Sentencing Law and Policy

Oath Keepers founder gets 18 years in federal prison for role in Jan 6 riot

As reported in this AP piece, the "founder of the Oath Keepers extremist group was sentenced Thursday to 18 years in prison for orchestrating a weekslong plot that culminated in his followers attacking the U.S. Capitol in a bid to keep President Joe Biden out of the White House after the 2020 election." Here is more:

Stewart Rhodes is the first person charged in the Jan. 6, 2021, attack to be sentenced for seditious conspiracy, and his sentence is the longest that has been handed down so far in the hundreds of Capitol riot cases.

It’s another milestone for the Justice Department’s sprawling Jan. 6 investigation, which has led to seditious conspiracy convictions against the top leaders of two far-right extremist groups authorities say came to Washington prepared to fight to keep President Donald Trump in power at all costs.

Before handing down the sentence, the judge told a defiant Rhodes that he is a continued threat to the U.S., saying it’s clear Rhodes “wants democracy in this country to devolve into violence.”

“The moment you are released, whenever that may be, you will be ready to take up arms against your government,” U.S. District Judge Amit Mehta said....

Prosecutors had sought 25 years for Rhodes, who they say was the architect of a plot to forcibly disrupt the transfer of presidential power that included “quick reaction force” teams at a Virginia hotel to ferry weapons into D.C. if they were needed. The weapons were never deployed.

In remarks shortly before the judge handed down the sentence, Rhodes slammed the prosecution as politically motivated, noted that he never went inside the Capitol and insisted he never told anyone else to do so. “I’m a political prisoner and like President Trump my only crime is opposing those who are destroying our country,” Rhodes said.

In a first for a Jan. 6 case, U.S. District Judge Amit Mehta agreed with prosecutors to apply enhanced penalties for “terrorism,” under the argument that the Oath Keepers sought to influence the government through “intimidation or coercion.”  Judges in previous sentencings had shot down the Justice Department’s request for the so-called “terrorism enhancement” — which can lead to a longer prison term — but Mehta said it fits in Rhodes’ case.

Prosecutors argued that a lengthy sentence is necessary to deter future political violence. Assistant U.S. Attorney Kathryn Rakoczy pointed to interviews and speeches Rhodes has given from jail repeating the lie 2020 election was stolen and saying it would be again in 2024. In remarks just days ago, Rhodes called for “regime change,” the prosecutor said....

A lawyer for Rhodes, who plans to appeal his conviction, said prosecutors are unfairly trying to make Rhodes “the face” of January 6. Attorney Phillip Linder told the judge that Rhodes could have had many more Oath Keepers come to the Capitol “if he really wanted to” disrupt Congress’ certification of the Electoral College vote. “If you want to put a face on J6 (Jan. 6), you put it on Trump, right-wing media, politicians, all the people who spun that narrative,” Linder said.

Another Oath Keeper convicted alongside Rhodes in November — Florida chapter leader Kelly Meggs — was expected to receive his sentence later Thursday. Two other Oath Keepers, acquitted of the sedition charge but convicted of other offenses, will be sentenced Friday. And four other members found guilty of seditious conspiracy at a second trial in January are scheduled to be sentenced next week....

Rhodes’ sentence may forecast what prosecutors will seek for former Proud Boys national chairman Enrique Tarrio, who was convicted of seditious conspiracy alongside other leaders of his far-right group this month for what prosecutors said was a separate plot to block the transfer of presidential power. The Proud Boys will be sentenced in August and September.

Rhodes, 58, and the other Oath Keepers said there was never any plan to attack the Capitol or stop Congress from certifying Biden’s victory. The defense tried to seize on the fact that none of the Oath Keepers’ messages laid out an explicit plan to storm the Capitol. But prosecutors said the Oath Keepers saw an opportunity to further their goal to stop the transfer of power and sprang into action when the mob began storming the building....

Before Thursday, the longest sentence in the more than 1,000 Capitol riot cases was 14 years for a man with a long criminal record who attacked police officers with pepper spray and a chair as he stormed the Capitol. Just over 500 of the defendants have been sentenced, with more than half receiving prison time and the remainder getting sentences such as probation or home detention.

Rhodes will not only be appealing his convictions, but surely also this sentencing.  The application of the guidelines' 'terrorism enhancement" will surely be part of any sentencing appeal, though I suspect there will be plenty of other issues raised for the DC Circuit to consider.

Prior related posts:

• Big spread in sentencing recommendations for Oath Keepers founder convicted of seditious conspiracy
• Extended discussion of issues surrounding upcoming federal sentencing of Oath Keepers 

UPDATE with additional sentencing:  This CBS News piece, which is mostly about the Rhodes sentencing, includes this news about a co-defendant's subsequent sentencing:

Hours after Rhodes was sentenced, his co-defendant Kelly Meggs, the leader of the Florida chapter of the Oath Keepers, was given a sentence of 12 years behind bars. Meggs was convicted of seditious conspiracy alongside Rhodes last November. Prosecutors alleged he spearheaded the effort to enter the Capitol.

Intriguing report that Trump legal team believes Apprendi can require downgrading his NY criminal charges

A helpful colleague made sure I did not miss this new Daily Beast article headlined "Trump’s New Ploy to Knock the Manhattan DA’s Case Down to Misdemeanors."  Here is how the piece starts:

When the Manhattan District Attorney finally indicted former President Donald Trump in March, Alvin Bragg made the curious decision to not detail Trump’s crimes in the official indictment — something critics seized on almost immediately to say this was an overblown case.

While previous investigators had wrestled with how to charge Trump with felonies, Bragg overcame that hurdle by essentially charging Trump with 34 misdemeanor counts of faking business records — then leveling them up to felonies in a parallel legal document.  Under New York law, faking business records is only a felony if it’s done while committing another crime.  In this case, prosecutors say Trump hid his 2016 porn star hush money payment in order to break election laws, therefore the 34 counts of taking business records become felonies.

But according to a source familiar with the Trump legal team’s internal discussions, the former president’s lawyers are now exploring how to use that otherwise ingenious move as a weakness to severely power down the case.  And Trump’s lawyers believe their new tactic could force the DA to reconsider if this is a fight worth having.  Their legal strategy all comes down to a Supreme Court case where a white guy in New Jersey got drunk and shot at a Black family’s home in 1994 — and then managed to get hate crime charges overturned.

Trump’s lawyers are eyeing the 2000 SCOTUS decision Apprendi v. New Jersey, which stressed the importance of putting in an indictment all the aspects of a crime that could enhance penalties.

Here is more:

When Trump was arraigned in criminal court in April, his defense lawyer Joe Tacopina assured reporters this case would “never” make it to trial.  And the Trump team’s new potential tactic threatens to downgrade the severity of the case before it ever reaches a jury, which could force the DA to consider whether a case full of misdemeanors justifies an expensive prosecution.

The legal precedent Trump’s team is considering is also buttressed by a 1999 Supreme Court decision, Jones v United States, which decided that “any fact other than prior conviction that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt.”

If Trump’s team successfully uses that defense strategy, it would be an embarrassing defeat for Bragg, who could have just as easily put all the information about the case that was included in the “Statement of Facts” in the indictment and avoided this whole mess.

Ninth Circuit panel rules that Elizabeth Holmes cannot stay out on bail while her appeal is pending

As reported in this new AP article, "Theranos CEO Elizabeth Holmes appears to be soon bound for prison after an appeals court Tuesday rejected her bid to remain free while she tries to overturn her conviction in a blood-testing hoax that brought her fleeting fame and fortune." Here is more:

The Ninth Circuit Court of Appeals ruling comes nearly three weeks after Holmes deployed a last-minute legal maneuver to delay the start of her 11-year prison sentence.  She had been previously ordered to surrender to authorities on April 27 by U.S. District Judge Edward Davila, who sentenced her in November.

Davila will now set a new date for Holmes, 39, to leave her current home in the San Diego area and report to prison. The punishment will separate Holmes from her current partner, William “Billy” Evans, their 1-year-old son, William, and 3-month-old daughter, Invicta.  Holmes’ pregnancy with Invicta — Latin for “invincible,” or “undefeated” — began after a jury convicted her on four counts of fraud and conspiracy in January 2022.

Davila has recommended that Holmes serve her sentence at a women’s prison in Bryan, Texas.  It hasn’t been disclosed whether the federal Bureau of Prisons accepted Davila’s recommendation or assigned Holmes to another facility.

Holmes’ former lover and top lieutenant at Theranos, Ramesh “Sunny’ Balwani, began a nearly 13-year prison sentence in April after being convicted on 12 counts of fraud and conspiracy last July in a separate trial.  Balwani, 57, was incarcerated in a Southern California prison after losing a similar effort to remain free on bail while appealing his conviction....

Holmes’s lawyers have been fighting her conviction on grounds of alleged mistakes and misconduct that occurred during her trial.  They have also contended errors and abuses that biased the jury were so egregious that she should be allowed to stay out of prison while the appeal unfolds — a request that has now been rebuffed by both Davila and the Ninth Circuit Court of Appeals.

Some prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Sentencing memos paint very different pictures of Elizabeth Holmes 
• Federal judge imposes (within guideline) sentence of 135 months on Theranos founder Elizabeth Holmes 
• Sentencing judge recommended prison camp for Elizabeth Holmes to serve her sentence 
• Citing prior "attempt to flee the country," feds urging that Elizabeth Holmes start her prison sentence in April
• Federal judge denies Elizabeth Holmes motion to remain free pending her appeal of fraud convictions 

Big spread in sentencing recommendations for Oath Keepers founder convicted of seditious conspiracy

As reported in this Washington Post piece, lawyers for "Stewart Rhodes urged a judge to sentence him to far less than the 25-year prison term sought by federal prosecutors for seditious conspiracy in the Jan. 6, 2021, Capitol attack — asking for a penalty of time served or roughly 16 months behind bars — citing his military service and his founding and leadership of the right-wing extremist group Oath Keepers." Here is more:

In a Monday morning court filing, the attorneys emphasized that Rhodes volunteered for the Army in June 1983, completed Airborne school and was honorably discharged after suffering a spinal fracture in a low-altitude night jump in 1986.  They emphasized his formation of the Oath Keepers in 2009, saying the group provided hurricane and other emergency relief, security in cities experiencing rioting, and protective details for VIPs during President Donald Trump’s rallies after the 2020 presidential election....

The defense filing came after a Friday evening memo by prosecutors asking a federal judge to sentence Rhodes to 25 years in prison and eight followers to at least 10 years behind bars, in the first punishments to be handed down to defendants convicted of seditious conspiracy in the Capitol riot.

Rhodes and the others face sentencing starting later this month. Rhodes was arrested in January 2022 and will have served roughly 16 months at that point....

Rhodes, a top deputy and four others were found guilty at trials in November and January of plotting to unleash political violence to prevent the Biden presidency, stashing a small arsenal of firearms at hotels in Northern Virginia before converging that afternoon at the East Capitol steps in military-style tactical gear.  Three other co-defendants were convicted of obstructing Congress as it met to confirm the results of the 2020 election, among other crimes. Both top offenses are punishable by up to 20 years in prison, but prosecutors asked the court to stack sentences for Rhodes, citing among other things an enhanced terrorism penalty for actions intended to intimidate or coerce the government.

Prosecutors called for “swift and severe” punishment for Rhodes, saying his group’s actions went far beyond the scope and magnitude of any other Jan. 6 defendants sentenced so far.  They said Rhodes exploited his public influence in the anti-government extremist movement and mobilized people for political violence after “spreading doubt about the presidential election and turning others against the government” because their preferred candidate did not win....

Mehta, Rhodes’s sentencing judge, has handed down the two longest punishments to Jan. 6 defendants so far, both for assaulting police: 14 years for Peter Schwartz of Kentucky, who attacked multiple officers and who has a long criminal history of 38 convictions, including multiple domestic and police assaults; and 10 years for Timothy Webster, a former New York City police officer who attacked a Capitol Police officer with a metal flagpole.

Rhodes’s attorneys said only those two men have been sentenced to more than eight years in Jan. 6 cases, attaching a 54-page government chart of sentences to a 16-page defense filing.  About 200 of roughly 450 people sentenced have received no jail time, and more than half of the roughly 250 people who have been sentenced to prison received terms of less than two months.

Of 110 people sentenced for felonies, about 76 who pleaded guilty have been sentenced to an average of 33 months, and about 34 who were convicted at trial have been sentenced to an average of 44 months in prison, according to a separate Washington Post analysis.

The defense's 70-page sentencing filing is available at this link; the government's 183-page sentencing filing is available at this link.

Longest sentence yet in Jan 6 case, 14+ years in federal prison, given to man with 38 priors

As reported in this Fox News piece, a "Kentucky man with a long criminal record was sentenced Friday to a record-setting 14 years in prison for attacking police officers with pepper spray and a chair as he stormed the U.S. Capitol with his wife." Here is more:

Peter Schwartz’s prison sentence is the longest so far among hundreds of Capitol riot cases.  The judge who sentenced Schwartz also handed down the previous longest sentence — 10 years — to a retired New York Police Department officer who assaulted a police officer outside the Capitol on Jan. 6, 2021.  Prosecutors had recommended a prison sentence of 24 years and 6 months for Schwartz, a welder.

U.S. District Judge Amit Mehta sentenced Schwartz to 14 years and two months in prison, followed by three years of supervised release.  Mehta said Schwartz was a "soldier against democracy" who participated in "the kind of mayhem, chaos that had never been seen in the country's history."

"You are not a political prisoner," the judge told him. "You're not somebody who is standing up against injustice or fighting against an autocratic regime."

Schwartz briefly addressed the judge before learning his sentence, saying, "I do sincerely regret the damage that Jan. 6 has caused to so many people and their lives."  The judge said he didn't believe Schwartz's statement, noting his lack of remorse. "You took it upon yourself to try and injure multiple police officers that day," Mehta said.

Schwartz was armed with a wooden tire knocker when he and his then-wife, Shelly Stallings, joined other rioters in overwhelming a line of police officers on the Capitol’s Lower West Terrace, where he threw a folding chair at officers. "By throwing that chair, Schwartz directly contributed to the fall of the police line that enabled rioters to flood forward and take over the entire terrace," prosecutor Jocelyn Bond wrote in a court filing.

Schwartz, 49, also armed himself with a police-issued "super soaker" canister of pepper spray and sprayed it at retreating officers.  to a tunnel entrance, Schwartz coordinated with two other rioters, Markus Maly and Jeffrey Brown, to spray an orange liquid toward officers clashing with the mob.  "While the stream of liquid did not directly hit any officer, its effect was to heighten the danger to the officers in that tunnel," Bond wrote....

Stallings pleaded guilty last year to riot-related charges and was sentenced last month to two years of incarceration.

Schwartz was tried with co-defendants Maly and Brown.  In December, a jury convicted all three of assault charges and other felony offenses.  Mehta sentenced Brown last Friday to four years and six months in prison.  Maly is scheduled to be sentenced June 9.

Schwartz’s attorneys requested a prison sentence of four years and six months.  They said his actions on Jan. 6 were motivated by a "misunderstanding" about the 2020 presidential election.  Then-President Donald Trump and his allies spread baseless conspiracy theories that Democrats stole the election from the Republican incumbent....

Schwartz was on probation when he joined the Jan. 6 riot. His criminal record includes a "jaw-dropping" 38 prior convictions since 1991, "several of which involved assaulting or threatening officers or other authority figures," Bond wrote....

The 10-year prison sentence that Mehta handed down in September to retired NYPD officer Thomas Webster had remained the longest until Friday.  Webster had used a metal flagpole to assault an officer and then tackled the same officer as the mob advanced toward the Capitol.

Federal judge denies Elizabeth Holmes motion to remain free pending her appeal of fraud convictions

As reported in this new Bloomberg piece, "Elizabeth Holmes must report to prison as scheduled later this month, a judge ruled, rejecting her request to remain free on bail as she appeals her fraud conviction."  Here is more:

The decision Monday by US District Judge Edward Davila in San Jose, California, is likely his last in the case which he’s handled since Holmes was indicted in 2018. Davila presided over the Theranos Inc. founder’s four-month trial in 2021 and sentenced her in November to serve 11 1/4 years of incarceration for deceiving investors in her blood-testing startup.

Legal experts said Holmes’s bid to remain free during an appeals process that might take two years was a long shot. She’s expected to make one final request for bail from the San Francisco-based federal appeals court, which she has also asked to overturn her conviction.

Davila ruled that even if Holmes won an appeals court ruling overturning his decisions to allow evidence challenging the accuracy and reliability of Theranos’s technology, she had deceived investors in so many different ways that such a decision isn’t likely to require a reversal or new trial on all the fraud counts she was convicted of. “Whether the jury heard more or less evidence that tended to show the accuracy and reliability of Theranos technology does not diminish the evidence the jury heard of other misrepresentations Ms. Holmes had made to investors,” he wrote.

To justify her request for bail, Holmes said she has two young children, continues to work on new inventions, and has raised “substantial questions” of law or facts in her appeal that could win her a new trial. At a hearing last month, Davila was most interested in an argument prosecutors made that there’s a risk Holmes might try to flee, based on a one-way plane ticket to Mexico that was purchased while she was on trial....

“Booking international travel plans for a criminal defendant in anticipation of a complete defense victory is a bold move, and the failure to promptly cancel those plans after a guilty verdict is a perilously careless oversight,” Davila said of the plane ticket. The incident invited “greater scrutiny” of Holmes, he wrote, adding that he concluded the purchase “while ill-advised, was not an attempt to flee the country.”...

Davila previously denied a request for bail pending appeal sought by Ramesh “Sunny” Balwani, the former president of Theranos and Holmes’s ex-boyfriend who was sentenced to 13 years in prison for his fraud conviction. The appeals court upheld Davila’s decision.

This latest ruling in US v. Holmes, which runs 11 pages, can be found at this link.

Some prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?
• Sentencing memos paint very different pictures of Elizabeth Holmes 
• Federal judge imposes (within guideline) sentence of 135 months on Theranos founder Elizabeth Holmes 
• Sentencing judge recommended prison camp for Elizabeth Holmes to serve her sentence 
• Citing prior "attempt to flee the country," feds urging that Elizabeth Holmes start her prison sentence in April

RFK's assassin, Sirhan Sirhan, denied parole after 17th California parole board hearing

As reported in this New York Times article, a "California panel on Wednesday denied parole for Sirhan B. Sirhan, the man convicted in the 1968 assassination of Senator Robert F. Kennedy, in its first review of the case since Gov. Gavin Newsom decided last year that Mr. Sirhan, 78, should not be released." Here is more:

The parole board’s latest decision, which followed a hearing via videoconference from the state prison in San Diego, where Mr. Sirhan has been held, was the second time in three years that Mr. Sirhan’s release had been considered.  He has spent more than a half-century behind bars for shooting Mr. Kennedy, then a candidate for president, inside the Ambassador Hotel in Los Angeles at the end of a campaign appearance in 1968.  At the time, Mr. Sirhan was 24.

His lawyers have argued that he is not a danger to the public and should be released.  In 2021, a panel of the parole board agreed. But after an extraordinary chain of events, the governor overruled the panel last year, charging that Mr. Sirhan had not yet been rehabilitated.

On Wednesday, after Mr. Sirhan’s 17th parole hearing, the new recommendation was made by a commissioner and a deputy commissioner who were not part of the review panel in 2021. Governor Newsom had no comment....

By 2021, California law required the parole board, when making a determination on releasing an inmate, to consider the inmate’s advanced age and his relative youth at the time a crime was committed.  After 15 prior denials, a panel of commissioners granted him parole that year.  They noted then that Mr. Sirhan had improved himself by taking classes in prison. Two of Mr. Kennedy’s sons had also urged leniency.

But most of the family was adamant that Mr. Sirhan remain behind bars and pleaded with Mr. Newsom to exercise his power under California law to reject the panel’s recommendation.  In January 2022, after more than four months of review, the Democratic governor — who has long spoken of Mr. Kennedy as a role model — granted that plea.

“After decades in prison, he has failed to address the deficiencies that led him to assassinate Senator Kennedy,” the governor wrote last year. “Mr. Sirhan lacks the insight that would prevent him from making the same types of dangerous decisions he made in the past.”

Mr. Sirhan’s lawyer, Angela Berry, has since asked a Los Angeles Superior Court judge to reverse Mr. Newsom’s 2022 parole denial. With that petition pending, she said on Wednesday that she believed the panel’s latest decision had been influenced by the governor’s rejection last year.

Prior related posts:

• Notably high-profile cases now the focus of parole decision-making 
• RFK killer. Sirhan Sirhan, recommended for parole after decades of denials 
• "If Democrats don't think Robert Kennedy’s assassin deserves parole, do they really support criminal justice reform?" 
• California Gov Newsom reverse parole grant to Sirhan Sirhan, RFK's assassin 

Second-round celebrity sex offenders sentencing day

I got two alerts from the New York Times this afternoon about celebrity sentencings, and both involve sex offenders getting sentenced for the second time. Here are the headlines and the basics:

"Harvey Weinstein Sentenced to 16 Years for Los Angeles Sex Crimes"

Harvey Weinstein, the movie producer whose treatment of women propelled the #MeToo movement in 2017, was sentenced on Thursday to 16 years in prison for committing sex crimes in Los Angeles County. The sentence in Los Angeles adds to the 23 years Mr. Weinstein is serving in New York after his conviction there in 2020.

"R. Kelly Sentenced to 20 Years for Child Sex Crimes"

A federal judge on Thursday sentenced R. Kelly to 20 years in prison for child sex crimes, after a jury found that he had produced three videos of himself sexually abusing his 14-year-old goddaughter.  In a victory for the defense, the judge ruled that all but one year of the prison sentence would be served at the same time as a previous 30-year sentence that Mr. Kelly received after a jury in Brooklyn convicted him of racketeering and sex trafficking charges.

Citing prior "attempt to flee the country," feds urging that Elizabeth Holmes start her prison sentence in April

If producers are thinking about developing Season 2 of The Dropout, a legal filing today by federal prosecutors provide some dramatic materials.  This CNN article, headlined "Elizabeth Holmes made an ‘attempt to flee the country’ after her conviction, prosecutors say," provides these details:

Elizabeth Holmes made an “attempt to flee the country” by booking a one-way ticket to Mexico departing in January 2022, shortly after the Theranos founder was convicted of fraud, prosecutors alleged in a new court filing Friday.

Holmes was convicted last January of defrauding investors while running the failed blood testing startup Theranos. In November, she was sentenced to more than 11 years in prison. She has appealed her conviction and does not start her prison sentence until this spring, a waiting period that prosecutors described as “generous” and due to her being pregnant.

The claim that she tried to leave the country last year surfaced as part of a new filing from prosecutors arguing that Holmes should begin serving her prison sentence rather than living on an estate reported to have $13,000 in monthly expenses for upkeep.

In the filing, prosecutors argue Holmes has not shown convincing evidence that she is not a flight risk, as her lawyers have stated, and used the alleged 2022 incident to support their concerns that she could pose such a risk. “The government became aware on January 23, 2022, that Defendant Holmes booked an international flight to Mexico departing on January 26, 2022, without a scheduled return trip,” the court filing states. “Only after the government raised this unauthorized flight with defense counsel was the trip canceled.”

The filing adds that prosecutors anticipate Holmes will “reply that she did not in fact leave the country as scheduled” but said “it is difficult to know with certainty” what she would have done “had the government not intervened.” Now, in the wake of her sentencing, prosecutors say “the incentive to flee has never been higher” and Holmes “has the means to act on that incentive.”...

The court filing includes an email from one of Holmes’ attorneys to the prosecution, claiming that the travel reservation was made before the verdict. In the email, Holmes’ attorney claims the former Theranos CEO hoped the verdict would be different and that she would be able to make this trip to attend the wedding of friends in Mexico.

In an earlier court filing, Holmes’ attorneys argued for her release from custody pending appeal, saying she was not a flight risk or a threat to the community. Holmes has been ordered to turn herself into custody on April 27, 2023, at which point her prison sentence will begin.

“There are not two systems of justice – one for the wealthy and one for the poor – there is one criminal justice system in this country,” prosecutors stated in the filing. They argue that “under that system, the time has come” for Holmes to answer for her crimes.

Some prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?
• Sentencing memos paint very different pictures of Elizabeth Holmes 
• Federal judge imposes (within guideline) sentence of 135 months on Theranos founder Elizabeth Holmes 
• Sentencing judge recommended prison camp for Elizabeth Holmes to serve her sentence 

Reviewing prosecutions and sentencings two years after January 6 Capitol riots

A number of major papers today provide some major reviews of the prosecution and sentencing of January 6 rioters on the two-year anniversary of the storming of the Capitol.  Here are headlines and links, as well as an except from the story most focused on sentencing outcomes:

From the New York Times, "Two Years Later, Prosecutions of Jan. 6 Rioters Continue to Grow: The Justice Department’s investigation of the Capitol attack, already the largest it has ever conducted, has resulted in 900 arrests, with the potential for scores or hundreds more to come."

From USA Today, "More than 950 people have been charged in Jan. 6 Capitol riot, but investigation 'far from over'"

From the Washington Post, "Review of Jan. 6 cases finds judges give harsh lectures, lighter sentences: Judges have gone below prosecutors’ recommendations three-quarters of time, and below federal sentencing guidelines a little less than 40 percent":

Of more than 460 people charged with felonies, only 69 have been convicted and sentenced so far, mostly for assaulting police or obstructing Congress; all but four have received jail or prison time. The average prison sentence for a felony conviction so far is 33 months, according to a Washington Post database....

About half of the arrests so far have been for misdemeanors, and for those given actual jail time, the average sentence has been 48 days. But most of the misdemeanants have not received any jail time: most have received probation, home detention or halfway house time, or a fine. These defendants are typically rioters who entered the Capitol and didn’t engage with the police, but left a trail of social media posts and photos before, during and after Jan. 6.

If we include those who didn’t receive jail time among the misdemeanor sentences, the average jail time drops to 22 days. The number of defendants being held in jail before trial, or awaiting sentencing, is about 50, according to a list provided by the Justice Department....

For the 25 defendants sentenced so far for assaulting law enforcement, the average sentence has been more than 48 months — in line with the nationwide average for that offense in recent years, according to data from the U.S. Sentencing Commission. Former New York City police officer Thomas Webster received a 10-year term for fighting with an officer and helping breach the outer perimeter. There are still nearly 180 defendants whose assault cases are pending.

The most serious charge for those not accused of assaulting the police has been obstruction of an official proceeding. Only 28 people have been sentenced for obstruction or conspiracy to obstruct the certification of the electoral vote, receiving an average sentence of about 42 months....

The judges appointed by Democratic presidents have imposed jail or prison sentences in 61 percent of their cases, and probation in 18 percent of the cases, while judges appointed by Republican presidents have given jail or prison sentences in 48 percent of their cases, and probation in 34 percent of cases. In the remaining cases, judges have sentenced defendants to home detention or a halfway house, or imposed a fine. Judge Tanya Chutkan, an Obama appointee, has handled 22 sentencings and imposed incarceration in every one, but another Obama appointee, Judge Rudolph Contreras, has handled 16 sentencings and jailed only one defendant.

Judges Dabney Friedrich and Trevor N. McFadden, both Trump appointees, have given probation sentences to about half of their Jan. 6 defendants. McFadden is also the only judge to have acquitted a defendant at trial and the only judge to have imposed only a fine on a defendant.

You be the judge: what federal sentence for Varsity Blues college admission scandal mastermind Rick Singer?

Wednesday afternoon brings a high-profile federal sentencing in Boston federal court, and I'd be interested in predictions (and/or recommendations) as to the sentence to be given to the man behind the Varsity Blues college admission scandal.  This lengthy NPR piece provides a preview, and here are excerpts:

The mastermind of the Varsity Blues college admissions scandal, Rick Singer, is set to be sentenced Wednesday in Boston for a scheme that federal prosecutors say is "staggering in its scope and breathtaking in its audacity." Prosecutors want him sentenced to six years in prison, while Singer is asking the judge to let him off with little or no prison time.

His sentencing is the capstone in the years-long investigation and prosecution of Singer and more than 50 co-conspirators, and puts the focus back on what has and has not changed since the scandal broke open in March 2019.

Singer, 62, pleaded guilty to raking in some $25 million by selling what he liked to call "a side door" into highly selective universities such as Yale, Georgetown and USC to dozens of clients, from actresses Felicity Huffman and Lori Loughlin to business titans and big-shot lawyers.  "We help the wealthiest families in the U.S. get their kids in school," Singer bragged as he pitched one of his clients on a call recorded by the FBI. "They want guarantees. They want this thing done."

His scheme involved, for instance, bribing college coaches to take students as athletic recruits, even if they were mediocre or had never even played the sport.  Singer would just make up a totally fake resume, complete with a student's face photoshopped onto an image of a real athlete.  His menu of cheating services also included fixing students' wrong answers on their college admissions tests or having someone take the test in their place....

Of the more than 50 parents, coaches and others caught up in the scheme, more than a third were sentenced to three months or less in prison.  Roughly a quarter of the defendants got no time at all behind bars, including five people who cooperated with prosecutors.

Singer is hoping his cooperation will earn him leniency, too. "He believes he will get some time, but I don't think he believes it will be a lot of time," says Bill Blankenship, who lives next door to Singer in a mobile home park in St. Petersburg, Fla.... "I have lost everything," Singer wrote in court filings pleading for leniency. He says he's "woken up every day feeling shame, remorse and regret."

"He is already serving a life sentence of sorts," his lawyers say, "vilified by the public, and ostracized, living an isolated, lonely life," and having lost "the trust and respect of family, friends."  Despite pleading guilty to conspiracy to commit racketeering, conspiracy to commit money laundering, obstruction of justice and conspiracy to defraud the United States, Singer's lawyers have asked the court to sentence him to home confinement instead of prison.  Or if Singer must serve time, his lawyers suggest, he should get no more than six months behind bars.

The lawyers also say Singer deserves credit for his "crucial" cooperation, helping prosecutors nab his former clients. He secretly recorded hundreds of phone calls with some 30 co-conspirators, methodically and craftily getting them to incriminate themselves by acknowledging the payments and bribes they paid as the tape rolled.  His ruse was to tell them that his fake charitable foundation that he used to launder bribe money was being audited by the IRS....

"Prosecutors made a deal with the devil in this case, but they always do," says former federal Judge Nancy Gertner. What makes this case unusual is that the deal is not with low-level co-conspirators ratting out the kingpin, it's with the kingpin himself, flipping on his former clients.  "I think this is an extraordinarily difficult sentencing," Gertner says, "because on the one hand, Singer's cooperation is enormously important. And you get people to cooperate by telling them they will get a benefit in their sentencing."  On the other hand, she notes, as the kingpin who masterminded the whole scheme and used more than $15 million of his clients' bribe money for his own benefit, Singer would be considered "more culpable than anyone — his cooperation notwithstanding."

Indeed, prosecutors argue Singer is most culpable "by leaps and bounds" and his sentence must be longer than the longest one to date, which was the two-and-a-half years imposed on former Georgetown University tennis coach Gordon Ernst, who accepted nearly $3.5 million in bribes in cases of at least 22 students.

Prosecutors also argue that while Singer's cooperation was "singularly valuable," it was also "singularly problematic." After he was arrested for his con, Singer actually tried to con prosecutors, too.  At the same time he was vowing to cooperate to nab other targets, he tipped off at least six co-conspirators, warning they were under investigation and that if they got a call from him, they should assume they were being recorded and deny any wrongdoing.

It's partly why prosecutors are not recommending more of a reward for Singer's cooperation.  The six years they're calling for is just slightly below the range of 6 ½ to 8 years set by the sentencing guidelines that the court has accepted.

I will likely be on a plane when this interesting sentencing takes place, so I am not sure when I will get a chance to report on the outcome.  But I am inclined to predict that the judge here will land on a prison sentence between the recommendations of the parties, probably in the three- or four-year range.

A few of many prior posts on other defendants in college admissions scandal:

• Mapping out next possible celebrity sentencings in wake of indictment in college admissions scandal 
• Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal
• Federal district judge rejects feds request for significant prison term in first sentencing of college bribery scandal
• Feds recommending incarceration terms from 1 to 15 months for parents involved college bribery scandal 
• Napa Valley winemaker gets five months of imprisonment, the longest sentence so far in college admissions scandal
• Catching up with another round of sentencings in "Operation Varsity Blues"
• Reviewing the sentencing dynamics as more parents get (minimal) prison time in "Operation Varsity Blues" college admissions scandal 
• Nine-month federal prison term (the longest yet) given to former CEO who paid nearly $1 million to benefit four kids in college admission scandal 
• Felicity Huffman sentenced to 14 days in college bribery scandal 
• Via video, Lori Loughlin and her husband get agreed fixed short prison sentences in college admission scandal 
• Trial penalties lead to longest (but still not so long) sentences for two Varsity Blues defendants 
• Longest prison sentence yet in Varisity Blues case, 30 months, given to Georgetown tennis coach

UPDATE: This CNN report on the sentencing, headlined "College admissions scam mastermind sentenced to 3.5 years in federal prison," documents that my prediction was actually pretty sound.  (If only there was a fantasy sentencing league instead of the sports leagues in which my outcome predictions fare much worse.)

Federal judge imposes (within guideline) sentence of 155 months on former Theranos COO Ramesh "Sunny" Balwani

Last month, as blogged here, US District Judge Edward Davila sentenced Theranos founder Elizabeth Holmes to a (within guideline) prison term of 135 months.  Today brought sentencing for former Theranos COO Ramesh “Sunny” Balwani, and this TechCrunch account provides these highlights of the process and outcome:

The former COO of disgraced blood testing startup Theranos, Ramesh “Sunny” Balwani was sentenced to 155 months, or about 13 years, in prison, and three years of probation. After a three-month trial, Balwani was found guilty on all 12 criminal charges, ranging from defrauding patients and investors to conspiring to commit fraud. Theranos CEO Elizabeth Holmes was convicted on four of these charges and was sentenced to 11.25 years in prison last month.

Despite the disparate outcomes from the two separate juries in two individual trials, Judge Ed Davila calculated Holmes’ and Balwani’s sentencing ranges to be exactly the same: 135 to 168 months, or 11.25 to 14 years. In both cases, prosecutor Jeff Schenk countered by asking for 15 years.

Balwani’s lawyers attempted to argue that he should get a more lenient sentence than Holmes, as he was not CEO. “He’s not Ms. Holmes. He did not pursue fame and fortune,” said Balwani’s attorney Jeffrey Coopersmith.

Judge Davila even noted that the court saw another side of Balwani when they were told about his charitable giving, some of which occurred after Theranos. Yet Balwani still received a severe sentence of 13 years....

Unlike the jury at Holmes’ trial, the jury at Balwani’s trial held him accountable for defrauding patients, not just investors.

Before the former COO’s sentencing hearing, Balwani’s lawyers filed 40 objections to the probation office’s pre-sentence investigation report, according to tweets from Law 360 reporter Dorothy Atkins, who was present at the hearing. Judge Davila, who also presided over Holmes’ trial, said that only four of those objections were substantive.

“Usually sentencing hearings are morbid regardless of the crime — like watching a car crash where you watch families and lives being destroyed in real time,” Atkins tweeted from the court room. “This one feels more like an accounting class.”

It would certainly not be unprecedented if Balwani decides to appeal this ruling. After Holmes’ own sentencing, the former Theranos CEO told a California federal judge that she would appeal her conviction. She then asked to stay out of custody while her appeal is under consideration, also citing that she is currently pregnant with her second child. As it stands, Holmes’ surrender date is April 27, while Balwani will report to prison on March 15.

Sentencing judge recommended prison camp for Elizabeth Holmes to serve her sentence

As reported in this new press piece, "District Judge Edward Davila has proposed sentencing Theranos founder Elizabeth Holmes to a federal prison camp in Texas, according to court filings." Here is more:

“The Court finds that family visitation enhances rehabilitation,” Davila wrote in the filing, according to Bloomberg, which summarized the terms of Holmes’ sentencing.

The prison camp is located in Bryan, Texas, and was proposed as an alternative to Holmes serving her 11-year 3-month sentence at a California prison.  There’s a few prison camps like this one across the country that typically have a low security-to-inmate ratio, dormitory housing, and a work program. “...compared to other places in the prison system, this place is heaven.  If you have to go it’s a good place to go.” Alan Ellis, a criminal defense lawyer, told Bloomberg.

Keri Axel, a criminal defense attorney told Yahoo! Finance that it is common for non-violent offenders like Holmes to serve out their time at minimum security facilities.  “Sometimes they’re called ‘Camp Fed’ because they have a little bit more amenities, and they’re a little nicer places,” she said, adding the caveat, “they’re not great places. No one wants to be there.”

Although the judge has recommended the prison camp for Holmes’ incarceration, the U.S. Bureau of Prisons will make the final decision.  Holmes was sentenced to 11 years and three months in prison on November 18 after she was found guilty of defrauding Theranos investors out of millions of dollars as part of her failed blood-testing startup.  She was also sentenced to three years of supervision after her release.

Prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?
• Elizabeth Holmes' federal sentencing ready to go forward after her new trial motion is denied 
• Sentencing memos paint very different pictures of Elizabeth Holmes 
• Any final thoughts on today's federal sentencing of Elizabeth Holmes?
• Federal judge imposes (within guideline) sentence of 135 months on Theranos founder Elizabeth Holmes 

Federal judge imposes (within guideline) sentence of 135 months on Theranos founder Elizabeth Holmes

After a lengthy sentencing hearing (and a favorable guideline calculation), Theranos founder Elizabeth Holmes heard US District Judge Edward Davila sentence her to 135 months in federal prison this afternoon.  (That's 11 years and three months for those not accustomed to math in base 12.) 

Why such a quirky number?  Apparently Judge Davila concluded the total loss in share value properly attributed to Holmes's fraud was $121 million, which was an integral finding to support his calculation that her guidelines range was 135-168 months. (The feds, some may recall, calculated her guideline range to be life.)

Here is the lede of the Wall Street Journal's coverage of the sentence: "Elizabeth Holmes, the founder of Theranos Inc. convicted of fraud, was sentenced to 135 months, or 11.25 years, in prison, capping the extraordinary downfall of a one-time Silicon Valley wunderkind."

Prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?
• Elizabeth Holmes' federal sentencing ready to go forward after her new trial motion is denied 
• Sentencing memos paint very different pictures of Elizabeth Holmes 
• Any final thoughts on today's federal sentencing of Elizabeth Holmes?

Sentencing memos paint very different pictures of Elizabeth Holmes

Two Reuters articles and ledes highlight the very different portraites of Elizabeth Holmes drawn in recent sentencing filings:

"Elizabeth Holmes seeks to avoid prison for Theranos fraud":

Elizabeth Holmes urged a U.S. judge not to send her to prison, as the founder of Theranos Inc prepares to be sentenced next week for defrauding investors in the blood testing startup. In a Thursday night court filing, lawyers for Holmes asked that she receive 18 months of home confinement, followed by community service, at her Nov. 18 sentencing before U.S. District Judge Edward Davila in San Jose, California.

The lawyers said prison time was unnecessary to deter future wrongdoing, calling Holmes, 38, a "singular human with much to give" and not the robotic, emotionless "caricature" seen by the public and media. "No defendant should be made a martyr to public passion," the lawyers wrote. "We ask that the court consider, as it must, the real person, the real company and the complex circumstances surrounding the offense."

"U.S. seeks 15 years for Elizabeth Holmes over Theranos fraud":

Theranos founder Elizabeth Holmes should spend 15 years in prison and pay $800 million in restitution to investors defrauded in the blood testing start-up, U.S. prosecutors recommended late on Friday.  The Department of Justice recommendation, made in a court filing, came as Holmes prepares to be sentenced next week.

"Considering the extensiveness of Holmes' fraud... the sentencing of 180 months' imprisonment would reflect the seriousness of the offenses, provide for just punishment for the offenses, and deter Holmes and others," the prosecutors said.

The sentencing filings in this high-profile case are, unsurprisingly, quite entextensive ensice.  Holmes sentencing memorandum runs 82 pages, is available at this link, and here is part of its "preminary statement":

Section 3553(a) requires the Court to fashion a sentence “sufficient, but not greater than necessary,” to serve the purposes of sentencing.  If a period of confinement is necessary, the defense suggests that a term of eighteen months or less, with a subsequent supervised release period that requires community service, will amply meet that charge. But the defense believes that home confinement with a requirement that Ms. Holmes continue her current service work is sufficient.  We acknowledge that this may seem a tall order given the public perception of this case — especially when Ms. Holmes is viewed as the caricature, not the person; when the company is viewed as a house of cards, not as the ambitious, inventive, and indisputably valuable enterprise it was; and when the media vitriol for Ms. Holmes is taken into account.  But the Court’s difficult task is to look beyond those surface-level views when it fashions its sentence.  In doing so, we ask that the Court consider, as it must, the real person, the real company and the complex circumstances surrounding the offense conduct, and the important principle that “no defendant should be made a martyr to public passion.” United States v. Gupta, 904 F. Supp. 2d 349, 355 (S.D.N.Y. 2012) (Rakoff, J.).  As discussed in more detail in the pages that follow, this is a unique case and this defendant is a singular human with much to give.

The Government's sentencing memorandum runs 46 pages, is available at this link, and here is part of its "introduction":

The Sentencing Guidelines appropriately recognize that Holmes’ crimes were extraordinarily serious, among the most substantial white collar offenses Silicon Valley or any other District has seen.  According to the Presentence Investigation Report (“PSR”), they yield a recommended custodial sentence beyond the statutory maximum.  The factors set forth in 18 U.S.C. § 3553 — notably the nature and circumstances of the offense, the need for the sentence to reflect the seriousness of the offense and promote respect for the law, and the need for both specific deterrence and general deterrence — demand a significant custodial sentence.  With these factors in mind, the government respectfully recommends a sentence of 180 months in custody.  The Court should also order Holmes to serve a three-year term of supervised release, pay full restitution to her investors (including Walgreens and Safeway), and pay the required special assessment for each count.

I think I'd put the over/under for this sentencing at around 10 years of imprisonment, but I could readily imagine a judge going much higher or much lower.

Prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?
• Elizabeth Holmes' federal sentencing ready to go forward after her new trial motion is denied 

Elizabeth Holmes' federal sentencing ready to go forward after her new trial motion is denied

As detailed in this AP article, headlined "Bid for new trial fails, Elizabeth Holmes awaits sentencing," a high-prfole federal sentencing is now on track for later this month.  Here are the basics:

A federal judge rejected a bid for a new trial for disgraced Theranos CEO Elizabeth Holmes after concluding a key prosecution witness’s recent remorseful attempt to contact her wasn’t enough to award her another chance to avoid a potential prison sentence for defrauding investors at her blood-testing company.

The ruling issued late Monday by U.S. District Judge Edward Davila is the latest setback for Holmes, a former Silicon Valley star who once boasted an estimated net worth of $4.5 billion but is now facing up to 20 years in prison that would separate her from her 1-year-old son.

In the latest twist in a Silicon Valley soap opera, Holmes appeared to be pregnant when she showed up for an Oct. 17 hearing about her request for a new trial....

Davila has scheduled Nov. 18 as the day he will sentence Holmes, 38, for four felony counts of investor fraud and engaging in a conspiracy with [Rawesh “Sunny”] Balwani.  Earlier Monday, Davila postponed Balwani’s sentencing for his conviction on 12 counts of investor and patient fraud from Nov. 15 to Dec. 7.

I plan to wait until we see the formal sentencing submissions from the parties before even trying to make any predictions as to what kind of prison term Holmes might get.  But I welcome others' predictions in the comments as we gear up for what should be an interesting (and unpredicatable) sentencing proceeding.  

Prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?

Federal judge sentences Steve Bannon to 4 months of imprisonment for contempt of Congress

As reported in this USA Today piece, "Trump White House strategist Steve Bannon was sentenced to four months in prison Friday, three months after his conviction on contempt of Congress charges for defying a subpoena from the special House committee investigating the Jan. 6, 2021 Capitol attack." Here is a bit more:

The Justice Department had sought a six month prison term for Bannon and recommended that he pay a maximum fine of $200,000 for "his sustained, bad-faith."... While Bannon initially refused to comply with the panel's summons, citing a claim of executive privilege, prosecutors said Monday that the Trump operative's actions were "aimed at undermining the Committee’s efforts to investigate an historic attack on government."

Bannon's attorneys argued that a sentence of probation was more appropriate. "The legal challenges advanced by Mr. Bannon were not meritless or frivolous and were aimed at protecting his constitutional rights," attorney Evan Corcoran argued in court documents. "For these reasons, the fact that Mr. Bannon chose to put the Government to its burden at trial should not preclude him from receiving a reduction to his offense level based on acceptance of responsibility."

Prior related posts:

• Should "pardoned conduct" be part of Steve Bannon's sentencing after his convictions for contempt of Congress? 
• Feds urging six months' imprisonment and $200,000 fined for Steve Bannon as punishment following his convictions for criminal contempt of Congress 

Feds urging six months' imprisonment and $200,000 fined for Steve Bannon as punishment following his convictions for criminal contempt of Congress

As detailed in this extended ABC News piece, the "Justice Department is asking a federal judge to sentence Steve Bannon, adviser to former President Donald Trump, to six months in prison and make him pay a $200,000 fine for his conviction on two counts of criminal contempt of Congress, according to a new court filing." Here is more of the basics:

Bannon was found guilty in July of defying a subpoena from the House select committee investigating the Jan. 6 attack on the U.S. Capitol.  He had been subpoenaed by the Jan. 6 panel for records and testimony in September 2021.

Bannon is set to be sentenced on Friday at the D.C. courthouse by federal judge Carl Nichols at 9 a.m.  His lawyers are expected to submit their own sentencing memo Monday.

The Government's 24-page sentencing memorandum is available at this link, and it starts this way:

From the moment that the Defendant, Stephen K. Bannon, accepted service of a subpoena from the House Select Committee to Investigate the January 6th Attack on the United States Capitol (“the Committee”), he has pursued a bad-faith strategy of defiance and contempt.  The Committee sought documents and testimony from the Defendant relevant to a matter of national importance: the circumstances that led to a violent attack on the Capitol and disruption of the peaceful transfer of power. In response, the Defendant flouted the Committee’s authority and ignored the subpoena’s demands.  The Defendant, a private citizen, claimed that executive privilege—which did not apply to him and would not have exempted his total noncompliance even if it had—justified his actions.  Then, on the eve of trial, he attempted an about-face, representing to the Committee that former President Donald J. Trump had waived executive privilege and freed the Defendant to cooperate.  But this proved a hollow gesture; when he realized that his eleventh-hour stunt would not prevent his trial, the Defendant’s cooperative spirit vanished.  Despite the removal of the only purported barrier to his compliance, to this day the Defendant has not produced a single document to the Committee or appeared for testimony.  For his sustained, bad-faith contempt of Congress, the Defendant should be sentenced to six months’ imprisonment—the top end of the Sentencing Guidelines’ range—and fined $200,000—based on his insistence on paying the maximum fine rather than cooperate with the Probation Office’s routine pre-sentencing financial investigation.

UPDATE: Steve Bannon has also today submitted his sentencing memorandum, which can be found at this link. Here is its starting "summary":

The ear of a sentencing judge listens for the note of contrition. Someone was convicted. Did they learn their lesson? This case requires something more. It involves larger themes that are important to every American. Should a person be jailed when the caselaw which sets forth the elements of the crime is outdated? Should a person be jailed for the doing the exact same thing that was done by the highest law enforcement officers in this country, yet they received no punishment? Should a person who has spent a lifetime listening to experts – as a naval officer, investment banker, corporate executive, and Presidential advisor – be jailed for relying on the advice of his lawyers? Should a person be jailed where the prosecutor declined to prosecute others who were similarly situated – with the only difference being that this person uses their voice to express strongly held political views? If the answer to any of these questions is no, then a sentence of probation is warranted. Because we believe that the answer to each of these questions is no, we respectfully ask this Court to impose a sentence of probation, and to stay the imposition of sentence pending appeal.

Longest prison term yet — 10 years — given to Jan 6 rioter who assaulted police officer

As reported in this Politico piece, a " federal judge on Thursday sentenced former New York cop Thomas Webster to 10 years in prison for assaulting a police officer outside the Capitol on Jan. 6, 2021, the longest sentence handed down yet in cases that arise from the attack."  Here is more:

U.S. District Court Judge Amit Mehta described Webster’s assault on D.C. police officer Noah Rathbun as one of the most haunting and shocking images from that violent day.

“I do wish you hadn’t come to Washington D.C. I do wish you had stayed home in New York, that you had not come out to the Capitol that day,” Mehta said. “Because all of us would be far better off. Not just you, your family, country. We’d all be far better off. Yet here we are.”

Mehta said he viewed Webster’s conduct as among the most egregious of any defendant sentenced so far. Until Thursday, the lengthiest sentences had been given to Texas militia member Guy Reffitt and local Virginia police officer Thomas Robertson, who were convicted by juries of attempting to obstruct congressional proceedings.

It’s the latest in a string of steeper sentences that have been issued as rioters facing felony charges — some of whom have taken their cases to trial — learn their fate from the judges who have presided over their cases for more than a year.

Images of Webster attempting to rip the gas mask off of Rathbun’s face amid broader chaos at the Capitol are among the most indelible images to emerge from the Jan. 6 attack. Mehta expressed incredulity that Webster took the stand in his own defense and attempted to argue that his effort to rip the officer’s gas mask off was really just to show him his hands and prove he wasn’t a threat.

Notably, though this case represents the longest sentencing to date for a Jan 6 rioter, the sentence of 10 years is still a full 7+ years below what the federal sentencing guidelines recommended (and what the federal prosecutors requested).

Some of many prior related posts:

• Feds seeking (within-guideline) sentence of 17+ years for former NYPD Jan 6 defendant
• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants
• Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives
• January 6 riot prosecutions continuing to spotlight realities of federal criminal justice case processing 
• Fascinating new AP accounting of all sentences given to January 6 rioters so far
• Politico provides new review of "Where Jan. 6 prosecutions stand, 18 months after the attack" 
• With first defendant now convicted after trial, how steep might the "trial penalty" be in the Jan 6 riot cases?
• Feds seeking (above-guideline) sentence of 15 years for first Jan 6 defendant to be sentenced after trial convictions
• District judge sentences first Jan 6 rioter convicted at trial to 87 months in federal prison (which was bottom of calculated guideline range)
• Another Jan 6 rioter who was convicted at trial sentenced to 87 months in federal prison 

Feds seeking (within-guideline) sentence of 17+ years for former NYPD Jan 6 defendant

As detailed in this Insider article, headlined "DOJ seeks the longest Capitol riot prison term yet — 17 years for 'eye-gouging' ex-NYPD officer who swung a flagpole at police," late last week federal prosecutors filed another notable sentencing memorandum for another notable Jan 6 defendant who was convicted after a trial.  Here are excerpts:

Federal prosecutors are seeking the longest sentence yet for a Capitol rioter, asking the judge to give a former NYPD officer 210 months — seventeen and a half years — in prison.

Thomas Webster was found guilty on all six charges in May, including assaulting an officer and entering restricted grounds.  His sentencing is set for September 1.

In a statement arguing for a shorter sentence, Webster's lawyer said that he had been under "an extraordinary amount of influence" from former President Donald Trump's election falsehoods on January 6, 2021.

The criminal complaint describes Webster elbowing his way through the mob to be among those leading the charge against the Capitol police barricade, shouting at one officer: "You fucking piece of shit," and "you fucking commie fuck." Webster also wielded a metal flagpole at the riot. The DOJ later released body camera footage of him repeatedly hitting the metal barrier next to the officer with it until it broke, the complaint said. The footage then shows him tackling the officer to the ground and appearing to gouge the officer's eyes.

The jury rejected Webster's argument at trial that he acted in self-defense. Webster's status as a former member of law enforcement — he had served as part of former New York Mayor Mike Bloomberg's security detail — was at odds with his conduct towards the Capitol police, his defense conceded in court documents seen by Insider.

Nonetheless, lawyer James Monroe asked the judge to consider a shorter sentence on the grounds of Webster's later remorse and the notion that former President Donald Trump misled him.  Election-fraud lies "championed by former President Donald Trump exerted an extraordinary amount of influence" over people like Webster, who had received "relentless disinformation" from Trump's supporters, Monroe said....

That 17 years and six months recommended by the DOJ stretches far beyond the longest sentence handed down to Capitol rioters so far, more than seven years given to rioter Guy Reffitt.  In that case, prosecutors sought a much longer sentence of 15 years, closer to what is being asked for Webster.

Here is a link to the Government's sentencing memo in US v. Webster.

UPDATE: I helpful commenter flagged this sentencing memorandum from the defense which makes this pitch for a much lower sentence:

Mr. Webster's Guideline range, as calculated by Probation, falls at a total offense level 37 and a criminal history category I.  At this range, the recommended sentence is 210 to 240 months.  Presumably, recognizing the disparity of imposing such a sentence, Probation has recommended a sentence of 120 months.  Mr. Webster was arrested on February 22, 2021 and remanded to Federal custody until his release on June 29, 2021, totaling 127 days of incarceration.  Upon being released by the Court on personal recognizance, Defendant has remained on a strict home confinement under the supervision of pre-trial services' High Intensity Supervision Program without incident for the last 421 days.  Regardless of the recommended range, Mr. Webster respectfully proposes a downward variance to time served together with a term of supervised release as a sufficient sentence, which is not greater than necessary, to satisfy the statutory criteria set forth in 18 U.S.C. § 3553(a).

Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?

The question in the title of this post is prompted by this Bloomberg article headlined "Elizabeth Holmes’s Victims Asked to Weigh in for Sentencing."  Here are excerpts:

The US Justice Department is seeking input from victims of the frauds at blood-testing startup Theranos Inc. committed by Elizabeth Holmes and her second-in-command, Ramesh “Sunny” Balwani.

The US Attorney’s Office in San Francisco on Thursday issued a “call for information” from victims following the separate convictions of the former executives for their roles in the collapse of the company once valued at $9 billion.  The federal judge in San Jose, California, who presided over the trials will use the information in determining their sentences, according to a statement from the office.

The universe of victims includes investors at all levels who poured more than $700 million into Theranos, some of whom hail from ultra-wealthy families and Silicon Valley venture capital firms, as well as thousands of patients who got inaccurate blood-test results from the startup’s clinics inside Walgreens stores....

Holmes was convicted in January of defrauding investors, while Balwani was found guilty in July on similar counts as well as defrauding patients. The trials for Holmes and Balwani were split because Holmes accused the ex-Theranos president, who was also her boyfriend, of sexually and verbally abusing her....  In their respective trials, the Theranos executives blamed each other for the fraud.

US District Judge Edward Davila will weigh the evidence presented at both trials, as well as the counts each was found guilty of, in determining their sentences. Criminal defense lawyers have said both Holmes and Balwani could face a decade in prison....  Both former executives remain free on bond and have asked Davila to set aside the jury verdicts. Holmes’s sentencing is scheduled for October; Balwani’s is set for November.

While prosecutors are busy gathering victim statements to make a case for lengthy periods of incarceration, the defendants are doing their own legwork in a bid for leniency, according to criminal defense attorney Seth Kretzer. “Two can play this game,” he said. “Both Balwani and Holmes will submit letters from their respective family and friends stating how horribly off they will all be with long prison terms.”

As this article explains, there are actually two sets of victims being asked for statements: "investor victims" and "patient victims." Here are links to the four-page statement for for each:

Victim Impact Statement For Investor Victims

Victim Impact Statement For Patient Victims

Notably, these forms do not include any questions that directly ask the victims to opine on the sentence that they would like to see the defendants receive.  But both forms close with this fairly open-ended query: "Is there anything else you would like the sentencing Judge to know about your experience with Theranos, Inc.?"

Prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 

Another Jan 6 rioter who was convicted at trial sentenced to 87 months in federal prison

Last week, as discussed in this post, Guy Reffitt, the first Jan. 6 defendant to be convicted at a jury trial (rather than through plea), was sentenced to 87 months in federal prison.  This AP piece reports on today's sentencing of another Jan 6 defendant conviction at trial and the similar outcome (coming from a different sentencing judge):

An off-duty Virginia police officer who stormed the U.S. Capitol on Jan, 6, 2021, with a fellow officer was sentenced Thursday to more than seven years in prison, matching the longest prison sentence so far among hundreds of Capitol riot cases.

Former Rocky Mount Police Sgt. Thomas Robertson declined to address the court before U.S. District Judge Christopher Cooper sentenced him to seven years and three months in prison.  Cooper also sentenced Robertson to three years of supervised release after his prison term.

Federal prosecutors had recommended an eight-year prison sentence for Robertson.  His sentence equals that of Guy Reffitt, a Texas man who attacked the Capitol while armed with a holstered handgun.  Robertson gets credit for the 13 months he has already spent in custody.  Robertson has been jailed since Cooper ruled last year that he violated the terms of his pretrial release by possessing firearms.

The judge said he was troubled by Robertson's conduct since his arrest — not only his stockpiling of guns but also his words advocating for violence.  After Jan. 6, Robertson told a friend that he was prepared to fight and die in a civil war and he clung to baseless conspiracy theories that the 2020 election was stolen from then-President Donald Trump, the judge noted.

Sentencing guidelines calculated by Cooper recommended a prison term ranging from seven years and three months to nine years.  “It's a long time because it reflects the seriousness of the offenses that you were convicted of,” the judge said.

In April, a jury convicted Robertson of attacking the Capitol to obstruct Congress from certifying Joe Biden’s 2020 presidential victory.  Jurors found Robertson guilty of all six counts in his indictment, including charges that he interfered with police officers at the Capitol and that he entered a restricted area with a dangerous weapon, a large wooden stick....

Robertson traveled to Washington on that morning with another off-duty Rocky Mount police officer, Jacob Fracker, and a third man, a neighbor who wasn't charged in the case.  Fracker was scheduled to be tried alongside Robertson before he pleaded guilty to a conspiracy charge in March and agreed to cooperate with federal authorities. Cooper is scheduled to sentence Fracker next Tuesday.

Prosecutors have asked Cooper to spare Fracker from a prison term and sentence him to six months of probation along with a period of home detention or “community confinement.”  They said Fracker's “fulsome” cooperation and trial testimony was crucial in securing convictions against Robertson.

Robertson's lawyer, Mark Rollins, sought a prison sentence below two years and three months. He questioned the fairness of the wide gap in sentences that prosecutors recommended for Robertson and Fracker given their similar conduct. Robertson served his country and community with distinction, his lawyer told the judge. “His life already is in shambles,” Rollins said....

In a letter addressed to the judge, Robertson said he took full responsibility for his actions on Jan. 6 and “any poor decisions I made.” He blamed the vitriolic content of his social media posts on a mix of stress, alcohol abuse and “submersion in deep ‘rabbit holes’ of election conspiracy theory.” “I sat around at night drinking too much and reacting to articles and sites given to me by Facebook” algorithms, he wrote.

A few of many prior related posts:

• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants
• Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives
• January 6 riot prosecutions continuing to spotlight realities of federal criminal justice case processing 
• Fascinating new AP accounting of all sentences given to January 6 rioters so far
• Politico provides new review of "Where Jan. 6 prosecutions stand, 18 months after the attack" 
• With first defendant now convicted after trial, how steep might the "trial penalty" be in the Jan 6 riot cases?
• Feds seeking (above-guideline) sentence of 15 years for first Jan 6 defendant to be sentenced after trial convictions
• District judge sentences first Jan 6 rioter convicted at trial to 87 months in federal prison (which was bottom of calculated guideline range)

District judge sentences first Jan 6 rioter convicted at trial to 87 months in federal prison (which was bottom of calculated guideline range)

As reported in this Politico article, after an extended sentencing hearing, a "Texas militia member on Monday received the longest sentence to date of any participant in the Jan. 6, 2021, attack on the Capitol: seven-and-a-quarter years in prison."  Here are some of the notable details:

Guy Reffitt, 49, was the first Jan. 6 defendant to go before a jury and was convicted in March on five felony charges, including interfering with police during civil disorder, obstructing the tallying of the electoral votes and threatening his children if they reported him to authorities.

However, U.S. District Court Judge Dabney Friedrich declined the Justice Department’s request to treat Reffitt’s crimes as terrorism, which would have substantially increased the recommended sentence under federal guidelines. 

It was federal prosecutors’ first request to draw tougher punishment for a Jan. 6 defendant by classifying his actions as domestic terrorism, but the judge concluded it was not appropriate to apply the more severe sentencing guidelines permitted under federal law in terrorism-related cases. Friedrich said applying the sentencing enhancement to Reffitt would create an “unwarranted sentencing disparity” with other cases involving similar threats or conduct related to the Capitol riot.

“There are a lot of cases where defendants possessed weapons or committed very violent assaults,” Friedrich noted, highlighting that the most severe sentences handed down in Jan. 6 cases thus far were a little more than five years while prosecutors asked for a 15-year sentence against Reffitt. “The government is asking for a sentence that is three times as long as any other defendant and the defendant did not assault an officer.”...

Assistant U.S. Attorney Jeffrey Nestler said Reffitt’s discussions before and after Jan. 6 make clear he was intent on carrying out his repeated threats to drag Speaker Nancy Pelosi and Senate Minority Leader Mitch McConnell from the Capitol building by force. In discussions caught on video, Reffitt was recorded referring to his desire to listen to the lawmaker’s heads bouncing down the Capitol steps. “He was planning to overtake our government. He wasn’t just trying to stop the certification,” Nestler said. “He wasn’t done. Jan. 6 was just a preface. ... Mr Reffitt is in a class all by himself.”

However, Friedrich said prosecutors had urged much shorter sentences in cases involving people who were directly involved in actual violence against police. “You’re making recommendations that are way different than you’re making in this case — way different,” said the judge, an appointee of President Donald Trump.

Friedrich also said she worried that Reffitt not be unduly punished for deciding to go to trial, rather than enter into a plea bargain with prosecutors. “His decision to exercise his constitutional right to go to trial should not result in a dramatically different sentence,” she said.

Nestler also noted that Reffitt was convicted of having a handgun on his hip while on the Capitol grounds, which Friedrich conceded was an important distinction from the other cases to reach sentencing thus far. “Huge, huge … and does the firearm deserve three times the sentence if it was not brandished or used in any way?” the judge asked.

Another unusual aspect of Reffitt’s case is that he was convicted of threatening to injure his two children if they discussed his actions on Jan. 6 with authorities. One of those children, Peyton Reffitt, spoke briefly during Monday’s hearing to urge leniency for her father. She suggested that Trump was more responsible for the events that day than her father was. “My father’s name was not on all the flags that were there that day that everyone was carrying that day,” Peyton said. “He was not the leader.”

As noted in a prior post, the presentence report had calculated Reffitt's guidelines range to be 108 to 135 months, but Judge Friedrich did not apply all the suggested guideline enhancement and ultimately  sentence him at the bottom of the guideline range calculated by her to be 87 to 108 months.

A few of many prior related posts:

• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants
• Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives
• Accounting for the first 50 sentences imposed on January 6 rioters 
• January 6 riot prosecutions continuing to spotlight realities of federal criminal justice case processing 
• Fascinating new AP accounting of all sentences given to January 6 rioters so far
• Politico provides new review of "Where Jan. 6 prosecutions stand, 18 months after the attack" 
• With first defendant now convicted after trial, how steep might the "trial penalty" be in the Jan 6 riot cases?
• Feds seeking (above-guideline) sentence of 15 years for first Jan 6 defendant to be sentenced after trial convictions

UPDATE: I found notable this Insider article which is headlined "Trump 'deserves life in prison' says daughter of January 6 rioter who was sentenced to 7 years behind bars." Here are excerpts:

The daughter of a man sentenced to 7 years in prison on Monday for taking part in the January 6 insurrection told reporters that the former president, whose supporters stormed the US Capitol, deserves to spend the rest of his life behind bars if her father was going to get his sentence....

After Reffitt was sentenced, his daughters spoke to the media and argued that it was not fair for their father to receive such a long prison term while more powerful people remain free.

"To mark my dad as this horrible person, and then having him prosecuted like this, when somebody is maybe even able to get elected again? Doesn't seem right to me," Sarah Reffitt told reporters.

"Trump deserves life in prison if my father is in prison for this long," Petyon Reffitt added.

Another notable lengthy sentence imposed on another Jan 6 rioter

This Washington Post article, headlined "D.C. man is 2nd to receive longest sentence in Jan. 6 police assault; Mark K. Ponder, 56, was handed a 63-month prison term for attacking police in the Capitol riot," reports on yet another notable sentencing in yet another January 6 riot case.  Here are excerpts:

A District man who assaulted three police officers and shattered a riot shield with a pole was sentenced to 63 months in prison Tuesday, matching the longest sentence handed down to a defendant convicted in the Jan. 6, 2021, Capitol attack.

Mark K. Ponder, 56, admitted to fighting with police in video-recorded confrontations between 2:31 p.m. and 2:48 p.m. that day in the area of the lower west terrace of the Capitol, which was overrun by a violent mob angered by President Donald Trump’s false claims that the 2020 election was stolen.  Ponder pleaded guilty April 22 to one count of assaulting an officer using a dangerous weapon.

“He was leading the charge,” U.S. District Judge Tanya S. Chutkan said, reciting at sentencing how Ponder smashed a thin pole against an officer’s riot shield so hard that the pole broke and the shield shattered, then found a thicker pole, colored red, white and blue, and resumed fighting.  “He wasn’t defending himself or anybody else. He was attempting to injure those officers, and we are lucky [someone] was not killed with the force Mr. Ponder is swinging those poles,” the judge said.

Chutkan in December handed down a similar 63-month sentence to Robert S. Palmer, 54, of Largo, Fla., who joined the front of the mob and hurled a fire extinguisher, plank and pole at police. Like Palmer, Ponder was “part of a group who, when they couldn’t get what they wanted, decided they were going to take it.  And they were going to take it with violence,” Chutkan said, saying they felt entitled “to attack law enforcement officers who were just doing their jobs.”...

Chutkan has emerged as the toughest sentencing judge in Capitol riot cases and exceeded prosecutors’ request to sentence Ponder to five years in prison, the low end of a federal advisory sentencing range of 57 to 71 months, in keeping with a plea deal.  Assistant U.S. Attorney Jocelyn P. Bond said a five-year term was justified by the seriousness of the offense as well as by Ponder’s return to the scene at 4 and 5 p.m. after he was tackled, handcuffed and then told to leave by police because officers needed to reinforce other parts of the Capitol complex....

Former U.S. Capitol Police sergeant Aquilino Gonell gave an in-person victim impact statement, telling the court as one of the officers struck by Ponder that there is “no doubt” he understood he was hitting police officers and “had the will and the intent to continue doing harm.”  The former sergeant said that he took early retirement as a result of the attack, that he was left with mental and physical injuries and that “my family has suffered, emotionally and financially.” Gonell told Chutkan that Ponder’s claim that he got “caught up” in the violence “is BS, and please don’t fall for it.” “He has changed my life,” said Gonell, a 16-year police veteran who served with the U.S. Army in Iraq.

Ponder asked for mercy, saying that while like Palmer he had a criminal history, he was a “changed person for the last 12 years” since his release from prison after convictions for bank and armed robbery. “I never meant for this to happen. I went there with the intention of going on a peaceful protest,” Ponder said. But he said that he “wasn’t thinking” after he was pepper-sprayed by police, and after the tension and anger in the crowd stoked by the former president erupted into “chaos.”...

Defense attorney Joseph R. Conte added that Ponder, a lifelong resident of the Washington area, overcame a crack cocaine addiction and before Jan. 6 had no contact with police since his incarceration. Ponder was the product of a broken home and suffered abuse as a child “as severe as any I’ve seen in my career,” Conte said, to which Chutkan responded, “I don’t disagree.” The judge waived any fine and said she would recommend that Ponder be allowed to serve his sentence near Washington, saying she hoped the defendant “will be able to get mental health treatment and counseling and be able to live the rest of his life without getting into trouble with law enforcement.”

Some of many prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants
• Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives
• Feds get 41 months for one high-profile January 6 rioter and seek 51 months for another
• Accounting for the first 50 sentences imposed on January 6 rioters 
• January 6 riot prosecutions continuing to spotlight realities of federal criminal justice case processing 
• Fascinating new AP accounting of all sentences given to January 6 rioters so far
• Politico provides new review of "Where Jan. 6 prosecutions stand, 18 months after the attack" 
• Feds seeking (above-guideline) sentence of 15 years for first Jan 6 defendant to be sentenced after trial convictions

Should "pardoned conduct" be part of Steve Bannon's sentencing after his convictions for contempt of Congress?

Regular readers know that I have long been troubled by the use of so-called "acquitted conduct" in federal sentencing, but today's news of Steve Bannon's conviction on two federal criminal charges brings an interesting twist on what conduct a federal judge should or should not consider at sentencing.  First, here are the basic's of Bannon's convictions and coming sentencing via NBC News:

A jury on Friday found former Donald Trump adviser Steve Bannon guilty on two counts of contempt of Congress for blowing off the Jan. 6 select committee.

Bannon's sentencing is scheduled for Oct. 21 when he will face a mandatory minimum prison sentence of 30 days and up to one year behind bars. He could also be fined $100 to $100,000. He is expected to appeal....

Judge Carl Nichols repeatedly refused to delay Bannon's trial despite the defense team's contention that publicity from the Jan. 6 committee hearings would affect the jury pool and their contention that Bannon was barred from testifying due to Trump's purported claims of executive privilege.  A jury was seated on Tuesday morning.

Second, here is the full text (with sentencing terms) of the federal statute, 2 USC § 192, which served as the foundation for Bannon's convictions:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.

Third, recall that Bannon was indicted by federal prosecutors back in August 2020 on fraud and money laundering charges, but Prez Trump pardoned Bannon on this last day in office before the case had moved significantly forward.  This Washington Post article made note of notable comments by the federal judge who dismissed the charges following the pardon:  

A federal judge on Monday formally dismissed the fraud case against Stephen K. Bannon, the conservative provocateur and ex-adviser to President Donald Trump, ending months of litigation over how the court system should handle his pardon while related criminal cases remain unresolved.

U.S. District Judge Analisa Torres, citing examples of other cases being dismissed following a presidential reprieve, granted Bannon’s application — saying in a seven-page ruling that Trump’s pardon was valid and that “dismissal of the Indictment is the proper course.”...

In her decision Tuesday, the judge pointed to past judicial discussions on pardons and what they imply about individuals who receive one.  She quoted from a New Jersey court that, in 1833, found that “pardon implies guilt.”

“If there be no guilt, there is no ground for forgiveness. … A party is acquitted on the ground of innocence; he is pardoned through favor,” it says, according to Torres’s ruling.

Putting all these pieces together leads me to the question in the title of this post, namely whether folks think it would be proper (perhaps even obligatory) for Judge Carl Nichols to consider and give significant attention to the prior (and now pardoned) allegations of fraud involving Bannon. 

Of course, 18 USC § 3553(a)(1), calls upon a court at sentencing to consider "the nature and circumstances of the offense and the history and characteristics of the defendant."  The past (alleged and pardoned) fraud conduct certain has part of Bannon's history and characteristics, and a pardon is arguably the antithesis of an exoneration and does not undercut historic jury trial rights like the use of acquitted conduct at sentencing.  Nevertheless, because I think better practice for all purposes is for pardons to be honored and respected through a complete wiping away of all criminal justice sanctions and consequences, I am inclined to want Judge Nichols to not give attention to "pardoned conduct."

Feds seeking (above-guideline) sentence of 15 years for first Jan 6 defendant to be sentenced after trial convictions

Based on a recent AP accounting of the January 6 riot cases, I believe there have already been around 200 defendants sentenced for their activities related to the Capitol riot, but all of those sentences have been handed down after guilty pleas.  As detailed in this Insider article, federal prosecutors are seeking a particularly severe sentence for the first rioter due to be sentenced following a conviction at trial.  Here are the basics:

Guy Reffitt, the first Capitol rioter convicted at trial on charges stemming from the January 6, 2021 insurrection, should receive a 15-year prison sentence for his "central role" in leading a pro-Trump mob that clashed with police protecting Congress, federal prosecutors said in a court filing Friday.

A jury in Washington, DC, needed just hours in early March to find Reffitt guilty on all five charges he faced in connection with the Capitol attack, including obstruction of an official proceeding. Reffitt, of Texas, was also found guilty of entering restricted Capitol grounds with a handgun and with later threatening his children to keep them from reporting him to law enforcement.

In a 58-page court filing, federal prosecutors argued that Reffitt played a pivotal role in "overwhelming officers and showing the mob the way forward at the outset of the riot." The language echoed their description of Reffitt at his weeklong trial, where prosecutors called Reffitt the "tip of this mob's spear" and played video footage of him ascending stairs up to the Capitol in tactical gear, with fellow members of the pro-Trump mob following him.

If ordered, the 15-year sentence would go down as the longest prison term given to a Capitol rioter to date, nearly tripling the more than 5-year sentence Robert Scott Palmer received after throwing a fire extinguisher at police during the January 6 attack. Judge Dabney Friedrich, a Trump appointee confirmed in 2017, is set to sentence Reffitt on August 1....

In a separate court filing Friday, Reffitt's defense lawyer argued that he should receive a sentence of no longer than 2 years in prison. His lawyer, F. Clinton Broden, noted that Reffitt never entered the Capitol.

The Government's lengthy sentencing memorandum is available at this link, and it begins this way:

For Defendant Guy Reffitt’s central role in leading a mob that attacked the United States Capitol while our elected representatives met in a solemn Joint Session of Congress — including his intention to use his gun and police-style flexicuffs to forcibly drag legislators out of the building and take over Congress, and his later threats to harm his children if they turned him into the FBI — the government respectfully requests that this Court sentence him to 15 years of incarceration.

The Court should depart upwards from the PSR’s Sentencing Guidelines range of 9 to 11.25 years (108 to 135 months)2 of incarceration both because Reffitt’s crime “was calculated to influence or affect the conduct of government by intimidation or coercion,” U.S.S.G. § 3A1.4, cmt. n.4, and because the Guidelines’ grouping analysis provides “inadequate scope” for Reffitt’s possession of multiple weapons in the commission of his offenses, see U.S.S.G. § 3D1.4, bkgd. cmt. (upward departure based on grouping); § 5K2.6 (upward departure based on use of weapons).

The defense's sentencing memorandum is available at this link, stresses to the court the "need to avoid sentencing disparities" and it contends that "most if not all defendants who received a sentence of greater than 24 months imprisonment are at a whole different level than Mr. Reffitt."  It concludes this way:

Based upon the foregoing, Undersigned Counsel respectfully suggests that a sentence of no more than 24 months imprisonment is, in fact, sufficient but not greater than necessary to comply with the purposes of 18 U.S.C. § 3553.

Some of many prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants
• Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives
• Feds get 41 months for one high-profile January 6 rioter and seek 51 months for another
• Accounting for the first 50 sentences imposed on January 6 rioters 
• January 6 riot prosecutions continuing to spotlight realities of federal criminal justice case processing 
• Fascinating new AP accounting of all sentences given to January 6 rioters so far
• Politico provides new review of "Where Jan. 6 prosecutions stand, 18 months after the attack" 

Longest prison sentence yet in Varisity Blues case, 30 months, given to Georgetown tennis coach

It has now been more than three years since I reported in this post about the first pleas in the high-profile college fraud Varsity Blues case detailed in this press release from the US Attorney's Office for the District of Massachusetts, headlined "14 Defendants in College Admissions Scandal to Plead Guilty."  I covered a number of the early and celebrity sentencings closely, but there have been too many cases for me to keep track of them all.  Helpfully, DOJ has assembled here all the cases charged and sentenced in the Varsity Blues investigation, and today comes this news of the longest prison term imposed on the roughly four dozen defendants sentenced in this high-profile scandal:

Gordon "Gordie" Ernst, a Rhode Island tennis legend, was sentenced Friday to 30 months in prison — the longest sentence yet for a defendant in the "Operation Varsity Blues" case.

Ernst, 55, previously pleaded guilty to multiple bribery charges after being swept up in the federal investigation into dubious college admission schemes.

Prosecutors for the U.S. Attorney's Office in Massachusetts had argued that Ernst warranted a significantly harsher sentence than others charged in the case, because of his "raw greed" and the "breathtaking scale" of his offenses.

Ernst, in his appeal for leniency, portrayed himself as the product of a difficult upbringing in Cranston, in a family that sometimes struggled to make ends meet but seemed from the outside to be the pinnacle of athletic success.  He alleged that he was routinely beaten by his father, Richard “Dick” Ernst, a legendary coach who died in 2016.

According to prosecutors, Ernst accepted nearly $3.5 million in bribes while working as tennis coach at Georgetown University, in exchange for identifying wealthy high-school students who would not have otherwise qualified for the team as promising tennis recruits.  He collected at least $2 million more than any other coach or administrator charged in Operation Varsity Blues, according to the government's sentencing memo....

Ernst said that since his arrest, he has worked part-time at Hertz cleaning cars — a significant departure from the days when he was brought into the White House to give tennis lessons to the Obama family.  He still coaches tennis on a part-time basis, he said, and volunteered at COVID vaccination sites in Cape Cod.

Federal prosecutors had requested a sentence of four years in prison and two years of supervised release, plus the forfeiture of more than $3.4 million in proceeds.  They noted that unlike parents charged in the scheme, Ernst "cannot claim to have acted out of a desire to help his own children gain admission to college."...

Ernst's attorneys argued that their client should not receive more than one year and a day in prison, given the much lighter sentences given to other defendants, and should not be ordered to pay restitution.  In their sentencing memo, Ernst's legal team described the coach as "a kid from Cranston, Rhode Island whose family at times depended on public assistance," and "flew too close to the sun" when he found himself surrounded by power and wealth.

A few of many prior posts on other defendants in college admissions scandal:

• Mapping out next possible celebrity sentencings in wake of indictment in college admissions scandal 
• Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal
• Federal district judge rejects feds request for significant prison term in first sentencing of college bribery scandal
• Feds recommending incarceration terms from 1 to 15 months for parents involved college bribery scandal 
• Noticing the interesting (but perhaps not too consequential) guidelines "loss" issue lurking in the college bribery cases
• Napa Valley winemaker gets five months of imprisonment, the longest sentence so far in college admissions scandal
• Catching up with another round of sentencings in "Operation Varsity Blues"
• Reviewing the sentencing dynamics as more parents get (minimal) prison time in "Operation Varsity Blues" college admissions scandal 
• Longest prison sentence (six months) imposed in college admission scandal on big-spending dad 
• Nine-month federal prison term (the longest yet) given to former CEO who paid nearly $1 million to benefit four kids in college admission scandal 
• Felicity Huffman sentenced to 14 days in college bribery scandal 
• Via video, Lori Loughlin and her husband get agreed fixed short prison sentences in college admission scandal 
• With two defendants now convicted after trial, how steep might the "trial penalty" be in the Varsity Blues cases? 
• Trial penalties lead to longest (but still not so long) sentences for two Varsity Blues defendants 

R Kelly given 30-year federal prison sentence for multiple racketeering and sex trafficking offenses

As this CNN article reports, "R&B singer R. Kelly was sentenced to 30 years in prison Wednesday ... following his conviction last year on federal racketeering and sex trafficking charges stemming from his efforts over years to use his fame to ensnare victims he sexually abused." Here is more:

Prosecutors had asked the judge to sentence Kelly, 55, to more than 25 years behind bars, while his defense attorneys asked for 10 or fewer, saying prosecutors' request was "tantamount to a life sentence."

Survivors of Kelly's abuse held hands and prayed as US District Court Judge Ann Donnelly began reading his sentence. Kelly -- who wore a tan prison uniform, dark-rimmed glasses and a black mask at the hearing in federal court in Brooklyn -- showed no emotion.

"You left in your wake a trail of broken lives," Donnelly told Kelly, whose full name is Robert Sylvester Kelly.  In deciding the sentence, Donnelly said she considered Kelly's own traumatic childhood, during which his attorneys said he was repeatedly sexually abused by a family member and a landlord.  "It may explain, at least in part, what led to your behavior," the judge said. "It most surely is not an excuse."...

Kelly's attorney, Jennifer Bonjean, said he would not address the court, pointing to the other criminal case faced by Kelly, but said before the sentence was read that her client "rejects that he is this monster."... Kelly made his only comment in response to the judge after Bonjean said he wouldn't speak: "Yes, your honor, that's my wish."...

Prior to sentencing, the court heard impact statements from seven of Kelly's victims, including Jane Doe 2, who testified at trial. "It's been 23 years since we knew each other, and you've victimized a lot of girls since then," she said, addressing Kelly. She later added: "Now it's your turn to have your freedom taken from you."...

Kelly is being held at a federal detention facility in Brooklyn and is expected to be moved back to Chicago, where he faces another federal trial in August on child pornography and obstruction charges. Childhood trauma revealed.

I believe federal prosecutors had argued in their sentencing memorandum that his guideline recommendation was life, which the defense claimed the guideline range was only 14 to 17.5 years.  I have not found a press report discussion how the guideline dispute was resolved, though this local article indicates that Judge Donnelly "said that her sentence is one 'I would have imposed regardless of the guidelines'."

Ghislaine Maxwell given 20-year federal sentence for sex trafficking for Jeffrey Epstein

In this post over the weekend, I asked in anticipation of today's high-profile sentencing, "what federal sentence for convicted sex trafficker Ghislaine Maxwell?."  Commentor tmm nailed the outcome, as reported here by the AP:

Ghislaine Maxwell, the jet-setting socialite who once consorted with royals, presidents and billionaires, was sentenced to 20 years in prison Tuesday for helping the financier Jeffrey Epstein sexually abuse underage girls.  The stiff sentence was the punctuation mark on a trial that explored the sordid rituals of a predator power couple who courted the rich and famous as they lured vulnerable girls as young as 14, and then exploited them.

Prosecutors said Epstein, who killed himself in 2019 while awaiting trial, sexually abused children hundreds of times over more than a decade, and couldn’t have done so without the help of Maxwell, his longtime companion and onetime girlfriend who they said sometimes also participated in the abuse.  In December, a jury convicted Maxwell of sex trafficking, transporting a minor to participate in illegal sex acts and two conspiracy charges.

U.S. District Judge Alison J. Nathan, who also imposed a $750,000 fine, said “a very significant sentence is necessary” and that she wanted to send an “unmistakable message” that these kinds of crimes would be punished.  Prosecutors had asked the judge to give her 30 to 55 years in prison, while the 60-year-old Maxwell’s defense sought a lenient sentence of just five years....

When she had a chance to speak, Maxwell said she empathized with the survivors and that it was her “greatest regret of my life that I ever met Jeffrey Epstein.” Maxwell called him “a manipulative, cunning and controlling man who lived a profoundly compartmentalized life,” echoing her defense attorneys’ assertions that Epstein was the true mastermind. Maxwell, who denies abusing anyone, said she hoped that her conviction and her “unusual incarceration” bring some “measure of peace and finality.”

Nathan refused to let Maxwell escape culpability, making clear that Maxwell was being punished for her own actions, not Epstein’s. She called the crimes “heinous and predatory” and said Maxwell as a sophisticated adult woman provided the veneer of safety as she “normalized” sexual abuse through her involvement, encouragement and instruction....

Assistant U.S. Attorney Alison Moe recounted how Maxwell subjected girls to “horrifying nightmares” by taking them to Epstein. “They were partners in crime together and they molested these kids together,” she said, calling Maxwell “a person who was indifferent to the suffering of other human beings.”

Epstein and Maxwell’s associations with some of the world’s most famous people were not a prominent part of the trial, but mentions of friends like Bill Clinton, Donald Trump and Britain’s Prince Andrew showed how the pair exploited their connections to impress their prey.

Over the past 17 years, scores of women have accused Epstein of abuse them, with many describing Maxwell as the madam who recruited them.  The trial, though, revolved around allegations from only a handful of those women.  Four testified that they were abused as teens in the 1990s and early 2000s at Epstein’s mansions in Florida, New York, New Mexico and the Virgin Islands....

At least eight women submitted letters to the judge, describing the sexual abuse they said they endured for having met Maxwell and Epstein.  Six of Maxwell’s seven living siblings wrote to plead for leniency.  Maxwell’s fellow inmate also submitted a letter describing how Maxwell has helped to educate other inmates over the last two years.  Anne Holve and Philip Maxwell, her eldest siblings, wrote that her relationship with Epstein began soon after the 1991 death of their father, the British newspaper magnate Robert Maxwell.

Based on the sentencing filings noted in this prior post, I believe the Government argued the applicable federal sentencing guideline range was 360 month-life, but this CBS article indicates that Judge Nathan concluded the proper guideline range was 188-235 months.  So, by adopting a more lenient guideline calculation, Judge Nathan technically gave Maxwell and above-guideline sentence.

Prior related posts:

• "How Much Prison Time Could Ghislaine Maxwell Serve After Sex Trafficking Conviction?"
• You be the judge: what federal sentence for convicted sex trafficker Ghislaine Maxwell? 

You be the judge: what federal sentence for convicted sex trafficker Ghislaine Maxwell?

A high-profile sentencing is scheduled for NYC federal court this coming week.  This CNN article from last last, reporting on prosecutors' sentencing filing, provides a partial preview:

Federal prosecutors asked a judge in a court filing Wednesday to sentence Ghislaine Maxwell to 30 to 55 years in prison for sex trafficking a minor and other charges related to a sprawling conspiracy to abuse young girls with the wealthy financier Jeffrey Epstein.

"Maxwell was an adult who made her own choices. She made the choice to sexually exploit numerous underage girls. She made the choice to conspire with Epstein for years, working as partners in crime and causing devastating harm to vulnerable victims," prosecutors wrote in the sentencing memo. "She should be held accountable for her disturbing role in an extensive child exploitation scheme."

Last week, Maxwell's lawyers asked a judge to sentence her to between 4.25 and 5.25 years in prison, saying her difficult childhood made her vulnerable to Epstein and that she shouldn't face a harsh sentence because of his actions. "But this Court cannot sentence Ms. Maxwell as if she were a proxy for Epstein simply because Epstein is no longer here," her attorneys wrote in their sentencing recommendation....

Epstein, who pleaded guilty in 2008 to state prostitution charges, was indicted on federal sex trafficking charges in July 2019 but died by suicide in prison a month later. Maxwell, his confidante and former girlfriend, was arrested a year afterward and has been held in jail since. In the sentencing memo, the prosecution wrote that the defense's argument was "absurd and offensive."

"The lenient sentence the defendant seeks would send the message that there is one system of laws for the rich and powerful, and another set for everyone else," prosecutors wrote.... 

Maxwell, 60, was found guilty of five federal charges in December: sex trafficking of a minor, transporting a minor with the intent to engage in criminal sexual activity and three related counts of conspiracy.  However, she will only be sentenced on three counts after the judge presiding over her case agreed that two of the conspiracy counts she faced were repetitive.

The probation department recommended a 20-year sentence, below the sentencing guidelines. 

At her trial late last year, prosecutors argued Maxwell and Epstein conspired to set up a scheme to lure young girls into sexual relationships with Epstein from 1994 to 2004 in New York, Florida, New Mexico and the US Virgin Islands. Four women testified during the trial that Epstein abused them and that Maxwell facilitated the abuse and sometimes participated in it as well.

Her defense, meanwhile, said she was a "scapegoat" for Epstein's actions and attacked the memories and motivations of the women who said they were sexually abused.

The federal prosecutors' sentencing filing, which is available here, contends that "the applicable sentencing range is 360 months to life imprisonment [but] the statutory maximum penalty is 660 months’ imprisonment, [so] the Guidelines range becomes 360 to 660 months’ imprisonment."  But the defense sentencing memorandum, which is available here, requests "that the Court grant Ms. Maxwell a significant variance below the advisory Sentencing Guidelines range of 292-365 months and below the 240-month sentence recommended by the Probation Department."

But, as of this writing on the morning of June 26, it now seem there is a chance the sentencing will not go forward this week.  This Reuters article explains:

Ghislaine Maxwell has been put on suicide watch at a Brooklyn jail, and may seek to delay her Tuesday sentencing for aiding Jeffrey Epstein's sexual abuse of underage girls, her lawyer said on Saturday night.  In a letter to the judge overseeing Maxwell's case, Maxwell's lawyer, Bobbi Sternheim, said her client is "unable to properly prepare, for sentencing," after officials at the Metropolitan Detention Center on Friday declared the suicide watch and abruptly moved Maxwell to solitary confinement.

Sternheim said Maxwell was given a "suicide smock," and her clothing, toothpaste, soap and legal papers were taken away. The lawyer also said Maxwell "is not suicidal," a conclusion she said a psychologist who evaluated the 60-year-old British socialite on Saturday morning also reached.

"If Ms. Maxwell remains on suicide watch, is prohibited from reviewing legal materials prior to sentencing, becomes sleep deprived, and is denied sufficient time to meet with and confer with counsel, we will be formally moving on Monday for an adjournment," Sternheim wrote.

Prior related post:

• "How Much Prison Time Could Ghislaine Maxwell Serve After Sex Trafficking Conviction?" 

Fascinating new AP accounting of all sentences given to January 6 rioters so far

Fittingly, with the House's on-going January 6 committee hearings, the Associated Press has this new article reviewing in some detail the nearly 200 sentences so far given to January 6 riot defendants.  I recommend the piece, and its cool interactive graphics, in full.  Here are excerpts:

As the number of people sentenced for crimes in the insurrection nears 200, an Associated Press analysis of sentencing data shows that some judges are divided over how to punish the rioters, particularly for the low-level misdemeanors arising from the attack....

[U.S. District Judge Tanya] Chutkan, a former assistant public defender who was nominated to the bench by President Barack Obama, has consistently taken the hardest line against Jan. 6 defendants of any judge serving on Washington’s federal trial court, which is handling the more than 800 cases brought so far in the largest prosecution in Justice Department history.  Chutkan has handed out tougher sentences than the department was seeking in seven cases, matched its requests in four others and sent all 11 riot defendants who have come before her behind bars. In the four cases in which prosecutors did not seek jail time, Chutkan gave terms ranging from 14 days to 45 days.

Overall, the 20 judges who have sentenced riot defendants have given lighter sentences than prosecutors were seeking in nearly three-fourths of the cases. The judges have exceeded prosecutors’ recommendation for about only 10% of the defendants, according to AP’s analysis.

Most judges — appointed by presidents of both political parties — have gone easier on defendants than prosecutors wanted in most or all of their cases so far.  While some judges have sentenced few Jan. 6 defendants, no other judge besides Chutkan has exceeded prosecutors’ recommended punishment in most of the cases assigned to them.

“Depending on the judge you get, the same facts could get you anything from probation to months in jail,” said [Greg] Hunter, the defense lawyer [representing some Jan. 6 defendants]. “When you can literally look at who the judge is, who has been assigned to a case, and know that every defendant is going to get more time or less time because of the judge they drew ... that doesn’t promote respect for the law,” he added.

In one case, two friends from Indiana, Dona Sue Bissey and Anna Morgan-Lloyd, both pleaded guilty to the same misdemeanor offense for engaging in essentially the same conduct inside the Capitol.  Prosecutors did not seek jail time for either, noting their lack of a criminal record. Chutkan sentenced Bissey to 14 days in jail.  A different judge sentenced Bissey’s friend to probation....

But Judge Randolph Moss sentenced Matthew Ryan Miller to less than three years [when prosecutors sought more than four], noting that the man was just 22 years old on Jan. 6, 2021, was intoxicated when he stormed the Capitol and has shown remorse.  Before handing down the punishment, Moss said he believes judges have done a good job at ensuring the punishments are consistent while also weighing the individual factors of each case.  “When one looks at these sentencing decisions that have been made by this court across many judges, it’s remarkable how consistent sentencing has been,” said Moss, an Obama nominee. “When I see differences, I’m able to go back through the record and look at it and understand the basis for those differences.”...

Of the more than 190 defendants sentenced so far, about 20 admitted to felony charges, including nine who assaulted police officers. The rest pleaded guilty to misdemeanors punishable by no more than one year imprisonment. Prosecutors recommended prison terms in more than 70% of the cases. Judges have agreed to prison in about 45% of them, with terms ranging from nine days to more than five years.

Some of many prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants
• Notable accounting of federal prosecutions and sentences responding to riots both before and during January 6
• Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives
• Feds get 41 months for one high-profile January 6 rioter and seek 51 months for another
• Accounting for the first 50 sentences imposed on January 6 rioters 
• Reviewing federal criminal prosecutions of January 6 rioters one year later
• January 6 riot prosecutions continuing to spotlight realities of federal criminal justice case processing 

Intriguing clemency news emerges from January 6 committee's first public hearing

This Politico piece reports on the intriguing clemency-related news that emerged from last night's January 6 committee public hearing. Here is how the piece starts:

Rep. Scott Perry of Pennsylvania, as well as multiple other Republican lawmakers, contacted the White House in the weeks after Jan. 6, 2021, to seek presidential pardons for their roles in attempting to overturn the presidential election results, the Jan. 6 select committee revealed Thursday in its prime-time hearing on the Capitol attack.

“Rep. Scott Perry … has refused to testify here,” Rep. Liz Cheney (R-Wyo.), vice chair of the select committee, said as she opened its case to the American public. “As you will see, Representative Perry contacted the White House in the weeks after Jan. 6 to seek a presidential pardon. Multiple other Republican congressmen also sought presidential pardons for their roles in attempting to overturn the 2020 election”

The new details surfaced during the panel’s first public hearing, as the bipartisan committee launched the unveiling of its findings of a yearlong investigation into the insurrection. It’s the first of a string of hearings scheduled in the coming weeks that are set to paint a picture of a carefully planned and orchestrated attack on American democracy.

This news, in addition to leading to speculation about the other members of Congress who sought a pardon from Prez Trump in January 2021, must prompt questions about what crimes these folks thought they committed and exactly what behavior led then to worry about criminal prosecution by the US Department of Justice.

Another federal judge gives Michael Avenatti another below-guideline sentence, as he gets now 48 months for defrauding Stormy Daniels

In what is becoming almost a summer tradition, disgraced lawyer Michael Avenatti was sentenced by a federal judge below the federal sentencing guidelines today.  Sentencing fans may recall that last July Avenetti got a way-below-guideline 30-month sentence for extorting Nike (details here).  Today was judgment day for defrauding Stormy Daniels, as Reuters reports and as excerpted here:

Michael Avenatti, the brash California lawyer who took on then-President Donald Trump, was sentenced on Thursday to four years in prison for defrauding his best-known former client, the porn actress Stormy Daniels.  A federal jury convicted Avenatti in February of wire fraud and aggravated identity theft after a two-week trial, agreeing with prosecutors that he embezzled nearly $300,000 in book proceeds intended for Daniels.

U.S. District Judge Jesse Furman imposed the sentence in federal court in Manhattan, calling Avenatti's conduct "brazen and egregious."  But he said guidelines calling for Avenatti, 51, to serve a sentence of five or six years were "unreasonable," in part due to Avenatti's prior successful legal career.

Avenatti, who appeared in court wearing prison garb and ankle shackles, recounted a string of legal victories he had secured for clients he called "underdogs," and disputed prosecutors' assertion that he took on Daniels as a client to gain a national platform for himself.  "No one else had the guts to take her case," Avenatti said before Furman handed down his sentence, speaking from the courtroom lectern with a U.S. marshal standing beside him.  "I believed we could take down a sitting U.S. president who was the biggest threat to our democracy in modern times."

Daniels, whose given name is Stephanie Clifford, is known for receiving $130,000 from Trump's former lawyer Michael Cohen, in exchange for remaining quiet before the 2016 presidential election about sexual encounters she says she had with Trump, which he has denied.

Avenatti vowed to appeal the guilty verdict in the Daniels case.... He had already been serving a 2-1/2-year sentence stemming from his 2020 federal conviction for trying to extort millions of dollars from Nike Inc. He has appealed that conviction.

Eighteen months of the Daniels sentence will run concurrent with the Nike sentence, meaning Avenatti faces a combined five years in prison. He is still charged in California with stealing millions of dollars from other clients.

Prosecutors had recommended that Avenatti receive a "substantial" prison term in the Daniels case, including a mandatory two-year term for identity theft. Avenatti, who represented himself during the trial, proposed a three-year sentence, with one year running concurrent with his Nike sentence.

John Hinckley, Prez Reagan's would-be assassin in 1981, due to be fully released this month 40 years after being found not guilty by reason of insanity

As reported in this new AP article, "John Hinckley, who shot President Ronald Reagan in 1981, is “no longer a danger to himself or others” and will be freed from all restrictions this month, a federal judge said Wednesday, capping Hinckley’s four-decade journey through the legal and mental health systems."  Here is more:

U.S. District Court Judge Paul L. Friedman said in September that he would free Hinckley from all remaining restrictions on June 15 as long as Hinckley continued to do well living in the community in Virginia as he has for years.  At a hearing Wednesday in Washington which Hinckley did not attend, Friedman noted Hinckley has continued to do well, and the judge made no changes to his plans for full freedom from court oversight.

“He’s been scrutinized.  He’s passed every test. He’s no longer a danger to himself or others,” Friedman said at a hearing that lasted about an hour.  Friedman devoted much of the hearing to talking about the “long road” of the case, which he was randomly assigned two decades ago, the third judge to be involved in the case.  He noted that Hinckley, who turned 67 on Sunday, was profoundly troubled when he shot Reagan but that he had been able to get mental health help.  Hinckley has shown no signs of active mental illness since the mid-1980s, the judge noted Wednesday, and has exhibited no violent behavior or interest in weapons.

Hinckley was confined to a mental hospital in Washington for more than two decades after a jury found him not guilty by reason of insanity in shooting Reagan.  Starting in 2003 Friedman began allowing Hinckley to spend longer and longer stretches in the community with requirements like attending therapy and restrictions on where he can travel.  He’s been living full-time in Virginia since 2016, though still under restrictions.  Some of those include: allowing officials access to his electronic devices, email and online accounts; being barred from traveling to places where he knows there will be someone protected by the Secret Service, and giving three days’ notice if he wants to travel more than 75 miles (120 kilometers) from his home in Virginia.

Prosecutors had previously opposed ending restrictions, but they changed their position last year, saying they would agree to Hinckley’s release from conditions if he continued to show mental stability and follow restrictions.  Prosecutor Kacie Weston said in court Wednesday that the government believes the case “has demonstrated the success that can come from a wraparound mental health system.”  She noted Hinckley has expressed a desire to continue receiving mental health services even after he is no longer required to do so, and said the government wishes “him success for both his sake as well as the safety of the community.”  Hinckley’s longtime lawyer, Barry Levine, said the case had “started with a troubled young man who inflicted great harm” and but that, in the end: “I think we have salvaged a life.”...

Reagan recovered from the March 30, 1981, shooting, but his press secretary, James Brady, who died in 2014, was partially paralyzed as a result.  Secret Service agent Timothy McCarthy and Washington police officer Thomas Delahanty were also wounded.  Reagan died in 2004.

In the 2000s, Hinckley began, with the judge’s approval, making visits to his parents’ home in Williamsburg, Virginia.  His father died in 2008, but in 2016 he was given permission to live with his mother full time.  Still, he was required to attend individual and group therapy sessions, was barred from talking to the media and could only travel within a limited area. Secret Service would also periodically follow him.  Hinckley’s mother died in 2021. He has since moved out of her home. In recent years, Hinckley has made money by selling items at an antique mall and by selling books online.

Former reality star Josh Duggar sentencing to just over 12.5 years in federal prison for child pornography offense

In this post last week, I spotlighted the sentencing submission of the parties in a high-profile federal sentencing and asked "what federal sentence for former reality star Josh Duggar after child pornography convictions?".  I noted that the prosecution was asking for the statutory max of 20 years (and they said the guideline range was 30 to life), while Duggar asked for a sentence of five years.  The post generated a lot of thoughtful comments, and atomicfrog predicted "a sentence in the 10-12 year range."  That was pretty close, as this new BuzzFeed News piece explains in its headline: "Josh Duggar Has Been Sentenced To 12.5 Years In Prison Over Child Sexual Abuse Materials."

Though not discussed at length in the BuzzFeed piece, I surmise from this People article that the sentencing judge here may not have adopted all of the guideline enhancements pursued by the Government.  Here is a snippet:

Prosecutors had asked that he serve the maximum sentence of 20 years in prison, while Duggar’s defense team had asked for five. “Duggar has a deep-seated, pervasive, and violent sexual interest in children,” Assistant US Attorney Dustin Roberts wrote in a sentencing memo.

Both Duggar's wife, Anna, and father, Jim Bob, were in court in Fayetteville on Wednesday for the sentencing.

On Tuesday, District Judge Timothy Brooks issued a 29-page opinion rejecting Duggar's plea for a new trial. "There is no merit to Mr. Duggar’s argument in favor of acquittal," the judge wrote....

After a lengthy hearing Wednesday in which he heard a number of objections from the defense, the judge sentenced Duggar to 151 months in prison.

You be the judge: what federal sentence for former reality star Josh Duggar after child pornography convictions?

Prior related posts:

• How many years and counting might reality TV star Josh Duggar now get after federal jury convictions on two child pornography charges?
• You be the judge: what federal sentence for former reality star Josh Duggar after child pornography convictions?

You be the judge: what federal sentence for former reality star Josh Duggar after child pornography convictions?

In this post back in December, I asked "How many years and counting might reality TV star Josh Duggar now get after federal jury convictions on two child pornography charges?," and I speculated that he could be looking at a federal guideline range of a decade or longer.   This month, sentencing memos were submitted ahead of Duggar's scheduled sentencing on May 25, and the start of the Government's 32-page Sentencing Memorandum notes the guideline calculation and the statutory ceiling in this matter, as well at the Government's sentencing recommendation:

U.S. Probation’s Case calculation under the United States Sentencing Guidelines (Guidelines) set out in the final PSR reflects an advisory range of imprisonment of 360 months to life, which will be capped by the offense maximum of 240 months set by statute for Count One in the Indictment....

Based on all the facts of the case, including Duggar’s prior sexual exploitation of multiple minors discussed herein, and in consideration of the extraordinary efforts Duggar took to obtain and view child sexual abuse material (CSAM), the nature of the CSAM he obtained and viewed, his efforts to conceal his criminal conduct, and his refusal to take accountability for or acknowledge any of his criminal conduct, the Government recommends the Court impose a guideline term of imprisonment of 240 months.

Defendant Duggar's Sentencing Memorandum and Motion for Downward Variance, which also runs 32 pages, concludes its introduction with a very different recommendation:

[W]hile he maintains his innocence and intends to exercise his right to an appeal, Duggar accepts that the crime for which he is being sentenced is serious and that this Court must impose a punishment.  But in crafting that punishment, Duggar asks that this Court consider this crime within its proper context and consider the person Duggar really is.  It is against this backdrop that Duggar respectfully requests that this Court sentence him to 60 months’ imprisonment as that is “sufficient, but not greater than necessary.” 18 U.S.C. § 3553(a).  As evidenced by his perfect performance on pretrial bond, no matter what sentence is ultimately imposed, this is a defendant who will never find himself before this, or any other, Court ever again and a defendant who will abide by whatever conditions of supervised release this Court imposes.

This lengthy Law & Crime article, headlined "Federal Prosecutors Urge Judge to Hand Josh Duggar Maximum Punishment for Downloading ‘Depraved’ Child Sexual Abuse Materials," provides some more context for the sentencing advocacy in this celebrity(?) case.

Prior related post:

• How many years and counting might reality TV star Josh Duggar now get after federal jury convictions on two child pornography charges?

Federal judge formally accepts below-guideline sentencing terms of Derek Chauvin's plea deal for civil rights violations

As reported in this post from back in December, Derek Chauvin pleaded guilty in federal court to civil rights violations arising from his murder of George Floyd.  He did so with a plea deal in place that would bind the federal judge to impose a sentence of between 20 and 25 years even though Chauvin's advisory guideline range is life imprisonment.  At the time, the judge deferred acceptance of the plea deal pending preparation of the presentence report.  That report is now in, as this AP piece reports that the plea deal was formally accepted by the court yesterday: 

The judge overseeing the federal civil rights cases of four former Minneapolis police officers in the killing of George Floyd said Wednesday that he has accepted the terms of Derek Chauvin's plea agreement and will sentence him to 20 to 25 years in prison.

Chauvin pleaded guilty December 15 to violating Floyd's civil rights, admitting for the first time that he kept his knee on Floyd's neck — even after he became unresponsive — resulting in the Black man's death on May 25, 2020. The White former officer admitted he willfully deprived Floyd of his right to be free from unreasonable seizure, including unreasonable force by a police officer.

Under the plea agreement, which Chauvin signed, both sides agreed Chauvin should face a sentence ranging from 20 to 25 years, with prosecutors saying they would seek 25. He could have faced life in prison on the federal count. With credit for good time in the federal system, he would serve from 17 years to 21 years and three months behind bars.

U.S. District Judge Paul Magnuson deferred accepting the agreement pending the completion of a presentence investigation. He said in a one-page order Wednesday that the report had been issued, so it was now appropriate to accept the deal. He has not set a sentencing date for Chauvin.

Chauvin is already serving a 22 1/2 year sentence for his murder conviction in state court last year, though he is appealing that conviction. He would serve the federal sentence concurrently with the state sentence. The federal plea deal means Chauvin will probably spend more time in prison than he faced under his state sentence. State prisoners in Minnesota typically serve one-third of their sentence on parole, which for him would mean 15 years in prison.

I am inclined to predict that Judge Magnuson will give Chauvin the max that this plea deal permits of 25 years, which would likely mean Chauvin will be in the federal pen until the early 2040s. Based on the state murder conviction alone, he would have likely been out by the mid 2030s.

A few prior related posts:

• Derek Chauvin found guilty on all three homicide charges in killing of George Floyd, now on to sentencing phase with Blakely factors 
• State judge finds four aggravating factors could support upward departure at Derek Chauvin's upcoming sentencing 
• In latest sentencing filings, Derek Chauvin requests probation while prosecutors ask for him to get 30 years in prison 
• Derek Chauvin gets 22.5 years for killing George Floyd 
• Federal plea deal on civil rights charges reportedly in the works for Derek Chauvin
• Though guidelines recommend federal LWOP sentence for Derek Chauvin, plea deal provides for concurrent sentence between 20 and 25 years 

Crooked test taker gets four months in federal prison as Varsity Blues prosecutions conclude

It is now three years since I reported in this post about the first pleas in the high-profile college fraud Varsity Blues case detailed in this press release from the US Attorney's Office for the District of Massachusetts, headlined "14 Defendants in College Admissions Scandal to Plead Guilty."   Though I covered a number of the early and celebrity sentencings, there have been too many cases for me to keep track of them all.  Helpfully, DOJ has assembled here all the cases charged and sentenced in the Varsity Blues investigation.

But, as detailed in this AP article headlined "Test taker gets prison; coach convicted in admissions scam," the Varsity Blues prosecutions are winding down with a final jury conviction and a notable sentencing.  Here are the particulars:

A former Florida prep school administrator was sentenced to federal prison and a decorated water polo coach at the University of Southern California was swiftly convicted by a jury in a busy Friday in Boston federal court in the long running college admissions bribery scandal.

Mark Riddell, who was paid handsomely to take college entrance exams for wealthy students, was handed a four-month prison sentence, ordered to serve two years of supervised release and forfeit nearly $240,000.

Meanwhile, former USC coach Jovan Vavic, who faked the athletic credentials of rich students so they could gain admission, was convicted on all three counts of fraud and bribery he faced after a jury deliberated less than a day following his nearly monthlong trial.

U.S. Attorney for Massachusetts Rachael Rollins said the verdict in Vavic’s trial represents the final conviction in the headline grabbing case dubbed “Operation Varsity Blues.”

The investigation announced in 2019 exposed corruption in the college admissions process at Yale, Stanford, Georgetown and other sought-after schools, and implicated wealthy and connected parents, including actors Felicity Huffman and Lori Loughlin and Loughlin’s fashion designer husband, Mossimo Giannulli....

Vavic, a 60-year-old, who guided USC’s men’s and women’s water polo teams to 16 national championships, strode out of the courtroom Friday with his family, declining to comment on the verdict. Prosecutors said he received about $250,000 in bribes for designating unqualified students as water polo recruits so they could attend the elite Los Angeles school....

In a separate courtroom just minutes after Vavic’s verdict was read, Riddell was contrite as he faced sentencing on fraud and money laundering conspiracy charges.  The Harvard graduate, who emerged as a key figure in the wide-ranging scandal, apologized to the many students that lost out on college opportunities because of his “terrible decision.”  He said he brought shame to his family and pleaded for leniency for cooperating with law enforcement officials and for committing to make amends now and going forward for his actions.

Riddell’s lawyers said he should serve one to two months in prison because he was neither the ringleader of the scheme nor a university insider, like the coaches and college administrators implicated.  They also noted he’s already paid nearly $166,000 toward the forfeiture obligation.

Judge Nathaniel Gorton, however, sided with prosecutors who had argued for the four-month sentence.  He said Riddell played a key role for many years in the scheme by secretly taking the ACT and SAT for students, or correcting their answers.  “And for what?” the judge said.  “You did not need the money. How could you have stooped so low?”

A few of many prior posts on other defendants in college admissions scandal:

• Mapping out next possible celebrity sentencings in wake of indictment in college admissions scandal 
• Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal
• Federal district judge rejects feds request for significant prison term in first sentencing of college bribery scandal
• Feds recommending incarceration terms from 1 to 15 months for parents involved college bribery scandal 
• Noticing the interesting (but perhaps not too consequential) guidelines "loss" issue lurking in the college bribery cases
• Napa Valley winemaker gets five months of imprisonment, the longest sentence so far in college admissions scandal
• Catching up with another round of sentencings in "Operation Varsity Blues"
• Reviewing the sentencing dynamics as more parents get (minimal) prison time in "Operation Varsity Blues" college admissions scandal 
• Longest prison sentence (six months) imposed in college admission scandal on big-spending dad 
• Nine-month federal prison term (the longest yet) given to former CEO who paid nearly $1 million to benefit four kids in college admission scandal 
• Felicity Huffman sentenced to 14 days in college bribery scandal 
• Via video, Lori Loughlin and her husband get agreed fixed short prison sentences in college admission scandal 
• With two defendants now convicted after trial, how steep might the "trial penalty" be in the Varsity Blues cases? 
• Trial penalties lead to longest (but still not so long) sentences for two Varsity Blues defendants 

Jussie Smollett sentenced to 150 days in jail, years of probation, $120,106 in restitution and $25,000 fine for faking attack

In this post a few months ago, I asked "Is Jussie Smollett likely to get probation after convictions on five low-level state felony counts of disorderly conduct?".  As this new AP article reports, we now know the answer to this question is "nope." Here are some details:

Jussie Smollett loudly maintained his innocence Thursday after a judge sentenced the former “Empire” actor to 150 days in jail for lying to police about a racist and homophobic attack that he orchestrated himself. Cook County Judge James Linn ordered that Smollett’s county jail sentence begin immediately following the hearing.

Smollett didn’t make a statement when offered the opportunity earlier in the afternoon but maintained that he was innocent after Linn issued his sentencing decision. He also insisted that he was not suicidal, suggesting that “if anything happens” in jail, he did not take his own life....

The judge also sentenced Smollett to 30 months of felony probation and ordered that he pay $120,106 in restitution to the city of Chicago and a $25,000 fine.

Smollett’s dramatic reaction capped an hourslong sentencing hearing. Special prosecutor Dan Webb asked Linn to include “an appropriate amount of prison time” when sentencing the actor for his conviction. Smollett’s attorneys asked the judge to limit the sentence to community service, arguing that he had already been punished by the criminal justice system and damage to his career. Family members echoed those comments....

Several supporters spoke about worries that Smollett would be at risk in prison, specifically mentioning his race, sexual orientation and his family’s Jewish heritage.

Linn said he did consider those requests for mercy, along with Smollett’s prior work and financial support of social justice organizations. But Linn also excoriated Smollett as a narcissist and pronounced himself astounded by his actions given the actor’s multiracial family background and ties to social justice work. “For you now to sit here, convicted of hoaxing, hate crimes ... the hypocrisy is just astounding,” Linn said....

Smollett faced up to three years in prison for each of the five felony counts of disorderly conduct — the charge filed for lying to police — of which he was convicted. He was acquitted on a sixth count. But because Smollett does not have an extensive criminal history and the conviction is for a low-level nonviolent crime, experts did not expect him to be sent to prison.

Thursday’s sentencing could be the final chapter in a criminal case, subject to appeal, that made international headlines when Smollett, who is Black and gay, reported to police that two men wearing ski masks beat him, and hurled racial and homophobic slurs at him on a dark Chicago street and ran off. In December, Smollett was convicted in a trial that included the testimony of two brothers who told jurors Smollett paid them to carry out the attack, gave them money for the ski masks and rope, instructed them to fashion the rope into a noose. Prosecutors said he told them what racist and homophobic slurs to shout, and to yell that Smollett was in “MAGA Country,” a reference to the campaign slogan of Donald Trump’s presidential campaign.

With first defendant now convicted after trial, how steep might the "trial penalty" be in the Jan 6 riot cases?

As reported in this AP piece, headlined "1st trial in Capitol riot ends with conviction all counts," we now have  a new conviction in the January 6 riot cases that can perhaps reveal some of the sentencing consequences of going to trial rather than pleading guilty.  Here are the basic details:

A Texas man was convicted on Tuesday of storming the U.S. Capitol with a holstered handgun, a milestone victory for federal prosecutors in the first trial among hundreds of cases arising from last year’s riot.

A jury also convicted Guy Wesley Reffitt of interfering with police officers who were guarding the Capitol on Jan. 6, 2021, and of obstructing justice for threatening his two teenage children if they reported him to law enforcement after the attack. Jurors deliberated about three hours and convicted him on all counts.

The verdict could be a bellwether for many other Capitol riot cases. It could give Justice Department prosecutors more leverage in plea negotiations and discourage other defendants from gambling on trials of their own. Reffitt, 49, of Wylie, Texas, didn’t testify at his trial, which started last Wednesday. He didn’t visibly react to the verdict, but his face was covered by a mask.

During the trial’s closing arguments on Monday, Assistant U.S. Attorney Risa Berkower told jurors that Reffitt drove to Washington, D.C., intending to stop Congress from certifying President Joe Biden’s electoral victory.  Reffitt proudly “lit the fire” that allowed others in a mob to overwhelm Capitol police officers near the Senate doors, the prosecutor said.

Reffitt was not accused of entering the Capitol building.  Defense attorney William Welch said there is no evidence that Reffitt damaged property, used force or physically harmed anybody.  The defense lawyer urged jurors to acquit Reffitt of all charges but one: He said they should convict him of a misdemeanor charge that he entered and remained in a restricted area.

Reffitt faced a total of five counts: obstruction of an official proceeding, being unlawfully present on Capitol grounds while armed with a firearm, transporting firearms during a civil disorder, interfering with law enforcement officers during a civil disorder, and obstruction of justice.

Jurors saw videos that captured the confrontation between a few Capitol police officers and a mob of people, including Reffitt, who approached them on the west side of the Capitol. Reffitt was armed with a Smith & Wesson pistol in a holster on his waist, carrying zip-tie handcuffs and wearing body armor and a helmet equipped with a video camera when he advanced on police, according to prosecutors. He retreated after an officer pepper sprayed him in the face, but he waved on other rioters who ultimately breached the building, prosecutors said.

Before the crowd advanced, Reffitt used a megaphone to shout at police to step aside and to urge the mob to push forward and overtake officers. Assistant U.S. Attorney Jeffrey Nestler said Reffitt played a leadership role that day. During last Friday’s testimony, prosecutors zoomed in on a video image of Reffitt at the Capitol. FBI Special Agent Laird Hightower said the image shows “a silvery metallic linear object” in a holster protruding from under Reffitt’s jacket as he leaned forward....

Reffitt’s 19-year-old son, Jackson, testified last Thursday that his father threatened him and his sister, then 16, after he drove home from Washington. Reffitt told his children they would be traitors if they reported him to authorities and said “traitors get shot,” Jackson Reffitt recalled. Jackson Reffitt, then 18, said the threat terrified him. His younger sister, Peyton, was listed as a possible government witness but didn’t testify....

More than 750 people have been charged with federal crimes related to the riot.  Over 220 of them have pleaded guilty, mostly to misdemeanors. and over 110 of them have been sentenced. Approximately 90 others have trial dates.

This AP description of Reffitt's behaviors makes him sound like a more serious offender that some of those prosecuted for Jan 6 activities. but also less serious than some others.  I will be interested to see how guideline calculations and sentencing arguments play out for Reffitt in the months ahead.

Some of many prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants
• Notable accounting of federal prosecutions and sentences responding to riots both before and during January 6
• Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives
• Coverage and commentary as 100th guilty plea entered for federal charges in January 6 riots 
• Is longest prison term for Jan 6 rioter, and a possible new benchmark, coming this week?
• Feds get 41 months for one high-profile January 6 rioter and seek 51 months for another
• Accounting for the first 50 sentences imposed on January 6 rioters 
• Lots of new January 6 riot sentencings producing lots of notable new headlines and sentencing stories 
• Reviewing federal criminal prosecutions of January 6 rioters one year later
• January 6 riot prosecutions continuing to spotlight realities of federal criminal justice case processing 

Are all three defendants who murdered Ahmaud Arbery now sure to get federal LWOP sentences following federal convictions?

The question in the title of this post is prompted by the federal court news this morning that three Georgia men, after having been tried, convicted and sentenced for 1murdering Ahmaud Arbery in state court, were found guilty on all (factually related but legally distinct) federal charges.  This USA Today piece, headlined "Ahmaud Arbery's killers found guilty of federal hate crimes, may face additional life sentence cover the basics:

A jury found three white men guilty of hate crimes and attempted kidnapping for the 2020 murder of Ahmaud Arbery after determining they targeted him because he was Black.

Father and son Gregory and Travis McMichael and their neighbor William "Roddie" Bryan — all already serving life in prison for Arbery's murder — could each face an additional life sentence. A sentencing date was not set.

The jury found each man guilty of one count of interference with rights and attempted kidnapping. The McMichaels were also convicted of using, carrying and brandishing – and in Travis McMichael’s case, firing – a gun during a crime of violence.

Shortly after the verdict was announced, Arbery’s parents emerged from the courthouse holding hands with attorney Ben Crump. They raised their clasped hands to cheers from supporters....  In a statement, Crump said he and Arbery's family "hope and demand that the severity of their crimes are reflected in the sentencing, as well."

Experts have said the federal convictions are not just a symbolic victory but ensure the defendants will serve prison time even if their state convictions are overturned on appeal. The three men were sentenced in January to life in prison after being convicted on the state murder charges; the McMichaels will not have the possibility for parole.

Hate crimes are rarely prosecuted. In Georgia, just two people were convicted of federal hate crimes from 2005 to 2019, according to the Bureau of Justice Statistics. The state did not have its own hate crime legislation until after Arbery's death.

The jury deliberated for about four hours Monday before announcing the verdict, one day before the second anniversary of Arbery's killing....

A plea deal for the McMichaels fell apart days before jury selection began. The McMichaels withdrew their pleas after the judge rejected the initial terms of the deal, under which Travis would have been sentenced to 30 years in federal prison to be served concurrently with his state sentence. Arbery's family strongly opposed the deal in court.

Because the federal judge who rejected the plea deal for the McMichaels, US District Court Judge Lisa Godbey Wood, seemed to indicate that she was troubled that the deal set a 30-year cap on her sentencing authority, I suspect she will now be inclined to give all three defendants life sentences.  In the federal system, of course, there is no parole and so all life sentences are life without parole sentences.  This would be especially significant for William "Roddie" Bryan, who is only serving life with parole as a result of his Georgia state conviction.

I believe that one notable aspect of the now-rejected plea deal was the opportunity for the McMichaels to serve their time in federal prison, which is often viewed as less awful that most state prisons.  I am unsure if these convictions after trial or future sentencing determinations will enable these defendants to serve their time in the federal pen, but I suspect they are still seeking that outcome.

Prior recent related posts:

• Sentencing basics for defendants convicted of murdering Ahmaud Arbery 
• Two of three defendants convicted of murdering Ahmaud Arbery given LWOP, other gets life with parole 
• Federal judge rejects binding sentencing federal plea deal for men who killed Ahmaud Arbery

Trial penalties lead to longest (but still not so long) sentences for two Varsity Blues defendants

It has been a while since I have blogged about the Varsity Blues case and the sentences given to the high net-worth individuals who were federally prosecuted (though some of lots and lots of prior blogging can be found below).  However, four months ago I noted in a post the fate of a couple defendants who did not plead guilty and I asked "With two defendants now convicted after trial, how steep might the "trial penalty" be in the Varsity Blues cases?".  This week we got an answer to that question through two sentencings reported in this Bloomberg piece headlined, "‘Varsity Blues’ Dad Gets Longest Sentence in Scandal Yet."  Here are the basics:

A private equity investor convicted in the “Varsity Blues” college admissions scandal received a 15-months prison sentence, the longest meted out to date.  John B. Wilson was sentenced Wednesday in federal court in Boston after being convicted last year of paying more than $1.2 million to get his three children into elite colleges.  He was also ordered to pay a $200,000 fine and $88,546 in restitution.

Wilson’s sentencing comes about week after former Wynn Resorts Ltd. executive Gamal Abdelaziz was ordered to spend a year and a day in prison.  Before Abdelaziz, the highest sentence handed out in the case had been the nine months given to former Pimco Chief Executive Officer Douglas Hodge.  Unlike Hodge and dozens of others charged in the case, however, Wilson and Abdelaziz chose to contest their charges at trial.  A jury found them guilty in October.

Prosecutors had asked for Wilson to be sentenced to 21 months behind bars, saying he still refused to accept responsibility for his crimes.  Wilson asked for 6 months, saying he deeply regretted his participation in the scheme orchestrated by disgraced college counselor William “Rick” Singer.

Helpfully, DOJ has assembled here all the cases charged and sentenced in the Varsity Blues investigation, and a quick scan reveals that the vast majority of the defendants who pleaded guilty received sentences of four month or less.  So one might reasonably assert that the choice to exercise their rights to trial contributed to Abdelaziz getting roughly three times, and Wilson getting roughly four times, the prison sentence given to the average Varsity Blues defendant who pleaded guilty.  That can be viewed as a pretty hefty trial penalty. 

And yet, because no mandatory minimum sentencing provisions or big guideline enhancements were in play (and perhaps because of the high-profile nature of these cases), the extent of the "trial penalty" as measured in extra prison time imposed is a lot less for these Varsity Blues defendants than for other federal defendants in a lot of other settings.  A 2013 Human Rights Watch report calculated that "in 2012, the average sentence of federal drug offenders convicted after trial was three times higher (16 years) than that received after a guilty plea (5 years and 4 months)."  Three times higher in the federal drug sentencing context can often mean decades of more prison time; three times higher for Abdelaziz and Wilson is a matter of months. 

Still, I cannot help but wonder what the decision to go to trial cost Abdelaziz and Wilson in other respects, e.g., attorneys fees, personal and professional stigma and uncertainty.  Exercising trial rights can be quite costly for defendants even without accounting for the longer (sometimes much longer) sentence that will almost always follow.  

A few of many prior posts on other defendants in college admissions scandal:

• Mapping out next possible celebrity sentencings in wake of indictment in college admissions scandal 
• Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal
• Federal district judge rejects feds request for significant prison term in first sentencing of college bribery scandal
• Feds recommending incarceration terms from 1 to 15 months for parents involved college bribery scandal 
• Noticing the interesting (but perhaps not too consequential) guidelines "loss" issue lurking in the college bribery cases
• Napa Valley winemaker gets five months of imprisonment, the longest sentence so far in college admissions scandal
• Catching up with another round of sentencings in "Operation Varsity Blues"
• Reviewing the sentencing dynamics as more parents get (minimal) prison time in "Operation Varsity Blues" college admissions scandal 
• Longest prison sentence (six months) imposed in college admission scandal on big-spending dad 
• Nine-month federal prison term (the longest yet) given to former CEO who paid nearly $1 million to benefit four kids in college admission scandal 
• Felicity Huffman sentenced to 14 days in college bribery scandal 
• Via video, Lori Loughlin and her husband get agreed fixed short prison sentences in college admission scandal 
• With two defendants now convicted after trial, how steep might the "trial penalty" be in the Varsity Blues cases? 

Minnesota judge, finding mitigating circumstances, imposes below-guideline sentence of 2 years on former officer Kim Potter convicted of manslaughter for killing Daunte Wright

As reported in this AP piece, "Kim Potter, the former suburban Minneapolis police officer who said she confused her handgun for her Taser when she fatally shot Daunte Wright, was sentenced Friday to two years in prison, a penalty below state guidelines after the judge found mitigating factors warranted a lesser sentence." Here is more:

Judge Regina Chu said the lesser sentence was warranted because Potter was “in the line of duty and doing her job in attempting to lawfully arrest Daunte Wright” when she said she mistook her gun for her Taser.  And, Chu said, Potter was trying to protect another officer who could have been dragged and seriously injured if Wright drove away.  “This is this is one of the saddest cases I’ve had on my 20 years on the bench,” said Chu, who also said she received “hundred and hundreds” of letters supporting Potter. “On the one hand, a young man was killed and on the other a respected 26-year veteran police officer, made a tragic error by pulling her hand gun instead of her Taser.”

Wright’s mother, Katie Wright, said after the sentencing that Potter “murdered my son,” adding: “Today the justice system murdered him all over again.” Speaking before the sentence was imposed, the tearful mother said she could never forgive Potter and would only refer to her as “the defendant” because Potter only referred to her 20-year-old son as “the driver” at trial....

Wright family attorney Ben Crump said they don’t understand why such consideration was given to a white officer in the killing of a young Black man when a Black officer, Mohamed Noor, got a longer sentence for the killing of a white woman, Justine Ruszczyk Damond. “What we see today is the legal system in Black and white.”

But the judge said the cases are not the same as other high-profile killings by police. “This is not a cop found guilty of murder for using his knee to pin down a person for 9 1/2 minutes as he gasped for air. This is not a cop found guilty of manslaughter for intentionally drawing his firearm and shooting across his partner and killing an unarmed woman who approached approached his squad,” Chu said. “This is a cop who made a tragic mistake.”

For someone with no criminal history, such as Potter, the state guidelines on first-degree manslaughter range from slightly more than six years to about 8 1/2 years in prison, with the presumptive sentence being just over seven years. Prosecutors said the presumptive sentence was proper, but defense attorneys asked for a sentence below the guidelines, including a sentence of probation only.

I have not previously blogged about the sentencing advocacy in this high-profile case, but this Hill piece usefully links to the written submissions. Here is an excerpt with links:

Prosecutors in a sentencing memo asked the judge to give Potter 86 months, a little more than seven years. First-degree manslaughter has a sentencing of 15 years in Minnesota, but judges can lower the sentence if a person, like Potter, has no criminal history....

Defendants argued in their filing the sentence should be lower due to Potter having no criminal record and her remorsefulness at the situation.  “To impose a prison term here sends the message that if an officer makes a mistake, the Attorney General will be quick to charge (the Complaint was filed within days), and that officer will immediately be ruined by the publicity alone. And a few in the community will try to kill you,” Potter’s lawyers wrote, noting the threats Potter has received. The lawyers believed her house would have been burned down without protection.

My understanding of Minnesota law is that Potter will serve 2/3 of her sentence in prison, so she will be released on parole after serving 16 months.

Prior related post:

• Previewing sentencing facing former officer Kim Potter after manslaughter convictions for killing Daunte Wright

Joe Exotic gets 21 years (only a year off prior sentence) at resentencing

It feel like it has been a very long time since everyone was talking about Joe Exotic and Carole Baskin, even though NetFlix released "Tiger King 2" only a few months ago.  And, as this new AP article details, there was something of a "Tiger King 2" in federal court this past week as Joe Exotic (aka Joseph Maldonado-Passage) was resentenced for trying to put an end to Baskin.  Here are some of the details:

A federal judge resentenced “Tiger King” Joe Exotic to 21 years in prison on Friday, reducing his punishment by just a year despite pleas from the former zookeeper for leniency as he begins treatment for early-stage cancer. “Please don’t make me die in prison waiting for a chance to be free,” he tearfully told a federal judge who resentenced him on a murder-for-hire charge.

Joe Exotic — whose real name is Joseph Maldonado-Passage — was convicted in a case involving animal welfare activist Carole Baskin.  Both were featured in Netflix’s “Tiger King: Murder, Mayhem and Madness.”

Wearing an orange prison jumpsuit, Maldonado-Passage, 58, still had his trademark mullet hairstyle, but the bleach-blonde had faded to brown and gray.  Baskin and her husband, Howard Baskin, also attended the proceedings, and she said she was fearful that Maldonado-Passage could threaten her. “He continues to harbor intense feelings of ill will toward me,” she told the judge.

Baskin said even with Maldonado-Passage in prison, she has continued to receive “vile, abusive and threatening communications” over the last two years. She told the judge she believes Maldonado-Passage poses an even more serious threat to her now that he has a larger group of supporters because of the popularity of the Netflix series.

Maldonado-Passage’s attorneys told the judge their client is suffering from stage-one prostate cancer, along with a disease that compromises his immune system, making him particularly vulnerable to COVID-19. Stage-one prostate cancer means it has been detected early and hasn’t spread.  Maldonado-Passage previously said that he planned to delay treatment until after his resentencing.  Federal officials have said Maldonado-Passage will need up to eight weeks of radiation treatments and would be unable to travel during the treatments.  His attorney Amy Hanna told the judge he’s not receiving the proper medical care inside the federal prison system and that a lengthy prison sentence is a “death sentence for Joe that he doesn’t deserve.”

Prosecutors also told the judge Friday that Maldonado-Passage received a disciplinary write-up in September for being possession of a contraband cellphone and unauthorized headphones that was not included in his pre-sentencing report. Palk added that Maldonado-Passage had four previous disciplinary write-ups, although he described those as “relatively minor and not violent.”

Friday’s court proceedings came about after a federal appeals court ruled last year that the prison term he’s serving on a murder-for-hire conviction should be shortened.

Supporters packed the courtroom, some wearing animal-print masks and shirts that read “Free Joe Exotic.” His attorneys said they would appeal the resentencing and petition for a new trial. “The defense submitted a series of attachments that showed excessive government involvement in the creation of the offense for which he’s been convicted,” attorney Molly Parmer told reporters after the hearing. “We are going to continue our post-conviction litigation, but we did preview for the court the evidence we have through our post-conviction investigation.”

The former zookeeper was sentenced in January 2020 to 22 years in prison after he was convicted of trying to hire two different men to kill Baskin.  A three-judge panel of the 10th U.S. Circuit Court of Appeals agreed with Maldonado-Passage that the court should have treated them as one conviction at sentencing because they both involved the same goal of killing Baskin, who runs a rescue sanctuary for big cats in Florida and had criticized Maldonado-Passage’s treatment of animals....

Maldonado-Passage, who maintains his innocence, also was convicted of killing five tigers, selling tiger cubs and falsifying wildlife records.

Prior related post:

• Joe Exotic (of "Tiger King" fame) prevails on technical guideline issue to secure resentencing on Tenth Circuit appeal 

January 6 riot prosecutions continuing to spotlight realities of federal criminal justice case processing

This morning I saw two interesting, though not especially surprising, reviews of some of federal criminal justice realities being put in the spotlight by the many prosecutions of January 6 rioters.  Here are the headlines, links and an excerpt:

From Zoe Tillman at BuzzFeed News, "Alleged Capitol Rioters Are Getting In Trouble For Guns And Other Violations After Going Home: A common theme popping up in violations among those on pretrial release has come from defendants who are reluctant to give up access to firearms."

[Joshua] Pruitt is one of 11 people charged in connection with the attack on the US Capitol who were ordered into custody after initially being released; eight of those cases involved defendants who violated conditions of their pretrial release.  Prosecutors have a pending request to put another defendant behind bars, and BuzzFeed News identified at least 16 cases where judges tightened restrictions or issued warnings after finding defendants failed to be in full compliance with the letter, or spirit, of their release conditions.

The vast majority of people charged in the Jan. 6 investigation have been allowed to go home while their cases are pending; there are more than 550 defendants with active cases on pretrial release. Most have stayed out of trouble. The small but steady trickle of problems that have cropped up speak to some of the broader challenges judges have faced in deciding when it’s appropriate to send someone back into the community who is accused of being part of the insurrection but isn’t charged with a specific act of violence or a more serious crime.

From Roger Parloff, "Are Judges Showing Their Political Colors in the Jan. 6 Criminal Cases?"

Earlier this month, a Washington Post analysis suggested that the sentences of Jan. 6 Capitol riot defendants may reflect political bias on the part of the judges handling these cases.

Is the Post right and, more broadly, are judges showing their political colors in other ways involving these defendants? The evidence is mixed.  On the one hand, as we’ll see, judges have shown commendable bipartisanship in how they’ve handled certain key issues.  At the same time, the Post is clearly onto something. At least an undercurrent of low-grade tribalism has often surfaced in the judges’ handling of these cases....

Here’s what the Post did.  It reviewed the 74 sentences that had been handed down by the U.S. District Court for the District of Columbia (where all the Jan. 6 Capitol riot cases are being filed) as of the first anniversary of the event.  Then it compared those sentences to the terms the prosecutors had sought.

As an initial matter, the Post found that 49 defendants — two-thirds — received lighter sentences than prosecutors had recommended....

Still, when the paper drilled down, it uncovered some unmistakable trends. Of the 49 sentences that were lighter than prosecutors sought, 30 (61 percent) had been handed down by Republican appointees. This tilt could not be explained by the distribution of Republican appointees on the bench. Of all the judges who have sentenced a Capitol riot defendant, 10 were appointed by Democrats, while eight were appointed by Republicans.

Upon swiveling the tables — homing in on which judges imposed sentences that were harsher than the prosecutors requested — a mirror-image pattern emerged.  Of the 11 sentences that were tougher than the government sought, nine (82 percent) were imposed by Democratic appointees.

Some of many prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants
• Notable accounting of federal prosecutions and sentences responding to riots both before and during January 6
• Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives
• Coverage and commentary as 100th guilty plea entered for federal charges in January 6 riots 
• Is longest prison term for Jan 6 rioter, and a possible new benchmark, coming this week?
• Feds get 41 months for one high-profile January 6 rioter and seek 51 months for another
• Accounting for the first 50 sentences imposed on January 6 rioters 
• Lots of new January 6 riot sentencings producing lots of notable new headlines and sentencing stories 
• Reviewing federal criminal prosecutions of January 6 rioters one year later

Reviewing federal criminal prosecutions of January 6 rioters one year later

A few weeks ago, I flagged this CNN piece reporting on the first 50 sentences imposed on those convicted for federal crimes for their involvement in the January 6 riot at the US Capitol.  Today I see this lengthy new AP piece, headlined "Capitol rioters’ tears, remorse don’t spare them from jail," providing another overview of the state of federal prosecutions as we approach the one-year anniversary of these high-profile crimes.  Here are excerpts:

Judges are hearing tearful expressions of remorse — and a litany of excuses — from rioters paying a price for joining the Jan. 6 insurrection, even as others try to play down the deadly attack on a seat of American democracy.

The Justice Department’s investigation of the riot has now entered the punishment phase.  So far, 71 people have been sentenced for riot-related crimes.  They include a company CEO, an architect, a retired Air Force lieutenant colonel, a gym owner, a former Houston police officer and a University of Kentucky student.  Many rioters have said they lost jobs and friends after their mob of Donald Trump loyalists disrupted the certification of Joe Biden’s presidential victory.

Fifty-six of the 71 pleaded guilty to a misdemeanor count of parading, demonstrating or picketing in a Capitol building. Most of them were sentenced to home confinement or jail terms measured in weeks or months, according to an Associated Press tally of every sentencing.  But rioters who assaulted police officers have gotten years behind bars.

With hundreds of people charged, the Justice Department has taken heat for not coming down harder on some rioters, and it has failed to charge anyone with sedition or treason despite hints early on in the investigation.  But lower-level cases tend to be easier to prosecute and typically get resolved before more complex ones.

At least 165 people have pleaded guilty so far, mostly to crimes punishable by a maximum sentence of six months.  There are dozens of cases involving more serious offenses still moving through the system.  More than 220 people have been charged with assaulting or impeding law enforcement officers at the Capitol, according to the Justice Department.  Since November, three of them have been sentenced to prison terms ranging from more than three years to just over five years.

The District of Columbia federal court is overloaded with Jan. 6 cases.  More than 700 people have been charged so far and the FBI is still looking for more.  Among the most serious charges are against far-right extremist group members accused of plotting attacks to obstruct Congress from certifying the 2020 presidential election.  Their cases haven’t yet gone to trial.

The rioters’ refrains before the judges are often the same: They were caught up in the moment or just following the crowd into the Capitol. They didn’t see any violence or vandalism.  They thought police were letting them enter the building.  They insist they went there to peacefully protest.

Their excuses often implode in the face of overwhelming evidence.  Thousands of hours of videos from surveillance cameras, mobile phones and police body cameras captured them reveling in the mayhem.  Many boasted about their crimes on social media in the days after the deadly attack....

Eighteen judges, including four nominated by Trump, have sentenced the 71 defendants.  Thirty-one defendants have been sentenced to terms of imprisonment or to jail time already served, including 22 who received sentences of three months or less, according to the AP tally.  An additional 18 defendants have been sentenced to home confinement. The remaining 22 have gotten probation without house arrest.

A seemingly genuine display of contrition before or during a sentencing hearing can help a rioter avoid a jail cell.  The judges often cite remorse as a key factor in deciding sentences.

Some of many prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants
• Notable accounting of federal prosecutions and sentences responding to riots both before and during January 6
• Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives
• Coverage and commentary as 100th guilty plea entered for federal charges in January 6 riots 
• Is longest prison term for Jan 6 rioter, and a possible new benchmark, coming this week?
• Feds get 41 months for one high-profile January 6 rioter and seek 51 months for another
• Accounting for the first 50 sentences imposed on January 6 rioters 
• Lots of new January 6 riot sentencings producing lots of notable new headlines and sentencing stories 

"How Much Prison Time Could Ghislaine Maxwell Serve After Sex Trafficking Conviction?"

The question in the title of this post is the headline of this new Newsweek article that explores a bit what I started thinking about upon hearing that Ghislaine Maxwell, Jeffrey Epstein's "helper," had been convicted on five of six federal sex trafficking charges.  The simple technical answer to the question is 65 years, and the article provides these (helpful?) additional details:

The most serious charge Maxwell was convicted of, sex trafficking of a minor, carries a maximum prison sentence of 40 years.  She was also convicted of transporting a minor with the intent to engage in illegal sexual activity, a charge punishable by up to 10 years, as well as three other charges that each carry maximum sentences of five years.... It is unclear when she could be tried on two separate counts of perjury, which could also add a five-year sentence apiece.

[I]f 60-year-old Maxwell is given a sentence anywhere near the maximum allowable term, she may spend the rest of her life behind bars, especially since the federal prison system does not include parole. If federal prison sentencing guidelines are allowed and she is ordered to serve sentences concurrently, Maxwell could face as little as 10 years.

Maxwell was sent back to Brooklyn's Metropolitan Detention Center after the verdict was read on Wednesday.  She has been held at the facility in isolation since being arrested in July 2020. Maxwell is likely to remain there until she is sentenced and assigned to a federal prison....

It is unclear whether security measures for Maxwell will be altered in light of her convictions.  Maxwell has denied all of the charges that she was convicted of on Wednesday. Plans to launch an appeal have already been set in motion, her attorney Bobbi Sternheim told reporters after the verdict. "We firmly believe in Ghislaine's innocence," Sternheim said. "Obviously we are very disappointed with the verdict, we have already started working on the appeal and we are confident that she will be vindicated."

U.S. District Judge Alison Nathan has yet to announce the date of Maxwell's pending sentencing hearing.

I think this article means to make the point that if federal sentencing guidelines are followed (not "allowed"), then Maxwell would be quite likely to get a term lower than the 65-year  statutory maximum available.  (It is perhaps worth noting that the most serious count of conviction now carries a statutory maximum sentence of life, but the stat max was "only" 40 years at the time of Maxwell's offense conduct.)

I am not an expert on guideline calculations for this set of offenses, but my sense is that the recommend range will be at least as high as 20 years, and perhaps even much higher.  It will be interesting to see the precise calculation and the sentencing advocacy by the prosecution and the defense in the months ahead.  It will also be interesting to watch if Judge Nathan's nomination to the Second Circuit, or the effort by some GOP Senators to question her sentencing work, could come to somehow impact Maxwell's eventual sentencing.

Previewing sentencing facing former officer Kim Potter after manslaughter convictions for killing Daunte Wright

This extended AP article provide a helpful accounting of what we might now expect in sentencing of former Minneapolis police officer Kim Potter after a jury convicted her yesterday on two counts of manslaughter.  Here are excerpts:

The former suburban Minneapolis police officer who said she confused her handgun for her Taser when she killed Daunte Wright will be sentenced in February after a jury convicted her Thursday on two counts of manslaughter.  The most serious charge against Kim Potter — first-degree manslaughter — carries a maximum penalty of 15 years in prison....

Under Minnesota statutes, Potter, who is white, will be sentenced only on the most serious charge of first-degree manslaughter.  That’s because both of the charges against her stem from one act, with one victim.

The max for that charge is 15 years.  But state sentencing guidelines call for much less.  For someone with no criminal history, like Potter, the guidelines range from just more than six years to about 8 1/2 years, with the presumptive sentence being slightly over seven years.

Prosecutors have said they'd seek a sentence above the guideline range, while the defense said they would seek no prison time.  In order for Judge Regina Chu to issue a sentence that's outside the guideline range, she would first have to find either mitigating or aggravating factors.  Both sides are expected to file written arguments.

Prosecutors say aggravating factors in Potter's case include that she caused a greater-than-normal danger to the safety of other people when she fired into the car, including danger to her fellow officers, to Wright’s passenger and to the couple whose car was struck by Wright’s after the shooting.... Prosecutors also say Potter abused her authority as a police officer.

Defense attorney Paul Engh said the defense would be seeking a “dispositional departure” from sentencing guidelines. Under state statutes, a mitigated dispositional departure occurs when guidelines recommend a prison sentence, but a judge allows the sentence to be “stayed" — meaning the defendant doesn't go to prison....

In arguing that Potter should remain free on bail until she is sentenced, Engh said: "She is amenable to probation. Her remorse and regret for the incident is overwhelming.  She’s not a danger to the public whatsoever.  She’s made all her court appearances.” Chu was unmoved, and Potter was taken into custody after the verdicts were read....

The defense can also make the argument that as a police officer, Potter's confinement would likely be harsher than most because of the need to keep her safe.  The former Minneapolis police officer convicted in George Floyd's death, Derek Chauvin, has been in solitary confinement for that reason....

In determining a final sentence, Chu will consider the arguments made by both sides, as well as victim impact statements.  She has also ordered a pre-sentence investigation of Potter.  And Potter can make a statement at her sentencing hearing — a time when judges are typically looking to see if a person takes responsibility for the crime or shows remorse....

No matter what sentence Potter gets, in Minnesota it’s presumed that a defendant with good behavior will serve two-thirds of their penalty in prison and the rest on supervised release, commonly known as parole.  That means if Potter is sentenced to the presumptive seven years, she would likely serve about four years and nine months behind bars, and the rest on supervised release.  Once on supervised release, she could be sent back to prison if she violates conditions of his parole.  If she gets the maximum 15 years, she could be behind bars for 10 before being placed on parole.

Lots of new January 6 riot sentencings producing lots of notable new headlines and sentencing stories

In this post about a week ago, I flagged this CNN piece reporting on the first 50 sentences imposed on those convicted for federal crimes as part of the January 6 riot.  That article noted that sentences were still forthcoming in the most serious cases; one such case was sentenced yesterday setting a new "record" as reported in this Washington Post article headlined "Fla. man sentenced to 5 years for attacking police, the longest Jan. 6 riot sentence yet."  Technically, the WaPo headline is off, as the defendant got sentenced to 63 months, and I am not too keen on at least one element accounting for the severity of this sentence: 

Robert S. Palmer, 54, of Largo, Fla., pleaded guilty in October to assaulting law enforcement officers with a dangerous weapon, and his original plea agreement called for a sentencing range of 46 to 57 months.  But after his plea, and his entry into the D.C. jail, Palmer arranged to make an online fundraising plea in which he said he did “go on the defense and throw a fire extinguisher at the police” after being shot with rubber bullets and tear gas.

That was a lie, Palmer admitted Friday.  He had thrown a fire extinguisher — twice — a large plank and then a four-to-five-foot pole at police before he was struck with one rubber bullet.  The falsehood indicated a failure to accept responsibility for his actions, prosecutors argued, and when U.S. District Judge Tanya S. Chutkan agreed, she increased his sentencing range to 63 to 78 months, ultimately imposing a 63-month term.

Based on the rest of the WaPo article, it seems as of the day of sentencing Palmer had truly accepted responsibility.  Though it is understandable that prosecutors and the sentencing judge may have considered previous statements trying to minimize his culpability as undercutting his claims of remorse, I find it troubling that Palmer ends up facing 1 to 2 years longer in a cage simply for a few stupid comments while trying to raise money for his defense.  I have long thought some prosecutors and judges are too eager to deny acceptance of responsibility credit under the guidelines based on a defendant's dumb statement or two, and this case highlights the stakes potentially involved in doing so.

Palmer's sentence, because of its length, generated the most recent January 6 sentencing headlines.  But I saw a few more notable headlines and stories this past week that seemed worth rounding up here:

"Judge: Lack of charges for Trump over Jan. 6 is no basis for leniency for others"

"New York man sentenced to nearly 3 years in prison for threatening Sen. Raphael Warnock"

"Judge goes beyond prosecutors' request with sentence for Jan. 6 couple"

"Jan. 6 riot ‘not patriotism’ judge says in sentencing Ga. man"

"UK student gets 30-day sentence for involvement in Jan. 6 Capitol riot"

"Federal judge ordered Fort Pierce man to serve probation for activities at U.S. Capitol Jan. 6"

"Guardsman in Jan. 6 Mob Gets Probation, Still Serving in the Guard"

Death threats to Speaker Pelosi leads to 28-month (below guideline, above plea deal) federal sentence

This Politico article reports on a notable federal sentencing today under this full headline: "QAnon follower gets 28-month sentence for death threats to Pelosi: Judge says continuing election-fraud rhetoric from Republican politicians makes defendant an ongoing threat."  Here are some of the details:

A QAnon follower from Georgia who brought an arsenal of weapons to Washington just after the Jan. 6 riot at the Capitol was sentenced Tuesday to 28 months in prison for making crude threats to kill Speaker Nancy Pelosi and D.C. Mayor Muriel Bowser.

Cleveland Meredith Jr., 53, missed then-President Donald Trump’s Jan. 6 rally due to trouble with his truck, but was arrested the following day at a hotel near the Capitol after family members alerted the FBI to threatening text messages he’d sent. In a trailer outside the hotel, police found a pistol, an assault rifle and about 2,500 rounds of ammunition, as well as a telescoping gun-sight....

With credit for the more than 11 months he has already served at a D.C. jail facility since his arrest plus good behavior credit, Meredith is likely to spend roughly another 14 months in federal prison before being released....

During a sentencing hearing that spanned more than three hours, Jackson read aloud the series of texts Meredith sent during a drive from Colorado to D.C. and after he arrived in Washington. “Thinking about heading over to Pelosi [expletive]’s speech and putting a bullet in her noggin on Live TV,” Meredith wrote in a message to his uncle on Jan. 7.  “I may wander over to the Mayor’s office and put a 5.56 in her skull,” Meredith added in an earlier message....

In her statement, Jackson railed against an increase in extreme political language, and she noted that many political leaders continue to make false claims about fraud in the 2020 election. “The heated inflammatory rhetoric that brought the defendant to the district has not subsided,” the judge said. “The lie that the election was stolen and illegitimate is still being perpetrated. Indeed, it’s being amplified not only on social media, but on mainstream news outlets and…it’s become heresy for a member of the president’s—the former president’s party to say otherwise.”

During a brief, emotional statement to the court, Meredith insisted that the threats he issued and his talk of “war” in the Capitol were just overheated rhetoric. “I had no intention. It was political hyperbole that was too hyper,” Meredith said. “I was out of control that day.”...

Meredith pleaded guilty in September to a felony threat charge that carries a maximum of five years in prison. The plea deal contemplated a sentence of between six months and two years. However, Jackson found that the non-binding sentencing guidelines actually called for a stiffer sentence of between 37 months and 46 months because the threat to Pelosi targeted a government official.

“The fact that the government didn’t point to this before is odd,” said the judge, an appointee of former President Barack Obama. “It’s hard to suggest that these threats weren’t about or motivated by the victim’s performance of their official duties…The defendant was not incensed at Nancy Pelosi because she was a next-door neighbor who parked in his parking spot or a former romantic or business partner.”

Kiyonaga complained bitterly about the increase in the recommended sentencing range and suggested that the change will discourage other defendants from agreeing to plea deals. “I painstakingly negotiated a plea agreement with the government,” he said. “I think the government has gotten a windfall that it should not take advantage of. I think that will reverberate.”

The judge ultimately sentenced Meredith below the guidelines range, citing in part the harsh pandemic-related conditions at the D.C. Jail, where he is housed with others awaiting trial on charges related to the Jan. 6 Capitol riot.