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August 19, 2005

Is the Fifth Circuit hesitant to deem a guideline sentence unreasonable?

As a thoughtful follow-up to this post on all the Fifth Circuit's Booker work yesterday, Tom Kirkendall at Houston's Clear Thinkers rightly asks in this post "But what about Jamie Olis?"   As Tom notes in his post, the Olis appeal was heard by the Fifth Circuit back in February, and now more than half a year later we still have no word on whether Olis' severe 24-year sentence is unreasonable under Booker as greater than necessary to comply with the purposes of punishment.   

Though I believe a lot of matters beyond sentencing issues were raised in the Olis appeal, I cannot help but speculate that part of the delay may be hesitation on the part of the Fifth Circuit to declare a sentence within the guidelines unreasonable.  Though I believe a few sentences outside the guidelines have been deemed unreasonable on appeal after Booker, I do not believe there has yet been a within-guideline sentence declared unreasonable.  But especially given that top dog Bernie Ebbers "only" got 25 years and that the Enron Nigerian barge defendants received below guideline sentences, the Olis sentence seems even more out-of-wack. 

To quote Tom's clear thinking: "The Fifth Circuit has an opportunity to begin redeeming its reputation in business cases in the Olis appeal, but justice delayed is often justice denied. Here's hoping that a decision in the Olis appeal is forthcoming any day now."

August 19, 2005 at 11:57 AM | Permalink


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I don't think the phrase "justice delayed is...justice denied" applies in Olis's case.

I certainly agree that Olis's sentence was unreasonably long. But by almost any definition of reasonableness, he would almost certainly still be in prison anyway.

I mean, even if he'd received a 2.4-year sentence instead of a 24-year sentence, he'd still be behind bars.

(Is the Olis appellate brief available anywhere online?)

Posted by: Marc Shepherd | Aug 19, 2005 2:09:51 PM

The 5th circuit website doesn't have the briefs. I logged onto Pacer but all I got for you was the non-hyperlinked docket sheet (which shows a steady stream of additional authorities submitted to the panel). And westlaw doesn't have the briefs either. I guess the 5th doesn't do electronic filing. Go figure.


Posted by: jason | Aug 19, 2005 3:44:47 PM

Mark- You are way off in presuming that this extreme delay by the Fifth Circuit is of no consequence in this particular case. Because of the sheer length of the sentence, Olis was placed in a much higher security prison than anyone else in a similar circumstance and he was placed as far away from his family as was allowed under the Bureau of Prisons policy. This combination would greatly affect his ability to interact with his family and with his infant who was 6-months old at the time of his sentencing. If you still have a "so what"-level reaction, consider that, Olis, a mid level tax executive who did not pocket any money from the supposed shady accounting transaction is the only person that was pursued for this alleged mass conspiracy that, according to the prosecutors, involved the CFO, the Chief Accountant, numerous Dynegy officers, Vinson & Elkins legal experts and top level bank executives as his co-conspirators yet none of them were pursued. The fact that prosecutors chose to pursue just one mid level guy and then stop, makes no sense.

Mr Olis' boss, who is still sitting at home by the way almost 2 years later and who may never see the inside of a prison wall, provided the only conspiracy testimony that was offered against Olis, and he also named all those top level executives and experts as co-conspirators- so why not have pursued them all instead of focusing on this one mid level guy?

The only message of deterrence that is loud and clear in these complex business transaction cases is- don't be the last one standing against the government when you are suddenly on the wrong side of an aggressive political agenda- or as in Mr. Olis' case, don't be the first one standing. It can cost you your life and actual innocence doesn't really matter after all.

Posted by: FJO | Aug 21, 2005 1:03:36 AM

FJO, you are right about the injustice of Olis being in a maximum-security facility, a long distance from his family. That is indeed unfair.

However, I believe you are incorrect when you say that Olis was the only person pursued for this "mass conspiracy." As I recall, a number of other Dynegy staffers were indicted. The others pleaded out, and received dramatically lower sentences. Olis made the mistake of going to trial, and as we know, the system exacts a heavy penalty if you force the state to prove its case, and you are convicted. He may spend the rest of his life wishing he could take back that gamble.

I don't have a 'so-what' reaction to the Olis case. It is an egregious example of the law gone wrong. My only point was that, given the offense of conviction, he was probably doomed to spend a number of years in prison, no matter what the Court of Appeals may do.

Posted by: Marc Shepherd | Aug 22, 2005 8:45:05 AM

In fact, I have not had any luck in getting the Fifth Circuit to acknowledge that reasonableness review is a distinct ground for review than Sixth Amendment or "Fanfan error." If you add a reasonableness challenge as another point of error, they will not even address it.

They are expecting Booker to go away when the pipeline clears and are giving cursory treatment to all things Booker in the meantime.

Posted by: R/W | Aug 22, 2005 10:03:46 AM

Marc- Sorry to have to disagree with you again. No one else has been sentenced. You are correct that there were two other indictments, and I realize now that I gave a different impression earlier. Mr. Olis was the only one tried but both an accounting manager and Mr. Olis’ boss were indicted. They both pled guilty to a conspiracy rather than face the "heavy penalty" of going to trial but they were never sentenced. Isn't this at the very core of why we should suspect any conviction based on the testimony of someone who is essentially bribed by the government to help them convict someone else? Isn't this why being the only one standing in a business conspiracy case is the worst position any defendant can be in? So then the answer is- give up- which in reality means do what you have to do to earn your plea agreement which is exactly how these cases are being built.

Don’t doubt that prosecutors in these cases are playing games with evidence and using strategies that include keeping evidence out that could benefit the defendant. It is happening and it happened here. Look at other mass conspiracy cases where the majority of the co-conspirators are never charged just like this one which means they will all be silent. No one in their right minds will voluntarily put themselves in jeopardy by testifying for the defense- they know (and sometimes are even very helpfully told) that they would be a DOJ target the following day. This is suppressing evidence- right? And it is happening over and over again and innocent people are going to prison. Remember that a crime is supposed to require knowledge and intent- the issue is that both can easily be created through bargained testimony. Government keeps pointing to the secretive nature of these transactions as evidence of intent to commit crimes— Gee whiz- how ridiculous is that when every significant business transaction is supposed to be secret until it is done and disclosed to prevent insider trading, preventing losses from competing interests and many other accepted business focused reasons. Look at the money flow and see that none of it was flowing into these people’s pockets and ask why they would jeopardize everything to commit a crime- they wouldn’t.

I don’t mean to rant about this but this case is a tragedy and it is a great loss. Not just to the Olis family and to many other families that are experiencing this also, but it is a loss of trust that most of us grew up with- the trust and confidence in our government and our system of justice. It is too great a risk to defend yourself against the government when they are abusing their overwhelming power to coerce plea agreements- and the bargain is, get back your life if you help us convict someone else- an offer that most even those who are innocent, can’t refuse. The only thing that would make someone take that chance is an absolute belief in their own innocence, in the evidence supporting that and a strong trust in our system of justice- a trust that it no longer deserves.

Posted by: FJO | Aug 22, 2005 2:57:10 PM

after reading what you guys have to say,, you need to get out of the lemo's and away from the countryclubs and get in touch with the real world!!! its not the Olis's sentence was to long,,, everybody else's was too short... there are people in prison this long for stealing food!!!! i find it interesting that at least 9 people got little or no time for testifying against richard scrushy (like michael martin = 7days in jail and probation) and after all those deals, and reduced sentence plea bargains, scrushy was eventually found not guilty!!!!

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