Wednesday, January 22, 2014
Highlights from Federal Sentencing Reporter issue on “White-Collar Sentencing”
I noted in this recent post that I have the honor of speaking this coming Friday morning at a sentencing seminar in New York City sponsored by Proskauer’s White Collar Defense & Investigations Group. This event has been planned in conjunction with the publication of Federal Sentencing Reporter's latest issue on “White-Collar Sentencing” (Vol. 26.1, October 2013). Helpfully, FSR's publisher has made these two articles from this issue available for download without a subscription:
The Current State of White-Collar Sentencing by Mark D. Harris, Anna G. Kaminska and Samantha Springer
Why the Federal Sentencing Guidelines Should Be Scrapped by Judge Jed S. Rakoff
Sunday, January 19, 2014
Terrific white-collar sentencing event highlighting terrific FSR issue on white-collar sentencing
For reasons that should be obvious, I may be showing a bit of bias in my positive description of an event in New York City at which I will be speaking this coming Friday and which is promoting this recent white-collar sentencing issue of a publication that I help manage. Nevertheless, as highlighted by the invitation and links in this announcement of the event, I do not think my inherent bias undermines the validity of my excitement and praise for this event:
The Current State of White-Collar Sentencing
Please join Proskauer’s White Collar Defense & Investigations Group and the Federal Sentencing Reporter (FSR) for a seminar on criminal sentencing, presented in conjunction with the publication of FSR’s latest issue “White-Collar Sentencing” (Vol. 26.1, October 2013).
Friday, January 24, 2014
Registration and Breakfast: 8:00 a.m. - 8:30 a.m.
Program: 8:30 a.m. - 11:30 a.m.
Eleven Times Square (41st Street and 8th Avenue)
New York, NY 10036
Featured speaker Professor Douglas A. Berman, of The Ohio State University Moritz College of Law, author of the nationally acclaimed Sentencing Law and Policy blog, will lead off the program with a discussion of current topics in white-collar sentencing. This program will feature a review of recent developments in the field, the latest data and statistics, and proposals from distinguished thought leaders on potential improvements to current sentencing policies and procedures. Our panelists will include current members of the U.S. Sentencing Commission’s Practitioners Advisory Group, academics, and practitioners:
- Mark D. Harris – Partner, Proskauer Rose LLP, Board of Editors, Federal Sentencing Reporter
- Sharon Cohen Levin – Chief, Asset Forfeiture Unit in the Criminal Division of the U.S. Attorney’s Office for the Southern District of New York
- Seetha Ramachandran – Deputy Chief, Asset Forfeiture and Money Laundering Section of the DOJ’s Criminal Division
- Mark H. Allenbaugh – Partner, Law Offices of Mark H. Allenbaugh
- Wes Reber Porter – Associate Professor, Golden State University School of Law
- Matthew Benjamin – Associate, Gibson, Dunn & Crutcher LLP
- Mei Lin Kwan-Gett – Partner, Wilkie Farr & Gallagher LLP
- David Deitch – Member, Ifrah Law
- Marcus A. Asner – Partner, Arnold & Porter LLP
Friday, January 17, 2014
"Political odd couples push sentencing reform" ... and have little to show so far
The title of this post is drawn from the headline of this Washington Post entry, with a dash of my cynicism added and explained after an excerpt:
At a time when partisans in Congress don't agree on anything, they have found one area where they can: Reforming America's sprawling and costly prison system. Nearly 30 years after creating mandatory sentences for drug offenses, an unlikely band of lawmakers is moving forward with their plans to fix what they say is a broken criminal justice system....
The Senate Judiciary Committee is working through several reform bills crafted by lawmakers from the liberal and conservative wings of the two parties to put together a plan, which, they say, will help alleviate the financial and humanitarian costs of the spending guidelines.
So who are these unlikely co-sponsors? Sens. Dick Durbin (D-Ill.) and Mike Lee (R-Utah) have joined forces and put together a bill that would give judges flexibility when they hand down sentences for nonviolent drug offenders. A House counterpart to the Durbin- Lee bill is co-sponsored by the unlikely duo of Reps. Raul Labrador (R-Idaho) and Bobby Scott (D-Va.). Another bill, sponsored by Sens. Patrick Leahy (D-Vt.) and Rand Paul (R-Ky.) would expand that judicial leeway to some non-drug related crimes.
"I think money is driving this debate to some extent but also honesty," Durbin said in an interview. "After 30 years we ought to take a look at these laws. These aren't the 10 Commandments."
Overcrowded prisons have been increasingly a strain on federal budgets, costing an estimated $60 billion per year. Since the mandatory minimum law was implemented in 1986, the prison population has exploded -- from around 58,000 in the late 1980s to more than 217,000 in 2012, according to the Department of Justice and the Bureau of Prisons.
“People are starting to see the unfairness, people who have been kept in jail, sometimes 10, 20, 30, even 50 years for a non-violent crime,” Paul said in an interview. “I personally think if you made a mistake, a youthful mistake, that when you serve your time, and the time should be a reasonable time, that you should be able to get back into society.”
The timing of a reform bill is still uncertain, but Leahy, who chairs the Senate Judiciary Committee, indicated in a statement that a mark-up was in the near future. "Doing nothing means cutting funding from law enforcement, victim services and crime prevention efforts -- doing nothing makes us less safe," he said. "We will soon be marking up legislation to address this important issue." Labrador said House Judiciary Chairman Bob Goodlatte (R-Va.) has agreed to have a hearing in the House on the issue this year....
It's not the first time this issue has brought the two sides together. The Fair Sentencing Act of 2010, that eliminated the sentencing disparity between crack and powder cocaine, was put together by Durbin and Alabama Republican Jeff Sessions as they worked out next to each other in the Senate gym. The bill eventually passed by unanimous consent.
I have grown more cynical and pessimistic about statutory sentencing reforms coming from Congress now that it has been almost a full year since Senators Leahy and Paul started pushing for mandatory minimum reform. It would seem all political, social and economic forces are in line for major statutory sentencing reform, and yet we continue to hear lots of talk about reform and little tangible action in Congress. Especially given that it took decades for crack reform talk to become the FSA, and given that the FSA was itself a pretty tepid and incomplete reform, I hope all this talk from Congress is not generating false optimism about significant statutory sentencing reforms coming from Congress.
That all said, I am much more optimistic that other federal sentencing players, especially the US Sentencing Commission and lower court judges, can and will be inspired by all the reform talk in Congress to take tangible action in courtrooms. Indeed, I think the very important new proposal to cut federal drug sentences across the board (basics here, commentary here) only came to happen because that politically cautious body sensed members of Congress would not be likely to vocally resist a reduction of drug sentencing guidelines.
Tuesday, January 14, 2014
Two professorial perspectives on the USSC's proposal to reduce all federal drug sentences
In my view, last week brought one of the very biggest (and yet, so far, one of the least discussed) tangible developments in federal sentencing reform in the past few years. Specifically, as reported here, the US Sentencing Commission voted to publish proposed amendments to the federal sentencing guidelines which include an across-the-board reduction in the sentences recommended for all federal drug offenses. I am pleased now here to share the insightful reactions to this important development coming from two insightful junior professors: Professors Kevin Bennardo and Todd Haugh.
Because Professor Haugh's comments are a bit shorter and more thematic, I will reprint his insights first:
First off, I agree wholeheartedly that this is a very important vote and a “really big deal.” But the reason I feel that way is not necessarily because it lowers penalties for drug trafficking offenders. While I think the Commission is right to make the proposal and I certainly support it — drug penalties have been too harsh for too long — what’s more important to me than the specifics of the proposal is the willingness of the Commission to make it at all. Let me explain.
According to the Commission’s press release (the actual language of the proposed amendment is available, although it’s hard to find — see here), the proposal will lower the base offense levels in the drug table by two across the board. That’s nothing to sneeze at because every two level increase equals about another 20% on the final sentence; at the higher sentencing levels, this is significant time. Yet, with mandatory minimums and prosecutorial charging practices, the Commission believes the prison population will be reduced only by around 6,500 inmates over five years. With approximately 100,000 federal inmates currently serving time for drug offenses, this reduction, although welcome, is as the Commission admits, “modest.”
But what isn't modest is the Commission’s increasing willingness to propose sentencing reform, i.e., sentencing reduction. This drug amendment proposal is the most recent example, but there are others. Last September, the Commission urged Congress to reduce mandatory minimums for drug offences, make the Fair Sentencing Act retroactive, and expand the safety valve. Around the same time, the Commission held a symposium on economic crimes and appeared to be genuinely considering the ABA’s proposal to remake the fraud guideline, which would lessen the impact of the loss calculation. And, a little over a year ago, the Commission suggested aligning the penalties for the receipt and possession of child pornography (a majority of judges call the penalty levels for receipt cases “excessive”). What’s important about these proposals is that every time the Commission comes out in support of (or even hints at) a sentencing reduction, it runs the risk of creating a “shadow guideline” — a hypothetical, less harsh version of a given guideline that, regardless of whether it is ultimately adopted, defense attorneys will argue should sway the court in the post-Booker, variance-driven regime. This is exactly the sort of thing your original post suggests, and savvy defense lawyers will do it. The Commission’s concern over creating shadow guidelines (and over the related Congressional reaction) has probably scuttled a number of proposals over the years to reduce unfair and disparity-producing guidelines. I am happy to see the Commission setting aside the concern of shadow guidelines and Congressional reaction and forging ahead to proactively improve the guidelines as a whole. While I’m sure some will argue this proposal does too little or comes too late, in my eyes it’s an important and continuing step in the right direction, and it shows a pattern of real leadership. So, I say go ahead and get excited — even if this amendment doesn't go through for some reason, it sure seems that there will be more positive reforms to come.
And now, here are Professor Kevin Bennardo's insights, which digs very effectively into the nuts and bolts of what the USSC's proposed amendment really does and means:
First, thanks to Doug Berman for the opportunity to share my thoughts on his forum. Second, I very much support the U.S. Sentencing Commission’s preliminary proposed amendment to reduce (most of) the base offense levels in the Drug Quantity Table by two levels. I agree with Doug’s assessment that this proposal is huge news.
However… the proposed amendment brings two hang-ups to my mind — one with the existing structure of the Drug Quantity Table and another with the mechanics of the proposed amendment:
(1) First, the proposed amendment continues to fundamentally bind the Drug Quantity Table to the mandatory minimum sentences set forth in 21 U.S.C. § 841. It simply (and laudably) knocks the levels down two pegs. Under the proposed amendment, offenders in criminal history category I who distribute a drug quantity that triggers a five year mandatory minimum will receive a base offense level of 24, leading to a range of 51-63 months (the lowest range that encompasses the five year mandatory minimum) rather than the current range of 63-78 months under offense level 26. Likewise, offenders facing a ten year mandatory minimum will start from a base offense level of 30, leading to a range of 97-121 months (the lowest range that encompasses the ten year mandatory minimum) rather than the current range of 121-151 month under offense level 32.
As I’ve written elsewhere, extrapolating the base offense levels in the Drug Quantity Table from the statutory mandatory minimums works unfairness for those offenders who are not actually subject to a statutory mandatory minimum sentence. Especially after the Supreme Court’s ruling in Alleyne v. United States and Attorney General Holder’s subsequent directive to federal prosecutors to structure indictments in such a way so as to avoid the operation of statutory mandatory minimum sentences on certain nonviolent, low-level drug offenders, we’ll only see increasing numbers of defendants who are not subject to statutory mandatory minimum sentences even though the sentencing court may find by a preponderance of the evidence that the offender distributed a quantity of drugs that would have triggered a statutory mandatory minimum had it been charged in the indictment and proven beyond a reasonable doubt. These offenders deserve to be sentenced under a Drug Quantity Table that is wholly uncoupled from the mandatory minimum sentences written into the federal drug statutes, particularly in the wake of the Commission’s recent recommendation to Congress to consider lowering statutory mandatory minimums. By continuing to extrapolate the base offense levels in the Drug Quantity Table from the statutory mandatory minimums, the proposed amendment fails to address this unfairness.
(2) Second, the proposed amendment to the Drug Quantity Table isn’t truly an “all drugs minus two” revision (like I expected it would be when I first read the press release). Under the proposed amendment, the lowest base offense level in the Drug Quantity Table remains at 6 and the highest base offense level remains at 38. Thus, offenders who distribute the smallest and largest drug quantities will see absolutely no change in their guideline calculations under the proposed amendment. They won’t receive any “minus two” treatment.
For example, an offender who distributes less than 250 grams of marijuana receives base offense level 6 under the current version of the Drug Quantity Table. Under the proposed amendment, that offender would still receive a base offense level of 6. (The difference is that under the amended version, all offenders who distribute up to one kilogram of marijuana fall within base offense level 6.) If the effect is to otherwise shift all base offense levels down by two, why not carry through with the same result at the margins of the Drug Quantity Table? Why not just retain the same drug quantities as the current Drug Quantity Table and shift the whole thing down by two levels so that the smallest quantities carry a base offense level of 4 and the largest quantities max out at level 36?
While the difference between base offense level 4 and 6 may not be significant to an offender in criminal history category I (although it might be if the offender has other upward offense level adjustments), the difference can be meaningful for an offender in more serious criminal history categories. For example, at offense level 4, a criminal history category III offender is subject to a guidelines range of 0-6 months and falls in Zone A of the Sentencing Table. But at offense level 6, the same criminal history category III offender is looking at a guidelines range of 2-8 months and falls in Zone B. For that offender, the difference between offense levels 4 and 6 is a difference of a guidelines sentence that requires no confinement and a guidelines sentence that requires at least two months of community confinement or home detention under section 5C1.1. (Similarly meaningful differences obtain for offenders in criminal history category VI, who get pushed out of Zone B and into Zone C with the jump from offense level 4 to 6.) If the rest of Drug Quantity Table is to be reduced by two levels, why not drop the smallest drug quantities down to offense level 4?
Thursday, January 09, 2014
US Sentencing Commission suggests lowering drug guideline sentences across the board!
In a vote that may not be historic but is still very important and a sign of the times, the US Sentencing Commission earlier today voted to publish proposed amendments to the federal sentencing guidelines which include an across-the-board reduction in the sentences recommended for all drug offenses. This official press release effecively summarizes and contextualizes this proposed amendments and others that were voted upon today at the USSC's public meeting:
The United States Sentencing Commission voted today to publish proposed guideline amendments, including possible reductions to the sentencing guidelines levels for federal drug trafficking offenses. Another proposed amendment addressed implementation of the Violence Against Women Reauthorization Act of 2013.
The bipartisan Commission voted to seek comment on a proposed amendment to lower by two levels the base offense levels in the Drug Quantity Table across drug types in guideline §2D1.1, which governs drug trafficking cases. Commission analysis indicates that such a change in the guidelines would result in a reduction of approximately 11 months for those drug trafficking offenders who would benefit, resulting in a reduction in the federal prison population of approximately 6,550 inmates by the fifth year after the change.
With this reduction, the sentencing guideline penalties for drug traffickers would remain consistent with pertinent drug trafficking statutes, including existing 5 and 10 year statutory mandatory minimum penalties, by structuring the Drug Quantity Table based on levels 24 and 30 (which correspond to a guideline range of 51 to 63 months and 97 to 121 months, respectively), rather than the existing levels of 26 and 32 (which correspond to 63 to 78 months and 121 to 151 months, respectively).
“The Commission’s proposal reflects its priority of reducing costs of incarceration and overcapacity of prisons, without endangering public safety,” said Judge Patti B. Saris, Chair of the Commission. A Commission study of offenders who received a reduced sentence pursuant to a similar two-level decrease in guideline levels for crack cocaine offenders in 2007 found no difference in recidivism rates for those offenders released early compared to those who served their full sentence.
“Like many in Congress and in the executive and judicial branches, the Commission is concerned about the growing crisis in federal prison populations and budgets, and believes it is appropriate at this time to carefully consider the sentences for drug traffickers, who make up about half of the federal prison population,” Saris said. “Our proposed approach is modest,” Saris said. “The real solution rests with Congress, and we continue to support efforts there to reduce mandatory minimum penalties, consistent with our recent report finding that mandatory minimum penalties are often too severe and sweep too broadly in the drug context, often capturing lower-level players.”...
Consistent with its responsibility to respond to major legislation affecting federal crimes, the Commission voted to publish a proposed amendment responding to the Violence Against Women Reauthorization Act of 2013 (Pub. L. No. 113–4).... The Commission also asked for comment on whether the guidelines adequately address the environmental and other harms of drug production operations, in particular the cultivation of marijuana, and requested comments on issues related to the alien smuggling guideline and on resolving circuit court conflicts regarding the sentencing guidelines, among other matters.
The proposed amendments and issues for comment will be subject to a 60-day public comment period running through mid-March. A public hearing on the proposed amendments will be scheduled in Washington, D.C., on March 13, and a hearing concerning issues related to the reauthorization of the Violence Against Women Act will be held February 13.
For a whole bunch of reasons, this strikes me as HUGE news, and a terrific and fitting application of some of the themes that have been stressed by many members of Congress and by the Attorney General in recent months. Indeed, this action by the USSC, though only now a proposal for comment, strikes me as the most important tangible federal sentencing development since the passage of the Fair Sentencing Act. Let me explain why:
1. This proposed amendment is essentially a statement by the USSC that it believes, in its expert opinion, the current guideline sentences for ALL drug offenses are ALL too harsh. Consequently, even before this amendment becomes official and gets even closer to becoming law, every defendant to be sentenced for ALL drug offenses ought to be arguing for a two-level reduction in the calculated guideline range (and/or a variance from the calculated range) based on the Commission's expert advice and opinion that the current guideline sentences for ALL drug offenses are ALL too harsh.
2. The usual critics of the current drug guidelines as way too harsh are sure to advise the USSC in the days ahead that this proposed amendment is a great idea (and, if they were shrewd, they might push for the amendment reduce sentences even more). Meanwhile, we will get to see if anyone will actively oppose this proposed amendments. In the past, DOJ could often be counted on to oppose any proposed pro-defendant guideline amendment. But these days, in the wake of AG Holder's recent speeches and work, I suspect DOJ will not actively oppose the amendment (and may even support it). If it turn out there is little or no opposition to this amendment, federal judges could and should feel even more confident now and in the near future to lower drug sentences when permitted in the exercise of their post-Booker discretion.
3. If (and when?) this guideline lowering amendment becomes official in November 2014, the US Sentencing Commission will have authority to decide to make it retroactive (as it did with all of recent prior crack amendments). Thus, not only could this amendment start lowering many federal drug sentences now and going foward, there is a chance it could end up lowering many long federal drug sentences already being served.
Perhaps I am at risk of already getting too excited (and counting too many unhatched chickens) concerning this USSC vote. But especially if this vote was unanimous within the Commission, and especially if it has the formal or even tacit approval of the Department of Justice, I do not think I am completely off base when suggesting this is a really big deal.
Wednesday, January 08, 2014
"Probability and Punishment"
The title of this post is the title of this notable new paper by Jacob Schuman now available via SSRN. Here is the abstract:
Imagine two defendants, A and B, who have each been convicted of drug trafficking. Defendant A was arrested with 1,000 grams of crack-cocaine. Defendant B was arrested with only 100 grams of crack but also a large quantity of cash, which he more than likely, though not certainly, earned by selling 900 grams of crack shortly before his arrest. Should A and B receive the same punishment?
Federal criminal law says that they should. This Article will argue that they should not. The probability that A sold 1,000 grams is higher than the probability that B did, so B deserves the lighter sentence.
The justice system can never determine with absolute certainty that an accused defendant committed a particular crime. To render judgment, therefore, the criminal law must estimate the probability that each defendant is guilty of the offense charged and then translate that probability into specific penal consequences. The guilt stage of criminal proceedings — the criminal trial — uses what scholars have called a “threshold model” of translation. Under this model, the prosecution may convict a defendant by establishing that the likelihood that he committed the crime charged exceeds a certain “threshold” level of probability. If it is “beyond a reasonable doubt” that the defendant did the deed, he will receive a guilty verdict. Otherwise, he will walk free. Neither outcome will reflect a precise measure of the odds of the defendant’s guilt. A “probabilistic model” of translation, by contrast, would vary the outcome of each trial depending on the probability that the defendant committed the crime of which he is accused.
This Article breaks new ground by demonstrating that the penalty stage of criminal proceedings — the sentencing hearing — also uses a “threshold model.” The United States Sentencing Guidelines instruct federal judges to make a series of factual findings that either add to or subtract from a recommended sentence for every case. Each adjustment to the recommended sentence depends on whether a certain factual predicate is “more likely than not” to be true — just like at trial, this threshold level of probability fails to precisely measure the odds of the defendant’s culpability. However, while scholars have offered several important justifications for the threshold model of conviction, these arguments do not hold up for the threshold model of sentencing. Moreover, the two flaws identified with the threshold model of conviction — inefficiency and unfairness — are not only present at the penalty stage of the proceedings, but in fact are exacerbated by a few unique features of the law of sentencing.
The threshold model of sentencing poses a particular problem when it comes to determinations of drug quantity in the punishment of drug offenders. Courts often rely on extrapolation and inference to make such determinations, and as a result, they frequently mete out lengthy sentences based on quantity estimations that carry a high risk of error. District courts and policymakers should mitigate the inefficiencies and injustices that result from these fact-findings by incorporating probability into drug quantity determinations at sentencing.
Sunday, December 29, 2013
Latest USSC quarterly data show (thanks to AG Holder?) record number of judge-initiated below-range sentences
I am intrigued to see that, as reported in Table 4 with the Fourth Quarter FY13 Quarterly Sentencing data report posted here at the US Sentencing Commission's website, there was a notable (though still small) uptick in the number of below guideline sentences imposed by federal district judges during the most recent quarter (from July 2013 to September 2013). Specifically, after a full year in which below-guideline sentence were imposed each quarter in just around 18.5% of all federal cases, in the most recent quarter the rate of judge-initiated below-range sentences jumped to 19.1%. This marks, I believe, the highest percentage of judge-initiated below-range sentences in any quarter on record.
As the title of this post hints, I am inclined to hypothesize that a few more judges were willing to impose below-guideline sentences in a few more federal cases in the wake of Attorney General Eric Holder's big early August speech to the ABA lamenting excessive use of incarceration in the United States. When the US Attorney General says "too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason," I surely hope federal judges are listening and thinking even harder about whether to follow harsh guidelines that tend to recommend pretty long prison sentences in most cases.
That all said, the latest new data continue to show the same basic story lines and relatively stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that somewhat more than 50% of all federal sentences are within the calculated guidelines range, and that below-guideline sentences are a result of a prosecutor's request (which occurs in well over 25% of all cases).
Thursday, December 12, 2013
Killer bride in Montana takes a plea deal to second-degree murder just before jury gets case
As reported in this new AP article, headlined "Woman in newlywed killing case agrees to plead guilty to second-degree murder," a high-profile federal homicide trial has now ended in a high-profile plea deal. Here are the details:
A federal judge accepted a guilty plea Thursday from a Montana newlywed after she reached a surprise plea agreement and said she pushed her husband from a cliff in Glacier National Park. The development came before a jury was set to begin considering the case against 22-year-old Jordan Graham.
In exchange for the plea to second-degree murder, prosecutors agreed to drop a first-degree murder charge and a count of making a false statement to authorities. First-degree murder means a crime is premeditated.
Graham could face a maximum sentence of life in prison on March 27.
In accepting the plea, District Judge Donald Molloy told Graham to recount exactly what happened the night of July 7 when her husband Cody Johnson, 25, fell to his death in the park.
Graham said she told Johnson that she wasn't happy and wasn't feeling like she should after getting married. She said they argued and at one point he grabbed her by the arm. She said she brushed his hand away and pushed him, with one hand on his arm and one on his back. "I wasn't thinking about where we were ... I just pushed," she told the judge. She said she then drove back to Kalispell without calling for help because she was so afraid she did not know what to do.
Earlier in the day, defense attorneys wrapped up their case without testimony from Graham. Instead, they showed the jurors pictures and videos of Graham smiling as she had her hair done and tried on her borrowed wedding dress, then videos of the June 29 wedding and the couple's first dance.
Those images attempted to chip away at the prosecution's image of Graham as a cold, dispassionate woman who didn't want to marry Johnson, and their contention that eight days later she led him to a dangerous precipice in the Montana park and deliberately pushed him to his death....
Both the prosecution and defense rested their cases Thursday after three and a-half days of testimony. The plea agreement was reached before closing arguments took place.
As for the statutory sentencing basics, here is the sentencing provision of 18 USC 1111, the federal murder statute: "Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life." The federal sentencing guideline for second degree murder, 2A1.2, provides a base offense level of 38 and recommends an upward departure if "the defendant's conduct was exceptionally heinous, cruel, brutal, or degrading to the victim." Also, I think there could be (and likely will be?) some sentencing debate over whether an adjustment up for a vulnerable victim or an adjustment down for acceptance of responsibility should be applied.
If we assume the guideline level of 38 sticks (and she has no serious criminal history), the USSG Sentencing Table recommends a prison sentence of 235-293 months (just under 20 to 25 years). I suspect the defense team will likely argue for a downward variance from his range, while perhaps the prosecutors will ask for something toward the top of the range. Thus, I would right now put the (way-too-early) over/under betting line for here federal sentence at 20 years' imprisonment.
Previous related posts:
- You be the federal sentencing judge: "Newlywed Admits to Pushing Husband off Cliff"
- Seeking pre-trial sentencing views in high-profile federal murder prosecution of homicidal bride
Saturday, November 23, 2013
Another notable white-collar defendant gets another below-guideline federal sentence
This New York Times article, headlined "Ex-Credit Suisse Executive Sentenced in Mortgage Bond Case," reports on a notable federal sentenced handed down yesterday:
A former top executive at the Credit Suisse Group was sentenced to two and a half years in prison on Friday for inflating the value of mortgage bonds as the housing market collapsed. The prison term makes the executive, Kareem Serageldin, one of the most senior Wall Street officials to serve time for criminal conduct during the financial crisis.
Wearing a dark suit and blue tie, Mr. Serageldin remained stoic as Judge Alvin K. Hellerstein of the United States District Court in Manhattan handed down the sentence, which was less than the roughly five-year sentence called for by nonbinding sentencing guidelines. Judge Hellerstein showed mercy on Mr. Serageldin in part because of what he said was a toxic culture at Credit Suisse and its rivals.
“He was in a place where there was a climate for him to do what he did,” the judge said. “It was a small piece of an overall evil climate inside that bank and many other banks.”
A spokesman for Credit Suisse disagreed with the judge’s remarks, noting that when regulators decided not to charge the bank in connection with Mr. Serageldin’s actions, they highlighted the isolated nature of the wrongdoing, the bank’s immediate self-reporting to the government and the prompt correction of its results.
Mr. Serageldin, 40, led a group at Credit Suisse that traded in mortgage-backed securities. As the housing market soared, his group made hundreds of millions of dollars for the bank by pooling mortgage assets, slicing them up and selling the pieces to investors. Many of those were subprime loans that went to shaky borrowers, however, and banks found themselves holding billions of dollars in sour mortgages when the market collapsed.
Federal authorities began their investigation into Credit Suisse in 2008 after the bank disclosed that Mr. Serageldin’s team had mismarked its mortgage portfolio. The bank suspended the team and cooperated with authorities. Two other traders in that group, David Higgs and Salmaan Siddiqui, were also charged alongside Mr. Serageldin. They all pleaded guilty; Mr. Higgs and Mr. Siddiqui have yet to be sentenced....
“This is the worst day of my life,” Mr. Serageldin told the judge. “I am terribly sorry for what I have done.”
In an unusual moment during the hearing, Judge Hellerstein allowed Mr. Serageldin’s mother to speak about her son. Holding back tears, she told the judge her son had always worked hard to make the family proud. “Please see him in the context of his whole life history,” she told the judge, who commiserated with Ms. Serageldin by telling her that he, too, was the child of immigrants. “Whatever sentence he serves, I will serve.”
The judge asked Mr. Serageldin’s lawyer to explain his client’s misconduct. “This is a deepening mystery in my work,” the judge said. “Why do so many good people do bad things?” Sean Casey, a lawyer at Kobre & Kim, said that Mr. Serageldin was under great pressure during the credit crisis and made a big mistake when confronted with failure for the first time.
Judge Hellerstein said that his sentence was necessary to deter misconduct on Wall Street. “Each person has to look within himself and ask himself what is right, what is wrong,” the judge said. “Even in the worst of times, what is right cannot be sacrificed.”
Tuesday, November 19, 2013
Latest USSC publication highlights remarkable "disparities"(?) in federal FIP sentences
I am pleased to see that the US Sentencing Commission now has up on its website another terrific new data document in its series of reader-friendly "Quick Facts" publications. (Regular readers may recall from this prior post that the USSC describes these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")
As I have said before, I think this series is a very valuable new innovation coming from the USSC, and I have already learned a lot and benefited greatly from these publications. This latest document, which "presents data on offenses under 18 U.S.C. § 922(g), commonly called 'felon in possession' cases," includes these notable data details:
In fiscal year 2012, 5,768 offenders were convicted of violating 18 U.S.C. § 922(g)....
One-quarter (25.2%) of offenders convicted under section 922(g) were assigned to the highest criminal history category (Category VI). The proportion of these offenders in other Criminal History Categories was as follows: 11.7% of these offenders were in Category I; 9.3% were in Category II; 21.1% were in Category III; 18.9% were in Category IV; and 13.8% were in Category V.
10.3% were sentenced under the Armed Career Criminal Act (ACCA) (18 U.S.C.§ 924(e))...
The average sentence length for all section 922(g) offenders was 75 months; however, one-quarter of these offenders had an average sentence of 24 months or less while one-quarter had an average sentence of 96 months or more.
The average sentence length for offenders convicted of violating only section 922(g) and who were sentenced under ACCA was 180 months.
The average sentence length for offenders convicted of violating only section 922(g) but who were not sentenced under ACCA was 46 months.
The title of this post has the term "disparities" in quotes followed by a question mark because these basic sentencing data about a pretty basic federal crime could be interpreted in many disparate ways. Given that all the offenders sentenced for FIP likely were engaged in pretty similar conduct (simple possession of a firearm) and all of them, by definition, had to have a serious criminal record in order to be subject to federal prosecution, one might see lots of unwarranted disparity among this offender group given the extraordinary outcome variations documented here -- in FY2012, over 10% of FIP offenders are getting sent away for an average of 15 years, but another 25% are going away for only 8 years, while another 25% are going away for only 2 years.
Then again, given the apparently varied criminal histories of the FIP offenders, the sentencing variation here surely reflects various (reasoned and reasonable?) judicial assessments of different levels of recidivism risk for different FIP offenders. I certainly hope that the those being sentenced to decades behind bars for gun possession are generally those with very long rap sheets, and that those getting sent away only for a couple years are those with much more limited criminal histories.
Finally, in addition to noting the profound significance that past crimes clearly have on current sentencing in FIP cases, I must note that it is these past crimes that itself serves to convert the behavior here in to a federal crime. Indeed, if one takes the Second Amendment very seriously (as I do), the actual "offense behavior" in these cases might often be subject to significant protection as the exercise of a fundamental constitutional right unless and until the person has a disqualifying criminal past. Proof yet again that the past, at least when it comes to criminal sentencing and constitutional rights, is often ever-present.
November 19, 2013 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues | Permalink | Comments (3) | TrackBack
Wednesday, November 13, 2013
Is sentence disparity reduced if mass murderer Whitey Bulger and drug dealer Sam Hurd get the same LWOP sentence?
The question in the title of this post is prompted by the news of two seemingly very distinct federal sentencings taking place today in which it seems the federal sentencing guidelines are calling for the exact same LWOP sentence.
Regular readers are already familiar with the case involving Whitey Bulger, whose sentencing is taking place today in federal Court in Boston. This new USA Today article, headlined "Victim's son: Mobster Whitey Bulger is 'Satan'," highlights just the latest developments in a case in which I sincerely wonder why there is not more of an effort by pro-death-penalty advocates to have an even tougher punishment than LWOP in the mix.
Somewhat less high profile, except perhaps for hard-core football fans, is the sentencing of former NFL receiver Sam Hurd. This SI.com article, headlined "Former NFL player Sam Hurd hopes to avoid life sentence at hearing," provides some background starting this way:
This afternoon at the Federal courthouse in Dallas, U.S. District court judge Jorge Solis is scheduled to begin the sentencing hearing for former Cowboys and Bears receiver Sam Hurd, who pleaded guilty to a single drug trafficking charge in April. Hurd's attorneys will be allowed to present witnesses and evidence to contest the individual allegations against him. At the end of the hearing Solis will decide whether to take the recommendation of the U.S. Probation and Pretrial Services Department of life in prison without parole or give Hurd a lighter sentence. The only certainty is that Hurd will be going to prison.
Hurd was arrested on Dec. 14, 2011 and indicted on Jan. 4, 2012. For the first 19 months, life in prison was not even in the discussion. Five to 20 years was the sentencing range, with precedent and the informed opinions of more objective onlookers and academics backing up that estimate. Since the life sentence recommendation was made in late July, one comment repeated by sources across the spectrum of partiality has been some version of this reminder: You realize life in prison in the federal system means the next time he comes out of prison it'll be in a coffin.
Hurd, who has been housed in the federal detention center in Seagoville, about a 30-minute drive from the Dallas court building, did not respond to an email from SI Wednesday morning. He may have already been relocated to downtown Dallas and unable to access his prison-controlled email account. He called last Friday night and repeated again that he is "ready to be sentenced for what I did, not this other mess. Our system should not work like this.
I have to assume that Hurd is facing a recommended LWOP sentence because of the quantity of drugs being ascribed to him and a guideline sentencing structure that provides that drugs dealers will often be facing the same guideline sentence as mass murderers.
Hurd is, of course, very fortunate that the federal sentencing guidelines are no longer mandatory, and I think it is unlikely he will get an LWOP term today. But this coincidence of these two very different criminals facing the exact same federal guideline sentence provides a high-profile example of how the guidelines can themselves create disparity and especially revelas how misguided it can often be to assume imposition of within-guideline sentences reduce disparity.
UPDATE: On Wednesday afternoon, as reported here, Sam Hurd received a 15-year federal prison sentence; on Thursday morning, as reported here, Whitey Bulger received two life terms plus 5 years in the federal pen.
November 13, 2013 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9) | TrackBack
Thursday, November 07, 2013
"Free at Last? Judicial Discretion and Racial Disparities in Federal Sentencing"The title of this post is the title of this notable new paper by Crystal Yang now available via SSRN. Here is the abstract:
The Federal Sentencing Guidelines were created to reduce unwarranted sentencing disparities among similar defendants. This paper explores the impact of increased judicial discretion on racial disparities in sentencing after the Guidelines were struck down in United States v. Booker (2005). Using data on the universe of federal defendants, I find that black defendants are sentenced to almost two months more in prison compared to their white counterparts after Booker, a 4% increase in average sentence length. To identify the sources of racial disparities, I construct a dataset linking judges to over 400,000 defendants. Exploiting the random assignment of cases to judges, I find that racial disparities are greater among judges appointed after Booker, suggesting acculturation to the Guidelines by judges with experience sentencing under mandatory regime. Prosecutors also respond to increased judicial discretion by charging black defendants with longer mandatory minimums.
I am always interested in sophisticated analyses of the post-Booker sentencing system, so I am looking forward to finding time to review this article closely. But, as with lots of "disparity" sentencing scholarship, I worry that this article is among those spending lots of time worrying about and trying to figure out whose sentences may be longer after Booker rather than worrying about and trying to figure out if all sentence remain way too long in the federal sentencing system.
November 7, 2013 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack
Tuesday, October 29, 2013
Do nationwide reforms now call for federal judges to sentence below the guidelines in all marijuana cases?The question in the title of this post is one that I have been thinking about for quite some time, but it has now taking on some real-world salience in the wake of a couple hearings and sentencing decisions by a federal district judge in Baltimore. Two recent reports from the Baltimore Sun, headlined "Federal judge weighs shift on marijuana sentences," and U.S. judge says government view on marijuana raises 'equal justice' issue" (available here and here, respectively), suggests that at least one federal district judge believes the answer to the question in the title of this post is yes. Here are details drawn from both press reports:
Cross-posted at Marijuana Law, Policy and Reform.
A federal judge said Friday he would consider lighter-than-normal sentences for members of a major suburban marijuana smuggling organization — the latest fallout of the drug's legalization in several U.S. states.
U.S. District Judge James K. Bredar noted that federal authorities announced this summer they would not pursue criminal cases against dispensaries and others legally handling marijuana in states where the drug has been legalized.
Bredar, who called the hearing to discuss the issue, said it might be more appropriate to compare the defendants in the Maryland marijuana case to smugglers of improperly taxed cigarettes rather than treat them as hardened drug traffickers. "It's a serious thing," Bredar said of the group's operation, "but it's not the same as dealing heroin."...
Friday's hearing involved defendants convicted of running a smuggling operation that imported large quantities of marijuana to Howard and Anne Arundel counties from California and New Jersey and laundering the proceeds through an eBay business located in a Jessup warehouse. Twenty-two of the 23 people charged in the case have been convicted; charges against one were dismissed.
Earlier this month, Bredar canceled all of the scheduled sentencings in the case and announced his plan to hold a hearing on changes in Justice Department policy that allow marijuana handlers such as dispensaries and cultivation centers to operate openly in states where marijuana is legal....
At issue in the Maryland case, Bredar said, is whether that shift means the government has decided the drug is less serious now than when federal sentencing guidelines were formulated. "Has the federal government changed its enforcement policy?" Bredar asked.
Assistant U.S. Attorney Andrea L. Smith said the topic was an appropriate one to discuss, but argued that marijuana remained a serious drug and noted that the case involved guns and violence. She suggested it might be more appropriate to compare marijuana dealing to trafficking in illegally obtained prescription pain pills rather than to cigarette smuggling....
And on a sliding scale of regulated substances, Bredar said, he thought marijuana had moved away from hard drugs and toward tobacco.
Sentences in federal cases are based on guidelines that take into account drug quantities and other circumstances in advising judges on the appropriate prison time. Those rules already recognize that dealing heroin is much more serious than dealing marijuana.
For example, all else being equal, a defendant convicted of dealing between one and three kilograms of heroin would face between nine and 11 years in prison, as would someone who sold between 1,000 and 3,000 kilograms of marijuana. At the same time, a cigarette trafficker would have to evade $100 million in taxes to face that length of prison sentence — a vastly greater weight in tobacco.
The guidelines are advisory and judges can take other factors into account when deciding a sentence. Bredar said he would take particular note of two of those factors when sentencing the defendants: He wants to make sure that defendants around the country are being treated equally and that the sentences reflect the seriousness of the offense....
A federal judge in Maryland handed down lighter prison sentences Monday to defendants in a huge marijuana distribution case, saying that such offenses are "not regarded with the same seriousness" as they were just a few decades ago.
U.S. District Judge James K. Bredar said the federal government's response to marijuana legalization in some states — notably the decision not to pursue criminal cases against dispensaries and others handling the drug in accordance with those states' laws — raises concerns of "equal justice."
In handing down a nearly five-year sentence, Bredar said he felt Scott Russell Segal had committed a significant crime for his role moving hundreds of kilograms of marijuana and laundering the proceeds.
But the judge used his discretion to ignore federal guidelines, which equate marijuana with harder drugs like heroin and called for Segal to receive eight to 11 years in prison. A second defendant also got a shorter sentence than called for in the guidelines. "It's indisputable that the offense is not regarded with the same seriousness it was 20 or 30 years ago when the sentencing guidelines … which are still in use, were promulgated," Bredar said.
October 29, 2013 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack
Sunday, October 27, 2013
Federal sentencing in Kansas to focus on "market value of deer" illegally killedAs reported in this unavoidably amusing article, headlined "Value of deer key in Kansas hunting camp sentencing," a federal district judge is going to be required to do a market analysis of illegally hunted deer in order to properly calculate the federal guideline range of a couple of hunting scoundrels. Here are the details:
For years, hunters trekked to Camp Lone Star near Coldwater where prosecutors say they paid thousands of dollars to illegally kill deer in Kansas. On Monday, what is believed to be one of the largest criminal investigations involving the illegal taking of deer draws to a close with the re-sentencing of two Texas brothers who ran the operation from 2005 to 2008.
James Bobby Butler Jr., the owner and operator of the hunting camp, and his brother, Marlin Jackson Butler, who worked as a guide, admitted in 2011 to violating the Lacey Act, a federal law that prohibits the interstate transport of any wildlife taken in violation of state regulations. The brothers, both from Martinsville, Texas, pleaded guilty to felony charges of conspiracy to violate the Lacey Act and violation of the Lacey Act....
The 10th Circuit Court of Appeals, in its decision last year, said the district court made a mistake in 2011 in calculating sentences based on the full price of a guided hunt, rather than the actual retail value of the animals.
U.S. District Judge Monti Belot is expected to hear testimony at Monday’s hearing about the market value of deer as well as the conduct of the Butler brothers in other uncharged poaching incidents to come up with new sentences. He must also rule on the appropriateness of a hunting and guiding ban for James Butler.
John Brooks, the agent from the U.S. Fish and Wildlife Service who led the investigation, is expected to take the stand for the government. The defense plans to call several people who hunted at the camp. Both sides are also bringing in expert witnesses to testify as to the market value of antlers and other deer parts....
James Butler was initially sentenced by the late U.S. District Judge Wesley Brown to 41 months in prison and ordered to pay a $25,000 fine and $25,000 in restitution. Marlin Butler was initially sentenced to 27 months in prison and ordered to pay a $10,000 fine and $10,000 in restitution. Those initial sentences were thrown out by the appeals court when it sent the case back for re-sentencing.
Wednesday, October 09, 2013
District Judge Graham gets in a final word on child porn sentencing despite Sixth Circuit reversals
I am about to head off line for the bulk of the day in order to head down to the Queen City in order to watch the full en banc Sixth Circuit consider crack sentencing modification rules in Blewett. (I hope late tonight to report on what I see in the argument, perhaps with a prediction as to the outcome.)
For my last word before I go to watch the Sixth Circuit in action, I am pleased to post a recent opinion by US District Judge James Graham that provides its own kind of last word about the Sixth Circuit's recent sentencing work in a child pornography downloading case that the Sixth Circuit took out of Judge Graham's hands. The opinion in US v. Childs (which can be downloaded below) is relatively brief, and it starts and winds down this way:
This is a disturbing case. Defendant is charged with one count of possession of child pornography. I am called upon to decide whether to accept a plea agreement which requires me to impose a sentence which is roughly only one sixth of the lowest sentence recommended by the United States Sentencing Guidelines (“the Guidelines” or “U.S.S.G.”). This is disturbing not because I disagree with the sentence, but because I am convinced that under the law of the Sixth Circuit announced in United States v. Bistline, 665 F.3d 758, 761-64 (6th Cir. 2012)(“Bistline I”), I would not have been free to select such a sentence without the government’s agreement....
The Sixth Circuit's decision in Bistline I blurs the distinction between mandatory and advisory by requiring more deference to congressionally created guidelines than that accorded to Sentencing Commission-created guidelines. Just what implications this might have under Apprendi was not discussed by the Sixth Circuit.
There have been some very important developments since the Sixth Circuit's decision in Bistline I. In its Report to Congress: Federal Child Pornography Offenses (Dec. 2012), www.ussc.gov/Legislative_ and_ Public_ Affairs/ Congressional_ Testimony_ and_ Reports/ Sex_ Offense_ Topics/ 201212_ Federal_ Child_ Pornography_ Offenses/ (visited October 1, 2013), the Sentencing Commission publicly declared that the existing guidelines for child pornography offenses were flawed and in need of repair. In a letter to Judge Patti B. Saris, Chair of the Commission, dated March 5, 2013, Anne Gannon, National Coordinator for Child Exploitation Prevention and Interdiction, responded to the Commission’s report on behalf of the Department of Justice. See Letter from Anne Gannon, Nat’l Coordinator for Child Exploitation Prevention and Interdiction, Office of the Deputy Attorney General, U.S. Dep’t of Justice, to Honorable Patti B. Saris, Chair, U.S. Sentencing Comm’n (Mar. 5, 2013), available at http://sentencing.typepad.com/files/doj-letter-to-ussc-on-cpreport. pdf (visited Sept. 30, 2013). The Department expressed its agreement with many of the Commission’s conclusions, noting that the report “reflects a significant amount of detailed research and thoughtful analysis" and thanking the Commission for "undertaking the important task of laying the foundation for reforming sentencing practices involving non-production child pornography offenses." Id. at 1.
Nevertheless, on June 27, 2013, four months after the Commission’s report, the Sixth Circuit filed its opinion in United States v. Bistline, 720 F.3d 631 (6th Cir. 2013)(“Bistline II”) reaffirming it's holding in Bistline I, with no mention whatsoever of the Commission’s findings or the extent of the Department of Justice's concurrence. As a judge who has regularly sat on the Sixth Circuit Court of Appeals by designation for more than two decades, I find this inexplicable. Many of the Commission’s criticisms of the child pornography guidelines, including criticisms which the Justice Department concurred in, are identical to the ones I expressed in my sentencing colloquy in Mr. Bistline’s case. The Sentencing Commission’s criticism of the crack cocaine guidelines was cited as a reason for diminished deference for those guidelines in Kimbrough, and that part of the Kimbrough decision was cited by the Sixth Circuit in Bistline I to explain why the Supreme Court decided that the crack cocaine guidelines were entitled to less deference. See Bistline I, 665 F.3d at 763. In light of the fact that, in the interim, the Commission had spoken on the child pornography guidelines, why would the court not revisit the applicability of Kimbrough when it decided Bistline II? It seems clear to me that under Kimbrough, the child pornography guidelines should be accorded less, not more, deference than others.
It is a tragic irony that sentencing judges in the Sixth Circuit are required to give enhanced deference to guidelines which the independent Commission, relied upon so heavily by the Supreme Court in upholding the Guidelines, has now declared flawed and in need of reform. It is even more tragic that offenders in this circuit will have to rely on prosecutorial discretion, not judicial discretion, in order to receive a just and fair sentence in these cases.
October 9, 2013 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Tuesday, October 08, 2013
"Native American Sentencing Disparity and the Case of Dana Deegan"
The title of this post is the title of this notable event taking place next week at the University of North Dakota School of Law. Long-time readers may vaguely recall this 2010 post about the Eighth Circuit panel's split ruling affirming the defendant's within-guideline sentence in US v. Deegan, No. 08-2299 (8th Cir. May 25, 2010) (available here). I called the Deegan case remarkable in part because of the criminal offense (second-degree murder of a newborn due to neglect), in part because of the offender (the newborn's mother, a Native American who has suffered a long history of physical and sexual abuse), and in part because of a must-read 50+ page dissent by Judge Myron Bright.
I am very pleased that the (under-explored) sentencing issues spotlighted by one case and one dissent has now prompted a full panel discussion. And I am very sad that I am unable to skip out on all my classes to head out to Grand Forks for this event; the topics and speakers looks like it would be worth the trip:
Schedule of Speakers:
Overview of the Disparity Problem and its Origins
- BJ Jones, Director, Tribal Judicial Institute & Chief Justice of the Turtle Mountain Tribal Court of Appeals
- Chris Ironroad, Associate Attorney at Sonosky, Chambers, Sachse, Endreson & Perry, LLP
Impact of Disparity on Native Americans - The Case of Dana Deegan
- Judge Myron H. Bright, United States Court of Appeals for the Eighth Circuit
- Judge David E. Ackerson, St. Louis County, Minnesota
- Sarah Deer, Assistant Professor of Law, William Mitchell College of Law
- Marmie Jotter, sister of Dana Deegan and licensed psychotherapist
How the Guidelines Unfairly Treat Domestic Violence Victims
- Radmilla Cody - Ms. Navajo Nation 1997-98 and recording artist
Monday, September 30, 2013
Advice for the US Sentencing Commission from former USDJ Nancy GertnerI am genuinely unsure if the US Sentencing Commission gets to keep working if we end up having a federal government shut-down this week. But I am sure that the USSC starts an official new fiscal year as of tomorrow morning and that any government shut-down is not going to keep federal defendants from being sentenced and that the USSC will be up-and-running in some capacity both sooner and later. For those reasons, I am pleased right now to be able to post these comments sent my way by former federal district judge (and now Harvard law professor) Nancy Gertner about what the USSC ought to be doing as FY 2014 in the federal sentencing system gets underway:
At a time when the “common law of sentencing,” is being shaped in federal district courts, why does the Sentencing Commission only post Circuit Court decisions on its web site? In 2012, sentences that had been appealed on the grounds of unreasonableness were affirmed 95 percent of the time. And that rate has remained steady on the national level: In 2011, the affirmance rate was roughly 94 percent; in 2010 it was approximately 96 percent; and in 2009, 97 percent affirmances. In my circuit, the First Circuit, not a single sentence was deemed unreasonable on appeal in 2011 or 2012, and only a handful of cases qualified in the immediately preceding years. In effect, as with other areas of law where the standards of review are forgiving (think evidentiary appeals on forensic issues which are reviewed for “abuse of discretion” and rarely overturned), the appellate courts are not defining substantive sentencing standards, and imposing only minimal procedural ones.
Clearly most of the meaningful sentencing developments -- the substantive sentencing standards, the guideline analysis and trenchant critique -- are happening at the district court level in the decisions of judges like John Gleeson and Jack Weinstein (S.D.N.Y.), Mark Bennett (N.D. Iowa), Ellen Huvelle (D.C.), Paul Friedman (D.C.) and Lynn Adelman (E.D. Wisconsin). While not all judges take the time to write formal sentencing opinions, those that do should have their work circulated by our “expert” Commission rather than being ignored.
If the Commission is interested in minimizing disparity in sentencing in a post-Booker world (which should be one of its goals -- hardly the only one), what better way than to make certain that the opinions of district court judges are communicated more broadly to the federal bench? When these judges offer a reasoned analysis of the Guidelines or an alternative way of analyzing the cases, why not ensure that other judges see their work and decide whether to follow it? Other judges can look at their reasoning– not as binding precedent, but as a template for the cases they see, e.g. here’s one approach to firearms cases, non violent drug offenders, white collar cases, etc. If a common law of sentencing is ever to evolve -- supplementing (or in some cases supplanting) the Guidelines -- why not assist in its development? In a common law system, decisional law establishes standards. Uniformity is not enforced from above -- as in civil code countries -- but evolves from reasoned judicial decisions. In effect, with advisory Guidelines, we have a hybrid system -- Guidelines and decisional law.
To look at the Commission web site, there is only one orthodoxy -- the Guidelines, and Appellate Court decisions that rarely say much of anything. In fact, the message conveyed by the web site is that the Commission is not interested in uniformity as a general matter, just one kind of uniformity -- the uniform enforcement of its flawed product, the U.S. Sentencing Guidelines. Teach the Guidelines. Describe appellate court decisions affirming whatever the district courts do without meaningful analysis. Ignore the fine work of the judges trying to create meaningful standards where it counts the most, in the sentencing of individuals.
Tuesday, September 24, 2013
Through the Guideline looking glass, where a prior misdemeanor is really an "aggravated felony"An oft-quoted passage from the famous Lewis Carroll novel Through the Looking-Glass, and What Alice Found There came to mind as I was reading a recent Fifth Circuit's sentencing ruling. Here is the passage I have in mind:
This first paragraph from the unanimous panel ruling in United States v. Ramirez, No. 13-10473 (5th Cir. Sept. 23, 2013) (available here), should make plain why this literary reference seems apt:
"When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master — that's all."
Efrain Hernandez Ramirez pled guilty to one count of illegal reentry following removal and at his sentencing, the district court applied an eight-level enhancement based on a prior conviction for an aggravated felony. The aggravated felony in question was a New York state misdemeanor conviction for third-degree sexual abuse of a fifteen-year-old girl. Ramirez appeals, arguing that his misdemeanor conviction cannot be an aggravated felony. For the following reasons, we AFFIRM.
Wednesday, September 18, 2013
US Attorney defends fraud guidelines while others urge reform in USSC eventToday notable events in the federal sentencing reform arena were not confined only to today's U.S. Senate Judiciary Committee hearing on federal mandatory minimums (discussed here and here). Also starting today was a two-day event in NYC in which the U.S. Sentencing Commission is discussing potential reform to the federal fraud guidelines. This Reuters report, headlined "U.S. prosecutor cautions against white-collar sentencing revamp," provides a few notable highlights from the events in NYC:
The U.S. Justice Department opposes a wholesale revamping of white-collar criminal sentences that defense lawyers and some judges have urged, a top federal prosecutor said on Wednesday.
But Melinda Haag, the U.S. attorney in San Francisco, said the department was open to limited changes in white-collar sentencing that could reduce sentences in some fraud cases. The comments came as the U.S. Sentencing Commission is weighing revisions to advisory sentencing guidelines used by judges for securities, healthcare, mortgage and other fraud offenses.
Defense lawyers, the American Bar Association, some judges and others have criticized the guidelines, saying they emphasize financial losses caused by crime over all other factors, sometimes resulting in sentences that are too severe.
Haag, speaking at a symposium on white-collar sentencing in New York, said the Justice Department believes the current guidelines "result in tough but fair sentences in the vast majority of the cases." But she suggested that the department may be open to some changes, saying certain categories of cases, such as securities cases involving frauds on the market, warrant "careful study" by the commission. "Despite our questions and concerns, however, we do agree that in some cases, loss may overstate the seriousness of the offense," Haag said.
A growing number of judges have imposed terms less than prescribed by the guidelines, which became advisory rather than mandatory following a U.S. Supreme Court decision in 2005.
U.S. District Judge Loretta Preska, sitting on a panel with Haag, cited the case of Joseph Collins, a former partner at the law firm Mayer Brown, who was convicted for his role in a fraud at commodities broker Refco Inc. With losses calculated at $2.4 billion, Preska said under the guidelines Collins faced life in prison. She instead sentenced him in July to a year in prison, citing his community service and the fact he didn't financially benefit from the scheme. "This was absurd, absolutely absurd," she said.
Haag said the Justice Department recognized there "may be issues in some high-loss cases." But she said the department didn't believe a wholesale change was needed to the fraud sentencing guidelines or the loss table used to calculate sentences. She said it was a relatively small number of cases that had caused judicial concern. Citing commission statistics, she said 54 percent of economic crime cases involve less than $120,000 in losses and 83 percent involve less than $1 million.
Haag also argued that in some big cases involving investment fraud like Ponzi schemes, judges "don't seem to hesitate in imposing lengthy prison terms, noting the devastation these fraud schemes wreak on other people and the greed that motivated most of the defendants before them."...
In the last 18 months, federal prosecutors have handled investment fraud cases involving 800 defendants and more than $20 billion, she said. For the FBI, investment fraud is now 60 percent of its white-collar case load, she said.
Nonetheless, she said "certain categories of cases warrant careful study by the commission and potentially narrowly tailored amendments" to the fraud sentencing guidelines. Among the suggestions she gave would be for the Sentencing Commission to review how the guidelines treat loss in certain securities fraud cases where a drop in stock value by a few dollars per share can turn into a billion dollar loss.
Friday, September 13, 2013
Corporate official gets above-guideline sentence for conspiracy to hide safety violationsA helpful reader alerted me to this federal sentencing story from West Virginia which provides a useful reminder that federal judges sometimes use their increased post-Booker sentencing discretion to impose sentences above recommended guideline ranges (and may do so even for a defendant who has pleaded guilty and cooperating with authorities). Here are the notable particulars from a lengthy article about a notable white-collar sentencing that followed a high-profile workplace disaster:
A former longtime Massey Energy official will spend 3 1/2 years in prison for his admitted role in a decade-long conspiracy to hide safety violations from federal safety inspectors. David C. Hughart, 54, of Crab Orchard, was sentenced Tuesday afternoon to 42 months in jail and three years of supervised release after he pleaded guilty to two federal charges as part of an ongoing federal probe of Massey's safety practices.
U.S. District Judge Irene Berger ordered Hughart to serve a full year more than the high end of the 24- to 30-month recommended under advisory federal sentencing guidelines. The judge said the stiffer sentence was needed to account for the safety risks Hughart's crimes created and to serve as a warning to other mining officials not to put production before safety. "This sentence will promote respect for the law," Berger said.
The Hughart sentencing is another step forward as U.S. Attorney Booth Goodwin and his top assistant, Steve Ruby, continue what is likely the largest criminal investigation of a coal-mine disaster in modern times. The probe started with the deaths of 29 miners on April 5, 2010, in an explosion at Massey's Upper Big Branch Mine in Raleigh County, and has so far prompted four convictions and expanded well beyond Upper Big Branch....
Hughart is cooperating with prosecutors, having pleaded guilty to one felony count of conspiracy to defraud the government by thwarting U.S. Mine Safety and Health Administration inspections and one misdemeanor count of conspiracy to violate MSHA standards.
During a plea hearing in February, Hughart had implicated former Massey CEO Don Blankenship in the conspiracy, and Hughart's family has said Hughart is being wrongly scapegoated while Blankenship and other top Massey executives have faced no criminal charges. "He was a slave to this industry, and Don Blankenship will never see the inside of a courtroom," Hughart's son, Jonathan Hughart, told reporters after Tuesday's sentencing hearing.
Through his lawyer, Blankenship has denied any wrongdoing. And on his blog, Blankenship has said Hughart lied about him and was fired from Massey for drug use and stealing from the company.
Prosecutors have said that former executives and board members of Massey "may be, or may become" targets in the ongoing federal criminal investigation....
Earlier Tuesday, Hughart's $10,000 personal recognizance bond was revoked by U.S. Magistrate Judge R. Clarke VanDervort after Hughart was arrested on Aug. 30 on charges of possession of painkillers and anti-anxiety medication without a valid prescription. Hughart's bond required him to comply with all local, state and federal laws....
While Hughart hasn't been convicted of the drug charges, the arrest increased his recommended sentence under federal advisory guidelines by nine months. Hughart's lawyer, Michael R. Whitt, had urged Berger to issue a lighter sentence, arguing that Hughart's crimes could not be linked to any mining injury -- let alone to the Upper Big Branch Disaster -- and that his client was caught up in the "corporate culture" at Massey.
Whitt told Berger that Hughart's life has been ruined, with him going from an affluent lifestyle and a six-figure mine official salary to losing his home and becoming essentially destitute. "I think he has the message already," Whitt said. "He already knows without spending another day in jail."
Prosecutors, though, had asked for a stiff sentence, noting the "risk to human life and health" created by the conspiracies that Hughart participated in at Massey. "The defendant risked the lives and health of hundreds of coal miners," Ruby told Berger during Tuesday's hearing.
Previously in the Upper Big Branch probe, a former miner at the operation, Thomas Harrah, was sentenced to 10 months in jail after he admitted to faking a foreman's license when he performed key mine safety examinations at the mine between January 2008 and August 2009, and then lied to investigators about his actions.
Berger sentenced a former Upper Big Branch security director, Hughie Elbert Stover, to 36 months in jail after Stover was convicted of two felonies: making a false statement and obstructing the government probe of the mine disaster.
And in January, the judge sentenced former Upper Big Branch superintendent Gary May to 21 months in jail and a $20,000 fine after he pleaded guilty to plotting to skirt safety rules and cover up the resulting hazards....
During Tuesday's hearing, Hughart apologized for his actions and told Berger he had learned from his early days as a miner that "advance notice" of inspections was the way things were done. "I accepted that as the practice, and I understand now it is a serious issue, and it is against the law," Hughart said.
Berger noted previous evidence in the Upper Big Branch cases that suggested MSHA inspectors knew about -- and perhaps even cooperated with -- mine operators having pre-inspection notice. "Advance notice was apparently a common practice in the industry," Berger said. "It's difficult to believe that the only people who were unaware of these practices were the MSHA inspectors."
Terry Ellison, whose brother, Steve Harrah, died at Upper Big Branch, attended Tuesday's court proceedings. "I came for the 29 miners," Ellison said. "I don't want them to be forgotten. There was no reason they should have been killed that day."
September 13, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack