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May 5, 2006

Eleventh Circuit reverses extraordinary substantial assistance departure

The Eleventh Circuit today in US v. McVay, No. 05-13345 (11th Cir. 2006) (available here), reversed a sentence (in a high-profile white-collar case) for too great a downward departure based on substantial assistance.  Here is the start of the opinion:

The United States appeals from a sentence of 60 months' probation imposed by the district court on Malcolm E. McVay, the former Chief Financial Officer, Senior Vice-President, and Treasurer of HealthSouth Corporation ("HealthSouth").  McVay pled guilty to conspiracy to commit wire and securities fraud that resulted in losses of some $400 million, and to false certification of financial information filed with the Securities and Exchange Commission ("SEC").  On appeal, the government argues that the trial court erred by downwardly departing so drastically from the Sentencing Guidelines range -- from an offense level 29 to an offense level 8 -- based on the government’s substantial assistance motion, filed pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. This 21-level departure resulted in an adjustment from a Guidelines sentencing range of 87 to 108 months' imprisonment to a sentencing range of 0 to 6 months' imprisonment.  The government says that this extraordinary downward departure was unwarranted as a substantial-assistance adjustment. 

After careful review of the record and the parties' briefs and oral arguments, we conclude the district court reversibly erred by downwardly departing so sharply, based on substantial assistance, virtually without explanation, and on a wholly improper basis.  Accordingly, we vacate McVay's sentence and remand for resentencing consistent with this opinion.

May 5, 2006 at 03:39 PM | Permalink


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As the court makes clear, this is the fourth time that this Judge has so brazenly and inexplicably departed in this fashion. How many times before impeachment proeedings? How many times before a Justice Department investigation into the peuliar motivations behind such aberrant behavior when dealing with multi-bilion dollar white collar criminals?

Posted by: anonymous | May 5, 2006 10:44:24 PM

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