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May 26, 2006

Enron guideline calculations (and a fascinating post-Booker question)

In this list of first-cut Enron sentencing questions, I speculated that the (advisory) federal guideline sentences for Ken Lay and Jeff Skilling could be life or at least 360 to life.  Confirming my instinct is guideline guru Frank Bowman, who already has prepared a snazzy PowerPoint presentation, entitled "Sentencing Ken Lay & Jeffrey Skilling" that you can access here thanks to Peter Lattman at the WSJ Law Blog.  Frank concludes that both Lay and Skilling face guideline recommendations of life sentences based on his calculations (which, notably, do not even include enhancements for obstruction of justice).

In thinking (and talking to others) about the Enron guideline calculations, one especially fascinating post-Booker question has my mind racing: Which version of the guidelines should apply to Lay and Skilling?

I am pretty sure the fraud guidelines were amended significantly to increase sentences in white-collar cases in November 2001 and again in November 2003.  Before Booker came along, it was settled law that ex post facto concerns generally required district judges to apply the version of the guidelines in place at the time of the crime.  (This old-world reality itself raises some issues, since arguably some offense conduct took place in late 2001.)

After Booker, there is a reasonable argument that ex post facto concerns no longer limit the application of the current guidelines even if they provide for harsher sentences.  (In fact, I believe Judge Easterbrook has some dicta in a post-Booker opinion to this effect.)  After all, the guidelines are no longer binding law, just intricate advice. 

Shouldn't Judge Sim Lake at sentencing consider the most up-to-date advice from the Commission?  If the guidelines themselves are so darn reasonable and incorporate all the 3553(a) factors (as a few district judges and many circuit judges like to stress), why should Judge Lake rely on old, out-of-date and less reasonable advice from 2000 or 2001 when sentencing Lay and Skilling?  In short, many of the justifications for attentiveness to the guidelines in the post-Booker world seem to call for applying the latest version of the guidelines now that they are only advisory.

So, dear readers, should the 2000 guidelines or the 2001 guidelines or the 2005 guidelines apply to Lay and Skilling?  And what version of the guidelines will prosecutors to argue for (given than we can be sure the defense will argue for the most lenient 2000 guidelines to apply)?

May 26, 2006 at 12:25 PM | Permalink


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Et tu, Brute?

Posted by: defender | May 26, 2006 12:36:06 PM

Defender is falling into the trap of the defense sterotype. Prof. B. is about both process and substance. He is not result-oriented (most of the time). Would Defender still be mad if the current version was more lenient? The good Prof. is trying to chart a principled path. We should respect that regardless of the specific outcome for particular defendants.

Posted by: Huh? | May 26, 2006 3:57:18 PM

Now this is an interesting stew of retroactivity issues. Here we have guidelines that would have been mandatory under the law in effect at the time of the crime, so that toughening changes couldn't apply retroactivily, but the statute was changed so they are advisory so changes can be retroactive.

But wait, there's more. The change in the statute wasn't made by the legislature, which we know can't make substantive criminal law tougher retroactively. It was changed by the Supreme Court through the strike-down-and-sever mechanism. So, can that action apply retroactively? Under Rogers v. Tennessee, 532 U.S. 451 (2001), courts have greater power than legislatures to make retroactive changes. See id., at 468 (Scalia, J., blowing a gasket).

I don't claim to know the answer to Doug's question, but it will be interesting to watch.

Posted by: Kent Scheidegger | May 26, 2006 6:04:57 PM

Before getting too concerned about retroactivity and ex poste facto concerns, it would behoove us to determine if it really makes a difference.

Lay and Skilling are not young guys. In real life, just about any sentence of thirty years or more is a life sentence, and even a twenty year sentence has a good chance of being a life sentence.

Moreover, cases like Enron's are at the top of whatever sentencing scheme is in place, and there has always been some opportunity to deviate up from the guidelines in extraordinary cases.

If you can get to 30 years by adjusting up under the old guidelines and can get a sentence at least as long under the new guidelines, it doesn't really matter.

Posted by: ohwilleke | May 26, 2006 6:48:48 PM

Ohwilleke may well be right that it doesn't matter, but that doesn't mean it won't be litigated. I've seen cases where lawyers argue and judges decide issues on 1- and 2-year weapons enhancements when the underlying sentence for first degree murder is life without parole.

Posted by: Kent Scheidegger | May 26, 2006 8:21:15 PM

As a criminal defense attorney (Atlanta) and an avid reader of this blog, I am disappointed that a "sentencing expert" such as Prof. Berman would even suggest that the ex post facto clause might/should not apply. Every circuit has ruled that the guidelines must be accurately calculated before applying section 3553(a) factors. The guidelines themselves and controlling case law require that the guidelines in effect at the time of the offense of conviction must be used if the resulting guideline range would be less severe than if the current guidelines are used. (see 1B1.11). The advisory nature of the guidelines doesn't change this one iota.

Posted by: steve sadow | May 27, 2006 11:10:58 AM


Why don't the advisory nature of the guidelines change the ex post facto equation completely? The guidelines are no longer binding law (and, in my view, should only be viewed as one factor in the sentencing calculus). Unless the defense bar is prepared to concede that the guidelines are still binding in some sense, we all need to grapple with the ex post facto implication of Booker.

And, Steve, this "sentencing expert" is disappointed that a criminal defense attorney is disappointed the minute I raise an issue that might not favor the defense bar.

Posted by: Doug B. | May 27, 2006 1:01:11 PM

The simple answer is that the guidelines are still "binding" in the sense that the circuits uniformly require them to be faithfully calculated first, notwithstanding they are merely advisory. While I do not think this is in anyway mandated by Booker, it is the analytical approach adopted by the circuits. That being so, the sentencing court is not free to disregard the ex post facto clause, made applicable to the sentencing guidelines by section 1B1.11(b)(1), until the guideline calculations are made. Then and only then do the sentencing guidelines truely become advisory.

By the way, I am confident that we will both get over our disappointments without permanent damage.

Posted by: steve sadow | May 28, 2006 10:52:54 AM

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