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June 12, 2024
Rounding up some early accounts of how Hunter Biden will be sentenced
I have already seen a handful of commentaries mapping out the dynamics of the federal sentencing of Hunter Biden following his conviction on three felonies. This New York Times piece, headlined "Will Hunter Biden Go to Jail? Here’s What His Sentence Could Look Like," provides these useful particulars:
According to the most recent manual published by the United States Sentencing Commission, which sets recommended sentencing guidelines, someone in Mr. Biden’s position would typically face 15 to 21 months’ imprisonment for offenses related to the unlawful receipt, possession, or transportation of firearms.
From 2019 to 2023, just 52 defendants were sentenced in a similar category as Mr. Biden, and 92 percent were sentenced to serve prison time with a median prison term of 15 months, according to the commission’s data. Around 8 percent of people in that category received probation or a fine.
But judges frequently depart from the suggested guidelines when handing down a sentence and may reduce the time spent in prison in light of the particular circumstances unique to each case.
And here are a few other press pieces discussing some sentencing issues at some length:
From CBS News, "Is Hunter Biden going to prison? What to know about the possible sentence after his conviction"
From PBS News Hour, "What federal guidelines suggest for Hunter Biden’s sentencing"
From the New York Post, "Hunter Biden judge once gave stiff sentence in similar gun case"
From USA Today, "What's next for Hunter Biden? Sentencing, likely appeal and looming trial on tax charges"
June 12, 2024 at 09:19 AM | Permalink
Comments
It's interesting to me that none of the news stories mention that Hunter was kicked out of the Navy for drug use. Doug, how relevant do you think that fact is for sentencing? Defendergirl? Bill?
And what does it say about the media that this basic fact isn't told to us?
Posted by: federalist | Jun 12, 2024 9:22:46 AM
As I explained in the other Hunter thread, federalist, federal senetencing law provides that judges are legally obligated to consider "the history and characteristics of the defendant" in service to a decision about what sentence is "sufficient, but not greater than necessasary," to serve the traditional purposes of punishment set forth by Congress in 3553(a)(2). That Hunter was a illegal drug user back in 2014 seems a relevant concern, but the fact he was, in some sense, already "punished" for that drug use by being kicked out of the military might lead the judge to not give it much aggravating weight.
I certainly would expect this fact will get mentioned in the PSR and might be discussed in the prosecutors' sentencing memo. But Hunter's team will surely stress that he is now "clean" and they likely will surely claim this reality support their arguments that prison time would not be greater than necessary to served punishment purposes. And this discourse highlights one of many challenging aspects of competing punishment purposes --- many view addiction as a mitigating fact from a retributivist ("deservedness") perspective, while data suggest addition is an aggravating factor with respect to consequential concerns ("crime control"). It will be interesting to see how the parties discuss these matters in the sentencing submissions.
Posted by: Doug B | Jun 12, 2024 9:58:16 AM
https://www.powerlineblog.com/archives/2024/06/killer-hearing.php
Something your readers may find interesting.
Doug, do you think that the Navy episode would justify an upward departure--sorry for not asking that question clearly.
The media missing this little vignette shows that they are either incompetent or in the tank. If this were a Trump kid, I suspect that little fact would be front and center.
Posted by: federalist | Jun 12, 2024 10:05:40 AM
https://www.ussc.gov/sites/default/files/pdf/training/primers/2012_01_Military_Service_5H1-11_Departures_Booker_Variances.pdf
This may be of interest.
Posted by: federalist | Jun 12, 2024 10:26:22 AM
More evidence of a rigged game:
https://redstate.com/smoosieq/2024/06/12/the-purge-new-empower-oversight-letter-reveals-fbi-abused-security-clearance-process-n2175368
Posted by: federalist | Jun 12, 2024 11:47:02 AM
https://www.nationalreview.com/nr4sub/?utm_source=magazine&utm_campaign=subscribe&utm_content=close
Worth a read. Of course, nitwit Dave from Texas could never be bothered.
Posted by: federalist | Jun 12, 2024 12:13:33 PM
Federalist: I would be interested to hear your account of why the "Navy episode would justify an upward departure." I am not aware of any cases expressly relying on drug use in the military (or punishment therefore) to serve as the formal basis for an upward departure, but there may be such cases. Of course, since 2005, courts are more inclined to use their power to "vary" rather than "depart" from the guidelines, so maybe there are cases which expressly vary on such grounds. But I cannot recall seeing any such cases. Do you have particular cases in mind, federalist, or a particular argument that makes this incident worthy of a formal departure?
Notably, in some high-profile settings, interested outside parties file amicus briefs at sentencing. (I recall an animal rights group filing a lengthy brief before Michael Vick's federal sentencing.) You clearly have strong and distinctive views about how Hunter Biden will be sentenced, federalist, and I would suggest you consider writing them up in a formal brief for the sentencing court's benefit.
Posted by: Doug B | Jun 12, 2024 1:23:18 PM
A commissioned officer that fails a drug test failed his country. That reflects on his character.
Posted by: federalist | Jun 12, 2024 7:29:37 PM
federalist: sleeping with a dead brother's wife also "reflects on his character." So too does leaving a computer at a repair shop. So does serving as Jesuit volunteer and graduating from an elite college and law school. But one's "character" alone --- good or bad --- has never been a legal basis for an upward or downward departure from the guidelines. Prior to Booker, circuit court rulings limited significantly allowable grounds for a departure, and I do not recall a single case holding that "character" alone could justify a departure.
Your statement that his Navy disgrace "reflects on his character" might (a) prior to Booker, have been a proper consideration for sentencing within the otherwise applicable guideline range, and (b) after Booker, now serve as a possible variance consideration. However, in both eras, a judge would be required by statute to link directly any determinations about "character," if used as an explicit basis for a longer or shorter sentence, to the purposes of punishment Congress set out in 3553(a)(2).
In other words, federalist, you seem to be describing your feelings, not a legally sound argument for an "upward departure." Perhaps there is a legally sound claim beneath your feelings, but you have not yet articulated it and a judge could not lawfully rely on what you have said here to justify an "upward departure."
Posted by: Doug B | Jun 12, 2024 9:22:44 PM
I am stating an obvious issue, which has not yet been mentioned on this blog. Due to these felony convictions, Hunter will undoubtedly lose his law license. That will be a serious and financially costly punishment, all by itself, for crimes for which there are no victims (except society as a whole), no financial losses and no harm. The gun was possessed for only 11 days and was not used in committing any other crime. Given Hunter's loss of his law license, I would sentence him only to probation, with no prison time. The felony conviction itself and loss of the ability to practice law are sufficient punishments.
Posted by: Jim Gormley | Jun 13, 2024 1:19:32 PM
Jim,
Most people lose their job when going to prison.
Posted by: TarlsQtr | Jun 13, 2024 3:00:40 PM
For some people a felony conviction is a stigma of everlasting shame. That too is a factor which, in some cases, should mitigate the sentence.
Posted by: anon defender | Jun 13, 2024 3:35:58 PM
Loss of law license and the lifelong stigma of a felony conviction are definitely factors the judge should weight in formulating the appropriate sentence for Hunter Biden.
Posted by: Onlooker | Jun 13, 2024 3:38:45 PM
U.S. v. Stewart, 590 F.3d 93, 141-142 (2d Cir. 2009)(“It is difficult to see how a court can properly calibrate a ‘just punishment’ if it does not consider the collateral effects of a particular sentence.”)
Posted by: federal defender 22 | Jun 13, 2024 3:42:25 PM
From Michael Levine’s “171 Easy Mitigating Factors and Counting”) (with permission of the author)
U.S. v. Smith 683 F.2d 1236, 1240 (9th Cir. 1982) (“The stigma of a felony conviction is permanent and pervasive.”); Wayne A. Logan “Informal Collateral Consequences” 88 Washington Law Review 1103 (2013) (“Today, convict status serves as a perpetual badge of infamy, even serving to impugn reputation beyond the grave.”); Michelle Alexander, The New Jim Crow (Paperback ed. The New Press 2012) at p. 94 (“Once a person is labeled a felon, he or she is ushered into a parallel universe in which discrimination, stigma, and exclusion are perfectly legal.”); id at 163 (“When someone is convicted of a crime today, their ‘debit to society’ is never paid.’”); Ernest Drucker, A Plague of Prisons (The New Press 2011), at p. 130 (“Having served their formal sentences, ex-prisoners will endure new forms of punishment capable of generating more anger, more shame, and the scars of permanent social stigma….most states…bar many ex-felons from living in public housing, from working in a wide variety of jobs and professions, and from receiving a range of forms of public assistance including school subsides, income support and food stamps…These [are ]enduring disabilities….”]; U.S. v. Wulff 758 F.2d 1121, 1125 (6th Cir. 1985) (“a felony conviction irreparably damages one's reputation.”).
Posted by: federal public defender 2 | Jun 13, 2024 3:49:11 PM
federal public defender 2 --
Levine’s “171 Easy Mitigating Factors and Counting” is a must-have for every practicing defense attorney. I found myself rolling my eyes at every page, which is a mark of how good it is.
Posted by: Bill Otis | Jun 13, 2024 4:08:05 PM
federalist --
Yes, doing drugs while on active duty is a negative at sentencing, and rightly so. I just hope Hunter wasn't working at one of those silos in the Dakotas where the nuclear-tipped ICBMs are ready to launch. Just the thought that hypothetically he could have been there gives me jitters.
Posted by: Bill Otis | Jun 13, 2024 4:12:12 PM
Bill Otis writes, "Levine’s '171 Easy Mitigating Factors and Counting' is a must-have for every practicing defense attorney." For the first time since reading this blog, I agree with Bill Otis!!
Posted by: grumpy defense attorney | Jun 13, 2024 5:15:42 PM
Dear TarlsQtr: Obviously, being stripped of one's LAW LICENSE amounts to a lot more than just losing one's job -- it's the loss of a life-long profession, which includes the right to be self-employed as a practicing lawyer. If it was just the loss of a job, the defendant could return to that kind of "job" after completing his prison sentence, but it doesn't happen. One of the more interesting arguments I have seen concerns a former Member of the D.C. Bar who was convicted of a Federal felony but then pardoned by the President after serving his sentence. The man wrote to the D.C. Bar and told them that he wanted his Law License restored. Since Presidential Pardons have the effect of erasing the criminal convictions as though they never had happened, his argument has much appeal. But the D.C. Bar refused to simply restore the Law License and said that they wanted him to submit a CHARACTER AND FITNESS Application, so that the D.C. Bar could determine whether he was worthy of again holding a D.C. Bar License. The Bar's view is that even if the conviction didn't exist, they could still evaluate him and judge him, ethically, for the CONDUCT for which he had been charged criminally. This led to a legal fight at the D.C. Court of Appeals.
Posted by: Jim Gormley | Jun 14, 2024 12:16:34 PM
Jim,
A plethora of careers are lost whether licensed or not. A bus driver will lose his for blowing half the legal limit. Nurses for a single drug offense.
Posted by: TarlsQtr | Jun 15, 2024 12:01:18 AM
We all know one man whose career is unstoppable no matter what the Democrats throw at him! MAGA
Posted by: MAGA 2024 | Jun 15, 2024 11:10:59 AM
MAGA, iron bars will stop the convicted felon.
Posted by: anon | Jun 15, 2024 8:49:17 PM
Doug, are you serious? Are you telling me that plainly illegal conduct while serving as a commissioned officer cannot be taken into account when sentencing this dissolute traitor?
Jim, if Hunter has a DC law license, I wouldn't worry about it being stripped for good. Kevin Clinesmith, a fascist thug who doctored documents that were filed in an ex parte proceeding got his law license back.
Posted by: federalist | Jun 16, 2024 9:22:13 AM
federalist: it seems you (seriously?) do not understand the nuance of federal sentencing law. As I already exlained, Hunter's "history and characteristics" MUST be taken into account as part of the 3553(a) analysis. But that statutory reality is conceptually and legally distinct from an "upward departure." You used that legally-significant term, but I now surmise you did not understand what you were talking about.
To repeat: the sentencing judge in Hunter's case --- and every federal judge in every sentencing --- is legally obligated under the statute Congress enacted to consider "the history and characteristics of the defendant" in service to a decision about what sentence is "sufficient, but not greater than necessary," to serve the traditional purposes of punishment set forth in 18 USC 3553(a)(2). But "departures" focus on whether there is judicial authority, based on a guidelines-focused analysis, to sentence above the otherwise applicable calculated guideline range. As I mentioned before, arguments referencing just bad "character" (or good character) generally have been deemed insufficient to legally justify a "departure" (even though such concerns are mandated considerations under the sentencing statute).
The terminology is not always clear and judges can sometime be imprecise in discussing these matetrs (and the USSC recently suggested possibly eliminating the whole concept of "departures"). But a guideline "depature" is quite distinct from a statutory sentencing consideration, and it was your use of a specific legal term ("upward departure} that led me to ask for you to explain your contention. Now I surmise it was based on legal confusion.
Posted by: Doug B | Jun 16, 2024 10:47:36 AM
You're right, Doug, I don't do "sentencing law"--my question/point was whether the sentencing judge should take this into consideration when pronouncing Hunter's sentence. It certainly argues against probation and lenience. I'd max this traitor out. And patronizing prostitutes from a sex trafficker--wtf? And I'd bet a paycheck at least one of those girls depicted on the laptop was underage. After all, it runs in the family, Joe showered with Ashley, and Hunter patronized young prostitutes.
Posted by: federalist | Jun 16, 2024 11:03:07 AM
"departures" have effectively merged with "variances" under section 3553 (a). See U.S. v. Mohamed 459 F.3d 979, 986 -987 (9th Cir. 2006) (“We think the better view is to treat the scheme of downward and upward "departures" as essentially replaced by the requirement that judges impose a "reasonable" sentence….the concept of formal departures has become anachronistic…); U.S. v. Schroeder, 536 F.3d 746 (7th Cir. 2008) (“Although [t]he concept of departures has been rendered obsolete in post- Booker sentencing ... the district court may apply those departure guidelines by way of analogy in analyzing the section 3553(a) factors.”).
Posted by: federal defender | Jun 16, 2024 11:08:44 AM
So, as a matter of sentencing law, should Hunter's abuse of the trust reposed in him by the country as a commissioned officer have an impact on his sentence? Doug? Federal defender?
And federal defender, should the feds delve into the laptop and check to see if any of those girls were underage? Doug? Will you openly call for that?
Posted by: federalist | Jun 16, 2024 11:17:18 AM
federal defender: Hunter is being sentenced in the Third Circuit, and I do not believe there is any precedent there along the lines you discribe collapsing departures into the 3553(a) anaylsis. Moveover, the circuits that have suggested such a collapse have, in my view, the law deeply wrong, in part because the guidelines have lot of formal departure instructions, and SCOTUS jurisprudence provides that judges must use the guidelines as a starting point and benchmark.
federalist: let me restate the point let again in case the third time might be a charm for your understanding: the sentencing judge in Hunter's case is legally obligated under the statute Congress enacted to consider "the history and characteristics of the defendant" in service to a decision about what sentence is "sufficient, but not greater than necessary," to serve the traditional purposes of punishment set forth in 18 USC 3553(a)(2). A presentence report will be prepared by a probation officer which will provide an account of Hunter's background, and both the prosecutors and defense attorneys in sentening submissions will make arguments as to which facts and factors they wish to emphasis for the 3553(a) analysis.
As I also said before in this thread, federalist, in some high-profile settings, interested outside parties have been know to file amicus briefs at sentencing. You clearly have strong and distinctive views about how Hunter Biden should be sentenced, federalist, and you could seek to write them up in a formal brief for the sentencing court's benefit or you could seek to engage a law firm with expertise in this arena to help you put your views forward.
Posted by: Doug B | Jun 16, 2024 12:02:41 PM
"And federal defender, should the feds delve into the laptop and check to see if any of those girls were underage? Doug? Will you openly call for that?"
Posted by: federalist | Jun 16, 2024 12:53:27 PM
Whats the source for there being kiddie porn on Hunter Bidens laptop?
I did a search and all I can find is a claim of this from Rudy Guiliani, who says he then turned it over to the police. I dont know if Rudy is clever enough to put kiddie porn on the laptop before handing it to the cops, or imaginative enough to make that up. But how come no one else says its there? I thought the whole point was to expose shady business dealings in Ukraine, something Rudy definitely knows nothing about LOL
Also apparently the repair shop owner, this Mac Isaac guy (I guess his parents foreordained him to go into the Apple laptop repair business LOL), seems to be upset with pretty much everybody. I guess he felt like he was going to be the RNC's next best friend and feels kind of neglected. Why wasnt he invited to talk at CPAC or something?
Also Mac Isaac apparently kept a copy of the hard drive. So why didnt he image it and give that to his attorney right away so we would having some way of knowing if stuff was added to or deleted from it after it left his possession? Digital forensics guys do this sort of thing all the time.
This story has never much sense to me. You want Joe Biden out, you go straight at him. He'll stumble right into whatever trap you lay. Just challenge him to take a cognitive function test administerd by Dr. Ronny Johnson LOL
Stay strong and stop the steal! MAGA
Posted by: MAGA 2024 | Jun 16, 2024 2:28:10 PM
MAGA--I am simply asking, given that Hunter procured the services of trafficked women and took pictures of them, whether the feds ought to take a deeper dive to ensure that all of them were 18 or older. Look how hard they went after Gaetz, and that turned out to be complete BS. Hunter should get the Gaetz treatment.
Posted by: federalist | Jun 16, 2024 2:37:13 PM
No idea man, do they even print birth certificates in Uzbekistan? These women could prove as slippery as Obama LOL
I dunno man it just seems like a hard thing to prove. I mean we may call them illegals but the libs prefer "undocumented immigrants" and thats the problem right there. Their papers are emhpaticcaly NOT in order.
It makes sense to me that admitted cocaine use and gun purchase paperwork with his signature on it was way easier to manage in court. YMMV. MAGA
Posted by: MAGA 2024 | Jun 16, 2024 3:02:01 PM
federalist: Though Donald Trump's alleged past sexual misbehavior seems more germane to his upcoming sentencing than Hunter Biden's in light of their conviction-related conduct, what matters at sentencing in a federal case is how "the history and characteristics of the defendant" shapes a judge's assessment of what sentence will be "sufficient, but not greater than necessary," to serve the traditional purposes of punishment set forth in 18 USC 3553(a)(2).
I have every reason to expect that the parties will investigate and present evidence consistent with these statuory requirements. But I also hope other interested parties would be able to submit materials to the Court as well to help it discharge its stautory obligations. Even though you clearly do not understand all of federal sentencing law, federalist, you should be able to read and understand the provisions of 18 USC 3553(a)(2). And if you think certain material should be especially important in light of those provisions, and if you fear that this issue will not be well briefed by others, you could seek to write your views up in a formal brief for the sentencing court's benefit (or you could seek to engage a law firm with expertise in this arena to help you put your views forward).
Posted by: Doug B | Jun 16, 2024 8:43:48 PM
Doug, E. Jean Carroll couldn't even identify the f'in year--this was an embarrassment to the court system and the rule of law that you like to yap about. That you think that something like that should be relevant says a lot about you.
Posted by: federalist | Jun 17, 2024 9:58:28 AM
federalist, there is far more to Donald Trump's alleged past sexual misbehavior than what a jury found him liable for in the Carroll case. You seem to want the sentencing process in Hunter Biden's case to involve a "deeper dive" into his sexual past even though he is being sentenced on gun charges. Donald Trump's convictions stem from efforts to hide his sexual past, and so a "deeper dive" into his sexual past would seem even more germane to the sentencing judge's decision-making. But I know your partisan feelings always make it hard for you to think through certain issues carefully.
Posted by: Doug B | Jun 17, 2024 10:38:39 AM
A strange thing happened today in Hunter Biden's Delaware criminal case. First, his attorneys filed a Motion for a New Trial, based upon the fact that the Dustrict Judge lacked jurisdiction over the case at the time of trial, because the 3rd Circuit had not yet released its Mandate on Hunter's 2 appeals. Although the 3rd Circuit had affirmed the District Court decisions in both cases, the Mandate had apparently not yet issued, so jurisdiction at the time of trial was, technically speaking, with the Circuit Court of Appeals. If true, the District Judge and the Prosecutors should be embarrassed to have insisted on proceeding with the trial when they did. And yet, a few minutes after the electronic filing in the District Court, Hunters' attorneys withdrew the Motion for a New Trial, for reasons I don't yet understand. Yet, my understanding is that District Court ever suspects a lack of jurisdiction, the Judge must inquire and conform or refute whether jurisdiction exists. If the District Judge tried Hunter Biden last week before the 3rd Circuit's Mandate issued on the 2 pending appeals, the it probably did act without jurisdiction, rendering the trial and verdict VOID.
Posted by: Jim Gormley | Jun 17, 2024 3:07:10 PM
Jim Gormley :
That does sound wierd. My guess is that the entire criminal defense bar of PA, DE, and NJ rose up as one and pressured Hunter Biden's attorneys to withdraw the motion because they fear that the Third Circuit will read "procedural due process" out of the law completely to preserve this conviction and SCOTUS wont grant cert. (The 3rd has the numbers. 14 are R appointees, 9 Ds. It might have to hear the appeal en banc to ensure the right outcome tho. I wouldnt trust a "random" draw to select the panel. A similar process gave us Merchan.)
A fish this big, you dont throw back in the water.
You scale him and fillet him. MAGA
Posted by: MAGA 2024 | Jun 17, 2024 3:46:06 PM
