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March 6, 2007

First-cut Libby guideline calculations?

In this post early during the Libby deliberation I encouraged thoughtful musing about the advisory guideline range that Libby might be facing were he convicted on all counts.  (As regular readers know, for sentencing purposes, conviction on four of five counts is good enough for government work.)

A number of commentors set forth a number of guideline calculation scenarios.  It is easy to conclude that Libby falls into Criminal History Category I, but commentators suggested his offense level could be 14 or 17 or 19 or 24 or 27 or 30.

If Libby's calculated offense level is as low as 14, his advisory guideline sentencing range would be only 15-21 months;  if it is as high as 30, his advisory guideline sentencing range would be only 97-121 months.  Big difference (and this analysis does not even begin to cope with Booker and 3553(a)).

March 6, 2007 at 01:37 PM | Permalink


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Does anyone think this case gets tossed on materiality grounds, as Kent mentioned earlier?

Why the prosecutor continued this investigation once he knew Armitage did the leaking is beyond me.

Posted by: | Mar 6, 2007 1:46:51 PM

The advisory range will be based on an offense score of either 16 or 19. The base offense level is 14, and there is a presumable 2 point bump for abuse of a position of trust. He could get a 3 point bump for interference in the administration of justice, as per the Guideline, even though that seems very redundant with the obstuction charge. Under the 2003 SG, a 16 is 21-27 months and a 19 is 30-37 months. Both are in Zone D. I'm guessing 16.

Posted by: Educated Guess | Mar 6, 2007 1:57:02 PM

The high estimates (above three years) are based on a big Guidelines jump for covering up the crime of disclosing Plame/Wilson's identity. As the government chose not to indict anyone for that crime -- for reasons that are apparently unrelated to Libby's fabrications -- it seems very unlikely that it would ask for or get that enhancement.

Posted by: AF | Mar 6, 2007 2:48:33 PM

How about setting Libby's sentence by proportioning it to Sandy Berger's sentence for stealing highly classified documents and smuggling them out of the archives?

Berger got 100 hours of community service and a $50K fine. Applying the appropriate proportion for the relative seriousness of the offenses, Libby should get 6 minutes and $50.

Posted by: Kent Scheidegger | Mar 6, 2007 3:23:44 PM

I think the interference with the administration of justice is already accounted for in the obstruction conviction. It would be hard to show that he interfered, apart from his lying. My guess is that the judge will sentence him at the high-end, e.g., 21 months

Posted by: Percuriam | Mar 6, 2007 3:39:49 PM

AF - Such an enhancement could be recommended in the PSR by the probation officer without the Government asking for it. Libby would then object, presumably, and the court would resolve the issue. The Government may argue against it, but I'm not sure how often such a thing happens in the DC District.

Posted by: JDB | Mar 6, 2007 3:45:52 PM

I don’t really care one way or the other about politics, but there are a number of policy reasons why he needs to do hard time.

1) He did not plead guilty. Because of a failure to take responsibility, there is absolutely no reason that he should not do time. Without harsh trial taxes people would demand trials. While trial taxes seem unconstitutional, every circuit has approved of them. Sandy Berger, on the other hand, owned up to what he did. This means that, as a policy matter, the damage he did is a lot less. Kent, more than anyone, should appreciate the necessity of punishing people for making erroneous not guilty pleas.

2) The first comment, at 1:46:51 PM, makes no sense, because he was not prosecuted for leaking anything.

3) I am sure that Kent also agrees that we need to send a harsh message that you cannot lie to investigators. Everyone with a brain knows that you should refuse to talk to them unless accompanied by your own counsel. A conviction, coupled with hard time, will send a strong message to people that think that it is acceptable to talk to investigators without a lawyer. I am sure Kent agrees that we need to send such a strong message.

As to the substance, I concur with Educated Guess for the reasons he gave.

Posted by: S.cotus | Mar 6, 2007 3:54:13 PM


Your stripes are showing again ya' partisan hack. Berger plead out to charges that were substantially less than what the jury found Mr. Libby has done. Looking at some "high profile" similar cases - Martha & Lil Kim -- both got about a year. Scooter will get no less than that, but I would anticipate, real world, a sentence between 30 - 60 months "to send a message" with a strong possibility of a dramatic upward departure.

But let's be real, he will be pardoned either the day after the elections or much sooner. God forbid this case remains in the headlines with Mr. Libby getting out of jail just prior to the elections (assuming a year bid) or -- assuming bail pending appeal -- his going off to jail during the run up to the elections .

Posted by: anonymouse | Mar 6, 2007 4:35:01 PM

Mouse, I would not count on a pardon, even though if I were the president I probably would do it. This really isn’t this administration’s style. But, stranger things have happened.

Posted by: S.cotus | Mar 6, 2007 4:53:31 PM

My point, for those who didn't get it, was that Berger was let off ridiculously easy for what he had done.

Posted by: Kent Scheidegger | Mar 6, 2007 5:18:11 PM

Typical republican tactic: change the subject to talk about democrats.

Posted by: Anon | Mar 6, 2007 5:31:41 PM

Kent, Now is your chance to be a lawyer. Show us what error or abuse of discretion anyone in the Berger conviction and sentencing made. Merely complaining about the sentence is now enough. You need to cite to every statute and guideline, and show who made the error.

Posted by: S.cotus | Mar 6, 2007 6:10:43 PM

S.cotus, given Mr. Scheidegger's record at the Supreme Court, which should speak for itself, it's interesting that you would say something like that.

As for the leak, once Fitzgerald knew that Armitage leaked the info, why didn't he close up shop? Why did he continue the investigation into who disclosed what? Did he view his subpoena power as something simply to get at the truth about what was done to the lying SOB, Joe Wilson? If so, that's an abuse, and I think everyone here, partisan hacks excluded, would agree that there was no underlying crime--so why was the investigation even carried out?

Posted by: federalist | Mar 6, 2007 6:20:49 PM

Federalist, You are one to talk. You never cite anything. Most of your arguments (this one included) can be boiled down to “Everyone agrees with me.” While Mr. Scheidegger does usually provide specifics, you can’t just rely on the fact that he once filed a few amicus briefs (which I don’t consider real Supreme Court advocacy) to justify his position. But, I don’t mean this out of disrespect, since I have never argued before the Supreme Court.

You also don’t seem to know too much about the role of the special prosecutors. But, if you think that Fitzgerald did something wrong, or abused his discretion, then cite your authority. If you can’t do that, then you are just being a hack.

Calling Joe Wilson a “lying SOB” doesn’t seem to be a form of legal advocacy.

Posted by: S.cotus | Mar 6, 2007 6:48:11 PM

S.cotus. You're the hack. The issue about Fitzgerald knowing that Armitage was the source of Novak's story is common knowledge to anyone bothering to inform themselves of this story. So the question becomes why Fitzgerald, at not inconsiderable cost to the taxpayers and to people like Juidth Miller continued with this investigation. This was an abuse. A waste of resources. And this is not caselaw--just common sense, so I don't know what the authority I am supposed to cite. But just because something isn't in the caselaw doesn't mean that it's not open to criticism either. Up until Lawrence, sodomy laws were constitutional, but prosecutions under them were an abuse. Well, here, there was no underlying crime and the person who "leaked" was known to the prosecutor almost immediately--yet he continued on.

And Joe Wilson is a lying SOB. The lying is a matter of public record. The SOB is an editorial comment.

Posted by: | Mar 6, 2007 7:49:08 PM

Sorry, you can’t get much mileage out of calling me a hack. If I make a point, I cite my sources. If you disagree, you can. I don’t care one way or the other about this guy. You don’t even seem to know what Fitzgerald’s office was tasked to do. (If you do, you don’t state it.)

You do raise a strange issue, which is whether Fitzgerald would be the only prosecutor in the country that has absolutely no power to prevent people from lying to him.

Saying that things are a matter of “public record” seems to indicate that you might not be a lawyer. What “record” establishes that he lied about something? He has not been convicted of perjury or false statements. Again, in order to be taken seriously you need to provide specifics.

You might be able to convince people that agree with you that you are smart, but if you want to convince skeptics, you need to provide details. This is how we roll in law world.

Posted by: S.cotus | Mar 7, 2007 7:14:37 AM

You're right, S.cotus, I don't get much mileage out of calling you a hack--nitwit is a more apt description.

First, so what if Joe Wilson hasn't been convicted of perjury? He is a liar--as he lied about what he discovered on his trip to Niger and when he supposedly saw forged documents. A bipartisan Senate Committee found as much, and Joe Wilson admitted to embellishing things. If you don't keep up with current events, that's just too bad.

Second, the issue is not, as you characterize it whether Fitzgerald has the power to prevent people from lying to him about material matters--he does. The issue is that he was tasked to determine whether laws were broken with respect to the disclosure of Valerie Plame's status with the CIA and who disclosed that status. Soon after he started his investigation, he found the answer, Richard Armitage, and he also determined that there was no law broken with respect to the disclosure anyway. Yet, he continued his investigation--why? It's a legitimate question, and one does not need case law to ask it.

That's how we roll in the real world, of which the legal world is merely a part.

Posted by: federalist | Mar 7, 2007 11:27:04 AM

I don’t really care about Joe Wilson. But since you have not shown that anything he said was untrue (yet alone a lie) I tend to suspect that you are just repeating political talking points. Now, there is nothing wrong with this. Many people that do this lead happy lives. But, it is not what real lawyers do, and this is why you can’t be taken seriously.

Again, you need to cite your sources. If you can show that Fitzgerald somehow exceeded the scope of his mandate, or sought an indictment for something that he should not have, then you might have a point. You could even argue that he didn’t have the authority to seek such an indictment. But, you did not. You need to cite sources. You did not. This is why you can’t be taken seriously. Again, there is nothing wrong with your chosen lifestyle. It just isn’t what lawyers do.

You can live in your “real” world if you want. I suspect that you would be a lot happier dealing with non-lawyers. I will stick to being a lawyer and associating with lawyers. When our worlds intersect, it isn’t for the good. You get frustrated when asked to cite sources. I feel icky for talking to a non-lawyer.

Posted by: S.cotus | Mar 7, 2007 11:46:42 AM

S.cotus, are you really that obtuse?

Here's a WaPo report on Wilson: http://www.washingtonpost.com/wp-dyn/articles/A39834-2004Jul9.html

You can go look up the Senate report yourself.

As for citation of authority with respect to Fitzgerald: I did not say that Fitzgerald exceeded the scope of his mandate, I merely questioned (and criticized) the use of scarce resources to investigate a non-crime (i.e., disclosing Plame's status) and continuing the investigation once he knew that Armitage was the source of Novak's information. This is not a legal argument, as I am not arguing that Libby's conviction be tossed on this basis. A good analogy, S.cotus (they do use those in the "law world", don't they?), would be criticism of President Clinton's pardons. None of them were based on legal arguments, as the President's power is virtually absolute (there is some question as to whether a bribe would negate a pardon). Is it illegitimate to criticize them simply because there is no authority?

Posted by: federalist | Mar 7, 2007 12:12:22 PM

First of all, I need to answer your coherent question: Is it illegitimate to criticize them simply because there is no authority?

Answer: Yes. It is not only illegitimate, but immoral.

You cited a newspaper article. Not acceptable. You didn’t even say what the newspaper article was saying, and why you were citing it. But, for fun, I figured that I would read it. The article is devoid of specifics. it does not say that he lied. It refers to a report that you did not read (but you alluded to). I actually doubt that the author of the article read this “bipartisan” report, themselves.
You didn’t refer to a specific Senate Report (i.e. with number and page). Not acceptable. You didn’t explain why you were citing it. This is why lawyers control the world. We provide specifics. You people might live happy lives. You might even be moral. But your failure to provide specifics renders most of your arguments merely political.

If you were going to be taken seriously, you would need to provide 1) the specific Senate report; and 2) the precise text that you are referring to. Then, you would need to show how this supports your point.

Currently, there is no coherent body of law regarding presidential pardons (other than that he has discretion to grant them). If you scroll up, you will see that I said that I probably would pardon Libby, anyway. My reasons for doing this revolve around my view that he is a lawyer (and a former partner at a large firm) and is per se a lot better than non-lawyers.

In some ways I feel sorry for you. Much of the law frustrates you. You hear tales of “activist” judges. You hear about criminals “getting off” and people being unfairly prosecuted. But, you lack the education and ability to understand their reasoning. In fact, you don’t seem to actually read anything besides newspapers (since you don’t cite them). So, everything seems like a mystery to you. I feel the same way about my car.

Posted by: S.cotus | Mar 7, 2007 12:49:22 PM

cute self-parody, S.cotus

Posted by: federalist | Mar 7, 2007 3:37:54 PM

When you want to provide specifics, go ahead. Without referring to newspapers, go ahead. Until then, your destiny will be controlled by members of the bar who have the decency and patriotism to frame their arguments in a legal grammar.

Posted by: S.cotus | Mar 7, 2007 4:20:53 PM

I think the name of Kent's blog sums it up best "Crime & Consequences." I think the points are likely to be between 14 & 19 (I could make the argument for both higher and lower numbers but don't see it happening. That point spread would mean roughly 1-3 years, with an outside possibility of some sort of home detention & a real possibility of an upward departure.

I feel sorry for Libby & his family. Scooter seems to be a decent fellow, but I think we all represent (at least those in the criminal defense bar) mostly "good guys" who did something dumb or got caught up in the moment.

Posted by: karl | Mar 7, 2007 7:41:13 PM

Karl, I doubt the victims of the "good guys" represented by the criminal defense bar would agree that they're good guys who got caught up in the moment or merely did something dumb.

Posted by: federalist | Mar 7, 2007 10:33:55 PM

Federalist, Why do you even bother posting on here? You seem to admit that you are not a lawyer. You obviously have never represented anyone. You would probably be happier on a board where there are not lawyers that insist on seeing source materials and think that it unAmerican to criticize legal positions without authority.

There are lots of reasons that people commit crimes. Unless you subscribe to the view that some people are inherently evil, the most crimes could be chalked up to having done something “dumb.” This is no reason not to punish people. In fact, isolating the world from stupidity (or just dangerousness) is a valid penal interest.

If, on the other hand, you think that some people are inherently evil (besides isolation), most of the stated reasons for punishing people are irrelevant.

Yes, I will say it: Most people in jail are there for doing “dumb” things. Maybe they seemed rational at the time, but through the lens of hindsight, they seem quite dumb. Unless the jails were filled with Hannibal Lecters, prosecutors will, at best, be largely prosecuting stupidity.

Posted by: S. COTUS | Mar 8, 2007 7:26:51 AM

The idea that prisons are filled with "good guys" is not a legal position--it is an observation of a true believer.

By the way, S.cotus, I am a lawyer.

Posted by: federalist | Mar 8, 2007 7:57:07 AM

I didn't say that prisons were filled with "good" people or not. I said, however, that the "goodness" of a person is only one factor that has been used to resolved whether there exists a valid penal reason to put a person in prison. (Usually this is expressed in the negative, since prior bad acts, even if uncharged are still viable reasons to put people in jail for longer.) Personally, I don't think that it matters whether someone is good or not.

If you were a lawyer then you would cite your authority. Otherwise you are just some non-lawyer screaming "judicial activism" whenever you read something in the newspaper you don't like.

Posted by: S.cotus | Mar 8, 2007 10:28:01 AM

I don't really care what your view is on whether prisons are filled with "good" people or not, since you have not cited authority for the proposition. In any event, my response to you dealt with your demand for "authority" for my question as to what the victims think about karl's characterization about most criminals. (Somehow I doubt that you or Karl would be too keen on testing the (note I didn't say "your") hypothesis that most criminals are "good" by spending a day or two in a state pen and refusing to provide legal services.)

Whether most criminals are "good" people who screwed up or whether they are "evil" is not a legal debate; therefore, the demand for authority is surpassing silly, as are you.

Posted by: federalist | Mar 8, 2007 10:40:03 AM

Being called silly by a man whose entire legal analysis is based on newspaper articles makes my day.

If you seriously want to debate the Supreme Court’s 8th amendment jurisprudence regarding what constitutes a valid penal interest, then go ahead. Gregg v. Georgia, 428 U.S. 153, 180 & n. 28 (1976) (“The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders”... “Another purpose that has been discussed is the incapacitation of dangerous criminals and the consequent prevention of crimes that they may otherwise commit in the future.”)

Otherwise, just keep on reading the newspapers like the non-lawyers do.

Posted by: S.cotus | Mar 8, 2007 12:31:07 PM

Some points, and then I am done:

1) The issue has never been what are valid reasons for punishment--just whether criminals are mostly good people. So no, I really don't want to debate what constitutes a legitimate penological interest. But I will compliment you on your Bluebook form (using the ampersand, nice touch).

2) Karl made the observation that most criminals (i.e., most of the people whom criminal defense counsel represent) are "good" people. I simply disagree. To risk stating the obvious, which is apparently necessary for you, given your posts here and your agreement (elsewhere) with Judge Noonan on the constitutionality of AEDPA and your belief (posted elsewhere) that perjury is untouchable if the perjury is successful, there is no citation possible or necessary--like I said, if you disagree with me, commit some low-level crime, spend some time in a state pen, refuse to help with your fellow prisoners' appeals, and see how much "good" you find in the people who are represented by the criminal defense bar. I suspect that experience will be worth a really big string cite, and if you do that string cite instead, don't forget to remember the order in which cases are cited.

3) I would hope that your statement that it is immoral to criticize without legal citation is simply bombast. However, given your affirmance of the legal analysis of the unconstitutionality by that known legal genius, Judge Noonan, who botched Whorton pretty badly as well as the AEDPA analysis in Irons (S.cotus, newsflash, Congress can decide how much effect a state criminal judgment has in federal court, and last I checked, relaxing the principles of res judicata/full faith and credit is not an all or nothing proposition, as Noonan and you would have it), I am not sure whether you're a savant who knows how to Bluebook or just someone who likes being silly. Either way, it doesn't matter. The statement is either dumb or arrogant and silly. Maybe you can cite some authority for the opposite proposition and prove me wrong. With respect to Whorton and Noonan's legal genius, I would give you a nice pinpoint cite, but you can do the search for the word "obvious", which describes the polar opposite of the conclusion of Judge Noonan.

Posted by: federalist | Mar 8, 2007 1:23:21 PM

Wow. You put a lot of snark into this. You refer to a lot more than my posts here, and a lot of things that are not even vaguely relevant. Your entire post was devoid of citations to anything.
(I used the ampersand because I quoted both from the text of the opinion and a footnote.) Correct citation – properly bluebooked or not – is not just a matter of good lawyering, but a basic part of being an American. So, while you may consider things “obvious” you need to provide citations. I am not being bombastic. It is immoral and unAmerican to criticize without legal citation. Strangely, this behavior is protected by the First Amendment for reasons I don’t understand.

Secondly, my only point that I have raised elsewhere, and has been adopted by courts of appeal, is that the double jeopardy clause *can* bar prosecution for perjury if the material facts lied about are elements of the underlying offense, and the court accepts them. This case was U.S. v. Bastillo-Casa, 05-50768 (9th Cir., Feb. 26, 2007). Since it has not made it into a reporter, you can read it here: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/12E2F4A4711E48068825728E005C3D35/$file/0550768.pdf?openelement

If you disagree with my interpretation, say why. If you disagree with the law, perhaps you can argue your case in another court. But this is the law in the Ninth Circuit unless an en banc panel overrules it.

I am really unclear as to where your points regarding Judge Noonan are coming from. Bastillo-Casa was not written by him. The proposition “Congress can decide how much effect a state criminal judgment has in federal court, and last I checked, relaxing the principles of res judicata/full faith and credit is not an all or nothing proposition...” is, again without authority. I am not sure if this is completely true, or really why it is relevant.

You might be talking about Irons v. Carey (which was written by Noonan). I don’t recall ever taking a position on it, other than noting that it calls into question AEDPA. The panel’s resolution of the issues is disappointing because it doesn’t, in my view, do enough to explain why or why not AEDPA is constitutional (for the reasons that Noonan expressed his doubts regarding.).

Whether Congress really has the power to explain what “effect” a state court judgment or conviction has under FF&C is not the primary objection to AEDPA. Instead, the question, in my mind, is whether Congress has the power to circumscribe the power of Federal Judges to interpret the constitution by limiting the rules of decision that can be applied. These are big issues that will, at some point, be resolved by the Supreme Court.

Unfortunately, since your analysis is devoid of any citations, and you claim that all of your legal propositions are obvious (again, without citation), I am lead to believe that you have no support for them. See, if they really were obvious, you could have provided some authority. But you did not. This leads me to think that you are making it up as you go along, or just copying from blogs or newspapers.

Posted by: S.cotus | Mar 8, 2007 2:07:41 PM

I thought I was done, but I guess not.

1) S.cotus, I know you can cite, but can you read? I know that Noonan didn't write Bastillo-Casa. And I didn't write that he did. What I was saying is that I don't know whether you're a moderately intelligent person who enjoys being silly or whether you're just a bonehead. The bonehead side is winning. I associated you with that noted legal genius Noonan as well as the perjury decision, which elsewhere you termed elegant (and that, S.cotus, is more than saying that it is simply the law of the Ninth for now--my guess is that soon enough it will not be). Now, of course, that's not exactly a fair argument--Noonan's idiocy in Whorton doesn't make him wrong on AEDPA and your error in calling Bustillo "elegant" doesn't necessarily make you a nitwit, but given your fastidiousness for law and legal citation, one would think that (a) you wouldn't align yourself with the Noonans of the judiciary world or (b) heap praise upon an obviously wrong decision. In any event, I was being a bit tongue-in-cheek.

2) As for the merits of AEDPA, you frame the issue completely incorrectly. The issue is whether Congress can mandate the extent to which federal courts are required to give preclusive effect to state court criminal judgments. Certainly, you remember preclusion from law school, don't you? And certainly you remember that there are barriers to review on the merits that are interposed all the time. AEDPA is one of many.

Posted by: federalist | Mar 9, 2007 8:50:35 AM

Again, you need to cite. Even if you say things are obvious (which you continually do), you need to 1) cite the material (including the text) that you disagree with; and 2) cite the authority that holds that #1 is wrong.

You do none of this. This is why your arguments can’t be taken seriously.

If you disagree with my view of AEDPA, then show what courts agree with your framing of the issue. In light of Irons v. Carey you would need to cite to the Supreme Court to show how the 9th was wrong. Any lawyer that takes positions such as your would be able to provide authority.

The rest of your post is just insults, which I don’t mind.

So, in conclusion, without citing authority, your views are worthless.

Posted by: S.cotus | Mar 9, 2007 10:28:44 AM

While this does subject the pad to attack, you can minimize the risk by installing it inside the garage rather than at the front door.

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