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November 10, 2004

Lots of morning sentencing news

The papers are filled with two sets of sentencing-related stories.  The Supreme Court's decision in Leocal v. Ashcroft — holding that DUI is not a "crime of violence" for which an immigrant can be subject to automatic deportation — is thoughtfully discussed in articles in the NY Times and LA Times. Both pieces suggest that the impact of this seemingly little decision could be very big; the NY Times article quotes Ira Kurzban, a prominent immigration lawyer in Miami, saying Leocal is "going to have an immediate and significant impact on a large number of cases."

The work of the Enron sentencing jury (detailed here) is also discussed widely, and this Houston Chronicle story covers the sentencing angle most effectively. In the article, one of the defense attorneys describes the Blakely-inspired sentencing phase of the trial as "exceedingly weird — pure guesswork." An AP story here provides broader coverage.

UPDATE: With thanks to How Appealing, here is a Philadelphia Inquirer editorial entitled "Sentencing Guidelines: Court should fix a problem it created."

November 10, 2004 at 06:33 AM | Permalink


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Mr. Kurzban is correct, Leocal is an important case. Within that case the Court gives a good definition of "crime of violence" as see in 18 U.S.C. sec. 16. I suggest that anyone who practices federal criminal law take a look at this case and note the definition and discussion of crimes of violence. However, you must remember that, odd though it may seem, there are different versions of crimes of violence within the statutes and the Guidelines; accordingly, this definition will not apply in all cases. I also suggest that folks keep an eye out for the Court's decision in the Sheppard case, which was argued this past Monday. That case involves, inter alia, the term "violent felony," which is different than a crime of violence. Welcome to the world of federal criminal justice.

Posted by: doug morris | Nov 10, 2004 1:02:29 PM

Can anyone explain what the "amount of loss" is supposed to be? My understanding is that fraud and theft guidelines were combined and so "amount of loss" emerged as another punishment factor however this is not money in your pocket or money you hoped to put in your pocket which is easy to determine in a theft case- it is money loss in any form even money taken off the companies' books. Money ironically that these defendant's worked to put on the company books.

I didn't hear about any direct personal profits from this to these people so where are we going here as a society that is supposed to be concerned with just and appropriate punishment for intentional crimes? Do you really think that a change of 1 cent in earnings directly cost shareholder's $14million or 120k or $43million? I know I'm not looking at my very few (and low performing) stocks and selling based solely on a 1 cent difference in earnings and I doubt that the large investment managers are doing that either. How do you factor in shareholder confidence and economic trends etc that certainly factor into share price yet make a few people pay an extreme criminal penalty for that guesswork? How can someone reasonably be punished with losing 5 or 10 or more years of their lives for a number basically selected somehow off the a "Wheel of (Mis)Fortune" that is called a direct loss to shareholders. If you are talking about a "loss" to poor Enron- don't believe for a second the highest levels didn't know and approve how these deals were being conducted and were willing to take the risk of aggressive deal making. Since the jury isn't talking about how they got to the number, we may never know but I'd sure like a chance to inspect the walls of the jury room for some dart indentations. Unfortunately, the shareholders continue to lose here but this is not the answer.

Posted by: Non-Lawyer | Nov 10, 2004 1:04:37 PM

I hate u so much .. took away my whole why did u have to ruin my whole life .. now i cry my self to sleep every night just cause u sentenced one of my relatives! now for 5 years every night i haev to cry haev a whole in my heart be depressed be afraid of the whole school finding out abotu it! u ruined my whole life u are a bad judge casue u took my whole life away! now i can never be happy! never ever again! thanks a lot!

Posted by: Allison | Mar 7, 2005 6:37:11 PM

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