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October 28, 2005

Sentencing dynamics in CIA leak investigation

The five-count, 22-page indictment of I. Lewis "Scooter" Libby in the CIA leak investigation can be accessed here, and a nine-page DOJ press release is available here.  That official press release in the penultimate paragraph says this about the possible sentencing of Lewis Libby on these charges:

If convicted, the crimes charged in the indictment carry the following maximum penalties on each count: obstruction of justice – 10 years in prison, and making false statements and perjury – 5 years in prison, and each count carries a maximum fine of $250,000, making the maximum penalty for conviction on all counts 30 years in prison and a $1.25 million fine.  Note, however, that the Court would determine the appropriate sentence to be imposed.

In addition to continuing to wonder whether special prosecutor Patrick Fitzgerald has done guideline calculations, I am also now wondering about what might qualify as "relevant conduct" at sentencing if Libby is convicted and, of course, whether and how a plea deal with Libby might emerge.

UPDATE: During his press conference, Fitzgerald responded to a question about the maximum possible sentence that Lewis Libby could receive by stressing that federal judge are to consider at sentencing guidelines that are now "nonbinding" and that take into account "all sort of factors."

October 28, 2005 at 02:10 PM | Permalink


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Tracked on Oct 28, 2005 3:06:01 PM


Defense attorney comment - charge low, sentence high is the name of the game for federal prosecutors. Booker perpetuated that game. Here, charge Libby with perjury and obstruction (easy to prove, it appears), then sentence him for intentionally outing CIA agent (intent hard to prove beyond a reasonable doubt, not so hard to prove by a preponderance).

Posted by: Mark | Oct 29, 2005 12:23:23 PM

I am a retired Chief USPO working a sentencing consultant.
I've just given a quick read of the Libby indictment. It appears the best case scenario, albeit unlikely one, would be for Libby to cut his losses and plead to one count of False Statement. That could result in a cross reference to either Obstruction of Justice or Perjury and possibly a level 12 (Level 14 minus 2 for acceptance of responsibility). The guideline range for level 12 is 10 - 16 months and could result in a non-jail sentence.
Otherwise, there are any number of possibilities including Libby pleading guilty to the five counts and still ending up with Level 12, or Libby pleading guilty to only one of the five counts and having the court decide that there was a substantial interference with the administration of justice resulting in 3 more points added to the level 14 for a total of level 17. With three off for acceptance of responsibility, the result would be level 14, guideline range 15 - 21 months.
Perhaps the worst case scenario is for Libby to go to trial and have more details emerge about his deceptions. If he were found guilty after trial of any one of the five counts, he could be facing a much higher sentence.
For example, if, after trial the government could show by a preponderance of the evidence that the obstruction or perjury involved obstructing the investigation or prosecution of a criminal offense, then the guidelines call for application of Accessory After the Fact in respect to that criminal offense.
The criminal offense in question is outing Valerie Plame, a violation of Title 50 U.S.C.§421. This violation is found at §2M3.9 of the guidelines (Manual 2003 used for last date of overt act of Perjury etc.)
Because Libby was a person with authorized access to classified information identifying a covert agent, the Base Offense Level is 30.
Level 30 is reduced by 6 levels because the guideline at Accessory After the Fact requires a six level reduction for the underlying offense.
Thus the result would be level 24. The guideline range is 51 - 63 months. If Libby should plead guilty and the court found at sentencing (by a preponderance of the evidence) that Libby did obstruct the investigation of a T.50:421 violation, then Libby would get the benefit of three levels off for acceptance of responsibility and the level would be reduced to level 21, guideline range 37 - 46 months.
This is of course, highly speculative and it should be kept in mind that whatever the guideline range is, the judge must also consider the factors at 18:3553(a) and is only required to consider the guideline range.

Posted by: Francesca Bowman | Oct 29, 2005 12:47:30 PM

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