Hacking into the world of Blakely

Making headlines and getting the attention of the blogsphere today are the sentencings of the defendants who last year hacked into the national computer system of Lowe's hardware stores and tried to steal customers' credit card information.

This AP story notes that the government is calling the nine-year sentence given to Brian Salcedo, who pleaded guilty in August to conspiracy and other hacking charges, "the longest prison term ever handed down in a computer crime case in the United States."  But Professor Orin Kerr at The Volokh Conspiracy explains here his sense "that there really isn't anything interesting about this case."

I basically concur with Orin's first take on the case, though I do think the plot is starting to thicken.  First, this follow-up AP story indicates that Salcedo's co-defendant, Adam Botbyl, today received a sentence of only 26 month.  Though I would need a lot more information to pass judgment, this prior story discussing the defendants' seemingly comparable roles in the offenses makes me wonder why Salcedo is getting a sentence four times longer than his co-conspirator.

Further, though not discussed in any of these news stories, I wonder about how Blakely fits into all of these developments.  The press reports indicate the plea deals were being put together just as the Blakely earthquake hit.  Of course, by late August, the Sixth Circuit had ruled in Koch (details here, commentary here) that Blakely should not apply to the federal sentencing guidelines unless and until the Supreme Court so held.  But that holding may be disrupted by Booker and Fanfan, and I cannot help but speculate about what kind of Blakely waivers might have been requested and secured by the government while negotiating the plea agreements in this case.