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May 2, 2017

After his guilty plea to a civil rights offense, what federal guideline range and ultimate sentence will Michael Slager face for killing Walter Scott?

As reported in this ABC News piece, "police officer Michael Slager pleaded guilty today to a federal civil rights offense in the shooting death of unarmed black man Walter Scott, bringing a conclusion to the case two years after the police shooting was caught on video by a bystander."  Here are more of the case processing basics: 

Slager pleading guilty to violating Scott's civil rights in federal court this afternoon will end the federal case against him and also resolve the state charges that were still pending after a mistrial was declared in the state murder trial last year. Slager's mother and Scott's mother both wept in court as the 35-year old former cop was led away in handcuffs.

Slager, dressed in a gray suit, said very little, answering "yes" to each of the judge's questions about whether he was aware of the various rights he was surrendering.  Slager's attorney, Andrew Savage, said in a statement before court, "We hope that Michael’s acceptance of responsibility will help the Scott family as they continue to grieve their loss."...

Slager, who is white, was accused of killing Scott, an unarmed black man, at a traffic stop on April 4, 2015, while Slager was an officer with North Charleston's police department.  Video that surfaced shortly after the encounter appears to show the moment Slager fatally shot Scott as he ran away. The video garnered national attention, propelling Slager into the spotlight.  He was fired from the force after the shooting.

Slager was charged in South Carolina with murder and pleaded not guilty.  The case ended in a mistrial in December 2016 and the retrial was expected to take place this year.  The federal trial had been expected to take place later this month.  The Justice Department said in a statement today that, according to documents filed in connection with the guilty plea, Slager "willfully used deadly force on Walter Scott even though it was objectively unreasonable under the circumstances."...

Slager has not yet been sentenced and the sentence is at the discretion of the judge, Wilson said. Slager faces a maximum sentence of life in prison for the federal civil rights violation as well as a potential $250,000 fine, the Department of Justice said.

For those thinking about the sentence that Slager can and will face, the plea agreement put together in the case foreshadows some of the likely guidelines action. Specifically, here is what Section 5 of the plea agreement says (with my emphasis added):

The parties request that the Court apply the United States Sentencing Guidelines (Guidelines) to calculate the applicable sentence and impose a sentence consistent with the Guidelines and 18 U.S.C. § 3553. The defendant agrees to waive all constitutional challenges to the validity of the Guidelines.  The defendant understands and acknowledges that the Court will find, by a preponderance of the evidence, the facts used to determine the offense level and, that in making its findings, the Court may consider any reliable evidence, including hearsay. Nothing in this section prevents the parties from filing objections to the Presentence Report prepared by the United States Probation Office, or from arguing the application of specific sections of the Guidelines.  The parties agree that the Court will determine the final Guideline range.  The parties understand that this Plea Agreement binds the parties only and does not bind the Court. The defendant understands that the government will advocate for the Court to apply the guidelines for Second Degree Murder and Obstruction of Justice, and reserves the right to seek a guidelines sentence, up to and including a sentence of life imprisonment.   The defendant reserves the right to advocate for any sentence he deems appropriate and the right to request a downward departure and/or downward variance.

Based on my understanding of this bolded sentence, it would appear the government will advocate for these basic guideline calculations: base level of 38 (for 2d degree murder) + 2 (for obstruction) - 3 (for acceptance of responsibility) = offense level of at least 37.  (I say "at least" 37 for the offense level because some victim-related or other chapter 3 enhancements might be deemed applicable, and the last part of this bolded sentence hints that the government may think other enhancements are applicable.) 

At offense level 37, Slager as a first offender would be looing at a guideline range of 210 to 262 month (17.5 to 21.8 years).  Arguably, the bolded language would preclude the government from seeking a departure or variance above whatever is determined to be the calculated guideline range.  And one can reasonably expect Slager and his defense team will seek a downward departure or variance, though what exact sentence the defense will seek is an interesting issue to watch as sentencing approaches.

May 2, 2017 at 05:55 PM | Permalink


I am interested in learning more about unconvicted conduct. The above calculations appear to be retributionist, and not utilitarian or incapacitative.

Posted by: David Behar | May 2, 2017 9:52:58 PM

If he can get guidelines, he's lucky. Life would seem to be a just punishment.

Posted by: federalist | May 3, 2017 12:40:29 AM

Even on top of the offense I would think there would be additional upward variance for abuse of official position etc.

Posted by: Soronel Haetir | May 3, 2017 2:21:01 AM

What about the six-level enhancement under 2H1.1(b)(1)? Won't the government be arguing for a final offense level of 43?

Posted by: Question | May 3, 2017 6:35:48 AM

You forgot +6 for the public official/color of law enhancement: §2H1.1(b)(1).

Posted by: lawdevil | May 3, 2017 11:11:51 AM

I am curious as to how he can receive AoR while also receiving the uptick for obstruction. The commentary indicates that both may apply in "extraordinary cases" but I am not sure what makes this case extraordinary. I dealt with a large number of plea cases while working on the Minus Two amendments and in every one I can remember obstruction prevented them from receiving AoR.

Posted by: Jacob | May 3, 2017 11:16:07 AM

Every one where obstruction was applied that is, not every case.

Posted by: Jacob | May 3, 2017 11:18:01 AM

Joining Question and lawdevil re the +6 for "under color of law" under 2H1.1. That yields 38 + 6 + 2 = 46.
I also agree with Jacob that in light of his defense at the first trial and the facts supporting obstruction, he does not get -3 for acceptance of responsibility.

Posted by: Def. Atty. | May 3, 2017 2:38:49 PM

Soronel, I had that thought too re +3 for abuse of official position. Turns out it yields to the "under color of law" +6 under 2H1.1. Applying both would be double counting.

Posted by: Def. Atty. | May 3, 2017 2:53:55 PM

I'm far more curious as to what sentence Jeff Sessions thinks is appropriate. He has publicly claimed that these type of offenses are "outliers" and the media hype around them unfairly stains the reputation of all the good police officers. So what kind of sentence does he think is necessary to male sure that no more of these outliers occur?

Posted by: Daniel | May 3, 2017 3:56:59 PM

40 years and not a day less.

Posted by: James | May 3, 2017 4:07:20 PM

I think you all are right about the possible public official/color of law enhancement of +6, UNLESS it can be argued that DOJ is planning to see to apply the "guidelines for Second Degree Murder" rather than the civil rights guidelines. Assuming that enhancement does apply, we are at a level 43 and a life sentence. (Meanwhile, if you read through the plea agreement, you will see DOJ is accepting/agreeing a -3 for acceptance of responsibility. The obstruction came from, I think, earlier lies about the shooting.)

Posted by: Doug B. | May 3, 2017 4:46:13 PM

Trying to follow these calculations, and the feelings they are based on. I can understand why I have never gotten a single guideline right, ever. It appears, neither have experts using these in their daily work.

These discrepancies support sentencing by a computer, using an algorithm written by a legislature.

Posted by: David Behar | May 3, 2017 4:50:27 PM

Def. Atty,

I am not an attorney, I was merely taking a guess at the language used to describe whatever enhancement would apply.

Posted by: Soronel Haetir | May 3, 2017 7:16:21 PM

Putting my money on the bottom of the calculated guideline range, whatever that turns out to be.

Posted by: MarK M. | May 4, 2017 1:42:10 AM

Are the guidelines for second degree murder appropriate? How does that work exactly. Is that if the Judge finds by preponderance of the evidence the elements would have been met?

Posted by: Erik M | May 4, 2017 8:57:48 AM

The guideline for the civil rights violation (2H1.1) is unusual in that it says to calculate the base offense level, the court should import from the guideline governing the underlying offense that is established by the facts. 2H1.1(a)(1) & app. note 1. So there is room for the parties to fight about what offense and what guideline that is. Since this is a plea and the defendant has waived jury trial, the facts will be found by the sentencing judge by a preponderance. Although judicial factfinding in sentencing is standard and allowed since Booker made the guidelines nonmandatory, the judicial factfinding assumes an even greater role here given that the decision of even what basic guideline to apply hinges on what offense the judge finds is proven by the facts. The situation almost seems to call for turning the sentencing hearing into a merits minitrial. The plea agreement contemplates streamlining that process, however, by specifying that the judge may consider anything, including hearsay, in making those determinations.

In the plea agreement, the government has reserved its right to invoke the guideline for second degree murder as establishing the base offense level (which would then be enhanced by 6 points under 2H1.1(b)(1) for being committed (A) by a public official, (B) under color of law). The defense has reserved its right to argue for a different underlying offense guideline, as well as for any departure or variance it can justify. The obvious alternative for the defense is to argue that the underlying offense was voluntary manslaughter, which carries a base offense level of 29 (2A1.3). Adding 6 for public official/color of law under 2H1.1(b)(1), deducting the agreed 3 points for acceptance of responsibility, and assuming the defense objects to the +2 for obstruction, that would leave the defense advocating for a guidelines level of 32, which has a range of 121-151 mos(roughly 10 to 12.5 yrs). The defense could then further argue for a downward variance (I haven't bothered to look for applicable departures).

The plea agreement also contains the defendant's concession that the shooting was objectively unreasonable and that the defendant committed it intentionally and willfully, intending to do something the law forbids. To me, that appears to militate powerfully against a voluntary manslaughter theory (though it doesn't foreclose it entirely), and to almost cement the applicability of second-degree murder. I think the government will have the best of it advocating a level of 43 and a guideline of life. But 10 to 12.5 years under a manslaughter theory (and a Hail Mary plea for downward variance from that) will be the defense's goal.

Posted by: Def. Atty. | May 5, 2017 12:42:10 PM

(The government also reserved its right to advocate for a life sentence, indicating its view that the +6 enhancement applies on top of the second-degree murder base offense level, yielding 43 and a guideline of life).

Posted by: Def. Atty. | May 5, 2017 12:43:58 PM

Def. That was a helpful analysis of both sides of the matter.

The officer got very emotional. His anger and fear prompted his shooting a man in the back, as he was running away. OK in the past, but not since Garner (1985). I hope that case, and the resulting rules of engagement are reviewed at the police academy training. If not, the training is negligent.


Posted by: David Behar | May 6, 2017 1:24:56 PM

Question for the lawyers. If the officer had shot the fleeing criminal in the leg, and he fell, is that OK? What if the injury resulted in a permanent damage, such as an amputation?

Is a foot race, and a subsequent wrestling match the sole permissible response to a fleeing criminal, today?

As usual, only technology will really help. Spock him. Zap the fleeing criminal with a beam set to Stun.

Posted by: David Behar | May 6, 2017 1:29:46 PM

The Govt's statement as to AoR isn't binding here, though, as it's a B plea.

Posted by: Jacob | Jun 1, 2017 9:40:55 AM

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