward with these indictment allegations after becoming confident they could prove them all beyond a reasonable doubt.  Moreover, thanks to the reality that federal judges can and often do consider "acquitted conduct" at sentencing, even an acquittal on most but not all of the counts may not significantly change these ugly sentencing realities for Manafort and Gates.

Of course, what can change these sentencing dynamics is a plea deal that locks in some favorable sentencing terms and/or a decision by the defendants to, in the language of 5K1.1 of the federal sentencing guidelines, "provide substantial assistance in the investigation or prosecution of another person who has committed an offense."  Those hoping that these indictments turn up the heat on current members of Team Trump can and should relish the reality that Manafort and Gates now have strong sentencing reasons to consider providing substantial assistance in the investigation of others.  What others they might have information about, and what others Mueller and his team are seeking information on, will sure keep folks inside the Beltway chattering in the coming weeks and months.

October 30, 2017 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (24)

Friday, October 27, 2017

Is it time for new optimism or persistent pessimism on the latest prospects for statutory federal sentencing reform?

At the spectacular Advancing Justice summit yesterday (basics here), a whole set of "in-the-know" folks stated that there is wide bipartisan support on Capitol Hill for federal sentencing reform.  Specifically, as this brief Axios piece notes, Senator Mike Lee stated in the event's first session that "the Sentencing Reform and Corrections Act would have received 70 votes in the Senate if voted on last year, and would still get 70 votes in the Senate this year." (This Axios piece also report that Senator Lee "wants a vote on the bill before the end of the year.") Senator Lee's views here were echoed later in the day during a keynote speech by Senator Chuck Grassley and during a panel discussion by a number of in-the-know public policy advocates.

But, as optimistic as this all may sound, Matt Ford has this new this big piece at The Atlantic indicating that some key Democratic voices may be unwilling to move forward with sentencing reform proposals if mens rea reform is going to be part of the package.  The piece's headline highlights why pessimism may again be the justified perspective here: "Could a Controversial Bill Sink Criminal-Justice Reform in Congress?: A debate over mens rea stalled the last push for reform. Now, a similar battle could be brewing."   Here is a snippet:

A bill drafted by a group of Senate Republicans earlier this year would tweak the mens rea requirement in federal statutes, adding a default rule for juries to find criminal intent for federal offenses that don’t explicitly have an intent standard. (Mens rea is a legal term derived from the phrase “guilty mind” in Latin.) If enacted, federal prosecutors would need to prove a defendant’s state of mind to obtain a conviction for a host of existing crimes. Conservatives and criminal-defense organizations argue the measure is a necessary part of the congressional effort to reform sentencing and incarceration.

But some Senate Democrats fear the measure is far too sweeping and could be a back-door attack on federal health and environmental regulations that police corporate behavior. Rhode Island Senator Sheldon Whitehouse, a member of the Judiciary Committee, told me earlier this week that he wouldn’t support a sentencing-reform bill if it included the change to mens rea. “It would turn me into a warrior against it,” he emphasized. Chuck Schumer, the Democratic leader in the Senate, would also oppose such a bill, a spokesman confirmed.

Other Senate Democrats criticized a similar measure that passed the House during the last criminal-justice-reform push, which centered on a sentencing-reform bill.  In January 2016, Illinois Senator Dick Durbin, a longtime supporter of reform, said that version of the mens rea proposal “should be called the White Collar Criminal Immunity Act.” (Like Whitehouse, Durbin serves on the Judiciary Committee, which would need to sign off on any mens rea- or sentencing-reform bills.)  Massachusetts Senator Elizabeth Warren said in a speech the following month that the House proposal would “make it much harder for the government to prosecute hundreds of corporate crimes — everything from wire fraud to mislabeling prescription drugs.”  Negotiations over criminal-justice reform ultimately collapsed that summer as the presidential election entered its final stretch.

I have said before and will say again that this kind of opposition to a reform designed to safeguard a fundamental part of a fair and effective federal criminal justice system shows just how we got to a world with mass incarceration and mass supervision and mass collateral consequences.  Nobody seems willing or able to understand that making life easier for prosecutors anywhere serves to increase the size and reach and punitiveness of our criminal justice systems everywhere.  In turn, if you want a less extreme and severe criminal justice system anywhere, the best way to advance the cause is by seeking and advocating to limit government prosecutorial powers everywhere.

So, to answer the question in the title of this post, I think I have to stick with persistent pessimism for the time being.

October 27, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (7)

Thursday, October 26, 2017

"30 Years Later: A Look Back at the Sentencing Guidelines"

The title of this post is the title of an event the took place earlier this week at the Hofstra University Club and was recorded and preserved here via YouTube. Here is a brief description of the event:

In 1987, the U.S. Sentencing Commission transformed criminal law in the United States in releasing the original Federal Sentencing Guidelines.  From the start, Hofstra Law was at the forefront of sentencing scholarship, publishing key insights from the earliest days of the Commission.  On Monday, October 23, distinguished members of the Judiciary, past and present Commissioners, and leading scholars commemorated the original U.S. Sentencing Commission and marked the 30th Anniversary of the Sentencing Guidelines at the Hofstra University Club.

Notaby, the event included a keynote address by SCOTUS Justice Stephen Breyer (which starts around the 1:05 point on the video).

October 26, 2017 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3)

Sunday, October 22, 2017

Should we call it the Sessions effect?: "enthusiastic" federal prosecutors operating at "full throttle" in the Southern District of Ohio

My local Columbus Dispatch has this fascinating new article highlighting an uptick in federal prosecution in the Southern District of Ohio.  The piece is headlined "Surge in prisoners prompts federal court to contract with northwest Ohio jail," and here are excerpts (with a few points highlighted):

Benjamin C. Glassman is costing taxpayers more money, and he’s OK with that. Glassman, the U.S. attorney for the Southern District of Ohio, is reaching far and wide — very far, in some cases — to fight crime that could hurt Ohioans.

He persuaded the U.S. Drug Enforcement Administration to deposit four Ecuadorean cocaine traffickers caught off the Galapagos Islands for prosecution on his turf in Columbus. And members of the multinational gang MS-13 were charged in September with extorting money from Columbus businesses and laundering it back to the gang’s leadership in El Salvador.

The increase in the prosecution of violent crimes and drug cases such as these, especially amid the opioid crisis, had the U.S District Court for Southern Ohio looking for extra jail space to keep a record 483 defendants whose cases were pending as of Oct. 7. “That’s a lot for us,” said Chief U.S. District Judge Edmund A. Sargus Jr. 

Of the total defendants, 223 were up on drug charges, 43 for violent crimes and 38 for child pornography.

To prevent overtaxing the Franklin and Delaware County jails that hold federal prisoners, Peter C. Tobin, the U.S. marshal for the 48-county Southern District, recently contracted with a regional jail in Williams County, 150 miles northwest of Columbus, to hold some defendants.  So far, 30 defendants have been sent to the Corrections Center of Northwest Ohio near Bryan.  That jail is charging $90 a day per federal inmate, about $25 more than the local jails.

Other federal court districts are having similar problems housing the influx of defendants, Sargus said.  The largest districts, such as New York City and Los Angeles, have their own holding facilities.

An Obama administration appointee last year, Glassman swears he’s not padding his crime-fighting resume because President Donald Trump could replace him at a moment’s notice. Ohio’s U.S. senators have recommended Greg Hartmann, an attorney and former Hamilton County commissioner, to replace Glassman. “We just want to reach out as far as we can and as far as we need to go to stop crime that is hurting people in this district,” Glassman said. “I sincerely believe people in Russia can hurt us, people in China can hurt us here.”

He spoke enviously of fellow prosecutors in North Dakota who this month “beat us to indicting” two men in China with selling fentanyl over the “dark web’ that has been tied to deadly overdoses. It was unclear whether Chinese officials have taken action against the suspects.

“We have violent crime initiatives in Cincinnati, and now Columbus, that are successfully bringing more violent crime prosecutions,” he said. Glassman’s office works closely with state and local law enforcement, counting on street cops to identify the “small number of people disproportionately responsible for a large number of violence.”  Suspects are charged in state or federal court depending on which nets prosecutors the best results, meaning guilty pleas and stiff prison sentences....

Glassman said his office is operating at “full throttle, with a lot of hardworking, really enthusiastic prosecutors.”  Individual assistant U.S. attorneys specialize in handling violent crime, drugs, illegal immigration, child pornography, tax and fraud cases.  Where only the top offenders in a drug ring were usually charged, now it’s not uncommon for cases to include a list of 15 or so defendants with even the most minor players. “We are looking to dismantle entire distribution organizations,” he said.

I find fascinating that even with a violent crime initiative and directions from Attorney General Sessions to focus on violent crime, this accounting of on-going federal prosecutions indicates that less than 15% of the current caseload (and maybe less than 10%) involves violent crimes (43 out of the 304 noted above, or maybe 43 out of the full 483).  Meanwhile, nearly half or perhaps even more than half of all the cases are drug cases, and now apparently even the most minor players in a drug ring are being subject to federal prosecution — no doubt in part because guilty pleas and stiff prison sentences are more common when drug charges are brought in the federal system.

I am inclined to call much of this a "Sessions effect" because the signals from the top of the current Justice Department would seem to be urging more and more federal prosecutions across the board (while also urging tougher approaches to sentencing).  I suspect it may be still some months before we see the full impact of these dynamics in federal sentencing statistics, but I also suspect I will be talking more about the Sessions effect in the months and years ahead.

October 22, 2017 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Thursday, October 19, 2017

AG Jeff Sessions our "crime problem" while expression concern about the "move to even lighter sentences"

US Attorney General Jeff Sessions today delivered this speech to the Oklahoma Sheriffs’ Association, and the speech includes comments about rising crime and support for law enforcement that have become staples of the AG's recent speeches.  But this latest speech also indirectly addresses the latest bipartisan talk of federal sentencing reform and covers some other new ground.  Here are excertps:

But today we are fighting a multi-front battle: an increase in violent crime, a rise in vicious gangs, an opioid epidemic, threats from terrorism, combined with a culture in which family and discipline seem to be eroding further and a disturbing disrespect for the rule of law.

After decreasing for nearly 20 years because of the hard but necessary work our country started in the 1980s, violent crime is back with a vengeance.  In 2016, the nationwide homicide rate increased by another 7.9 percent, resulting in a total surge of more than 20 percent since 2014. Not a little matter.

As homicide deaths have gone up, drug overdose deaths have gone up even faster.  Preliminary data show that more than 60,000 Americans died from drug overdoses in 2016. Not only is that the highest drug-related death toll in our history, but it is also the fastest increase in drug deaths we’ve ever seen.  That’s more than the population of Midwest City — dead in just one year.  For Americans under the age of 50, drug overdoses are now the leading cause of death.

Oklahoma isn’t immune to these problems.  This wonderful state suffered a 40 percent increase in murders between 2014 and 2016, and the number of drug overdose deaths has surged by more than 67 percent in the last decade.

And yet, despite the national surge in violent crime and the record number of drug deaths over the last two years, there is a move to even lighter sentences. We must be careful here. Federal prison population is down 15 percent — the average sentence is down 19 percent. Crime is up.

Sometimes it is prudent to review sentences and determine if some might be too harsh or too light.  For example, I led the effort with my then-colleague Senator Durbin to reduce the sentencing disparity between crack and powder cocaine from 100 to 1 all the way down to 18 to 1.  That was the right thing to do.

But I'm afraid we don’t have a sentencing problem; we have a crime problem.  If we want to bring down our prison population then we should bring down crime.

So what should we do?  What has been proven to work?

In 1984 I had been a federal prosecutor for six years when Congress passed the Sentencing Reform Act.  This law instituted mandatory minimum sentences, sentencing guidelines, truth in sentencing, and ended federal parole.  I was a prosecutor before this law, and I was a prosecutor after it went into effect.  It’s clear to me that it worked. We saw crime rates cut in half, neighborhoods revitalized, and general law and order restored on our streets.

Why did it work?  Most people obey the law.  They have no desire to inflict violence on their neighbors or traffick deadly drugs to suffering addicts.  They want to be safe. No, most crimes are committed by a relatively few number of criminals.  Putting them behind bars makes us safer.

Experienced law enforcement officers like you understand that.  You are the thin blue line that stands between law-abiding people and criminals.  You protect our families, our communities, and our country from drugs and violence.  Every American benefits from that work, and the vast majority of our country appreciates what you do.

But some would undermine this support by portraying law enforcement officers as the enemy.  But we’ve seen a shocking and unacceptable level of violence toward police officers in this country.

Earlier this week, the FBI released its annual report on violence against police officers.  The report showed a more than 60 percent increase last year in the number of officers feloniously killed in the line of duty.  It also shows a 14 percent increase in the number of officers assaulted on duty. According to the report, 150 officers were assaulted every day on average last year....

You deserve the support and respect of every American, and I’m here today on behalf of President Trump and the Department of Justice to say thank you.  I am proud to stand with you. The Department of Justice is proud to stand with you.  We have your back.  We understand one thing, criminals are the problem, law officers are the solution....

Helping law enforcement do their jobs, helping the police get better, and celebrating the noble, honorable, essential and challenging work of our law enforcement communities will always be a top priority of President Trump and this Department of Justice.  We will always seek to affirm the critical and historic role of sheriffs in our society and we will not participate in anything that would give the slightest comfort to radicals who promote agendas that preach hostility rather than respect for police.

October 19, 2017 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (5)

Wednesday, October 18, 2017

Special issue of Federal Probation looks at "30 Years with Federal Sentencing Guidelines"

The latest issue of the journal Federal Probation, which is published by the Administrative Office of the U.S. Courts, features a special section looking at "30 Years with Federal Sentencing Guidelines."  As revealed by the contents reprinted below, I had the honor of contributing a short article to this issue and that authorship puts me in some notable company:

Federal Sentencing Policy: Role of the Judicial Conference of the United States and the Administrative Office of the U.S. Courts by Hon. Ricardo S. Martinez

The Integral Role of Federal Probation Officers in the Guidelines System by Hon. William H. Pryor Jr.

Reflecting on Parole’s Abolition in the Federal Sentencing System by Douglas A. Berman

Five Questions for the Next Thirty Years of Federal Sentencing by Steven L. Chanenson

State Sentencing Guidelines: A Garden Full of Variety by Kelly Lyn Mitchell

Brief summaries of these pieces are available at this link, but I urge everyone to download the full issue here.

October 18, 2017 in Federal Sentencing Guidelines, Recommended reading, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, October 17, 2017

NFL Commish and player write to Senators to "offer the National Football League's full support for the Sentencing Reform and Corrections Act of 2017"

Images (4)In this post yesterday, I noted the report that the NFL was endorsing federal sentencing reform efforts.  One form of that endorsement emerged today in this form of a letter to US Senators.  This ESPN article provides the basics:

NFL commissioner Roger Goodell and Seattle Seahawks wide receiver Doug Baldwin co-signed a letter sent to congressional leaders in support of a bipartisan legislative bill that seeks criminal justice reform.  The letter states the NFL is offering its "full support" of the Sentencing Reform and Corrections Act of 2017, which seeks reforms and targets enhanced mandatory minimums for prior drug felons, increases judicial discretion for sentencing, and reforms enhanced mandatory minimums and sentences.

"The Sentencing Reform and Corrections Act would address many of the issues on which our players have worked to raise awareness of over the last two seasons," the letter, which is dated Oct. 16, reads. "... If enacted, it would be a positive next step in our collective efforts to move our nation forward."...

Asked Monday about a potential pushback from the White House, NFL spokesman Joe Lockhart said he didn't know the President Donald Trump's position on the bill. "I know that this has overwhelming bipartisan support, and we think it's the right thing to do, so that is our focus right now,'' he said.

Baldwin discussed the letter after the Seahawks' practice on Tuesday, saying the letter came about organically and is an important step in unifying the NFL community. "If you look at the players," he said, "we're utilizing the largest platform we have and so now, in a search for using the largest source of resources that we have, which is the NFL -- the NFL has a government affairs office that does a lot of work -- so being able to utilize that resource and make changes that we want to see obviously as players and the causes that we care about so passionately about, I thought that was a step in the right direction of us unifying the NFL community and going in the right direction toward progress."

Having Goodell co-sign the letter was also important, Baldwin said. "I think again the important aspect of it is us having a unified effort.  We don't want to be divided anymore. We don't want to continue with this divisive rhetoric, we don't want to engage with this divisive rhetoric.  We want to start showing our players, the NFL itself, the NFL community that we can be collectively united to seek the changes that we want to see, which are beneficial to the entirety of society.  So I thought it was important that we didn't do this as individuals but we did it as a collective group."

The full two-page letter is available at this link, and here is how it starts and ends:

We are writing to offer the National Football League's full support for the Sentencing Reform and Corrections Act of 2017 (S. 1917).  We want to add our voice to the broad and bipartisan coalition of business leaders, law enforcement officials, veterans groups, civil rights organizations, conservative thought leaders, and faith-based organizations that have been working for five years to enact the changes called for in this comprehensive legislation....

The Sentencing Reform and Corrections Act would address many of the issues on which our players have worked to raise awareness of over the last two seasons. This bill seeks to improve public safety, increase rehabilitation, and strengthen families.  If enacted, it would be a positive next step in our collective efforts to move our nation forward.

Ultimately, we all share a responsibility to find a path towards unity, one that goes well beyond sports.  The National Football League applauds the introduction of this bipartisan criminal justice reform bill as well as your ongoing commitment to upholding America's promise of justice for all.  We stand ready to work with you to advance this important legislation.

October 17, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Thursday, October 12, 2017

New Sentencing Project fact sheets on disparities in youth incarceration and comments to USSC on incarceration alternatives

Via email I learned of these two new fact sheets from The Sentencing Project highlighting incarceration disparities among youth of color:

In addition, the folks at the Sentencing Project have recently posted here public comment submitted to the US Sentencing Commission on the USSC's "First Offenders/Alternatives to Incarceration" proposed amendment.  The comments to the USSC starts this way:

The undersigned applaud the Sentencing Commission’s consideration of an amendment to increase the availability of sentences of alternatives to incarceration within the federal sentencing guidelines.  The Sentencing Reform Act of 1984 which created the guideline system wisely recognized the appropriateness of non-incarceration sentences in certain cases.  Since that time criminological research has underscored Congress’s assumptions, and evidence suggests that a broader cohort of people than at present could be sentenced within the federal system more efficiently without incarceration. Doing so would not compromise public safety, but would save tax dollars, preserve families and enhance rehabilitation.

October 12, 2017 in Data on sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Sunday, October 08, 2017

Smarter Sentencing Act reintroduced in Senate with lots of support from both parties

In prior posts here and here, I noted the introduction this past week of two notable federal statutory criminal justice reform bills in the US Senate.  But this press release from the office of Senator Mike Lee details that a third notable bill, the Smarter Sentencing Act, was also formally introduced. Here are the basics from the press release:

[A] bipartisan group of U.S. Senators led by Mike Lee (R-UT) and Dick Durbin (D-IL) reintroduced the Smarter Sentencing Act of 2017. This legislation would modernize federal drug sentencing policies by giving federal judges more discretion in sentencing those convicted of non-violent drug offenses. Senators Lee and Durbin were joined in this effort by Sens. Jeff Flake (R-AZ), Pat Leahy (D-VT), Cory Booker (D-NJ), Sheldon Whitehouse (D-RI), Al Franken (D-MN), Richard Blumenthal (D-CT), Tom Udall (D-NM), Ron Wyden (D-OR), Brian Schatz (D-HI), Angus King (I-ME), Gary Peters (D-MI), Ed Markey (D-MA), Tammy Duckworth (D-IL), Bernie Sanders (I-VT), and Martin Heinrich (D-NM).

“Our current federal sentencing laws are out of date, they are often counterproductive, and in far too many cases they are unjust,” said Senator Lee. “The Smarter Sentencing Act is a commonsense solution that will greatly reduce the financial and, more importantly, the human cost imposed on society by the broken status quo. The SSA will give judges the flexibility and discretion they need to impose stiff sentences on the most serious drug lords and cartel bosses while enabling nonviolent offenders to return more quickly to their families and communities.”

Speaking of criminal justice reform generally, Senator Lee said, “over the past week, I’ve introduced or cosponsored three criminal justice reform bills—the Smarter Sentencing Act, the Sentencing Reform and Corrections Act, and the Mens Rea Reform Act. I would proudly vote for these bills, individually or with one or more of them packaged together, because I think reforming our criminal justice system is a moral and policy imperative. Any step forward will make a real difference. I look forward to continuing to work on these bills and on criminal justice reform issues more broadly, which will always remain a priority for me.”

The United States has seen a 500 percent increase in the number of inmates in federal custody since 1980, and almost 50 percent of those federal inmates are serving sentences for drug offenses. Mandatory sentences, particularly drug sentences, can force a judge to impose a one-size-fits-all sentence without taking into account the details of an individual case. Many of these sentences have disproportionately affected minority populations and helped foster distrust of the criminal justice system.

I cannot yet find the text of the 2017 version of the Smarter Sentencing Act, but I presume it is similar to the 2015 version at this link.

A few prior related posts:

October 8, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Friday, October 06, 2017

US Sentencing Commission continues diving into issues surrounding synthetic drugs

A helpful reader reminded me today that, in the midst of busy times, I failed to spotlight this past week's US Sentencing Commission public hearings on October 4 concerning "synthetic cathinones."  This USSC webpage details that this Commission spent the morning hearing "testimony from experts on ... their chemical structure, pharmacological effects, trafficking patterns, and community impact."

The hearing agenda and written statements of the nine witnesses who testified are linked at this page, and I was hoping to fins some time in the coming days to review some of this testimony.  I would be grateful to hear from readers knowledgeable on these distinctive issues as to whether any of this testimony was surprising or could lead to major changes in applicable sentencing rules.

October 6, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Tuesday, October 03, 2017

Five notable GOP Senators introduce Mens Rea Reform Act of 2017

Download (3)As reported in this press release, yesterday "Senators Orrin Hatch (R-UT), Mike Lee (R-UT), Ted Cruz (R-TX), David Perdue (R-GA), and Rand Paul (R-KY) introduced legislation to strengthen criminal intent protections in federal law."  Here is more from the press release:

Their bill, the Mens Rea Reform Act of 2017, would set a default intent standard for all criminal laws and regulations that lack such a standard.  This legislation would ensure that courts and creative prosecutors do not take the absence of a criminal intent standard to mean that the government can obtain a conviction without any proof a guilty mind....

“Prosecutors should have to show a suspect had a guilty mind, not just that they committed an illegal act, before an American is put behind bars,” Sen. Lee said. “Unfortunately our federal laws contain far too many provisions that do not require prosecutors to prove a defendant intended to commit a crime.  The result is criminal justice system that over penalizes innocent acts which only undermines the rule of law."

“I’m proud to join Sen. Hatch in addressing one of the biggest flaws in our modern criminal justice system,”Sen. Cruz said. “Currently, the federal government can send men and women to prison without demonstrating criminal intent.  As Congress works to address criminal justice reform, the Mens Rea Reform Act needs to be enacted to protect the rights of all Americans.”

The press release includes "Statements of Support" from John Malcolm of the Heritage Foundation, Norman Reimer of the National Association of Criminal Defense Lawyers, and David Patton of the Federal Defenders of New York.   And in conjunction with this bill introduction, Senator Hatch Senator Hatch yesterday delivered this speech on the Senate floor about the need for mens rea reform.  Here are excerpts from that speech:

Like many of my colleagues, I believe Congress has criminalized far too much conduct and has mandated overly harsh penalties for too many crimes. A number of my colleagues have sought to address these problems by cutting prison sentences, altering statutory minimums, or releasing prisoners earlier for good behavior. But as we seek to reform the criminal justice system, we must be careful not to overlook one of the major roots of the problem: the lack of adequate criminal intent requirements in federal criminal statutes....

Unfortunately, many of our current criminal laws and regulations contain inadequate mens rea requirements — and some contain no mens rea requirement at all. This leaves individuals vulnerable to prosecution for conduct they believed to be lawful.

In recent years, as Congress and federal agencies have criminalized more behavior, they have often been vague about mens rea requirements, or even silent about mens rea altogether. In a 2014 Tennessee Law Review article, Michael Cottone investigated how many federal criminal statutes there are in the US code. Mr. Cottone explained that “tellingly, no exact count of the number of federal statutes that impose criminal sanctions has ever been given.” Most scholars agree there are approximately 5,000 federal statutes that impose criminal sanctions. But those criminal statutes do not include the nearly 300,000 federal regulations that also carry criminal penalties.

With so many criminal laws on the books, it’s far too easy for Americans to break federal laws unwittingly, with no understanding whatsoever that their behavior is illegal. For example, did you know it’s a federal crime to write a check for an amount less than $1 dollar? Or that it’s a federal crime to allow a pet to make a noise that frightens wildlife on federal land? Even more incredibly, did you know it’s a federal crime to keep a pet on a leash that exceeds six feet in length on federal land?

Mr. President, these are only a few examples of unlawful activities that reasonable people could not reasonably be expected to know. What’s worse, many of these unlawful activities are punishable by time in prison. This is not only ridiculous; it’s immoral. The lack of adequate mens rea requirements in our federal criminal code subjects innocent people to unjustified punishment....

Our bill sets a default intent requirement of willfulness for all federal criminal offenses that lack an intent requirement. Additionally, the bill defines willfulness to mean that the person acted with knowledge that his or her conduct was unlawful. Naturally, our bill does not apply to any offenses that Congress clearly intended to be strict liability offenses. Our proposal has garnered widespread support from a variety of organizations, including the National Association of Criminal Defense Lawyers, Koch Industries, the Federal Defenders, the US Chamber of Commerce, the Federal Defenders, and the Heritage Foundation, just to name a few. Importantly, our bill does not remove any crimes from the books, nor does it override any existing mens rea standards written in statute. Moreover, it does not limit Congress’s authority to create new criminal offenses—including strict liability offenses.

Mr. President, mens rea really is a simple issue. Individuals should not be threatened with prison time for accidently committing a crime or for engaging in an activity they did not know was wrong. If Congress wants to criminalize an activity, and does not want to include any sort of criminal intent requirement, Congress should have to specify in statute that it is creating a strict liability offense.

I believe this simple legislative solution will go a long way in reducing harsh sentences for morally innocent offenders. It will also push back against the overcriminalization of innocent behavior. As I’ve said many times, any consideration of criminal justice reform or sentencing reform is incomplete without reforms to mens rea requirements.

I cannot yet find the full text of the Mens Rea Reform Act of 2017 on-line, but I suspect it is very similar if not identical to the previously introduced Mens Rea Reform Act of 2015 available here.  It does not seem that Senator Hatch was a cosponsor of the 2015 version of this bill, so I think it is a very good sign that Senator Hatch is now apparently leading the charge for this reform (and doing so by stressing that he believes Congress has "mandated overly harsh penalties for too many crimes").

As long-time readers recall (and as detailed in some prior posts below), there is reason to believe that misguided opposition to this kind of mens rea reform by the Obama Administration and some Democrats contributed to the failure of bipartisan sentencing reforms to make it through Congress.  I am hopeful (but not optimistic) that the current Administration is more supportive of this kind of mens rea reform; I am also hopeful that this bill might be linked to broader sentencing reform efforts and that both might get moving forward in the legislative process in the coming weeks and months.

Some recent and older related posts:

October 3, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Thursday, September 21, 2017

Federal prosecutors say Anthony Weiner merits years in prison for his online sexual offense

As reported in this AP piece, headlined "Government: Prison fits Weiner's sex crime on teen victim," federal prosecutors have filed their sentencing recommendation in the Anthony Weiner case. Here are the details:

Former U.S. Rep. Anthony Weiner is more than a serial digital philanderer — he's a danger to the public who deserves two years in prison for encouraging a 15-year-old girl to engage in online sex acts, prosecutors told a judge Wednesday. A Manhattan judge is scheduled to sentence the New York Democrat on Monday for transferring obscene material to a minor.

The government urged the judge to put Weiner's claims of a therapeutic awakening in a context of a man who made similar claims after embarrassing, widely publicized interactions with adult women before encountering the teenager online in January 2016. Prosecutors said his conduct "suggests a dangerous level of denial and lack of self-control."

"This is not merely a 'sexting' case," prosecutors wrote. "The defendant did far more than exchange typed words on a lifeless cellphone screen with a faceless stranger. ... Transmitting obscenity to a minor to induce her to engage in sexually explicit conduct by video chat and photo — is far from mere 'sexting.' Weiner's criminal conduct was very serious, and the sentence imposed should reflect that seriousness."

Weiner, 53, said in a submission last week that he's undergoing treatment and is profoundly sorry for subjecting the North Carolina high school student to what his lawyers called his "deep sickness." Prosecutors attacked some of Weiner's arguments for seeking leniency and noted his full awareness beforehand of his crime, citing his co-sponsorship in January 2007 of a bill to require sex offenders to register their email and instant message addresses with the National Sex Offender Registry....

The government said Weiner's "widely-reported prior scandals" were not criminal in nature and did not involve minors but should be considered at sentencing because they reveal a familiar pattern. "He initially denied his conduct; he suffered personal and professional consequences; he publicly apologized and claimed reform. Yet, he has, on multiple occasions, continued to engage in the very conduct he swore off, progressing from that which is self-destructive to that which is also destructive to a teenage girl," prosecutors said.  They added: "Weiner's demonstrated history of professed, yet failed, reform make it difficult to rely on his present claim of self-awareness and transformation."

Defense lawyers had portrayed the girl as an aggressor, saying she wanted to generate material for a book and possibly influence the presidential election. Prosecutors responded that Weiner should be sentenced for what he did, and his victim's motives should not influence his punishment. A defense lawyer declined to comment Wednesday.

In a plea bargain, Weiner has agreed not to appeal any sentence between 21 and 27 months.  Prosecutors said the sentence should fall within that span, and they noted that Probation Office authorities had recommended a 27-month prison term.

Prior related posts:

September 21, 2017 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (10)

Monday, September 18, 2017

"Why Did a Federal Judge Sentence a Terminally Ill Mother to 75 Years for Health Care Fraud?"

The question in the title of this post is the headline of this recent law.com article about a notable (and notably harsh) federal sentencing.  Here are some of the details, with some commentary to follow:

A federal judge in Texas sentenced a terminally ill woman to 75 years in prison last month for bilking Medicare — an apparent record sentence for the U.S. Department of Justice for health care fraud.

Marie Neba, 53, of Sugar Land, Texas, was sentenced by U.S. District Judge Melinda Harmon of the Southern District of Texas on eight counts stemming from her role in a $13 million Medicare fraud scheme.  Neba, the owner and director of nursing at a Houston home health agency, was convicted after a two-week jury trial last November.  At the sentencing on Aug. 11, the government recommended a 35-year imprisonment, said Michael Khouri, who started representing Neba as her private attorney shortly after the trial... 

The unusually lengthy sentence for what health care fraud legal experts call a relatively routine case has them scratching their heads, even in this recent era of the federal government’s crackdown on health care fraud.  Neba, the mother of 7-year-old twin sons, was diagnosed in May with stage IV metastatic breast cancer that has spread to her lungs and bones, according to Khouri, who has filed an appeal of the conviction and the sentence.  She currently is receiving chemotherapy treatments and is in custody in a federal detention center.  “Marie Neba is a mother, a wife and a human being who is dying. If there is any defendant that stands before the court that deserves a below-guideline sentence … it’s this woman that stands before you,” Khouri argued before Harmon at the sentencing hearing, according to a transcript recently obtained by ALM....

Patrick Cotter, a former federal prosecutor who heads the government interaction and white-collar practice group at Greensfelder, Hemker & Gale in Chicago, said given the circumstances, he would have expected Neba to receive a sentence of several years in prison.  “Nothing is surprising in that she went to jail and not for six months,” he said. “But how you get anything close to 75 years is beyond me and makes no sense at all.  In 35 years, I have never heard of the government’s [prison term] recommendation being doubled by the judge, particularly when the government is asking for a tough sentence anyway.”

Gejaa Gobena, a litigation partner at Hogan Lovells and former chief of the DOJ Criminal Division’s Health Care Fraud Unit, concurred. “We prosecuted hundreds of cases and never had a sentence approaching anywhere near this,” Gobena said.

Legally, the answer to how the long sentence came about is not that difficult: Harmon, applying several enhancements under the federal sentencing guidelines, imposed the statutory maximum prison term on each charge, and then ran them consecutively.  “I am not a heartless person. I think I am not. I hope I am not,” Harmon told Neba before announcing the sentence. “It must be a terrible experience that you are going through, Ms. Neba, and I don’t want you to think that by sentencing you to what I am going to sentence you to that I’m trying to heap more difficulties on you because I am not. … It’s just the way the system works, the way the law works. You have been found guilty of a number of counts by a jury, and this is what happens.”

Even so, historically, the case is highly unusual, breaking the previous record by 25 years.  Since a pair of U.S. Supreme Court decisions in December 2007 that reaffirmed that the federal sentencing guidelines are merely advisory, federal trial judges have much greater latitude to impose what they think are appropriate sentences, even if the guidelines call for higher or lower sentences.  The longest health care fraud sentence prior to Neba’s came in 2011, when Lawrence Duran, the owner of a Miami-area mental health care company, was sentenced to 50 years for orchestrating a $205 million Medicare scheme that defrauded vulnerable patients with dementia and substance abuse. The next longest? Forty-five years in 2015 for a Detroit doctor who gave chemotherapy to healthy patients, whom federal prosecutors then called the “most egregious fraudster in the history of this country.”

According to court documents, Neba, from 2006 to 2015, conspired with others to defraud Medicare by submitting more than $10 million in false claims for home health services provided through Fiango Home Healthcare Inc., owned by Neba and her husband and co-defendant, Ebong Tilong. Using that money, Neba paid illegal kickbacks to patient recruiters for referrals and to Medicare beneficiaries who allowed Fiango to use their Medicare information to bill for home health services that were not medically necessary nor provided, and, all told, received $13 million in ill-gotten Medicare payments, the documents said.

Neba was convicted of one count of conspiracy to commit health care fraud, three counts of health care fraud, one count of conspiracy to pay and receive health care kickbacks, one count of payment and receipt of health care kickbacks, one count of conspiracy to launder monetary instruments and one count of making health care false statements.

Four co-defendants, including Tilong, have pleaded guilty in the case. He is scheduled to be sentenced on Oct. 13....

Harmon, through her case manager, declined to comment on the case. The transcript, however, reveals several factors that influenced her decision to impose the lengthy prison term, including: “Most importantly,” Neba’s sentencing guideline range of life imprisonment (though Harmon was proscribed by statutory maximums from imposing a life sentence);..... Neba’s attempt to obstruct justice by telling a co-defendant, before arraignment in the federal courthouse, “to keep to her story,” specifically “not to tell anybody that she, [the co-defendant], was paying the patients.”

Neba’s decision to go to trial on the charges, rather than plead guilty and provide some sort of government assistance, also played a role in her sentence. Had she pleaded guilty to one or more of the charges “at the very beginning without obstruction of justice,” and received the highest credit for cooperation for doing so, Neba’s sentencing guideline range would have been 14.5 years, federal prosecutor William Chang told Harmon during the hearing. “Had the same thing happened and she received no [credit] whatsoever, it would be 21.8 years,” he added. “If she had gone to trial and been convicted, but no obstruction of justice, the sentence would have been 30 years on the calculation of the guidelines. So, we want the court to understand the United States’ principal position for what it seeks.”

Khouri, Neba’s attorney, said he plans to challenge on appeal the manner in which the sentencing guideline range was calculated and argue, among other matters, that the sentence is excessive.

I have quoted so much of this press report because the more details it provides, the more perverse the entire federal sentencing system seems along with the perversity of this particularly extreme sentence. For starters, though we supposedly have a federal sentencing system designed to sentence a defendant based principally on the seriousness of her offense, this defendant's guideline range ballooned from less than 15 years imprisonment to life imprisonment essentially because she put the government to its burden of proof at a trial and said the wrong thing to a co-defendant.

Trial penalty guideline calculations notwithstanding, now that the guidelines are advisory, a prosecutor and a judge would need to be able to justify such an extreme functional LWOP sentence based on all the 3553(a) statutory factors. No matter how seriously one regards health care fraud, I cannot fully understand how any of these factors (save the guideline range) can support this extreme sentence in this not-so-extreme case of fraud.  If reasonableness review has any substance whatsoever, and if the facts in this article are accurate, it seems to me that this sentence ought to be found substantive unreasonable.

September 18, 2017 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Wednesday, September 13, 2017

In sentencing filing, Anthony Weiner asks for probation and community service after guilty plea to transferring obscene material to a minor

As reported in this new Bloomberg piece, "Anthony Weiner, the former congressman and New York mayoral candidate whose career and personal life were wrecked in a series of sexting scandals, asked a judge for leniency when he’s sentenced later this month." Here is more about his sentencing filing and what prompts it:

Weiner pleaded guilty in May to sending sexually explicit messages to a 15-year-old girl, admitting to a single criminal count of transmitting obscene material to a minor. The guilty plea capped a stunning downfall that played a major role in the final days of the 2016 presidential election.

In a court filing late Wednesday, Weiner asked for probation and community service.  “In sum, a term of imprisonment would bring Anthony’s indisputably successful treatment for the sickness underlying his crime to an immediate and complete halt, and separate Anthony from the son who has motivated his recovery,” his attorneys wrote in the sentencing memo.

“Given the unusual circumstances of this offense and the ability of a sentence without incarceration to impose just and meaningful punishment while permitting continued treatment, a non-incarceratory sentence of the kind proposed above would be ‘sufficient but not greater than necessary’ to satisfy the goals of sentencing.”

Weiner faces as much as 10 years in prison when he’s sentenced Sept. 25. As part of a plea deal, prosecutors will seek a term of 21 months to 27 months, which isn’t binding on the sentencing judge. Weiner must register as a sex offender and will forfeit his iPhone. An FBI investigation into Weiner’s sexually explicit messages turned up emails that had been sent to his wife, Huma Abedin, then a top aide to Democratic presidential candidate Hillary Clinton....

Weiner “has already been punished in a meaningful way by the government, just not in a judicially sanctioned manner,” his lawyers wrote in the memo.  “What was supposed to be a confidential grand jury investigation into a personal offense was leaked by ‘law enforcement sources’ and then improperly injected into the presidential election by the then-FBI director.”

Prior related post:

September 13, 2017 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (5)

Former US Attorneys lament AG Sessions' charging memo as returning Justice Department to "failed mindset of its past"

This notable new National Review commentary, headlined "On Criminal Justice, Sessions Is Returning DOJ to the Failed Policies of the Past," is authored by Joyce Vance, the former US Attorney for the Northern District of Alabama, and Carter Stewart, the former U.S. attorney for the Southern District of Ohio.  Here are excerpts, with some commentary to follow:

True to form, Attorney General Jeff Sessions has returned the Justice Department to the failed mindset of its past.  In implementing his own tough-on-crime mantra, he has required prosecutors, in virtually all cases, to charge the most serious offenses and ask for the lengthiest prison sentences.

Americans have seen this one-size-fits-all policy in action before. It doesn’t work. Today’s America is often a world where everyone adheres to their confirmed views and there is little exchange of information and ideas across political divides. So, when the rare issue comes along that generates a bipartisan consensus, it should be worth seriously considering.

Criminal-justice reform is one of those issues.  Yet Attorney General Sessions continues to roll back previously instituted changes that were beginning to reduce America’s prison population, the justice system’s costs, and crime.  He is doing so despite the consensus that produced those changes. We should not let this rare opportunity to reform a badly broken criminal-justice system fade away, nor should we permit the consensus on reform to shatter under the consuming cover of national scandal.

Sessions’s charging policy memo, editorials, and planned state tour to push for a crackdown on crime all resemble ineffective and damaging criminal-justice policies that were imposed in 2003. Although those policies’ stated goal was originally to create nationwide uniformity in the justice system, they resulted in the proliferation of questionable prosecutions, and the Bureau of Prisons’ population swelled to its highest level in history, consuming almost one-third of the Department of Justice’s annual budget. One side effect of this fiasco that lingers today is the broken relationship between police departments and the communities they are sworn to serve and protect. The attorney general is aggravating that tension with his recent revival of adoptive forfeiture policies, giving local and state law enforcement a federal benediction to seize the property of suspected criminals. Distrust impedes community cooperation with law enforcement, and increased incarceration rates do little to decrease crime.

The excessive reliance on arrests and extended incarceration was unsustainable, it disparately impacted racial minorities and the poor, and it had a negligible impact on public safety.  People leaving prison are too often unable to find jobs because of their criminal records, and two-thirds of them re-offend within three years. It has become obvious that we must do more than just incarcerate people to make our communities safer.

That’s why, in 2013, DOJ promulgated the “Smart on Crime” initiative, which returned charging discretion to federal prosecutors and directed them to use a three-pronged approach: implement priorities for prosecuting the most serious crimes, advance prevention programs, and develop strategies to help people successfully re-enter the community after they’ve served their time. At its core, this approach recognized that each criminal defendant is a person, often with families and friends who care deeply about them....

“Tough on crime” strategies that rely on lengthy prison sentences and property seizure may permit politicians to sharpen their image in the eyes of voters, but they run afoul of justice and fail to deliver results. At the same time DOJ was modernizing its criminal-justice polices, many states were doing so as well.  Since 2007, 23 states have reformed their sentencing laws to focus law-enforcement resources on the most dangerous crimes. Often, federal law-enforcement officials worked hand in hand with their state and local counterparts to achieve progress. In Alabama, the legislature created a new felony category for the lowest level of drug and property offenses, sending offenders to less expensive and more effective community corrections programs instead of prison.  Ohio eliminated the disparity in criminal penalties between crack and powder cocaine offenses and raised the threshold requirements for felony-theft sentencing. As a result of similar policies, Texas has closed three prisons since 2005 and still enjoyed a 29 percent drop in crime. Georgia and North Carolina have adopted justice-reinvestment programs and had similar success.

As former U.S. Attorneys, we know firsthand that families across our country care about the safety of their communities above all else. We worked hand in hand with law enforcement, members of the community, and victims of crime to pursue those individuals who were the most dangerous. But we also know that an approach that uniformly imposes the harshest penalties on everyone risks damaging community trust and cooperation for generations, jeopardizing safety as a whole. Rehashing tough-on-crime policies based on disproved assumptions is a recipe for failure. The Department of Justice should move forward with its Smart on Crime public-safety and criminal-justice policies, using a proven approach that has reduced prison populations, costs, and crime in states that have implemented it. Justice is about more than just putting people in prison.

This commentary hits many of the themes now common to advocacy for smart-on-crime approaches over tough-on-crime approaches to crime and punishment. But it fails to grapple with the (too simple) reality that nationwide crime rates went down dramatically from 1991 to 2014 when tough-on-crime approaches defined much of the Justice Departments work and that crime rates started moving up significantly not long after DOJ promulgated its "Smart on Crime" initiative. Because of these crime data, AG Sessions and many others likely do not accept the assertion in this commentary that tough-on-crime postures by DOJ have a "negligible impact on public safety." Thanks to prior crime declines and recent crime increases, I think they actually believe tough-on-crime approaches, at least at the federal level, are absolutely essential to public safety.  Put differently, I suspect that AG Sessions now sees smart-on-crime approaches as the "failed mindset" and thus he seems very unlikely to be moved by these kinds of commentaries.

September 13, 2017 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, September 11, 2017

Can a federal sentence really "be close to absurd" and yet also be affirmed as reasonable?

The peculiar and perhaps metaphysical question in the title of this post is prompted by a Second Circuit panel decision today in US v. Jones, No. 15‐1518 (2d Cir. Sept. 11, 2017) (available here). The Jones case get intricate thanks to the timing and uncertainties of criminal history litigation. The start of the panel opinion provides a flavor of the mess:

Defendant Corey Jones appeals from a sentence entered in the United States District Court for the Eastern District of New York (Garaufis, J.) following a jury trial conviction for assaulting a federal officer in violation of 18 U.S.C. § 111. He was sentenced as a career offender principally to 180 months in prison to be followed by three years of supervised release.  The primary basis for Jones’ appeal is that, in light of the Supreme Court’s holding in Johnson v. United States, 559 U.S. 133 (2010) (Johnson I), New York first‐degree robbery is no longer categorically a crime of violence under the force clause of the Career Offender Guideline, U.S.S.G. §§ 4B1.1 and 4B1.2, and that the district court therefore erred in concluding that his prior conviction for first‐degree robbery would automatically serve as one of the predicate offenses for a career offender designation.

After oral argument in this matter, the Supreme Court decided Beckles v. United States, 137 S. Ct. 886 (2017), which held that the residual clause of the Career Offender Guideline — a second basis for finding a crime of violence — was not unconstitutional.  The Court reached this conclusion notwithstanding the government’s concession to the contrary in cases around the country that the residual clause, like the identically worded provision of the Armed Career Criminal Act (“ACCA”), was void for vagueness. In light of Beckles, we find that New York first‐degree robbery categorically qualifies as a crime of violence under the residual clause and therefore need not address Jones’ argument based on the force clause. We also find that his sentence is substantively reasonable and therefore AFFIRM the sentence imposed by the district court.

Judge Calabresi (my former boss) authors a separate concurring opinion in which he explains the various factors and fortuities which he thinks requires an affirmance of a sentence that seems technically sound by infused with problems of timing and equity. I cannot briefly recount he are the curious particulars, but this sentence captures Judge Calabresi's obvious frustration:

What is more — and this may be the true source of my sense of absurdity — there appears to be no way in which we can ask the district court to reconsider the sentence it ordered in view of the happenstances that have worked against Jones, and in view of its assessment of Jones’ crimes and of its downward departure.

For what it is worth, I think reasonableness review can and should be a very flexible and robust means for circuit courts to require resentencing whenever it has a basis for being concerned, procedurally or substantively, with any aspects of the proceedings below in light of the sentencing commands of 3553(a). Consequently, I think the Second Circuit could have said simply that "happenstances that have worked against Jones" since the time of his initial sentencing cast new light on the 3553(a) factors and thus his sentence is procedurally unreasonable and he should be resentenced.

September 11, 2017 in Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Sunday, September 10, 2017

Does latest US Sentencing Commission data hint at the emerging impact of the new Sessions memo?

The question in the title of this post is the result of my (perhaps premature) effort to see the development of a (slight) new trend in the latest federal sentencing data reported this past week by the US Sentencing Commission.  These latest data appear in this standard quarterly data report from the USSC titled simply FY 2017 Quarterly Report on Federal Sentencing Data, which "contains preliminary data on cases in which the offender was sentenced during the first three quarters of fiscal year 2017."  The first three quarters of FY17 runs October 1, 2016 through June 30, 2017, which in turn means nearly the last two months of the most recent reported data reflect sentencings that took place after Attorney General Jeff Sessions issued in early May 2017 his charging and sentencing memorandum directing federal prosecutors to more regularly seek within-guideline sentences.

Critically, lots of predictable and not-so-predictable factors can impact federal sentencing data from month to month and year to year.  So, it can be a mistake to see trends or assert causal links based on just a little bit of data.  Nevertheless, I cannot help but find notable and note here the data points on Table 12 of the new USSC data, which provides quarter-by-quarter data on within-guideline and outside-guideline sentence.  That Table shows that in every full quarter after former Attorney General Eric Holder announced his "Smart on Crime" policies in August 2013, at least 20% of all sentences were judge-sponsored below-guideline sentences.  But in the very last quarter now, the USSC data show than only 19.8% of sentences were judge-sponsored below-guideline sentences.

Of course, this is a really small change and one might reasonable suggest that we ought to focus mostly on changes to government-sponsored below-guideline sentences when thinking about the impact of the new Sessions memo.  But I still thought this little data development was worthy of noting in this post; it is certainly one I will be watching in the months ahead as we get more USSC data on federal sentencing patterns in the second half of 2017.

September 10, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3)

Wednesday, September 06, 2017

"The History of the Original United States Sentencing Commission, 1985–1987"

the title of this post is the title of this exciting new article about a (never really old) piece of sentencing legal history that I find fascinating. This lengthy article is authored by Brent Newton and Dawinder Sidhu, and here is the abstract:

An eighteen-month period from the fall of 1985 to the spring of 1987 witnessed the most significant change to the federal criminal justice system in American history.  In those eighteen months, the United States Sentencing Commission, a new and novel independent agency in the federal judicial branch, developed sentencing guidelines for all federal judges during the same period when Congress was enacting new mandatory minimum statutory penalties that dramatically increased existing penalties for drug trafficking and firearms offenses.

This Article describes this founding era of structured federal sentencing, beginning with the Commission’s first meeting and ending with the transmittal of the initial Guidelines Manual to Congress on April 13, 1987, for its 180-day review period.  As the guidelines remain the “lodestone” of federal sentencing thirty years later, and as improving the criminal justice system continues to be an important national bipartisan aspiration, a thorough exploration of the history of the original Commission is both timely and important.

Parts II and III of this Article discuss the historical context in which the Commission was created, the key players (Commissioners and staff) during the Commission’s first eighteen months, and the initial policy decisions of the original Commission that are reflected in the Guidelines Manual and that still largely govern federal sentencing today, albeit in an “advisory” rather than a “mandatory” guidelines system. Finally, Part V offers some conclusions about the work of the original Commission.

September 6, 2017 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Saturday, August 26, 2017

Split en banc Eleventh Circuit concludes Florida felony battery is "crime of violence" under FSG

A remarkable amount of energy and (digital?) link has been spent assessing and reviewing what criminal history counts or does not count as a crime of violence under various provisions of federal sentencing law.  That amount grew that much more on Friday with the release of an 67-page en banc ruling by the Eleventh Circuit in US v. Vail-Bailon, No. 15-10351 (11th Cir. Aug. 25, 2017) (available here). This opening paragraph by the majority provides the basics:

This appeal requires us to decide whether Florida felony battery is a crime of violence under the Sentencing Guidelines. Defendant Eddy Wilmer Vail-Bailon was convicted in 2014 of illegally reentering the United States, in violation of 8 U.S.C. §§ 1326(a) and (b)(1), after having been deported following a conviction for felony battery under Florida Statute § 784.041.  Based on Vail-Bailon’s felony battery conviction, the district court imposed a sentencing enhancement that applies when a defendant has been deported after committing a crime of violence as defined by the applicable Guidelines provision. Vail-Bailon appealed his sentence, arguing that a Florida felony battery conviction does not qualify as a crime of violence. A divided panel of this Court agreed with Vail-Bailon, and vacated his sentence. See United States v. Vail-Bailon, 838 F.3d 1091 (11th Cir. 2016), reh’g en banc granted, opinion vacated (11th Cir. Nov. 21, 2016). Our full Court granted the Government’s petition to rehear the case en banc, and we now hold that Florida felony battery does categorically qualify as a crime of violence under § 2L1.2 of the Guidelines. Thus, we affirm and reinstate Vail-Bailon’s sentence.

The majority thereafter needs 30 pages to explain its "crime of violence" conclusions, and the dissenters need more than 30 to explain why they think the majority got this wrong. The lead dissent gets started this way:

If, while walking down the street, you tap a jogger on the shoulder and the tap startles him, causing him to trip, hit his head, and suffer a concussion, have you committed a violent act?  Most would say no.  But if you punch the jogger and the punch causes him to fall, hit his head, and suffer a concussion, you have undoubtedly committed a violent act. The difference between a non-violent and violent act, then, is the degree of force used. 

August 26, 2017 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (8)

Thursday, August 17, 2017

US Sentencing Commission finalizes policy priorities and publishes notable holdover amendments

As reported in this press release, the US Sentencing Commission "today approved its final policy priorities for the upcoming amendment year ending May 1, 2018, which includes an examination of the overall structure of the guidelines and a continuation of its work on synthetic drugs [and] voted to publish several holdover proposals from the previous amendment cycle."  Here is more:

During the upcoming amendment year, the Commission will continue to explore approaches to simplify and strengthen the guidelines. “On this thirtieth year of the federal sentencing guidelines system, the Commission welcomes the opportunity to work with the Congress, the Courts, the Department of Justice, and other stakeholders to find ways to promote certainty and proportionality in sentencing while reducing the complexity of the guidelines,” stated Circuit Judge William H. Pryor, Jr., acting chair of the Commission.

The Commission will also continue its two-year study of synthetic drugs. In April, the Commission held a public hearing to receive testimony on the prevalence and effect of synthetic drugs. The Commission has since commenced a study of specific categories of synthetic drugs, including fentanyl. The Commission will research their chemical structure, pharmacological effects, potential for addiction, legislative and scheduling history, and other relevant issues. The study is intended to provide a meaningful distinction between categories of synthetic drugs so that closely related substances are more easily determined in the guidelines....

Stemming from the Commission’s research on youthful offenders as well as recommendations made by the Tribal Issues Advisory Group (TIAG) in its May 2016 report, the Commission will also continue to study how juvenile sentences are considered in the calculation of the defendant’s criminal history score.

Other priorities include continued work on mandatory minimum penalties. Following the release of the 2017 Mandatory Minimum Overview in July, which built on the Commission’s 2011 report, the Commission will release additional reports highlighting the impact of mandatory minimum penalties for certain offense categories. The Commission will also continue to work with Congress to adopt a uniform definition of “crime of violence” included in recommendations set forth in the 2016 Report to the Congress on Career Offender Sentencing Enhancements.

The Commission also published today several proposed guideline amendments from the previous amendment cycle and as an extension of its current policy priority work. “Today’s proposed amendments are a continuation of our work during the previous amendment year. These holdover proposals were not voted on last year due to the lack of a quorum during the deliberation process. Publishing today gives this reconstituted Commission an opportunity to carefully review these proposals and consider them as early as possible in the current amendment cycle,” stated Judge Pryor.

Among the proposed amendments published today are changes that would increase the number of federal offenders eligible for alternatives to incarceration. Informed by the Commission’s multi-year study on recidivism, one of the proposed amendments would add a downward adjustment to the guidelines for first offenders.

August 17, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (3)

Wednesday, August 16, 2017

US Sentencing Commission to hold public meeting to finalize policy priorities and perhaps vote on guideline amendments

As indicated here, the US Sentencing Commission is holding a public meeting tomorrow.  Interestingly, the listed agenda for the meeting includes not only the usual "Vote on Final Policy Priorities for 2017–2018," but also a seemingly unusual "Possible Vote to Publish Proposed Amendments."

Every year around this time, the USSC finalizes its policy priorities after releasing tentative priorities and receiving comments.  For this year, here are the tentative priorities and here is the USSC's collection of some public comments it received.  On the main USSC page, the Commission states that it "received a record number of public comment submissions pertaining to proposed priorities for the 2017-2018 amendment year."  I am inclined to believe that the switch in Prez Administrations, some turn-over in USSC membership, and ever-growing concerns about the federal criminal justice system accounts for large number of comments this time around.

While finalizing of priorities are standard USSC activity this time of year, publishing of proposed amendments are not standard in August absent a need to respond to some pressing matter like a a consequential Supreme Court decision.  (In the usual course, guideline amendments get proposed in January and finalized in April.)  I suppose the USSC might think it worthwhile to propose amendments in response to recent SCOTUS federal sentencing decisions like Beckles and Dean, but I am not sure these rulings really demand immediate USSC amendment action.  Of course, as reported here, the USSC decided earlier in 2017 not to move forward with formal amendments for the 2017 amendment season because it lacked a quorum for a number of months.  With the USSC now having had a quorum in place for a number of months, perhaps it feels eager and able to move forward on some of the ambitious proposed amendments it released back in December 2016.

Happily, hard-core federal sentencing fans do not need to speculate about these matters for too long:  the USSC's meeting starts Thursday morning at 11am, and it can be live-streamed here.

August 16, 2017 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Wednesday, August 09, 2017

Still more interesting new "Quick Facts" publications on federal drug sentencing from the US Sentencing Commission

In this post a few month ago, I noted that the US Sentencing Commission had released a notable new Quick Facts covering all "Drug Trafficking Offenses"  (As the USSC explains and reglar readers know, "Quick Facts" are official publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")   Now I see that the USSC has just released this big set of new Quick Facts covering individual drugs:

The data appearing these publications runs through Fiscal Year 2016, which is end of September 2016, and thus they set something of a benchmark for the end of the Obama era before the start of the Trump era of federal criminal policies and practices.

August 9, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (0)

Sunday, August 06, 2017

You be the federal judge: what sentence for "Pharma Bro" after his fraud convictions?

As regular readers know, I enjoy following up news of a high-profile conviction by asking what sentence readers think fitting for the high-profile convicted offender.  As detailed in this MSNBC report, headlined "'Pharma bro' Martin Shkreli found guilty of 3 of 8 charges, including securities fraud," the high-profile offender this time around is a notorious pharmaceutical executive. Here are the basics about his crime:

A federal jury Friday found notorious "Pharma bro" Martin Shkreli guilty of three counts of securities fraud — but acquitted him of five other criminal counts related to hedge funds investors and a drug company he founded. The split verdict in Shkreli's trial came at about 2:37 p.m. on the fifth day of jury deliberations, after a more-than-month-long trial in Brooklyn, New York, federal court.

At that trial, prosecutors claimed Shkreli had defrauded multiple investors in his two hedge funds out of millions of dollars, only to repay them with stock and cash that he looted from a the biotech company he created, Retrophin. While the seven-woman, five-man jury clearly accepted some of the prosecution's evidence, it rejected other parts of their argument.

The mixed decision perplexed many in the courtroom, including the 34-year-old Shkreli, who first drew widespread public scorn in 2015 for raising the price of a lifesaving drug by more than 5,000 percent. He looked over quizzically at one of this lawyers, Marc Agnifilo, each of the three times that Judge Kiyo Matsumoto interrupted a set of "not guilty" announcements she was reading off of the jury's verdict sheet with a "guilty" one.

A juror who was quoted anonymously by the New York Times, said "In some of the counts at least we couldn't find that he intentionally stole from them and the reasoning was to hurt them."...

Shkreli, who remains free on $5 million bail, faces a maximum sentence of 20 years in prison. But he is sure to receive a far-less-severe punishment than that, given his lack of a criminal record, and other factors.

"I think we are delighted in many ways," said Shkreli said outside of the courthouse. "This was a witch hunt of epic proportions and maybe they found one or two broomsticks but at the end of the day we've been acquitted of the most important charges in this case." He almost immediately afterward used his new Twitter account, @samthemanTP, to comment on the outcome of the case, and also started a livestream on YouTube from his apartment.

Shkreli's lead lawyer, Benjamin Brafman, told a group of journalists, "I hope tomorrow's reports inform the public that Martin Shkreli went to trial and despite being Martin Shkreli he won more than he lost."

But acting United States Attorney Bridget Rohde, whose office prosecuted Shkreli, said, "We're gratified as we stand here today at the jury's verdict."

"Justice has been served," said Rohde, whose prosecution team next plans to try Shkreli's co-defendant and former business lawyer Evan Greebel this fall.

Brafman said the amount of money Shkreli could be made to surrender would have been much higher if he had been found guilty of ripping off Retrophin, to repay swindled hedge-fund investors. But Shkreli was acquitted of that charge, conspiracy to commit wire fraud, which Brafman referred to as "the money count."

Brafman said that because the jury found that any loss suffered by Retrophin was either low, or non-existent, as the defense claims, the sentence recommended for Shkreli will be light. "I think we would love to have a complete sweep but five out of eight counts, not guilty, is in our view a very good verdict especially since count seven, the main count that impacts on the loss in this case, that was the most important count in the case from our perspective," Brafman said. "And for Martin to be found not guilty of that count is a very, very good result as far as we are concerned," Brafman said....

The charges against Shkreli were unrelated to his decision, while CEO of Turing Pharmaceuticals, to raise the price of the drug Daraprim from $13.50 per pill to $750 per pill in 2015. The price increase came as he was being investigated for the case that led to his trial.

Prosecutors said a mountain of testimony and evidence at that trial showed that Shkreli duped multiple investors into putting millions of dollars into two hedge funds he ran, MSMB Capital and MSMB Healthcare, by falsely claiming to have an excellent record of running such funds, and by falsely stating his investment strategy had a low level of risk.

After getting their money, prosecutor said, Shkreli quickly lost much of it, and also used some of it to capitalize his infant company Retrophin even as he continued sending out financial statements to investors claiming positive returns. And when investors asked for their money to be redeemed to them in cash, Shkreli brushed them off for months or more, inventing excuses and suggesting alternative ways to pay them back, according to the prosecution's case.

Two of the securities fraud counts for which Shkreli was convicted related to those hedge funds. Prosecutors said that he then improperly used Retrophin stock and cash from the young firm to pay off the the funds' investors. While Shkreli was acquitted of on Retrophin-related count, he was convicted of conspiracy to commit securities fraud in connection with Retrophin.

This Reuters article, headlined "Shkreli sentence turns on antics, investor impact of crime," highlights that this case may be the relatively rare white-collar case in which the calculated guideline range is rather low but personal factors may prompt a judge to want to sentence above the range:

Benjamin Brafman, Shkreli's lawyer, said because the hedge fund investors ultimately profited, his client's sentencing range should be zero to six months, which allows for probation in lieu of prison.

Brafman in an email on Saturday acknowledged Shkreli's social media habits are "not helpful" and hoped the court would focus on the facts of the case and the law. "My hope is that the court will ignore the childish and compulsive tweeting of Mr. Shkreli that‎ is his right to do," Brafman said.

Shkreli could benefit from steps he took to repay investors before he caught the attention of authorities. "As long as the investors were paid back before he knew there was a criminal investigation that is subtracted from any loss figure," said Sarah Walters, a lawyer at the law firm McDermott Will & Emery.

Prosecutors are expected to argue the intended losses of the fraud were much higher, noting the millions of dollars that investors lost before they were repaid, according to the law enforcement source, who requested anonymity to discuss the case. That could allow for a lengthier sentence, as under federal sentencing guidelines, judges are to consider the actual or intended loss, whichever is higher.

Legal experts also said prosecutors could argue for a lengthier sentence by asking U.S. District Judge Kiyo Matsumoto to factor in the conduct involving Retrophin despite the acquittals. While juries must find wrongdoing under the high standard of proof beyond a reasonable doubt, judges at sentencing may consider facts proven by the lower standard of preponderance of the evidence.

The guidelines are advisory only, and Matsumoto can factor in other issues, including Shkreli's trash-talking habits. "In this case, I imagine they will focus more on that he is a liar, he disparages people, he is a disruptive force and he has a complete lack of remorse," said John Zach, a lawyer at Boies, Schiller & Flexner.

August 6, 2017 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6)