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June 11, 2024

What facts should matter (and not matter) most at federal sentencing after Hunter Biden is convicted by jury on three felony counts?

These are heady times for historic sentencing proceedings.  As New York state actors are working through the process of preparing for former President Donad Trump's state sentencing after his conviction last month on 34 state felony counts following a lengthy trial, we know now that federal actors need to start working through the process of preparing for current President Joe Biden's son, Hunter, to be federally sentenced after his conviction today on three federal felony counts following a short trial.  Here are the basics via the New York Times' latest live update:

A jury in Wilmington, Del., on Tuesday found Hunter Biden, President Biden’s long-troubled son, guilty of three felony counts of lying on a federal firearms application in 2018, a grievous personal blow to the Biden family as his father enters the final months of a brutal re-election campaign.  He could face up to 25 years in prison, but first-time offenders who did not use their weapons to commit a violent crime typically receive no jail time....

Here’s what else to know:

A sentencing date was not set: The judge in the case, Maryellen Noreika, did not set a date for sentencing, but said it would typically be about 120 days after the verdict — that’s early October, or about a month before the election. Although the maximum possible sentence Mr. Biden faces is more than two decades behind bars and $750,000 in fines, federal sentencing guidelines call for a fraction of that penalty.

No pardons are coming: President Biden has said he will not pardon his son.  The president kept his distance from the trial and was out of office on Oct. 12, 2018, when Hunter Biden asserted he was drug-free on a background check at a time when he was addicted to crack cocaine.

His legal troubles are not over: The Delaware case, brought by the special counsel David C. Weiss, is widely regarded as the least serious of the two federal indictments against Hunter Biden brought last year.  He still faces serious tax charges in Los Angeles stemming from his failure to pay the government during a yearslong crack, alcohol and spending binge; the trial is scheduled to start in September.

I have not yet sought to work through the likely (advisory) guideline calculations for Hunter Biden, but I have already seen reports that the estimated guideline range would be for over a year of federal prison time.  Even after the Supreme Court made the guidelines advisory, federal judges are duty bound to still consider them at sentencing along with the other sentencing factors detailed by Congress in 18 USC § 3553(a).

But, of course, many of the instructions in 3553(a) are quite vague -- eg, judges must consider the "nature and circumstances of the offense and the history and characteristics of the defendant."  That vague phrase and others in federal sentencing law prompt the question in the title of this post.  Should Judge Noreika give particular weight to, or make a focused effort to limit her consideration of, Hunter Biden's struggles with addiction at the time of his offenses?  His indictments on various other alleged crimes and other alleged misbehaviors?  The wide range of unique consequences associated with being the son of a president?

June 11, 2024 at 11:48 AM | Permalink

Comments

The fact that he got over with FARA and two years of taxes needs to be taken into account. Also, the fact that he peddled influence--the Burisma board--and his receipt of money from the PRC. Max this fucking traitor out.

Posted by: federalist | Jun 11, 2024 11:52:44 AM

(1) Look at what is on the laptop--was he cavorting with underage girls?

(2) Crimes that the government let him get away with (FARA, tax evasion).

(3) His obvious influence peddling.

(4) The evasion of taxes.

(5) The fact that he was booted from Navy for blowing a piss test.

This guy is a dissolute traitor. I'd max him the f out. By the by, if his partner in crime pardons hum, and it sticks, then that, ever so slightly, bplsters the self-pardon argument of Trump supporters.

Posted by: federalist | Jun 11, 2024 12:06:54 PM

Doug --

"Should Judge Noreika give particular weight to, or make a focused effort to limit her consideration of, Hunter Biden's struggles with addiction at the time of his off[ence]?"

No, not at all, since his addiction, and his lying about it, were central facts in the prosecution itself. Beyond that, his "struggles" with addiction would tend toward making the sentence more severe, since addiction to a hard drug like cocaine is very difficult to break, and the combination of hard drugs and guns accounts for a lot of misery in this country.

Posted by: Bill Otis | Jun 11, 2024 12:12:09 PM

Max him out.

Posted by: federalist | Jun 11, 2024 12:16:22 PM

As you know, Bill, Congress has instructed judges to consider "the nature and circumstances of the offense and the history and characteristics of the defendant" and to impose a sentence sufficient "to protect the public from further crimes of the defendant." Your substantive points, then, would seem to support a forceful argument that Hunter Biden's struggles with addiction MUST be consider by Judge Noreika. Are you urging the sentencing judge here to ignore the mandates of 3553(a), or am I misunderstanding your point?

Posted by: Doug B | Jun 11, 2024 12:28:28 PM

Doug, you are probably right that there is some lenience gloss on drug addiction, but Bill's point is well-taken.

Posted by: federalist | Jun 11, 2024 1:03:59 PM

Doug, should the FBI look through that authenticated laptop and see if some of the girls were underage???

Do you think Hunter's harassment suits against people publicizing the stuff on his laptop should impact his sentence?

Posted by: federalist | Jun 11, 2024 1:07:02 PM

Let's go, Brandon!

Posted by: federalist | Jun 11, 2024 1:12:48 PM

For clients who make a false statement (lie and buy) for others, only one gun usually results in probation. The possession by an unlawful suer of drugs is rarely prosecuted and has been held to be unconstitutional by several courts, post=Bruen. That being said, he is a prohibited person under the Guidelines, so his offense level should be 14. He doesn't get acceptance because he went to trial. For someone in Category I, the average sentence is 14 months. With good time (63 days) and earned time (2-4 months), he probably would be in the halfway house within 6 months of imprisonment.

Posted by: defendergirl | Jun 11, 2024 1:23:50 PM

defendergirl, should he plead out in the tax case?

What sticks in my craw, and I don't think this relevant to sentencing, is that he had the sweetheart deal of sweetheart deals (on top of the feds letting the statute run on some tex years and FARA), and he's claiming that the prosecution was political. Nonsense.

Posted by: federalist | Jun 11, 2024 1:39:21 PM

Typical NYTs, taking Joe’s words as seriously as a Hamas casualty report.

Joe will pardon him after the election.

Posted by: TarlsQtr | Jun 11, 2024 1:50:37 PM

Of course, Joe will, that's why the judge should have ordered him into custody immediately.

Posted by: federalist | Jun 11, 2024 1:59:39 PM

federalist: I did not assert there was or should be "some lenience gloss on drug addiction," I just asked if it should be a significant consideration. I understood Bill's points to be that addiction was central to the crime and an aggravating factors. In turn, I wondered why Bill was suggesting Hunter's addiction should be ignored rather than central to the decision-making in light of the sentencing instructions Congress put in 3553(a). If Bill (or you) want to say addiction is not relevant to the 3553(a) factors, I am eager to hear that argument. But it seems you both this it is relevant and should be an important consideration (in aggravation). Or am I missing something?

As for the other questions you ask, 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 punishment is "sufficient, but not greater than necessasary," to serve the traditional purposes of punishment as set forth by Congress in 3553(a)(2). Though a PSR and a sentencing proceeding cannot fully develop the full story of a defendant's entire history and characters, I think it wise and sound that both the prosecution and defense has broad authority to develop the record with aggravating and mitigating "defendant history" facts as they see fit. If Hunter has any history with underage girls (and/or with Jeffrey Epstein) or with misusing or disrepecting legal processes, those certainly seem like relevant sentencing considerations to me under applicable law.

Posted by: Doug B | Jun 11, 2024 2:03:40 PM

Doug --

I have zero clue how you got the idea that I want Hunter's drug addiction to be ignored at sentencing. I absolutely want it considered -- as an aggravator. As anyone who's been in the field knows, addiction increases the chances of recidivism because, if for no other reason, it means the defendant will need lots of money that he's quite unlikely to come by legally.

No one forced Hunter Biden, a highly privileged person if ever there was one, to do cocaine. He made his own choice and is responsible for its consequences. Not me, not you, not the government. Him.

Posted by: Bill Otis | Jun 11, 2024 3:33:56 PM

federalist: I don't have an opinion on the tax case because I haven't followed this very closely. Depending on the Guidelines for it, there may be no benefit to pleading if he is going to do time on the gun charge anyway.

Posted by: defendergirl | Jun 11, 2024 3:35:52 PM

I wasn't clear--I obviously think that the Navy thing should result in significantly extra time. Not sure there's much mitigation when drug use is a basically an element of the crime.

I'd max this f'in traitor out.

Posted by: federalist | Jun 11, 2024 3:41:58 PM

Bill, you did this for a living, not I, but wouldn't you just introduce the evidence from Navy--i.e., discharge for drug use. That should buy him an extra 2 years.

Posted by: federalist | Jun 11, 2024 3:46:36 PM

https://townhall.com/tipsheet/mattvespa/2024/06/11/media-reaction-hunter-biden-verdict-n2640266

Doug, do you agree that there is a problem here?

Posted by: federalist | Jun 11, 2024 4:47:07 PM

Bill: I misread your "No, not at all" comment to be an answer to whether addiction should be considered at sentencing. Sorry about being confused, and now I am clear that you see it here generally as an aggravator (though, of course, Hunter is going to seek credit by claiming he is now clean).

federalist: I certainly agree that lots of partisan and non-partisan media merits considerable criticism for not seeking more transparency or accountability from the US Justice Department. Gosh knows, I am still waiting for a story about the invention of sentencing appeal waivers, which impact a heck of a lot more Americans than the prosecution of Hunter Biden. Or even about Jeffrey Epstein and rapes and deaths in BOP/DOJ custody. Or about its litigation against the US Sentencing Commission's amendments on sentence reductions. And on and on.

I realize partisans like you, federalist, focus more on political cases, and I am not surprised you find some media coverage unsatisfying. But I generally care more about how DOJ chicanery impacts real Americans, and the failure of the media to ask hard questions about its often secret and largely unaccountable activities is, sadly, endemic.

Posted by: Doug B | Jun 11, 2024 5:14:53 PM

Unlike Trump, Hunter has not claimed the judge was crooked. Unlike Trump he has not claimed the trial was rigged. Unlike Trump, he has not claimed the DOJ was weaponized against him. Unlike Trump, he has not announced to the world that the criminal justice system is a mess and the country is going to hell. Unlike Trump, he has not claimed the FBI set him up. Unlike Trump, Hunter took his conviction like a man, not a crybaby. I think those are factors that should substantially mitigate the sentence!

Posted by: anon | Jun 11, 2024 7:01:08 PM

Federalist rants that we should "Max this fucking traitor out." His rant should be directed at the judges who will be sentencing the traitor-in-chief: Mr. Trump

Posted by: Dave from Texas | Jun 11, 2024 7:03:29 PM

By my count, unlike Mr. Trump, Hunter Biden qualifies for at least 27 of Michael Levine's "171 Easy Mitigating Factors."

Posted by: Mary quite Contrary | Jun 11, 2024 7:07:34 PM

Professor B, as you know in the federal sentencing scheme, the overarching principle is that the sentence should be "sufficient but not greater than necessary" to achieve the goals of sentencing. In this case anything more than three years probation would be "greater than necessary."

Posted by: Emily | Jun 11, 2024 7:10:57 PM

Mary quite Contrary,

Are screwing your sister in law and getting her hooked on crack, denying your daughter’s paternity and not allowing her to use the Biden name, grifting your entire life, ignoring and then mocking a congressional subpoena, and snorting Parmesan off the floor among the 27?

Posted by: TarlsQtr | Jun 11, 2024 9:18:08 PM

Doug --

"Bill: I misread your "No, not at all" comment to be an answer to whether addiction should be considered at sentencing. Sorry about being confused, and now I am clear that you see it here generally as an aggravator (though, of course, Hunter is going to seek credit by claiming he is now clean)."

Not a problem. Thanks for your note.

P.S. I'm going to get in trouble with federalist -- a formidable legal thinker -- for saying this, but I think Trump's reaction to Hunter's conviction was off key. He should have said something like, "The evidence was strong, and the verdict amply justified. Guns and drugs is a dangerous mix and bad for our country. When I'm President, we're going to crack down. That said, this was President Biden's son, and when your son is in trouble, it's a burden on your heart. I understand the President's reaction."

I've been inside the Beltway for a long time. This election is Trump's to lose. Biden's approval is way underwater, and the direction-of-the-country negatives are staggering. All Trump has to do is show a little graciousness and he'd be able to walk into the White House.

Posted by: Bill Otis | Jun 11, 2024 10:45:34 PM

Yes, you are Bill. I would say that 99% of the time, but Hunter BIden is an awful human being and a traitor to boot. He took money from the ChiComs--you think they just gave away dollars?

Anon, the judge in the Trump case is crooked. Let's not forget that he donated to Biden, and he clearly wasn't chosen at random. HIs rulings were a joke. And anon, let's not forget all the nasty threats to the government lawyers about career suicide from Abbe Lowell. He's lucky I wasn't the government lawyer.

Dave, Hunter took money from the ChiComs. Let's start by getting that right. Trump is no traitor. You guys are--with the election-stealing suppression of the laptop.

Posted by: federalist | Jun 12, 2024 8:37:38 AM

Biden should be maxed out. 25 years.

Posted by: federalist | Jun 12, 2024 10:01:29 AM

I agree with anon's comment above. Unlike Trump, Hunter has not claimed the judge was crooked, that the trial was rigged, or that the DOJ was weaponized against him. Unlike Trump, Hunter took his conviction like a man, not a whining crybaby. Hunter's lawyer should press the argument that, unlike Trump, Hunter respects the criminal justice system.

Posted by: Onlooker | Jun 12, 2024 11:07:37 AM

federalist writes that judge Merchan is crooked because he donated $15 to Biden. Give me a break. He also writes that Merchan "clearly" wasn't chosen at random. When someone says "clearly," he has no evidence. Federalist writes that Merchan's rulings were "a joke." I disagree. Trump tried to block the transfer of power: that makes him a traitor right up there with Benedict Arnold, Aaron Burr, and Jefferson Davis.

Posted by: anon12 | Jun 12, 2024 11:15:34 AM

Mr. Otis writes that "All Trump has to do is show a little graciousness and he'd be able to walk into the White House." That's the problem:
Trump is incapable of showing graciousness.

Posted by: Onlooker | Jun 12, 2024 11:18:04 AM

Onlooker,

Hunter has not admitted the laptop is his and ran an obvious jury nullification defense.

Posted by: TarlsQtr | Jun 12, 2024 11:20:16 AM

anon12, how do you explain that a supposedly random selection process resulted in Merchan being on three Trump-related cases? The odds are astronomical. Also, with respect to the donation---he should have recused, and that makes him crooked.

Hmmmm. Trump tried to mess with the peaceful transfer of power--projection much--what do you think that bogus Logan Act investigation was supposed to do . . . . it was approved by Obama and Biden. Also, you traitors fucked with an election by suppressing the laptop, and scumbag Joe colluded with that attempt. Finanally, you guys got rid of ballot integrity rules. So Trump tried to fight fire with fire.

Posted by: federalist | Jun 12, 2024 11:43:03 AM

federalist asks "how do you explain that a supposedly random selection process resulted in Merchan being on three Trump-related cases? " And I ask how federalist explains that Judge Cannon gets "randomly" assigned to Trump's documents case in Florida?

Posted by: anon12 | Jun 12, 2024 11:57:28 AM

This is a shameless self-plug, but I've published some data showing that a number of potentially mitigating factors (or aggravating, depending on your view!) like addiction correlate with lower sentences, even though the guidelines tell judges not to consider then in deciding whether to sentence outside the guideline range. Link below, for those interested. I think judges consider these sorts of things under 3553(a) all the time (and, in my view, that's a normatively good thing).

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4095494

Posted by: John Meixner | Jun 12, 2024 12:34:37 PM

John Meixner --

I see you don't live inside the Beltway, where "shameless self-plug" in considered a compliment.

Posted by: Bill Otis | Jun 12, 2024 5:31:41 PM

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