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June 6, 2007

Rudy Giuliani suggests Libby's within-guideline sentence is unreasonable

As regular readers know, despite thousands of post-Booker appeals, the federal circuit courts are yet to find a single within-guideline sentence to be substantively unreasonable.  However, thanks to a question during the Republican debate asking the candidates about pardoning Scooter Libby, it now appears that former federal prosecutor Rudy Giuliani has concluded that Lewis Libby's within-guideline sentence is substantively unreasonable.  Here is exactly what Giuliani said during the debate:

I think the sentence was way out of line.  I mean, the sentence was grossly excessive in a situation in which at the beginning, the prosecutor knew who the leak was and he knew a crime wasn't committed. I recommended over a thousand pardons to President Reagan when I was associate attorney general. I would see if it fit the criteria for pardon. I'd wait for the appeal. I think what the judge did today argues more in favor of a pardon because this is excessive punishment.

Though Giuliani does not use the term "unreasonable," that seems to be the obvious legal implication from Giuliani's description of Libby's within-guideline sentence as "way out of line" and "grossly excessive."  I wonder if Giuliani would use the same description for Victor Rita's 33-month sentence for less serious instances of perjury and obstruction.  Of course, the Fourth Circuit found Rita's sentence to be reasonable; under current DC Circuit law, Libby's 30-month sentence is already presumptively reasonable.

For additional great guideline lessons from the Libby sentencing, be sure to check out Ellen Podgor's thoughtful commentary here at the White Collar Crime Prof Blog.

June 6, 2007 at 07:53 AM | Permalink


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Tracked on Jul 3, 2007 11:03:43 AM


You are doing what people accuse me of doing: drawing legal conclusions from political rhetoric.

Rudy probably doesn’t want Scooter to go to jail. But Rudy is talking to the unwashed masses in a debate that is aimed at appealing a segment of the population that generally has little interest in what actually goes on in court, and is suspicious of educated people. (This is not to say that Republicans are bad lawyers or uneducated. But, those Republicans are not making decisions based on a few soundbites on TV.) So, Rudy needs to give them a few applause lines.

But, it would be interesting to see him explain which Booker applies (and whether he things GSR sentences are presumptively reasonable, and why the sentence was unreasonable. But, Rudy is probably too busy trying to be president to actually think about this issue.

Posted by: S.cotus | Jun 6, 2007 8:35:00 AM

"As regular readers know, despite thousands of post-Booker appeals, the federal circuit courts are yet to find a single within-guideline sentence to be substantively unreasonable."

What about United States v. Lazenby, 439 F.3d 928 (8th Cir. 2006) (reversing sentence of appellant Christine Goodwin as substantively unreasonable), cited in the NYCDL's amicus brief in Rita?

Posted by: James Dillon | Jun 6, 2007 9:15:02 AM

She received an identical 87 month sentence on remand, which was upheld by the 8th Cir. --- F3d ---, 2007 WL 1518477 (May 25, 2007).

Posted by: anon23 | Jun 6, 2007 9:24:47 AM

One might also wonder if the Republicans share the same outrage for sentencing drug dealers based on acquitted conduct as they do for Republican political operatives.

Posted by: law clerk | Jun 6, 2007 9:38:48 AM

law clerk - #1, this wasn't acquitted conduct, it was uncharged conduct, although, of course, acquitted conduct can also be considered under the preponderance standard
#2, I think many people (and not simply Republicans) are upset about this, and
#3, I see a fundamental difference between sentencing a drug dealer for increased quantities that the judge finds by a preponderance and sentencing Libby based on conduct that is fairly different than the crime with which he was charged, and conduct that Fitzgerald at least intimated didn't even happen

That being said, I'm not outraged by the sentence, because I know this is how the system works, with Apprendi operating as the cap. If the Guidelines are truly going to be advisory (and not presumptively reasonable), we need to move away from a system in which we think the Guidelines are the sine qua non of federal sentencing. Of course this conduct involved the application of the Guidelines, but if there were no Guidelines, would people be upset about Libby's sentence? Probably not as much.

Posted by: Steve | Jun 6, 2007 9:48:12 AM

I do think there's some hypocrisy here. Most of those complaining about Libby's fate are Republicans. And most of them are complaining, not because they object categorically to a sentencing system that produces such an outcome, but because they are going to bat for one of their own.

Posted by: Marc Shepherd | Jun 6, 2007 10:39:07 AM

i agree with Marc S. seems like the Republicans
are make a hee haw about it because it is one of
their own. All you ever see is affirmed for most
drug cases. Never anything else. Lock em up and
throw away the key. Same old set up before booker, nothing has changed. The worst thing is its so many black young men.

Posted by: feed up citizen | Jun 6, 2007 1:20:12 PM

So, several years after Apprendi, people are being sentenced to greater degrees of prison time based on matters not charged in the Indictment, not proven to a jury beyond a reasonable doubt. Judges are using acquitted charges to enhance.
Welcome to Apprendi land.

Regarding Libby: Libby is the guy who lies to cover up the treason of those who exposed many people to torture or death because they might have had lunch with Valery Plame somewhere in Europe or the middle east back when she was working for the CIA. The guidelines need to include alternate sentencing for someone like Libby. Such as dropping him out of a helicopter, dressed in a diaper, over the Gaza Strip. If Rudi wins the election he would pardon this liar. Rudi would pardon Paris Hilton if he thought she would go out with him.

Defense attorney and civil rights lawyer for 33 years.

Posted by: M.P. Bastian | Jun 16, 2007 10:19:04 AM

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