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December 10, 2007

Should the Vick and Black sentencings be postponed so the judges and lawyers can review Gall and Kimbrough?

If I were representing either Conrad Black or Michael Vick, I think I would ask for sentencing to be postponed, at least for a few days, so everyone can review and assess what Gall and Kimbrough might mean for their cases.  For a variety of reasons, I somewhat doubt that these sentencing proceedings will be postponed, but I am interested to hear if readers think that they should be.

UPDATE: Vick already has been sentenced, and to 23 months.  Basics from the AJC here.

December 10, 2007 at 10:51 AM | Permalink


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Judge Cassell never needed much time to write excellent lengthy opinions applying recent cases in the Apprendi line. Hopefully the judges and lawyers in these cases can read and think quickly.

Posted by: | Dec 10, 2007 11:10:32 AM

Too late for Vick - 23 months.

Posted by: Steve | Dec 10, 2007 11:11:58 AM

to late Vick got 23 months
i hope he challenges the above guideline sentence.

Posted by: | Dec 10, 2007 11:12:08 AM

Today's opinion doesn't offer Vick much hope. The Court ruled that the standard for appellate review is abuse of discretion. This standard applies whether the defendant is sentenced within, above, or below the guidelines.

The sentence does seem too severe to me, but if I were reviewing it at an appellate level, I could not say that the District Court abused its discretion.

Posted by: Marc Shepherd | Dec 10, 2007 11:31:18 AM

If I remember the plea agreement correctly, Vick waived his right to appeal. Unless he's somehow able to void the waiver, his sentence is pretty much set in stone.

Posted by: P | Dec 10, 2007 11:44:15 AM

I think he can only appeal if it is above the guidelines which it is

Posted by: | Dec 10, 2007 11:49:16 AM

I don't think it's above the guideline range. Rather, the court calculated the guidelines to call for between 18 and 24 months because it denied Vick credit for acceptance of responsibility.

Posted by: Steve | Dec 10, 2007 11:55:41 AM

I did not see that how could the court not give him credit for acceptance of responsibility? Wouldnt he get that for taking the plea? Isnt that part of every plea? Could he fight that piece?

Posted by: | Dec 10, 2007 11:58:22 AM

Clear something up for me. Who determines the guideline? The PSR or the court? I understood Vick's guideline to be 12 to 18. Did the judge raise the guideline or sentence above it?

Posted by: DAG | Dec 10, 2007 12:22:32 PM

this man tested positive in a drug test. his actions show his apathy towards pain and suffering, and certainlhy death. I think the sentence was appropriate. In fact, he should have been taken into custody for failing the drug test, and allowed to jsut turn himself in.

Posted by: EJ | Dec 10, 2007 12:25:50 PM

The court determines the guideline range. The Plea Agreement had indicated that the parties believed the guidelines would be calculated at 12 to 18 months, but that calculation included giving Vick credit for acceptance of responsibility. The judge wasn't bound by the parties' calculation as set forth in the plea agreement, and at sentencing, it appears that the government argued that Vick had not accepted responsibility. The judge bought it, so the guideline sentence was 18 to 24 months.

Posted by: Steve | Dec 10, 2007 12:28:59 PM

Vick was very smart in "getting caught" several months ago smoking pot. The pot provided Vick with a nice fail-safe device against the excessive sentence he received this morning. He is now eligible for the Drug Program and will likely get somewhere between 4-8 months off his sentence, in addition to good time (85%). Also of note, he will be entitled to the maximum 6 months of halfway house, which, because of his sentence length, he would have certainly gotten less than 6 (probably 3).

So, getting busted smoking pot turned out to be a very advantageous move for Vick.


Posted by: Chuck | Dec 10, 2007 12:30:05 PM

Smoking pot was not a boon to Michael Vick. In all likelihood, he will not receive any time off of his sentence because of his drug problem. In order to qualify for the reduction in sentence associated with the RDAP program in federal prison, a defendant almost always needs a sentence in excess of the 23 months Vick received. The latest word from the BOP is that inmates need at least 27-30 months remaining on their sentences in order to be given the program (and subsequent reduction).

Posted by: Gogigantes | Dec 10, 2007 12:37:06 PM

Gogigantes, that is news to me--but I have no reason to doubt you. I have seen BOP inmates get in the RDAP program with 2 years sentences ... but perhaps not only 23 months.

That said, I'm pretty sure inmates can volunteer for the program and, even if they don't get any time off their sentence, they still become eligible for the 6 months guaranteed halfway house.

Otherwise, if you have a citation for your info, I'd love to see it.


Posted by: Chuck | Dec 10, 2007 2:58:22 PM

This is a fact, if Vick were to start the rdap within the month (which is unlikely, because of the waiting period)After 9 months he will get times off his sentence(most people do not get 12 months off, 6-10 is more likely)then he would go to the halfway for approx 6 months.

Posted by: | Dec 12, 2007 11:23:51 AM

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