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July 8, 2021

District Judge cites "severe remorse" among reasons to give Michael Avenatti (way-below-guideline) sentence of 30 months in federal prison

This NBC News piece reports that "Michael Avenatti, the brash attorney who had been a leading foe of then-President Donald Trump, was sentenced Thursday to 30 months in prison for a brazen, botched scheme to extort athletic apparel giant Nike out of up to $25 million." Here is more about this high-profile sentencing:

That sentence was much lower than the nine years that was the bottom of the sentencing range suggested by federal guidelines, and not anywhere close to “a substantial” prison term sought by federal prosecutors for the California lawyer.

“I alone have destroyed my career, my relationships and my life. And there is no doubt I need to pay,” Avenatti, 50, tearfully told Manhattan federal court Judge Paul Gardephe before he was sentenced. “I am truly sorry for all of the pain I caused to Mr. Franklin and others,” Avenatti said, referring to his former client Gary Franklin, an amateur basketball coach.

Avenatti’s sentencing came more than three years after he gained widespread fame, and infamy, for his bombastic representation of porn star Stormy Daniels, who received a $130,000 hush money payment from Trump’s then-personal lawyer Michael Cohen before the 2016 presidential election to keep her quiet about claims she had sex with Trump years before he ran for the White House.

Daniels is one of several former Avenatti clients that he is charged with swindling in two other separate federal prosecutions, one of which is due to begin next week in California.

Gardephe said that in the Nike scheme, “Mr. Avenatti’s conduct was outrageous.”  "He hijacked his client’s claims, and he used him to further his own agenda, which was to extort Nike millions of dollars for himself,” said the judge, who also sentenced Avenatti to three years of supervised release for the case, in which Avenatti was convicted at trial last year. “He outright betrayed his client,” Gardephe said....

But Gardephe added that Avenatti deserved a lighter sentence than the range recommended by federal guidelines — from nine years to 11-years and three months — because, the judge said that for the first time in the case, “Mr. Avenatti has expressed what I believe to be severe remorse today.”

The judge also cited the brutal conditions in which Avenatti was kept for several months in a Manhattan federal prison after his 2019 arrest. And Gardephe sharply noted, in justifying the lower-than-recommended sentence, how federal prosecutors did not criminally charge Geragos in spite of what they have said was his active participation with Avenatti in the shakedown.

The judge ordered Avenatti, who remains free on bond, to surrender on Sept. 15 to begin his sentence, which Gardephe recommended be served in at the federal prison camp in Sheridan, Oregon. Avenatti’s lawyers had asked for a sentence of just six months....

At his trial next week, Avenatti is accused of crimes that include defrauding clients out of millions of dollars. One of those clients was a mentally ill paraplegic. Avenatti next year is due back in Manhattan federal court to be tried on charges related to allegedly swindling Daniels, out of $300,000 in proceeds for a book she wrote.

July 8, 2021 at 05:46 PM | Permalink


“Mr. Avenatti’s conduct was outrageous.”

But but ...

Oh well.

Posted by: Joe | Jul 8, 2021 7:16:58 PM

Given Avenatti's overall course of behavior (particularly the fact that he put the government to its burden) I'm not sure what it would take to convince me that remorse is genuine. Certainly he is ruined but I have a difficult time seeing that should count for very much.

Personally, this sentence looks like a judge going easy on someone he can relate to and I very much dislike that sentiment.

Posted by: Soronel Haetir | Jul 8, 2021 8:59:07 PM

So, let me get this straight a;; a convicted criminal has to do is express "severe" remorse and his sentence is cut? Wow! Tell that to like 100% of the convicted criminals throughout American history. This judge should hide his head in shame. Then he should be removed and disbarred. An absolute disgrace.

Posted by: restless94110 | Jul 8, 2021 10:24:12 PM

Since the bottom of the Guidelines Range was 135 months, I wonder if the Government will appeal the far below Guidelines sentence of only 30 months? Substantively Unreasonable? I think the Government will appeal the sentence.

Posted by: Jim Gormley | Jul 8, 2021 11:50:12 PM

The idea he received a lower sentence because the judge was more comfortable with him than he might be for another defendant* was also suggested by a liberal/libertarian minded lawyer on Twitter. He also thought there was a good chance it would be overturned.

It's somewhat hard for me to judge this since it is a sort of "snapshot" and I would need to know the judge's overall record to better decide. That's a usual thing -- we opine here & it's a snap judgment. It is what it is. But, it does seem concerning.

OTOH, was noted, MA still has other charges pending. It was also noted elsewhere that he still got on some level a decent amount of time in prison. In raw terms.

But, as I noted earlier, that's misleading. You need to judge it within the system as a whole. It's like if a murder got ten years & the average case was 25 to life or something. This is at the core of the integrity of the justice system. It is on that level more important than even some violent crimes.

* which is going to be a thing on some level, but judges need to control it as much as possible to avoid unjust results

Posted by: Joe | Jul 9, 2021 11:42:22 AM

For once, I am mostly in agreement with Soronel.

The remorse strikes me as mostly being about all the negative consequences that are happening for Avenatti. And of course he regrets that he was caught and convicted. The clear giveaway to me is the structure of his statement to the court. At the very beginning he laments all the hardships that have befallen him and his family. Only after that does he get to even mentioning the actual victims. And it's done far more briefly and generically. On the latter point, he can't even bring himself to name anyone except Franklin. They're just the "others."

Like Soronel, I'm surprised and disappointed the judge would be receptive to this kind of insincere remorse. My only hope is that it contributed less than other factors to the downward departure.

In Avenatti's (and/or the judge's) defense somewhat, I will say the other two factors cited—(1) the alleged coconspirator not being charged despite apparently having a significant role and (2) the time spent in MCC solitary—do seem meaningful. Assuming those weighed heavier in the downward departure calculus, then maybe one can argue it was fairly reasonable.

To Joe's comment, as I said originally, if you compare to what Mathew Martoma got from the same judge for arguably a worse offense, Avenatti's sentence does seem to make sense on relative terms at least. But on absolute terms, I think these kinds of white collar offenses are getting excessive leniency. I agree with Joe—for reasons I've stated elsewhere—that putting more of the focus on white collar would go a long way to upholding justice and protecting society.

On that same note, I agree with Soronel and the commentator(s) referenced by Joe that the judge probably identified with more and was more sympathetic to Avenatti (and even Martoma to some extent) than would have with a "street crime" defendant.

Finally, Jim's prediction of a gov't appeal makes sense and seems likely to me too.


Posted by: kotodama | Jul 9, 2021 12:33:50 PM

"the alleged co-conspirator not being charged despite apparently having a significant role"

This is the sort of thing that bothers me.

The question (for me at least) is "is this correct?"

Doing a little bit of digging, I found reference to pushback on how "significant" his role was. The feds said he actually warned Avenatti he was crossing a line. I also saw some reference to him helping the feds in some fashion.

Others can address that, if they want, but it is something that would be helpful in accounts of the sentencing of a famous defendant.

I appreciate the other reply. Just to toss it out there, you can "significantly" go below while not going that far below. There are degrees. Four to five years, for instance, would be below.

As to his horrible conditions, I wonder how much that helps the average defendant who has to deal with prison conditions of a similar nature. Is it that for HIM personally that was particularly degrading? Some might feel that way. Then again, if the judge used a similar factor in other sentences, it would help clarify.

Posted by: Joe | Jul 9, 2021 12:52:34 PM

if you have to be a defendant in federal court, it always helps to be white.

Posted by: afpd | Jul 9, 2021 10:58:13 PM

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