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November 16, 2009

Eleventh Circuit declares probation sentence unreasonable (yet again!!) for white-collar defendant

The Eleventh Circuit, in a ruling that seems like deja vu all over again, reverses a below-guidelines sentence in a high-profile, white-collar case today in US v. Livesay, No. 08-14712 (11th Cir. Nov. 16, 2009) (available here).  These snippets from the ruling help highlight why this case is like a CourtTV version of the movie Groundhog's Day:

Whoever said “third time’s a charm” was apparently unfamiliar with the history of this case.... Livesay’s first sentencing hearing occurred in June 2004....  [At his third resentencing, the] district court again granted the government’s § 5K1.1 motion and imposed a term of 5 years probation.  For the third time, the government appealed the sentence....

[B]ecause the sentence imposed in this case is not reasonable in light of the sentencing factors outlined in § 3553(a), we once again vacate the sentence and remand this case to the district court for resentencing. Not only do we hold that the particular sentence imposed below is unreasonable, but we also hold that any sentence of probation would be unreasonable given the magnitude and seriousness of Livesay’s criminal conduct. As we stated in Martin, only the imposition of a meaningful period of incarceration will meet the goals that Congress laid out in the sentencing statute.

November 16, 2009 at 03:43 PM | Permalink

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Comments

So, does anyone have any theories as to what is really going on here? Something's rotten in Denmark.

Posted by: Anonymous | Nov 16, 2009 4:59:54 PM

Anonymous --

My guess -- and it's only a guess -- is that it's a willful district judge who knows nothing significant can be done to him, so he goes his own way, the law be damned. I had a similar case named US v. Morin several years ago. In that instance, though, the third time WAS a charm.

Posted by: Bill Otis | Nov 16, 2009 5:19:08 PM

I am quite pleased to see this opinion and I agree with just about every word in it. It is substantially unreasonable to give this guy probation.

Having said that, I do think the fact Scrushy got off is making people uncomfortable. It worthy of note that he was given the sentence of probation by two different judges. So It's not just a single wayward fellow.

Posted by: Daniel | Nov 16, 2009 5:40:33 PM

Mr. Otis's guess is incorrect. This was a sentence that two District Judges agreed on. The second Judge got the case on remand after an earlier, purely procedural, reversal, and the second Judge agreed that the original sentence was the most appropriate one. As Mr. Livesay's lawyer I should, and will, leave it at that.

Posted by: Sam | Nov 16, 2009 6:17:44 PM

Fascinating. If two district court judges in the same district agree, can a sentence really be unreasonable as a matter of law?

Outside the 11th Circuit, I suspect that there would not have been the same ruling, but then again, the inquiry is so facts and circumstances specific, it is hard to make out that there is ever a circuit split on sentencing.

Posted by: ohwilleke | Nov 16, 2009 7:01:25 PM

Sam --

"As Mr. Livesay's lawyer I should, and will, leave it at that."

As Mr. Livesay's lawyer, my sympathies are with you. With Livesay as a client, you must have been wondering every step of the way, "What is this guy not telling me?"

Such is the fate of many a defense lawyer, but this client sounds like more of a piece of work than most.

It is true, as you say, that the second district judge imposed the same sentence as the first. It is also true that district judges are something of a club, and that it is considered impolite and non-collegial for one to crosscheck her colleague across the hall.

This is understandable, but the three judges on the appellate panel were likewise in agreement that a strictly probationary sentence, for the gargantuan fraud your client agreed he pulled off, was legally insufficient.

One question if I might: From what appears in the opinion, it seems that the AUSA dealt straight with you and continued to follow through on his end of the deal. Is that correct, or am I misreading things?

Posted by: Bill Otis | Nov 16, 2009 7:26:28 PM

I wonder whether Mr. Otis thinks that by falsely insulting my client he will make it more likely for me to answer a question that's on his mind. Ah, the wonders of discussion on the internet.

Posted by: Sam | Nov 16, 2009 7:59:37 PM

Sam --

"I wonder whether Mr. Otis thinks that by falsely insulting my client he will make it more likely for me to answer a question that's on his mind."

You could always address me directly and ask.

If and when you do, perhaps you could explain why my remarks were either insulting or false. The man pleaded guilty, presumably after listening to your advice, to a massive fraud. This is what, an example of honesty?

Posted by: Bill Otis | Nov 16, 2009 8:11:14 PM

One reason he may not have "addressed you directly is because he doesn't have to talk to you here, and life is too short to have to deal with the sanctimonious, hypocritical and holier-than-thou attitude that most prosecutors manufacture in order to allow themselves to be used as a tool to put their fellow humans in cages. I realize that this is pure speculation, but unlike our day jobs, no one has to talk to prosecutors here, and the guess is as good as any.

Posted by: Mark # 1 | Nov 16, 2009 10:02:12 PM

My guess is that the Supreme Court will not find this defense attorney ineffective... What a nice thing it would be if all defendants were so well represented that they get unreasonable below guideline sentences.

Posted by: Allan | Nov 17, 2009 12:56:48 AM

Mark # 1 --

"One reason he may not have 'addressed you directly is because he doesn't have to talk to you here..."

No doubt about that, but when he obviously IS talking to me, I don't get the point of the circumlocution.

"...and life is too short to have to deal with the sanctimonious, hypocritical and holier-than-thou attitude that most prosecutors manufacture in order to allow themselves to be used as a tool to put their fellow humans in cages."

Yes, by all means. Of course you've never met a sanctimonious, hypocritical, etc. defense lawyer, right? On the very, very off chance that you haven't, just stay tuned and you'll see a whole bunch of sanctimonious criticisms of death penalty proponents, launched by defense lawyers (among others) who unabashedly hold themselves out as morally superior to the vengeful, bloodlusting, etc. et al. people who disagree with them -- notwithstanding that among the latter group are two-thirds of their fellow citizens.

Oh, and BTW, could you provide evidence for your claim that "most" prosecutors are sanctimonious? Or are tools of needless cruelty? And by "evidence" I mean something more than your own obviously jaundiced opinion.

Lastly, if you don't like the "cages," what response would you recommend to serious and malicious crimes? Virtually the entire world uses incarceration. Is everybody wrong but you?


Posted by: Bill Otis | Nov 17, 2009 12:01:58 PM

How is repudiation of or withdrawal from the conspiracy an "impermissible consideration" for the departure? And if it is impermissible for the extent of the departure, how is it not permissible so as to justify the variance? The panel doesn't explain that.
What are we really fighting about here? 20 months. The government really, really badly wants this guy to serve 20 months imprisonment. So much so that it's wasted 3 appeals and countless tax dollars on it, even though 2 separate sentencing judges have come to the same conclusion.

Posted by: anon | Nov 17, 2009 1:39:36 PM

anon --

It is a novel theory of lawyering to say that the filing of three SUCCESSFUL appeals is a "waste." Would you consider it a "waste" to appeal a sentence for a client of yours if you had a solid case that, under the governing statute, it was 20 months too long? Should attorneys be energetic when working for those convicted of crimes, but lackadaisical when on the other side?

And the notion that these appeals cost "countless tax dollars" is incorrect; indeed, it's ridiculous. I spent years doing government sentencing appeals. They might have cost a few thousand dollars each, everything considered.

Posted by: Bill Otis | Nov 17, 2009 3:31:13 PM

Bill talks about white-collar plea agreements as if they were genuine confessions instead of government-dictated fictions often signed primarily to avoid the horrors awaiting any citizen foolhardy enough to put the government to the annoyance of a trial.

What we appear to have here are prosecutors who won't take no for an answer (is there another kind?) and conservative appellate judges solidly on the executive-branch team.

What we also seem to have is more of the prevailing notion anything the feds spend time and resources on must, must, be sanctified by human sacrifice...in the form of a lengthy prison term.

Posted by: John K | Nov 17, 2009 6:00:52 PM

John K --

"Bill talks about white-collar plea agreements as if they were genuine confessions instead of government-dictated fictions..."

Best talk to Sam about that. I believe plea agreements are signed by both the defendant and his counsel. Are you saying that Sam and his client signed a fictional (i.e., false) statement of facts? How do you know that? Do you have a basis for maintaining that the 11th Circuit's description of the facts is erroneous in any detail whatever?

"...often signed primarily to avoid the horrors awaiting any citizen foolhardy enough to put the government to the annoyance of a trial."

What "horrors" would that be? The governement's evidence about the defendant's behavior? The prospect of cross examination? Exactly what do you think SHOULD go on at a trial?

Good grief, John K, please wake up. The reason defendants sign plea agreements is that they and their lawyers know the government has got the goods on them, and they're better off not having it all spelled out in the gory testimony of the victim(s). It looks more antisceptic in the PO's report.

It's simply astounding that you talk ceaselessly about supposed government intimidation but have not a word to say about the thing that actually decides cases, namely, evidence.

"What we appear to have here are prosecutors who won't take no for an answer..."

Why SHOULD they take "no" when the appellate court unanimously, and repeatedly, says the correct answer is "yes"?

"...and conservative appellate judges solidly on the executive-branch team."

The plain implication of this last remark is that the case was decided as it was because of the supposed conseervative bias of the judges, not because the outcome was supported by the analysis set forth in the opinion. So again let me ask what particular aspect of the opinion you think is incorrect, and what legal argument you would make against it.

"What we also seem to have is more of the prevailing notion anything the feds spend time and resources on must, must, be sanctified by human sacrifice...in the form of a lengthy prison term."

A more conclusive example of your off-the-charts bias is difficult to imagine. "[S]anctified by human sacrifice"??? No sensible person could take that seriously. Nor is this just an isolated episode of overheated language. You use this sort of stuff all the time.

Not once do you even hint that the person responsible for Mr. Livesay's indictment and punishment (such as it is) is Mr. Livesay -- a man whose gigantic and long-running fraud you apparently, from aught you have said, condone. Instead, with no factual support at all (at least that you've been willing to describe here), you attribute the appellate outcome to a bias among the judges that you decline to document, and to malevolence among the prosecutors that is similarly no more than assumed.

That an otherwise ostensibly intelligent man could be as far removed from reality as you are is, well, depressing.


Posted by: Bill Otis | Nov 17, 2009 7:00:26 PM

I'm going to have to go with Mark on this one, Bill.

For a prosecutor to believe most or even many plea agreements are tantamount to heartfelt confessions, delusion clearly must be at work.

Of course you're right to press for examples and detail, but this is a blog for which pithy brevity seems more fitting than protracted, laborious persuasive writing.

Still I'm hoping when the time comes you'll agree to review a draft of the book I've been putting together over the past three years. It contains plenty of examples and details from mostly white-collar cases.

At the very least it should help you understand how I came to lose my moorings from your reality and reluctantly and unintentionally left you feeling depressed.

Posted by: John K | Nov 17, 2009 8:07:02 PM

BTW... I note the appellate court loaded its ruling with incendiary language on a par approaching what prosecutors typically put in initial charging docs.

Mr. Livesay simply must do some hard time because it wasn't just fraud he was part of...it was "massive" fraud...a point the ruling reiterates again and again.

I'm of the view truly "massive" or "serious" crimes are self-evidently massive or serious...or not. No hyping required.

Beyond that, anon asks a fine question: "How is repudiation of or withdrawal from the conspiracy an "impermissible consideration" for the departure?"

Posted by: John K | Nov 17, 2009 10:18:07 PM

John K--Because it was the government's 5K1.1 departure for substantial assistance. I think the law is pretty clear the the court can't grant additional 5K1.1 levels for issues other than substantial assistance.

Posted by: Jay | Nov 17, 2009 10:52:44 PM

John K: I've independently reviewed thousands of plea agreements in my career in federal court. The vast majority have understated the extent of the wrongdoing.( An understandable bargaining chip to induce the plea and it makes a much prettier picture in the PSR) Only an ineffective lawyer is not able to negotiate some serious concessions in the plea process.

Posted by: mjs | Nov 18, 2009 10:27:28 AM

mjs --

How right you are. I always opposed the practice you describe, which has the shorthand name of "gun swallowing," because I thought (and think) it's less than fully honest. But defense counsel tend to be adamant in insisting on it, the judges indulge (and sometimes encourage) it, and some AUSA's just cave in after a while, or want an agreement to save them the extra work of preparing to go to trial.

So there it is. But your point about the typical understatement of the defendant's misbehavior is spot on.

Posted by: Bill Otis | Nov 18, 2009 11:50:18 AM

mjs writes: "'ve independently reviewed thousands of plea agreements... The vast majority have understated the extent of the wrongdoing."

What, you mean the difference between federal agents' investigative reports and the text of the agreements?

I hope not.

Certainly whatever agents put in reports becomes the prosecutors' truth. No question about that.

Yet, given my long experience as a newspaper reporter, editorial writer and editor, I have a hard time granting the point that federal agents are reliably fair-minded, objective story tellers along the paths that lead to plea agreements.

Posted by: John K | Nov 19, 2009 10:05:22 AM

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