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October 26, 2005

Has Patrick Fitzgerald done guideline calculations?

This morning I am off to Cincinnati to deliver a lecture on "Sentencing After Booker" at the Sixth Circuit Practice Institute. I will thus be off-line until late this afternoon.  And, if the blogosphere and media buzz is to be believed, the biggest of sentencing questions upon my return may concern the possible guideline ranges that would apply if convictions follow a set of high-profile indictments expected from the special prosecutor in Washington DC as early as today. 

Notably, last week, a group called Velvet Revolution (which sounds like the original back-up band for Prince) issued this press release asserting that it "has done an analysis of the Federal Sentencing Guidelines and its probable effect on the sentencing of any senior White House official convicted in the Valerie Plame affair."  According to this analysis, which I would not take to the bank, "if convicted, [these officials] could receive a sentence up to life in federal prison under the United States Sentencing Guidelines."

October 26, 2005 at 08:54 AM | Permalink


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Who ARE these clowns?

Posted by: Huh | Oct 26, 2005 1:36:10 PM

Well, as a practical matter, in the worst case scenario for the defendant, it could add up to close to life for a defendant now in middle age. Here's how I would calculate the maximum sentence: The Intelligence Identity Protection Act, 50 USC 421 et seq., specifies a maximum sentence of 10 years (50 USC 421(a)). But the Act also specifies that "[a] term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment." (50 USC 421(d); see also USSC 3D1.1 (multiple counts) and 3D1.2 (groups of closely related counts)). Let's assume two counts of a violation of 18 USC 421(a), separately leaking to either Miller or Cooper and to Novak, and an obstruction count in violation of 18 USC 1510. The statutory maximum for the obstruction count is 5 years. The relevant Guideline for a violation of 18 USC 421 is 2M3.9: the base offense level is 30 where the defendant had authorized access to classified information identifying the covert agent (it's 25 if the defendant did not have such authorized access). Assuming no criminal history, according to the sentencing table the defendant will be sentenced to from 97 to 121 months, except that the statutory maximum is 120 months (ten years). Now turn to the obstruction count: Usually we'd add two levels to the base offense level, applying USSC 3C1.1, where a defendant is convicted of both obstruction and an underlying offense. But here, because of the consecutive sentence provision of 421(d), I think the defendant would have to be sentenced separately for obstruction. Applying the relevant Guideline, 2J1.2, we have a base offense level of 14. I'll assume none of the listed increases under 2J1.2 apply, and again assuming no criminal history, we have a sentence of 15 to 21 months. So, assuming sentencing at the top of each range (which in this case is unlikely), we have consecutive sentences of 120 months, a second 120 months, and 21 months, for a total of 261 months, all together just shy of 22 years.

Note that if there is an alleged conspiracy between Libby and Rove, and, say Libby leaked to Miller and Rove leaked to Cooper, we might suddenly have three IIPA counts plus a conspiracy count (which, separately considered results in a base offense level of 30 plus 3, or 33 (see 2X1.1), for sentence of 60 months since the maximum sentence for conspiracy is 5 years), as well as the obstruction count assumed above. This adds up to a maximum of almost 37 years. That's probably close to life for Rove or Libby. Note please that these are theoretical maxima. I doubt the sentences, if there are indictments and convictions, will be this high.

Please also note that I am not involved in this case in any way and the assumptions made here are based on reports in the press.

Phillip C. Zane
Attorney (practice includes defending clients accused of federal offenses such as antitrust, fraud, money laundering, FCPA violations, TWEA violations, etc.)

Posted by: Phillip Zane | Oct 26, 2005 5:16:11 PM

Patrick Fitzgerald is a liberal asshole
who should be removed from office,foribl
if necessary. We dont need his type.We
are coming to Ill. to do a citizen`s arrest
on him. Ed Zink Lt.Col USAf.Ret.

Posted by: Lt.Col Ed zink | May 12, 2007 8:46:21 PM

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