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February 11, 2020

DOJ now says "sentence of incarceration far less than 87 to 108 months [for Roger Stone] would be reasonable under the circumstances"

As noted in this prior post, yesterday federal prosecutors filed this 26-page sentencing memorandum advocating for a within-guideline sentence of 7.3 to 9 years in prison for Roger Stone.  Prez Trump in the middle on the night tweeted out his displeasure with that advocacy, and today we saw filed this new 5-page supplemental and amended memorandum from federal prosecutors.  This new document is remarkable in many respects, and here are just a few excerpts that I suspect federal defendants may be keen to quote in other cases (in part because this new filing almost reads like a defense submission):

The prior filing submitted by the United States on February 10, 2020 (Gov. Sent. Memo. ECF No. 279) does not accurately reflect the Department of Justice’s position on what would be a reasonable sentence in this matter.  While it remains the position of the United States that a sentence of incarceration is warranted here, the government respectfully submits that the range of 87 to 108 months presented as the applicable advisory Guidelines range would not be appropriate or serve the interests of justice in this case.

It is well established that the prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935).  This axiom does not simply apply to the process of bringing charges or securing a conviction — it also “must necessarily extend” to the point where a prosecutor advocates for a particular sentence.  See United States v. Shanahan, 574 F.2d 1228, 1231 (5th Cir. 1978) (reviewing sentencing conduct of prosecutor). Applying that principle here, to the specific facts of this case, the government respectfully submits that a sentence of incarceration far less than 87 to 108 months’ imprisonment would be reasonable under the circumstances....

Here, as set forth in the government’s initial submission, the defendant’s total offense level is arguably 29 and his criminal history category is I, which would result in an advisory Guidelines range of 87 to 108 months.  Notably, however, the Sentencing Guidelines enhancements in this case — while perhaps technically applicable — more than double the defendant’s total offense level and, as a result, disproportionately escalate the defendant’s sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases. Cf. U.S.S.G. § 2B3.1(a)-(b)....  Accordingly, it would be reasonable for the Court to conclude that the Guidelines range as calculated is unduly high on the facts of this case.

After calculating the Guidelines, the Court next turns to the statutory sentencing factors.  Title 18 of the United States Code Section 3553(a) states that a sentencing court should “impose a sentence sufficient, but not greater than necessary” to achieve the statutory goals of sentencing.  In doing so, Section 3553(a) delineates several factors that the court must consider when imposing a sentence, “and the sentencing range . . . as set forth in the Guidelines” is but one of those factors....  Here, there are several facts and circumstances supporting the imposition of a sentence below 87 to 108 months’ imprisonment....

Finally, the Court also should consider the defendant’s advanced age, health, personal circumstances, and lack of criminal history in fashioning an appropriate sentence. As noted above, a sentence of 87 to 108 months more typically has been imposed for defendants who have higher criminal history categories or who obstructed justice as part of a violent criminal organization....

The defendant committed serious offenses and deserves a sentence of incarceration that is “sufficient, but not greater than necessary” to satisfy the factors set forth in Section 3553(a).  Based on the facts known to the government, a sentence of between 87 to 108 months’ imprisonment, however, could be considered excessive and unwarranted under the circumstances.

Interestingly, as reported via The Hill, a changed sentencing recommendation is not the end of the fallout here:

The four Department of Justice (DOJ) prosecutors who recommended Roger Stone be sentenced to seven to nine years in prison left the case Tuesday after top officials sought to reduce their sentencing request.

Prosecutors Michael Marando, Timothy J. Shea, Jonathan Kravis and Aaron Zelinsky all asked the judge in the case for permission to withdraw. Kravis left the DOJ entirely, announcing his resignation as an assistant U.S. attorney. The four were involved in providing the initial sentencing guidance for Stone. But in a rebuke to the career prosecutors, the DOJ on Tuesday told the judge in the case to apply "far less" to Stone's sentence....

The DOJ decision and the withdrawal of career prosecutors from the case stunned legal watchers and Washington and raised questions about potential political interference in the sentencing of a longtime Trump adviser. Reports of the DOJ reversal said top officials found the initial guidelines to be "excessive." Those reports also came after Trump blasted the guidelines on Twitter, saying that Stone was treated unfairly by prosecutors....

Speaking with reporters in the Oval Office, Trump said he didn't tell the Justice Department to amend its sentencing guidance but that he would have been within his rights to do so. “I'd be able to do it if I wanted. I have the absolute right to do it. I stay out of things,” Trump said.

"I didn't speak to them. I thought the recommendation was ridiculous. I thought the whole prosecution was ridiculous,” he continued. “I thought it was an insult to our country.”

Senate Minority Leader Charles Schumer (D-N.Y.) is calling on the DOJ's top watchdog to investigate the decision to suddenly recommend a lighter sentence for Stone, while the group Citizens for Responsibility and Ethics in Washington is sending the Justice Department a Freedom of Information Act request for records related to the case. "The DOJ Inspector General must open an investigation immediately. I will be sending a formal request to the IG shortly," Schumer tweeted.

Prior related post:

February 11, 2020 at 06:10 PM | Permalink


Prof Berman:

Would you comment on whether the enhancements for threats of violence and "substantial" interference were properly supported in this case? I wouldn't have applied them.

Posted by: SUSPO-Retired | Feb 11, 2020 8:17:38 PM

Interesting comment SUSPO-Retired - I don't think I would be able to make the same decision you made basely solely on the governments position pleading/sentencing memo. I'd like to see all of the facts, read the offense conduct section, speak with the gov't and defense before I simply state I would not apply them. Maybe I would, maybe I would apply one but not the other, maybe neither, but without all of the information, I would not want to say at this point...Surely as a retired SUSPO you'd have that conversation with your USPO before you signed off on his/her PSR and ultimately, the rec letter.

Posted by: Atomicfrog | Feb 12, 2020 9:04:26 AM

The Government's factual evidence supporting those enhancements was laid out in their memorandum.
A review of the case law they cited reveals that they were either misstating the holding, or the case was decided on substantially different facts.I followed the entire trial and all the public filings and am very familiar with all the factual evidence, including all the evidence the Government ever presented as to the two enhancements Yes, I am a geek. But I did not make my statement ignorant of the facts and law underpinning those issues.

Posted by: SUSPO | Feb 12, 2020 11:32:00 AM

I forgot to indicate I am retired in my last comment.

Posted by: SUSPO-Retired | Feb 12, 2020 11:34:01 AM

This is absolutely insane. The guidelines? What a travesty. The law is an ass. The proper sentence for Roger Stone? Immediate release and total exoneration coupled with disbarment for all prosecutors in this case. Anything less? A gross miscarriage of justice.

Posted by: restless94110 | Feb 12, 2020 2:10:39 PM

This will be an interesting sentencing - regardless of the guideline range, I would be surprised if he was sentenced to more than 2 years...

SUSPO-Retired - If I were to add my two cents, and only based upon the government's pleading, I would still apply the same SOC's the government, with the exception of the +2 pursuant to 2J1.2(b)(2) - I find it hard to suggest Stone's conduct resulted in "substantial interference with the administration of justice." When I was a USPO, I can't think of a case I ever worked on (I wrote several hundred PSR's) or even read from a colleague that applied this enhancement and I've seen, read, and prepared many 2J1.2 cases. Nonetheless, we are all entitled to our opinions and would still suggest a sentence no greater than 2 years in warranted based upon the 3553(a) factors.

Posted by: Atomicfrog | Feb 12, 2020 2:59:59 PM


Nice to meet a fellow USPO! Are you also retired? May I ask what District you were in? I retired from CDCA.

Posted by: SUSPO-Retired | Feb 12, 2020 8:38:51 PM

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