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January 7, 2009

Any early predictions on Jeff Skilling's likely sentence the second time around?

As noted here, the Fifth Circuit ordered former Enron CEO Jeff Skilling resentenced because District Judge Sim Lake made a guideline calculation error.  But the Fifth Circuit said little else about Skilling's original sentence, which may ensure that the outcome (and even the terms of debate) for his resentencing are uncertain for the time being. This Bloomberg news reporthas this notable discussion of resentencing possibilities:

If that’s the only basis of resentencing, it would be a modest reduction,” said Kirby Behre, a partner at Paul Hastings Janofsky & Walker in Washington and co-author of “Federal Sentencing for Business Crimes.” “It might be more than modest, but it’s not going to get him down to 10 or 12 years.”

In the 2000 guidelines under which Skilling was sentenced, the financial-institution factor brought his offense level to 40 from 36 and his range to between 292 and 365 months in prison.  Lake imposed 292 months, or 24 years and four months. Dropping the offense level back to 36 brings a range of 188 to 235 months, or 15 2/3 years to 19 years and seven months....

Because the Supreme Court made the guidelines voluntary in January 2005, in a case called U.S. v. Booker, Skilling may be given the same sentence...

Other experts said the judge may reduce Skilling’s sentence to the lower range....  Lake is likely to use the guidelines again when he resentences Skilling, said Paul Cassell, a former federal judge who’s now a law professor at the University of Utah in Salt Lake City. “Most federal judges in the system follow the guidelines, particularly in a case where they’ve used them before,” Cassell said in a phone interview.

For a host or reasons, I am disinclined to make any predictions about resentencing.  In addition, because the Skilling legal team clearly plans to continue appealing his convictions, it is even unclear whether resentencing may be only a few months away or still years away.  Whatever the practical particulars, I would be eager to here reader thoughts on what might happen next on the sentencing side of the Skilling case.

January 7, 2009 at 10:54 AM | Permalink


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In the days of William Douglas, liberal justices ruled against the govt. about 80% of the time; Thurgood Marshall, perhaps 30% of the time. Now, for years, you've had so-called "liberal" justices siding with the govt. about 80%, and that right-wing, originalist-besotted lot, side with the govt. about 95% of the time. There is your microcosm of what federal judges have done and will do so far as sentencing of human beings, to penitentiaries, and that includes Jeffrey Skilling. All this pap about "guidelines" for doing so is just so much mishigass.

Posted by: Fluffy | Jan 7, 2009 11:17:49 AM

Part of the challenge in sentencing is that things go in waves. Most likely, the courts will be pressured to unleash some fury on Skilling since his crime was mainly financial in nature and the public is furious with Wall Street. That may lead to his sentence being a bit too harsh.

Posted by: JT | Jan 7, 2009 12:05:24 PM

Prediction: Low end of the new guideline range.

Posted by: AFPD | Jan 7, 2009 1:36:13 PM

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