Sunday, October 13, 2019

Catching up with another round of sentencings in "Operation Varsity Blues"

Three more parents were sentencing this past week by US District Court Judge Indira Talwani in the "Operation Varsity Blues" college admissions scandal.  Here are the headlines and essential from press accounts of these latest high-profile federal sentencings:

From NBC News, "NYC man, wife both sentenced to month in prison in college admissions scam: Gregory and Marcia Abbott paid $125,000 to have their daughter's SAT and ACT altered":

A New York man and his wife were each sentenced Tuesday to a month behind bars for paying a college-admission fixer to boost their daughter's SAT and ACT scores.  Gregory and Marcia Abbott will also have to complete a year of supervised release, pay a $45,000 fine and perform 250 hours of community service each, under sentences handed down in Boston by U.S. District Court Judge Indira Talwani.

The couple had already pleaded guilty in May to a single count each of fraud and conspiracy, paying $125,000 to ring leader Rick Singer for someone to correct answers on their daughter’s college board exams....

Prosecutors had asked Talwani to sentence the Abbotts to eight months in prison each.  Defense lawyers had sought probation for the pair.  The couple paid $50,000 to have a test proctor correct their daughter's ACT exam answers in 2018, and then another $75,000 to fix her SAT.

From the Los Angeles Times, "Bay Area entrepreneur is spared prison in college admissions scandal":

If any of the parents waiting to be sentenced in the college admissions scandal stood a chance at avoiding prison, it was Peter Jan Sartorio. He was, by any measurement, a small fish in a case filled with high-profile names and deep pockets: The $15,000 the 54-year-old food entrepreneur from the Bay Area paid to rig his daughter’s college entrance exam matched the lowest amount parents shelled out in the scam.  And with neither fame nor fortune, Sartorio didn’t fit the mold of the rich, entitled parent who prosecutors said needed to be punished with time behind bars.  He also was the first to admit his guilt.

On Friday a judge in Boston decided Sartorio was, in fact, less culpable than the others.  She spared him prison time, sentencing him instead to probation and community service. 

Sartorio is the eighth parent sentenced in the case and, for all up to now, U.S. District Judge Indira Talwani decided some amount of incarceration was needed.  The judge opted to go more lightly on Sartorio than she did on the actress Felicity Huffman, who received two weeks in prison for the same offense.  Sartorio was ordered to spend a year on probation, serve 250 hours of community service and pay a $9.500 fine....

Prosecutors had sought a one-month sentence for Sartorio, saying it was clear the father of two knew at the time that what he was doing was wrong. They underscored in court papers that when it came time to pay Singer, Sartorio avoided leaving a paper trail by paying cash and made multiple withdrawals from different accounts to avoid triggering automatic reviews by banking officials.

Prior related Varsity Blues posts:

October 13, 2019 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (0)

Monday, September 23, 2019

Gearing up for the next round of sentencings in college admissions scandal

This new Los Angeles Times article, headlined "Prosecutors in college admissions scandal fighting for prison time for parents," reports on arguments and analyses in the run up to the federal sentencings of other persons who have pleaded guilty in the high-profile college admissions scandal. Here are highlights:

Shortly before she sentenced Felicity Huffman this month to two weeks in prison for her role in the college admissions scandal, a judge settled a lingering legal dispute.  Prison sentences for parents who admitted to taking part in the scheme would not be based on how much money they paid to take part in the scam, U.S. District Judge Indira Talwani ruled.

The ruling didn’t impact Huffman because the $15,000 she paid to rig her daughter’s college entrance exams was far less than what others shelled out.  But starting this week, Talwani will sentence 10 more parents, and her decision dealt a blow to prosecutors, who tried to convince her that higher payments should mean longer sentences.

The parents and their attorneys, meanwhile, have been left with mixed signals from the judge.  On the one hand, her ruling means parents could receive significantly lower prison sentences or avoid prison altogether.  On the other, Talwani’s decision that Huffman should spend some time incarcerated is a sign she’ll come down as hard or harder on other parents, experts said.  “She would need a very compelling reason to give someone with the same or more culpability less time,” said James Felman, an attorney and expert on white-collar sentencing norms who isn’t involved in the case.

The prosecution doubled down after their defeat.  In an effort to salvage the prison sentences they maintain are warranted in the case, they are trying a new tack.  Rather than staking the rationale for incarceration to the five- and six-figure sums parents paid to access the bribery and cheating operation run by college admissions consultant William “Rick” Singer, the government wants Talwani to punish them for the deviousness and audaciousness of their crimes.

Under the new approach put forth in court papers filed by Assistant U.S. Atty. Eric Rosen, parents who took elaborate, deliberate steps to sneak their kids into a school or tried to cover their tracks afterward would be more culpable than someone who simply wrote Singer a check.

Rosen’s gamble will be tested this week when Talwani sentences two Los Angeles businessmen in court hearings Tuesday and Thursday.  Up first is Devin Sloane, an executive at a water technology company who has admitted paying Singer and an alleged accomplice $250,000 to get his son into USC by misrepresenting the teen as a talented water polo player who deserved a spot on the school’s team.

Before Talwani made her ruling, Rosen asked the judge to sentence Sloane to one year in prison.  The prosecutor did not budge from the request in a new filing last week, even though the judge’s order means Sloane — and all of the parents Talwani sentences — are eligible for sentences ranging from no time in prison to six months incarcerated under federal sentencing guidelines that judges consult.

Rosen argued in his recent filing that a year in prison was still the appropriate penalty, pointing to what he called Sloane’s “moral indifference during the fraud, and his lack of remorse afterward.”...  Rosen also revived the idea that the size of Sloane’s payment should have some bearing on his sentence, despite Talwani’s ruling.  He wrote that while the $250,000 sum is “an imperfect measure of blameworthiness,” it still amounted to an “indication, however rough, of the lengths he was willing to go to obtain the illegal fruits of a fraud scheme.”

Nathan Hochman, an attorney for Sloane, countered with a lengthy written plea, making a case for why Talwani should spare the 53-year-old father from prison.  Hochman portrayed Sloane as a stand-up, well-intentioned father who got caught up in the pressure cooker of the college application process and made a regrettable decision.  Far from eschewing responsibility, Hochman said Sloane owned up to his crime soon after he was arrested in March.  Instead of prison, Hochman urged to Talwani to give Sloane probation and 2,000 hours of community service.

Attorneys for Stephen Semprevivo, who will be sentenced Thursday, asked Talwani to spare him prison as well, saying probation and 2,000 hours of community service would suffice.  Semprevivo, they wrote in a court filing, was a “victim” of Singer, a “master manipulator” who coaxed and eventually coerced Semprevivo into going through with the fraud.

Rosen rebuffed that portrayal, saying the Los Angeles business development executive should spend 13 months in prison for conspiring with Singer to bribe a Georgetown tennis coach to recruit his son, who didn’t play tennis, at a cost of $400,000.  Rosen laced into Semprevivo for making his son “an active participant in a long-term federal crime” and making the decision to file a lawsuit against Georgetown in an attempt to keep the school from annulling his son’s credits.

Prior related posts:

September 23, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Wednesday, September 18, 2019

US Sentencing Commission releases FY 2018 third-quarter sentencing data showing continued growth of immigration cases

US Sentencing Commission has this week published here its "3rd Quarter ... Preliminary Fiscal Year 2019 Data."  As previously noted in this post when the USSC released data on offenders sentenced during the first half of fiscal year 2018, the Commission has recently tinkered with how it accounts and reports sentencing data.  This new data run notes some additional tweaking, though the very first chart about federal offenders by type is quite straight-forward and always notable. 

What strikes me as especially notable is that, through the first three quarters on FY19 (which runs through June 30, 2019), a full 37.4% of all federal cases sentences involved immigration offenses.  In FY18, "only" 34.4% of the sentenced case caseload involved immigration offenses, and in FY17 only 30.5% of the sentences cases were immigration cases.  Among other consequences, the fact that so much of the federal sentencing docket is now comprised of immigration cases necessarily impact lots of other sentencing statistics (e.g., the race an nationality of offenders).

As always, many stories might be mined from the latest USSC data, and I welcome reader thoughts on which stories might be the most interesting or important these days.

September 18, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Monday, September 16, 2019

Just some (of many) perspectives on Felicity Huffman's sentencing

Lots of folks have lots of views on what we should make of the the sentencing of Felicity Huffman late last week to 14 days in incarceration in the college bribery scandal. Here are just a sampling of some of the pieces that caught my eye:

From CNN, "John Legend says prison is not always the answer after Felicity Huffman's sentence"

From Walter Palvo at Forbes, "Felicity Huffman And America's Failing Criminal Justice System"

From Fox News, "Felicity Huffman's 14 day prison sentence in college admissions scam sparks outrage on social media"

From Fox News, "Felicity Huffman's prison sentence 'more of a burden on the jail system' than on the actress: expert"

From David Oscar Marcus at The Hill, "Felicity Huffman's 14-Day Sentence is Unjust — Because It's Too High"

From Ellen Podgor at White Collar Crime Prof Blog, "More Varsity Blues — Privilege and Perspective"

To add my two cents, I will just say that I continue to be disappointed at our system's and our society's general failure to treat and view any sentencing terms other than imprisonment as "real punishment." Of course, most persons subject to any form of criminal investigation and prosecution will report that the process itself is very often a significant punishment and so too can be any period of supervision and the array of collateral consequences (both formal and informal and often lifetime) that always accompany a criminal conviction. But, problematically, the perception persists that anything other than prison, and often anything less than a lengthy period in prison, is but a trifle.

Prior related posts:

September 16, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (7)

Friday, September 13, 2019

Felicity Huffman sentenced to 14 days in college bribery scandal 

Especially in high-profile cases, I have a tendency to predict (i.e., guess) that a judge will be inclined to impose a sentence somewhere in the middle between the two sentencing recommendations put forward by the prosecution and the defense.  Given that federal prosecutors in the Felicity Huffman case urged  one-month sentence, and that her defense team sought no jail time, I suppose I should have predicted this result (as reported by ABC News): "Felicity Huffman sentenced to 14 days in prison for 'Varsity Blues' college scam." 

This USA Today piece provides some highlights from the sentencing hearing and the preliminary "loss" ruling made by by the District Judge that also should ensure a number of the other defendants in this case are feeling better about their likely fate in future sentencings:

U.S. District Judge Indira Talwani sentenced Huffman to [14 days of] prison time as well as a $30,000 fine, supervised release for one year and 250 hours of community service in the case's first sentencing of a parent – a defendant who is also one of the case's most famous.

She was confronted in court by a prosecutor who argued for a prison term and said she had shown "disdain and contempt for the rule of law." But her legal team argued that she should not be treated "more harshly" because of her wealth and fame.

Huffman also apologized again for her actions and reiterated her regrets to her family. "I take full responsibility of my actions and making amends with my crime," she said. "I will deserve whatever punishment you give me."...

Assistant U.S. Attorney Eric Rosen argued forcefully in court, saying "the only meaningful and efficient sanction is prison" and "there is simply no excuse for what she did.”

"With all due respect to the defendant, welcome to parenthood," he said. "What parenthood does not do is it does not make you a felon, it does not make you cheat… Most parents have the moral compass to not step over the line. The defendant did not."

He noted that Huffman did not disengage from her conduct "until the very, very end.” She showed “disdain and contempt for the rule of law,” Rosen said....

Huffman's attorney, Martin Murphy, argued for 12 months of probation and 250 hours of community service for Huffman. He disputed the government’s argument that probation is “not real punishment,” calling that a “penological joke. That is simply wrong and it is wrong as a mater of law. … A sentence of [probation]is real punishment.”

Murphy called for a sentence that treats Huffman like other similarly situated defendants, "not more harshly or more favorably for her wealth....Unlike what the government says, that is not fair."...

The judge issued an order Friday agreeing with the court's probation department, which found no financial losses, and thus no victim, as a result of actions by any defendant, including Huffman. It's a blow to prosecutors, who had argued universities and testing companies suffered damages. Still, Talwani said sentences will account for "consideration of all of the factors" outlined in federal guidelines.

Prior related posts:

September 13, 2019 in Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (3)

Thursday, September 12, 2019

Council on Criminal Justice produces papers on "The 1994 Crime Bill: Legacy and Lessons"

Via email, I learned the Council on Criminal Justice has a great new set of developing papers and resources taking a close look at the 1994 Crime Bill.  The materials are assembled on this page, and here are highlights:

On September 13, the Crime Bill turns 25.  After a quarter century, it’s as controversial as ever — and as important to understand.

What did the Crime Bill actually do? What does the research say about the impact it had on crime and justice? What lessons does it offer policymakers today?

To help answer these critical questions, the Council commissioned analyses from some of the nation’s most respected crime experts.  Papers examining the major provisions of the bill will be released over the coming months.

Overview and Reflections - Richard Rosenfeld 

Part One: Impacts on Prison Populations - William Sabol 

September 12, 2019 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (1)

Wednesday, September 11, 2019

Noticing the interesting (but perhaps not too consequential) guidelines "loss" issue lurking in the college bribery cases

This Wall Street Journal piece, headlined "Weighing the Sentencing of Parents in the College-Admissions Cheating Scheme," effectively covers the high-profile hearing yesterday that focused on whether defendants in the college admission scandal cases have produced "loss" in the technical parlance of the guideline sentencing world.  Here are excerpts:

A federal judge prolonged the suspense Tuesday over whether parents who have admitted to cheating to get their children into college will serve time in jail, deciding not to rule following a hearing on sentencing guidelines.

In a packed courtroom, U.S. District Judge Indira Talwani heard arguments in a legal debate that has pitted federal authorities against one another in the high-profile college admissions case.

Federal probation officials have pegged sentencing guidelines for the parents at zero to six months — a range often resulting in probation — finding there was no direct financial loss to any victims. Prosecutors are arguing that some prison time is the way to send a strong message that admission spots at prestigious U.S. universities can’t be bought and have proposed ways of calculating loss.

The government is asking for one to 15 months of imprisonment for the 11 parents set to be sentenced in the coming weeks, including actress Felicity Huffman on Friday. “This was a massive nationwide fraud case fueled through bribery, fraud and corruption,” Assistant U.S. Attorney Eric Rosen told the judge....

In a sign of what’s at stake — prison time or none — defense lawyers for the 15 parents who have pleaded guilty and for the 19 who haven’t admitted guilt filled the gallery of Courtroom Nine, spilling into the empty jury box. Other lawyers dialed into a conference line, though none spoke during the hearing.

A more lenient ruling by the judge could prompt more parents to plead guilty, defense lawyers said, while others might decide to try to clear their names at trial, figuring a light punishment is the worst outcome.

Judge Talwani gave no clear sign of how she’ll rule, but she didn’t reschedule Ms. Huffman’s sentencing currently on the calendar for Friday, suggesting a decision could come soon. She asked a series of often technical questions and indicated that a public airing of the legal dispute was a good thing.

Tuesday’s hearing represented a public clash that has dogged the largest college-admissions scandal ever prosecuted by the Justice Department: Who are the financial victims, and how should the length of any prison terms be decided?

Determining appropriate punishments is complex. Sentencing in federal fraud cases are typically calculated based on direct financial impact, either as loss for the victim or gain for the perpetrator. In plea agreements, the government considered the amounts parents paid to admitted scheme mastermind William “Rick” Singer as a proxy for loss, while also taking into account factors such as how actively parents participated or involved their children.

That means prosecutors are recommending one month of incarceration for Ms. Huffman, a sentence at the low end of the zero-to-six-month range. The “Desperate Housewives” and “American Crime” actress has admitted to paying Mr. Singer $15,000 to fix her daughter’s SAT score. But they are asking for substantially more prison time for some other parents, based on the amounts they admitted to shelling out to Mr. Singer.

Prosecutors say victims include the affected colleges, including the University of Southern California and Georgetown University, and standardized testing agencies. Colleges have been sued, have had to revamp policies and conduct costly internal investigations, they said. “All these events I talked about cost money,” Mr. Rosen said. “Money that came out of the victims’ pockets.”

Probation officials, who prepare influential sentencing recommendations for the court, have so far found that the parents’ conduct caused no clear pecuniary harm, according to a recent memo filed by Mr. Rosen.  In a filing Monday, the lawyer for one parent who has pleaded guilty called the losses alleged by the government either nonexistent or speculative.

I suggest in the title of this post that a ruling on this "loss" matter might not be too consequential for a couple of reasons: (1) for certain defendants, the loss determination may not considerably alter the applicable guideline sentencing range, and (2) Judge Talwani can surely justify above- or below-guidelines sentences in these cases on any number of reasonable 3553(a) sentencing grounds no matter what the final calculated range.  That said, all federal sentencing practitioners know that calculated guidelines ranges still have an important anchoring effect on the work of judges, and so it is not at all surprising that a whole lot of defense lawyers are interested in not losing this "loss" matter.

Prior related posts:

September 11, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

Monday, September 09, 2019

Sixth Circuit finds 30-day sentence given to Senator Rand Paul's attacker "substantively unreasonable"

To my knowledge, a full 15 years after Booker created the reasonableness standard of appellate review for federal sentencing, I believe there are still only a handful of cases in which circuit courts have declared a sentence to be "substantively unreasonable" upon a defendant's appeal claiming it included a prison term that was too long.  But today a Sixth Circuit panel manages to declare yet again, upon an appeal by the government, that a sentence is "substantively unreasonable" because the term of incarceration was too short.  And this ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), comes in quite the high-profile setting.  Here is how it begins:

Senator Rand Paul was mowing his lawn when he stopped to gather a few limbs in his path.  Without warning, Rene Boucher — Paul’s next-door neighbor, whom he had not spoken with in years — raced toward Paul and attacked him from behind.  The impact broke six of Paul’s ribs, caused long-lasting damage to his lung, and led to several bouts of pneumonia.  Boucher later pleaded guilty to assaulting a member of Congress in violation of 18 U.S.C. § 351(e). Although his Guidelines sentencing range was 21 to 27 months in prison, the district court sentenced him to 30 days’ imprisonment.  On appeal, the Government argues that Boucher’s sentence was substantively unreasonable.  We agree and therefore VACATE his sentence and REMAND for resentencing.

I have largely stopped following circuit reasonableness rulings because they so often seemed void of real content or character.  This Boucher ruling has some considerable content and character, as it runs a full 16 pages and concludes this way:

In a mine-run case like this one, we apply “closer review” to any variance from the Guidelines. Kimbrough, 552 U.S. at 109 (quoting Rita, 551 U.S. at 351).  And our review here reveals no compelling justification for Boucher’s well-below-Guidelines sentence.  Gall, 552 U.S. at 50.  Boucher may or may not be entitled to a downward variance after the district court reweighs the relevant § 3553(a) factors, and it is the district court’s right to make that decision in the first instance.  See United States v. Johnson, 239 F. App’x 986, 993 (6th Cir. 2007) (“This Court takes no position on what an appropriate sentence in this case might be and notes that on remand the district court still retains ample discretion to grant a variance. . . . The narrow reason for remand here is that the extreme nature of the deviation, without a correspondingly compelling justification, resulted in a substantively unreasonable sentence.”).  We therefore VACATE Boucher’s sentence and REMAND for resentencing.

I have long hoped for a mre robust and searching form of reasonableness review, but I continue to find that courts are much more interested in seriously questioning 30-day sentences when prosecutors appeal than in questioning 30-year sentences when defendants appeal.  And so it goes in incarceration nation.

September 9, 2019 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Feds recommending incarceration terms from 1 to 15 months for parents involved college bribery scandal

Late Friday night, sentencing memoranda were filed in the run up to highest-profile scheduled sentencings of a number of the parents involved in the college bribery scandal.  This ABC News report overviews the basics:

Federal prosecutors are recommending some period of incarceration for the parents in the college admissions scandal.... The government's sentencing memorandum refers to the college admissions scandal as "a kind of Rorschach test for middle class angst about college admissions." The government says some period of incarceration is the only meaningful sanction for these crimes.

Court documents showed prosecutors recommended jail time ranging from one month to 15 months for the defendants named in the memo.  Of the local parents who pleaded guilty to conspiracy to commit mail fraud and honest services mail fraud, Napa Vinyard Owner Agustin Huneeus is facing the longest sentencing recommendation at 15 months. Huneeus paid Rick Singer $300,000 participate in both the college entrance exam cheating scheme and the college recruitment scheme for his daughter.

Next is Marjorie Klapper of Menlo Park with a recommended sentence of four months. Klapper paid Singer $15,000 to participate in the college entrance exam cheating scheme for her son. Peter Sartorio of Menlo Park is facing a recommendation of just one month.  Sartorio agreed to pay Singer $15,000 to participate in the college entrance exam cheating scheme for his daughter.  Actress Felicity Huffman is also facing a one-month recommended sentence. 

The government says they considered the amount of the bribe, whether someone was a repeat player, an active or passive participant in the scheme and whether or not they involved their children.

I had been hoping that the US Attorney's Office in Massachusetts, which has this useful webpage with indictments, plea agreements and other documents publicly available, would also post the government's full sentencing memorandum. So far, all that is posted is a listing of the "Government Sentencing Recommendation" in each case. 

Of course, the defendant receiving the most attention in the press is actress Felicity Huffman, and here is a partial round-up of stories focused on the sentencing recommendations in her case and related matters:

Prior related posts:

September 9, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, September 05, 2019

Gearing up for the federal sentencing of Felicity Huffman and others involved in college bribery scandal

Just over a week before the highest-profile sentencing of the bunch, USA Today has this lengthy review of federal sentencing realities and prospects for a range of defendants involved in the college bribery scandal.  The piece if headlined "Felicity Huffman to kick off sentencing of parents in college admissions case: Will judge 'send a message?'," and merits a read in full.  Here are a few excerpts:

The Justice Department suffered a setback in June when the first defendant sentenced in the nation's college admissions scandal, a former Stanford University sailing coach, avoided any prison time.  The prosecution soon has an opportunity to rebound as the historic "Varsity Blues" case enters a critical new phase.

Parents who pleaded guilty to paying Rick Singer, the mastermind of a nationwide college admissions cheating and bribery scheme, are set to be sentenced, beginning next week. Fifteen parents, three college coaches and two other co-conspirators of Singer are to be sentenced this fall.

First up is one of the two celebrities charged in the sweeping case: actress Felicity Huffman, whose sentencing is set for Sept. 13.  In a deal with prosecutors, Huffman pleaded guilty in May to conspiracy to commit mail fraud and honest services mail fraud for paying Singer $15,000 to have someone correct her daughter's SAT answers.

At the time of her plea, prosecutors recommended four months in prison for the "Desperate Housewives" actress, substantially lower than the maximum 20 years the charges could carry.  They recommended 12 months of supervised release, a $20,000 fine and other undetermined amounts of restitution and forfeiture....

If Huffman and the parents who follow her in court also avoid prison time, some criminal justice advocates said, it would signal to the public that the rich and connected can get away with cheating the system. “The criminal scheme carried out in this case shocks the conscience and underscores the way in which wealthy people can exploit their privileged status to their benefit and to the detriment of others," said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. "These federal crimes must not be treated lightly in order to send a strong message that no one is above the law and that wealthy people will be held accountable."

Clarke said the crimes committed by parents in the case "undermine public confidence" in the college admissions process and show universities must "redouble their efforts" to ensure diversity on campuses. She noted most of the wealthy parents who participated in the scheme are white.  She called the case a "unique opportunity" to hold accountable individuals "who feel that money, race and privilege can allow them to evade the justice system."

Of the 51 people charged in the college admissions scandal, 34 are parents accused of making significant payments to Singer's sham nonprofit group, the Key Worldwide Foundation.  Prosecutors said they paid to have someone secretly take ACT or SAT tests for their children, change poor results or get them falsely tagged as athletic recruits to get them into college.

Huffman was originally scheduled to be the third parent sentenced in the case, but the sentencing hearings of two other parents who pleaded guilty, Devin Sloane and Stephen Semprevivo, were pushed back to later this month.

The delays will allow U.S. District Judge Indira Talwani, who presides over the cases of Huffman and other parents, to hold a hearing Tuesday on a legal dispute that could determine the severity of some sentences.  The judge will consider whether to listen to probation officers, who identified no financial losses to any victim in the case, which could mean lighter sentences for many parents.  Prosecutors object to the potential lighter sentencing guidelines and do not want Talwani to confer with the probation department in the admissions case....

Both sides are likely to file sentencing memos to the court that will make final arguments and sentencing recommendations to Talwani before next week's hearings. "If there isn't at least a request for a strong sentence, even if it isn't granted, then I think it would seem like there's sort of different justice for different people," said Carl Tobias, a law professor at the University of Richmond who specializes in federal courts.  "I do think they will continue to press," he said of the prosecution, "and part of it is to make an example that everybody ought to be equal before law and this is not appropriate behavior."

Because no parents have been sentenced to date in the admissions scandal, Tobias said it's tricky to predict what's in store for Huffman and those sentenced after her. "We'll see what arguments are made and how her defense attorney frames it. That could be important," he said.  "And, if Huffman has more to say that may account for something, too."

Huffman, 56, apologized to the "students who work hard every day to get into college." She fought back tears when she pleaded guilty in court.  One fact that may play in her favor is the substantially lower amount of money she paid compared with other parent defendants.  Singer typically charged parents $15,000 to carry out the test cheating and higher amounts to pay off college coaches to get their children admitted as athletic recruits.  The latter cost more because it guaranteed a child's entry into college.

Sloane, CEO of Los Angeles-based waterTALENT, which builds water systems, pleaded guilty to paying $250,000 in bribes to Singer's organization to falsely designate his son as a water polo player so he could gain acceptance to the University of Southern California. Prosecutors recommended he serve 15 to 21 months in prison.  Semprevivo, an executive at Cydcor, a privately held provider of outsourced sales teams, pleaded guilty to paying $400,000 to Singer to get his son admitted into Georgetown University as a fake tennis recruit. Prosecutors recommended a prison sentence of 18 months for him....

The sentence for Vandemoer, the ex-Stanford sailing coach, was decided by U.S. District Judge Rya Zobel.  She presides over Singer's case but is not assigned to any of the cases involving parents or other coaches. Singer pleaded guilty to four felonies and is cooperating with prosecutors.  Although prosecutors didn't get the sentence they wanted for Vandemoer, the case doesn't necessarily foreshadow how the next round of sentences will go. As part of an agreement with prosecutors, Vandemoer pleaded guilty to racketeering charges.

The case had unique circumstances.  None of the students tied to the payments was admitted into Stanford as a direct result of the coach's actions, leading Zobel to question whether the university suffered any losses.  Vandemoer funneled payments directly to the school's sailing program and did not pocket any of the bribe money he took from Singer. Zobel called Vandemoer "probably the least culpable of all the defendants."

Twenty-three defendants in the college admissions case, including Huffman, pleaded guilty to felonies; 28 others pleaded not guilty, including actress Lori Loughlin.  How the first group of parents is sentenced could affect whether other parents plead guilty or dig in for trial, according to Adam Citron, a former state prosecutor in New York, who practices at Davidoff Hutcher & Citron.

That's the biggest concern for prosecutors, he said. "It could go two ways. If (the parents) are getting jail time even on pleas, a defendant may think to themselves, 'I better plea out because I don't want more jail time,' " Citron said. "By the same token, that defendant might say to themselves, 'I'm going to get jail anyways, so I might as well fight it.' "

Prior related posts:

September 5, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, August 27, 2019

Yet another great set of new Quick Facts publications from US Sentencing Commission

I am always eager to praise the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format").  In this post four week ago, I noted a whole bunch of new Quick Facts released in July 2019.  I now see the USSC has this month released a bunch more Quick Facts on a lot of major federal sentencing topics based on the USSC's recently released 2018 fiscal year data.  Here are these newer releases:

Sentencing Issues

Offender Groups

Immigration

Economic Crime

Other Chapter Two Offenses

August 27, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Wednesday, August 07, 2019

"A Partial Fix of a Broken Guideline: A Proposed Amendment to Section 2G2.2 of the United States Sentencing Guidelines"

The title of this post is the title of this notable new article now available via SSRN and authored by Brent Evan Newton. Here is its abstract:

Except for the federal criminal penalties for crack cocaine offenses, no specific non-capital penalty structure has been more widely criticized than USSG § 2G2.2 and the corresponding federal penal statutes, 18 U.S.C. §§ 2252 & 2252A. Together, those provisions govern penalties for child pornography offenses other than those involving actual production of child pornography.  Indeed, one of the leading sources of criticism has been the United States Sentencing Commission, whose 300-plus-page report to Congress in December 2012 made a compelling case for changing both the guideline and, to a lesser degree, the statutes.

The current sentencing guideline for non-production offenses is fundamentally broken, as evidenced by the fact that only 28.4 percent of defendants sentenced under section 2G2.2 receive within-range sentences and 69.1 percent of defendants receive downward variances or departures (unrelated to their substantial assistance or participation in a fast-track program).  The vast majority of child pornography defendants receive downward variances from their guideline ranges based on sentencing judges’ subjective senses of what appropriate sentences should be.  Because judges have no meaningful national benchmark from which to render sentencing decisions, widespread sentencing disparities exist -- in conflict with the central purpose of the Sentencing Reform Act of 1984. In addition, because the current guideline fails to offer any meaningful benchmark, federal prosecutors around the country engage in a wide variety of different charging and plea-bargain practices resulting in significant sentencing disparities among similar defendants.

Although the best solution to the problems with the current child pornography sentencing scheme would require congressional intervention, Congress appears unwilling to make any changes in the statutory handcuffs currently on the Commission.  Therefore, I have set forth a detailed proposed amendment to section 2G2.2 that could be adopted by the Commission without congressional authorization.  If the Commission does not amend the guideline, then my proposal provides a detailed roadmap for federal district judges to “vary” from the current, broken guideline pursuant to the authority granted by the Supreme Court in United States v. Booker and Kimbrough v. United States.

August 7, 2019 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)

Friday, August 02, 2019

Federal circuit judge laments at lengthy how plain error review now works for guideline errors

A helpful reader made sure I did not miss the concurring opinion authored by Fifth Circuit Judge Oldham this week in US v. Del Carpio Frescas, No. 17-50245 (5th Cir. July 29, 2019) (available here). The Fifth Circuit panel vacated a sentence on plain error review based on a small guideline calculation problem. Judge Oldham seems quitr grumpy that applicable SCOTUS precedent required this reversal, and he authors a 20-page concurrence to explain why. That opinion starts this way:

Today’s result might surprise the uninitiated: Based on a one-point offense-level miscalculation in the advisory Guidelines, the United States must restart its criminal-justice machinery so it can fix a mistake that’s supposedly so “plain” it cannot be ignored but also so subtle that del Carpio ignored it below.  This result is particularly surprising because, not so long ago, the Supreme Court told us that “[m]eeting all four prongs of [plain-error review] is difficult, as it should be.” Puckett v. United States, 556 U.S. 129, 135 (2009).  But this case illustrates it’s no longer that difficult.  So I agree current Supreme Court precedent requires that del Carpio be resentenced.  I write separately to explain how we got here.

August 2, 2019 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, August 01, 2019

Another round of great new Quick Facts publications from US Sentencing Commission

I am always eager to praise the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications ( (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format"). And I have recently seen that there are a number of new Quick Facts on a lot of major federal sentencing topics based on the USSC's recently released 2018 fiscal year data. Here are some these newer publications:

Drugs

Firearms

Offender Groups

August 1, 2019 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (0)

Wednesday, July 31, 2019

The long legacy of drug wars: Eighth Circuit panel affirms LWOP sentence for drug dealer as reasonable

As long-time readers likely realize, I do not blog much these days about how federal circuit courts are conducting reasonableness review of sentences — largely because there are precious few cases in which circuit judges seriously question (or even seriously engage with) the sentencing judgments of district courts.  A helpful reader alerted me to a reasonableness review decision from the Eighth Circuit today which provides another example of how disinclined circuit courts are to question even the most extreme prison sentences.

US v. Duke, No. 18-1371 (8th Cir. July 310, 2019) (available here), involves the appeal after a resentencing of a man originally sentenced three decades ago.  Back then, arguably at the height of the modern drug war, "Ralph Duke was sentenced in 1990 to a term of life imprisonment plus forty years for committing several serious drug trafficking and firearms offenses."   Here is a description of Duke's crimes from this latest opinion:

Duke controlled all phases of a drug trafficking organization in the Minneapolis/St. Paul area from 1984 through June 1989.  He purchased cocaine primarily from a Colombian-affiliated source in Houston or from sources in Los Angeles.  The cocaine was transported to Minnesota in vehicles owned by Duke and driven by younger members of his drug trafficking organization.  Duke then distributed kilograms of cocaine to dealers for resale at the street level in smaller quantities.  Duke laundered the proceeds of drug sales by purchasing homes and cars in the names of others.  All told, Duke and his organization trafficked over fifty kilograms of cocaine before law enforcement interrupted their operations.  When Duke was apprehended in May 1989, officers found two loaded handguns in his bedroom and two assault shotguns and two AR-15 semi-automatic rifles in his residence.  The government charged at least twenty-five people as a result of the investigation of Duke’s organization. 

In other words, Duke was a big-time drug dealer in the 1980s, though it does not appear that he was actively involved in any violent activities or that his case involved other aggravating factors (though I suppose he might be called a drug kingpin).  But back in the 1990s, when the drug war was ranging and the federal sentencing guidelines were mandatory, perhaps it is not surprising that the federal district judge originally imposed an LWOP sentence on Duke.

But fast forward nearly 30 years, and Duke had the chance to benefit from a full resentencing in 2018 due to various legal developments.  Circa 2018, the federal sentencing guidelines were now advisory and, according to Duke, a lower sentence was justified in light of his "exceptional institutional conduct over the last 29 years, lack of criminal history, age, medical history, family ties, rehabilitation, remorse, and low risk of recidivism."  But the same federal district judge was unmoved and decided to give Duke an LWOP sentence yet again.  And the Eighth Circuit panel, in the ruling linked above, decided this LWOP sentence was reasonable.

When Booker was first decided and circuit courts were tasked with reasonableness review based on 18 U.S.C. § 3553(a), I had sincerely hoped appellate judges would come to embrace the task of ensuring sentences were "not greater than necessary to comply with the purposes set forth" by Congress.  But it became all too clear all too quickly that all too few circuit judges were eager to rigorously review long prison sentences, especially if those sentences fell within calculated guideline ranges.  Years later, even with mass incarceration and long sentences for drug offenses subject to considerable criticism, we still see federal judges finding no problem with giving a "death-in-prison" sentence based on drug dealing many decades ago.

July 31, 2019 in Booker in district courts, Booker in the Circuits, Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, July 21, 2019

"The Vanishing of Federal Sentencing Decisions"

The title of this post is the title of this notable recent Forbes commentary authored by Brian Jacobs. I recommend the full piece, and here are excerpts:

In civil cases, the most important decisions that federal district judges make typically are recorded in the form of written opinions that are collected in the Federal Supplement, widely available for free online, and available in searchable databases on Westlaw and LexisNexis, among other places.  In criminal cases, by contrast, some of the most important decisions that federal district judges make — regarding what sentences to impose — are, in the vast majority of cases, lost in the ether of PACER, where they are available only to those who know precisely where to look.  This state of affairs is far from ideal for prosecutors, defense attorneys, and district judges, and it is patently unfair for criminal defendants themselves.

The scale of this problem is hard to overstate. Federal district judges make an enormous number of sentencing decisions every year. In the 12-month period ending September 30, 2018, the Administrative Office of the U.S. Courts reported that 71,550 (about 90%) of the 79,704 defendants whose cases were disposed of in federal courts entered guilty pleas, and another 1,559 were convicted at trial.  As a result, in just this single one-year period, the United States Sentencing Commission reported that there were close to 70,000 federal criminal cases in which an offender was sentenced....

District court decisions resolving sentencing disputes are typically delivered orally and memorialized only in the transcript of the sentencing proceeding itself, where judges must “state in open court the reasons for [the] imposition of the particular sentence.”  (See 18 U.S.C. § 3553(c).) (Judges also are required to complete the form entitled “Statement of Reasons.”)  Rarely do judges reduce their sentencing decisions to written opinions.  A Westlaw search of opinions published between October 2017 and September 30, 2018 (the U.S. Sentencing Commission’s last fiscal year) referencing 18 U.S.C. § 3553(a) resulted in approximately 600 federal district court opinions and 1,300 appellate decisions.  Thus, an attorney or defendant trying to research a given Guidelines issue, for example — such as the weight that district judges have given to the loss amount in fraud cases under Section 2B1.1 of the Guidelines in the last year — cannot simply run a Westlaw search in a database of district court cases for “2B1.1.”  Such a search would turn up but a small fraction of the relevant material.

Although not memorialized in written opinions, many federal sentencing proceedings are transcribed by a court reporter, and most of those transcripts are ultimately posted to PACER, an electronic service that allows public access to case and docket information for federal court proceedings for a fee.  Users can conduct simple searches on PACER by party name, judge, or keyword, for example.  Thanks to PACER, a well-heeled defendant could, for example, with substantial effort and expense, pull and review all of the sentencings that have taken place before one particular judge, or that have been handled by one particular prosecutor.  Such a search, however, would again merely scratch the surface of potentially relevant decisions (which are accruing at a rate of 70,000 a year), and would be a cumbersome, expensive, and ineffective way to mine sentencing transcripts for persuasive authority on any particular issue.  PACER does not, unfortunately, allow for searches of the text of posted documents, and there is no other way to perform such a search in a comprehensive way.

It thus remains the case today that despite technological advancements, sentencing decisions are not nearly as readily accessible as other sorts of judicial decisions, and this vanishing of federal sentences serves nobody’s interest.  A defendant facing a sentencing in a federal criminal case — one of the most important days of his or her life — is hampered in his or her ability to effectively research the hundreds of thousands of federal sentencings that have taken place in our country in recent years, any one of which might have the sort of persuasive power that could make a difference.  If this defendant had access to a searchable database of transcripts of the 70,000 sentencings that take place each year in federal district courts, perhaps the defendant would be able to find the handful of on-point and persuasive cases to highlight for the sentencing judge.  In addition, perhaps the defendant could identify and highlight trends in sentencings around the country that, in the aggregate, would persuade the sentencing court to exercise its large amount of discretion in a particular way. Because the widespread availability of federal sentencing transcripts would benefit prosecutors, defendants, and judges alike, there is a long-term need for a readily accessible searchable database of transcripts of all federal sentencings, capable of handling complex queries....

[I]t is well past time for a searchable database of federal sentencing transcripts similar to the database of district court opinions available on Westlaw and LexisNexis.  The availability of such transcripts is important to ensure, among other things, that all criminal defendants, regardless of resources, are able to present effective sentencing arguments.

July 21, 2019 in Data on sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (2)

Thursday, July 18, 2019

US Sentencing Commission begins new "Research Notes" publication

At a time of great interest and great change in the federal sentencing system, the US Sentencing Commission for many years now has lacked a full complement of Commissioners.  And throughout 2019, because there are only two Commissioners in place, the USSC lacks a quorum needed to do any "official" work involving changes to the federal sentencing guidelines.  But the USSC staff clearly remains hard at work with the regular production of research reports.  And, as detailed on this webpage, the USSC is now producing a new set of research documents:

RESEARCH NOTES

Research Notes give background information on the technical details of the Commission’s data collection and analysis process. They are designed to help researchers use the Commission’s datafiles by providing answers to common data analysis questions.

Research Notes

  • Issue 1: Collection of Individual Offender Data This first edition of Research Notes explains how the Commission collects and analyzes sentencing information, and describes the Commission’s many datafiles. (Published July 17, 2019)

July 18, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Monday, July 01, 2019

Urging US Sentencing Commission to "undertake a top-to-bottom review" of harsh federal sentencing guidelines

I am very pleased to see US District Judge Lynn Adelman taking to the pages of the Washington Post to pen this new opinion piece under the headline "There’s another tough-on-crime law Democrats should focus their criticism on." I recommend the piece in full, and here are excerpts:

Some of the Democratic presidential candidates have criticized the tough-on-crime legislation enacted during the 1980s and 1990s, arguing that it contributed to the mass incarceration that shames the country today.  The candidates and other critics have focused on the 1994 crime bill, which provided incentives for states to build more prisons and impose longer sentences, and the 1986 Anti-Drug Abuse Act, which established harsh sentences for drug offenses, particularly those involving crack cocaine.

The criticism of these provisions is entirely justified.  But not enough attention has been paid to another 1980s-era tough-on-crime law that is still very much with us, causing substantial unnecessary incarceration, particularly of African Americans and Hispanics: the 1984 Sentencing Reform Act.

Among its “reforms,” the law eliminated parole for federal offenders and created the U.S. Sentencing Commission that then promulgated the Federal Sentencing Guidelines.  The act, the commission and the guidelines have been a disaster, and a debate by lawmakers about their status is long overdue.  As a result of the sentencing guidelines, as well as sentencing practices in state courts, the United States is now an outlier not just among democracies but among all nations....

The commission established harsh sentencing guidelines and barred judges from putting defendants on probation except in rare instances.  Over the next 20 years, the commission regularly amended the guidelines, making them even more severe.

The average federal sentence increased from 28 to 50 months afterward and, with the abolition of parole, the average time that a defendant served increased from 13 to 43 months....   Between 1987 and 2019, the federal prison population increased from about 50,000 to 219,000 before dropping to about 180,000.  In 2005, with the landmark decision in United States v. Booker, the Supreme Court struck down the mandatory feature of the guidelines, giving judges the opportunity to establish a less punitive sentencing regime.  In subsequent decisions, the court made clear that judges had no obligation to follow the guidelines.

Unfortunately, district court judges have largely failed to take advantage of Booker to ameliorate the harshness of the federal sentencing system.  After Booker, judges slightly reduced the length of sentences, from 47.9 months in fiscal 2003, to 44 months in 2018.  Shockingly, the number of offenders receiving prison-only sentences actually increased, from 83.3 percent in fiscal 2003 to 87.8 percent in fiscal 2018.  The sentencing commission could lead the way in pressing judges to take Booker to heart, given the commission’s considerable authority regarding federal sentencing policies, but it has provided little leadership.  For too long, the commission has focused instead on trying to minimize inter-judge disparities in sentencing.

The commissioners might better understand the impact of its policies if they ventured outside Washington and held public hearings in urban and rural America about federal sentencing guidelines.  Hearing firsthand about the devastating effect on families of the United States’ punitive approach, particularly in drug cases, might open some commissioners’ eyes.

Ideally, the commission would then undertake a top-to-bottom review of the guidelines, with an eye toward recommending as many noncustodial sentences as possible and reducing the length of prison sentences.  Putting a dent in federal mass incarceration would set an example for state correctional systems.

In fairness, the commission in recent years has taken some important steps in the right direction.  Particularly significant was its 2014 decision to reduce all drug guidelines by two levels and to make the policy retroactive, thereby reducing sentences for some 32,000 prisoners.  Congress’s recently enacted First Step Act was another move in the right direction, addressing the disparity in punishment for offenses involving crack and powder cocaine. But more needs to be done to reset a system that has done untold harm over the past three decades.  At a minimum, the Sentencing Reform Act should be substantially revised.  Congress was foolish to have abolished parole and should overturn that decision.

This commentary provides a terrific and needed reminder that the Booker decision did not considerably mute the punitive impact of harsh sentencing guidelines (even though I think it has tended to considerably mute the amount of criticism of these guidelines). As mentioned in this post last week, right now the US Sentencing Commission is unable to function fully because it only has two of seven Commissioner slots filled. So "public hearings in urban and rural America" in conjunction with a "top-to-bottom review" of the guidelines cannot really happen unless and until we get a slate of new Commissioners with an interest in such an agenda. I hope this piece gets those folks in the campaigns and on Capitol Hill who are really committed to criminal justice reform to be thinking about the potential that a reform-oriented Commission might have.

July 1, 2019 in Campaign 2020 and sentencing issues, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, June 27, 2019

US Sentencing Commission releases "Overview of Federal Criminal Cases, Fiscal Year 2018"

Though the US Sentencing Commission cannot currently make any guideline amendments due to the lack of a quorum due to a lack of Commissioners, the Commission is still able to churn out federal sentencing data and produce helpful reports about that data.  One such helpful report released this week, and available here, is titled simply "Overview of Federal Criminal Cases, Fiscal Year 2018," and the USSC describes and summarizes the report on this webpage in this way: 

Summary

The United States Sentencing Commission received information on 69,524 federal criminal cases in which the offender was sentenced in fiscal year 2018.  Among these cases, 69,425 involved an individual offender and 99 involved a corporation or other “organizational” offender.  The Commission also received information on 3,241 cases in which the court resentenced the offender or otherwise modified the sentence that had been previously imposed.  This publication provides an overview of those cases.

Highlights

A review of cases reported to the Commission in fiscal year 2018 reveal the following:

  • The federal caseload increased 3.8% from the previous fiscal year, halting a six-year decline in the number of federal offenders sentenced annually.
  • Cases involving drugs, immigration, firearms, and fraud, theft, or embezzlement accounted for 82.8% of all cases reported to the Commission.
  • Immigration cases were the most common federal crimes in fiscal year 2018 (34.4%).  This number is a 16.5% increase from fiscal year 2017.
  • Drug trafficking offenses fell by 14.1% over the past five years, with 4.5% fewer cases reported than in fiscal year 2017.
  • Methamphetamine offenses were the most common drug cases.  The 7,554 methamphetamine cases represented 39.8% of all drug crimes.

June 27, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Wednesday, June 12, 2019

Federal district judge rejects feds request for significant prison term in first sentencing of college bribery scandal

As reported in this NBC News piece about the first sentencing in a high-profile federal criminal matter, "Stanford University's former sailing coach avoided significant prison time and was sentenced to just one day behind bars on Wednesday for his role in a massive college admissions scandal."  Here is more:

John Vandemoer was the first person to be sentenced in the sweeping corruption scandal that exposed the sophisticated network of college admissions ringleader William Rick Singer, who helped children of well-heeled clients cheat their way into elite universities.

U.S. District Court Judge Rya W. Zobel sided with defense lawyers who said their client should not get more than the one day, which the judge dismissed as time served. The government had asked the judge to sentence Vandemoer to 13 months in prison.

Before Wednesday, Vandemoer had already pleaded guilty to one count of racketeering conspiracy for accepting $770,000 in bribes in funds that all went into the school's sailing program. The money did not directly line Vandemoer's pockets, the judge and lawyers on both sides agreed. "From what I know about the other cases, there is an agreement that Vandemoer is probably the least culpable of all the defendants in all of these cases," Zobel said. "All the money he got went directly to the sailing program."

In court on Wednesday, Vandemoer's voice choked with emotion as apologized for his actions. "I want to be seen as someone who takes responsibility for mistakes," he said. "I want to tell you how I intend to live from this point forward. I will never again lose sight of my values."...

Vandemoer received three separate payments of $500,000, $110,000 and $160,000 between fall 2016 and October 2018 on behalf of the Stanford sailing program to falsely represent that three clients of Singer's were elite sailors — and thus deserving of special admission to the private school, according to court documents....

Assistant U.S. Attorney Eric Rosen pleaded with Judge Zobel to send Vandemoer to prison and send a message about the case. "The sentence that you impose will set the tone moving forward," Rosen said. The prosecutor added: "This case goes far beyond John Vandemoer. The damage on Stanford goes much further. The actions undermine the confidence in the college admissions process."

The defense asked for leniency, arguing that the money Vandemoer received didn't go into his pocket, but instead went to a fund that supported Stanford's sailing program. "It cannot be overstated: all parties agree that Mr. Vandemoer did not personally profit from the scheme," defense lawyer Robert Fisher wrote in his sentencing memo to the court. "Mr. Singer sent Mr. Vandemoer money, and he consistently turned that money over to Stanford."...

Zobel also sentenced Vandemoer to two years of supervised release and six months of home confinement. The former coach was also fined $10,000. "I am aware that these are serious offenses," Zobel said. "I find it hard in this case that Vandemoer should go to jail for more than a year."

Of the three students whose parents tried to bribe their way into Stanford, none them actually benefited from Singer and Vandemoer's scheme.  The first one's fake sailing application came too late in the recruiting season and "the student was later admitted to Stanford through the regular application process," according to prosecutors.  The next two opted to go to Brown University and Vanderbilt University, despite Vandemoer's help.

Vandemoer was fired by Stanford on March 12, hours after federal prosecutors unsealed indictments.  "Although Mr. Vandemoer's conduct resulted in donations to the Stanford sailing team, Stanford views those funds as tainted," according to a victim impact statement written to Judge Zobel by Stanford's general counsel, Debra Zumwalt. "Stanford takes no position regarding any specific sentence that this Court may impose."

Because Vandemoer does not pose any real threat to public safety, and because he has already suffered (and will continue to suffer) an array of formal and informal collateral consequences, this sentence certainly strikes me as "sufficient, but not greater than necessary, to comply with the purposes set forth" in federal sentencing law.  I suppose I am not surprised that the feds wanted a significant prison term in this first of many related sentencings, but the recommendation here of 13 months in prison is a reminder that the feds seem to think that just about every convicted defendant ought to be sent to prison for some significant period.

June 12, 2019 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Sunday, June 09, 2019

"The Orwell Court: How the Supreme Court Recast History and Minimized the Role of the U.S. Sentencing Guidelines to Justify Limiting the Impact of Johnson v. United States"

The title of this post is the title of this article recently posted to SSRN and authored by Brandon Beck. Here is its abstract:

In recent years, federal criminal defendants have enjoyed great success in challenging “residual clauses” within the United States Code as unconstitutional. This began in 2015 when the United States Supreme Court, in Johnson v. United States, struck a portion of the Armed Career Criminal Act as void for vagueness.  Johnson’s holding at first appeared monumental because it invalidated a provision commonly used to enhance the prison sentences of offenders with certain qualifying prior convictions.  Subsequent developments, however, significantly dulled the impact of Johnson, thwarting the dramatic reduction in sentences it once foreshadowed.

This Article is about how Johnson came to be and the mechanisms through which the Supreme Court has subsequently weakened Johnson’s effect.  It will describe two specific mechanisms: (1) the Supreme Court’s recasting of the history of federal sentencing in an attempt to contextualize the holding of Booker v. United States as a return to the bygone days of indeterminate sentencing; and (2) the Supreme Court’s evolving view of the role of the United States Sentencing Guidelines (Guidelines) in the federal criminal system that minimizes the Guidelines’ actual influence over a district court’s sentencing decisions.  It will then explain why these mechanisms — one that exerts control over the past and one that exerts control over the present — are both unfounded.  Finally, this Article will suggest ways in which those involved in federal criminal law — the United States Sentencing Commission (Sentencing Commission), Congress, the courts, and the criminal bar — can address the problems that the Court’s recent decisions have caused in our criminal justice system.

June 9, 2019 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (0)

Friday, June 07, 2019

US Sentencing Commission releases data report on resentencings pursuant to Section 404 of the First Step Act of 2018 (making retroactive provisions of the Fair Sentencing Act of 2010)

I was very pleased to receive in my email in-box this afternoon news that the US Sentencing Commission has released this short new report titled "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report."  Here is how the 10-page report was summarized via the email:

Summary

The U.S. Sentencing Commission published new information on resentencings pursuant to Section 404 of the First Step Act of 2018 (enacted December 21, 2018).

Defendants sentenced before the effective date of the Fair Sentencing Act of 2010 (August 3, 2010) who did not receive the benefit of the statutory penalty changes made by that Act are eligible for a sentence reduction under Section 404 of the First Step Act.

Data Highlights [FN1]

    • 1,051 motions were granted for a reduced sentence.
    • 78.9% of granted motions were made by the defendant, 11.8% by the attorney for the government, and 9.3% by the court.
    • Offenders received an average decrease of 73 months (29.4%) in their sentence.
      • The original average sentence was 239 months.
      • The new average sentence was 166 months.

[FN1] The data report includes motions granted through April 30, 2019 and for which court documentation was received, coded, and edited at the U.S. Sentencing Commission by May 17, 2019.

Importantly, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation, and yet this report shows it already has had a big impact.  Specifically, within just over four months, this part of the FIRST STEP Act has shortened more than 1000 sentences by an average of over 6 years. With six thousand years(!) of extra prison time (and taxpayer expense) saved, this report shows that even a modest reform can have a very big impact for some folks.

June 7, 2019 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, FIRST STEP Act and its implementation | Permalink | Comments (1)

Thursday, June 06, 2019

En banc Sixth Circuit finds invalid an application note used to expanded the reach of "controlled substance offense" priors

In this post last year, I flagged an interesting split Sixth Circuit panel opinion on the reach of a particular important guideline provision, and that case has now led to this notable short per curiam en banc ruling in US v. Havis, No. 17-5772 (6th Cir. June 6, 2019) (available here). The ruling starts this way:

Although it is neither a legislature nor a court, the United States Sentencing Commission plays a major role in criminal sentencing. But Congress has placed careful limits on the way the Commission exercises that power. Jeffery Havis argues that the Commission stepped beyond those limits here and, as a result, he deserves to be resentenced. We agree and REVERSE the decision of the district court.

Here are the basic particulars:

In 2017, Havis pled guilty to being a felon in possession of a firearm.  See 18 U.S.C. § 922(g)(1).  Under the Sentencing Guidelines, a person convicted under § 922(g)(1) starts with a base offense level of 14; but that level increases to 20 if the defendant has a prior conviction for a “controlled substance offense.” ...

The question before the court, then, is whether the definition of “controlled substance offense” in § 4B1.2(b) includes attempt crimes.  The Sentencing Commission said it does in the commentary to § 4B1.2(b).  See USSG § 4B1.2(b) comment (n.1).  But the plain language of § 4B1.2(b) says nothing about attempt crimes.  On appeal, Havis maintains that we must look to the actual text of Guideline § 4B1.2(b).  The Government asks us to defer to the Commission’s commentary.....

To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in the guideline itself — no term in § 4B1.2(b) would bear that construction.  Rather, the Commission used Application Note 1 to add an offense not listed in the guideline.  But application notes are to be “interpretations of, not additions to, the Guidelines themselves.”  Rollins, 836 F.3d at 742. If that were not so, the institutional constraints that make the Guidelines constitutional in the first place — congressional review and notice and comment — would lose their meaning. See Winstead, 890 F.3d at 1092 (“If the Commission wishes to expand the definition of ‘controlled substance offenses’ to include attempts, it may seek to amend the language of the guidelines by submitting the change for congressional review.”). The Commission’s use of commentary to add attempt crimes to the definition of “controlled substance offense” deserves no deference.  The text of § 4B1.2(b) controls, and it makes clear that attempt crimes do not qualify as controlled substance offenses.

The Guidelines’ definition of “controlled substance offense” does not include attempt crimes. Because the least culpable conduct covered by § 39-17-417 is attempted delivery of a controlled substance, the district court erred by using Havis’s Tennessee conviction as a basis for increasing his offense level. We therefore REVERSE the district court’s decision and REMAND for further proceedings consistent with this opinion.

June 6, 2019 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Saturday, May 11, 2019

New issue of Crime and Justice covers "American Sentencing — What Happens and Why?"

I just received an email reporting that the latest issue of Crime and Justice is in print, and all sentencing fans will want to get access to this volume. This issue has 10(!) amazing articles put together by editor Michael Tonry around the topic of "American Sentencing — What Happens and Why?." Here is the list of titles and authors (and clicking through here enables seeing abstracts for each):

May 11, 2019 in Federal Sentencing Guidelines, Recommended reading, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Wednesday, May 08, 2019

US Sentencing Commission (finally) releases 2018 Annual Report and Sourcebook of Federal Sentencing Statistics

Via email, I received this morning this notice from the US Sentencing Commission about the publication of lots of new federal sentencing data:

Newly Released Sentencing Data

Today the U.S. Sentencing Commission published its 2018 Annual Report and Sourcebook of Federal Sentencing Statistics. 

The Annual Report presents an overview of the Commission's work in fiscal year 2018. The Sourcebook was expanded this year to include more analyses of drug and immigration offenses, as well as new sections on firearms and economic offenses to give readers more complete information about the most frequently occurring federal crimes. 

The Sourcebook contains information collected from 321,000 federal sentencing documents on 69,425 federal offenders. 

Quick Highlights

  • The federal sentencing caseload increased by 2,552 cases from fiscal year 2017, representing the first increase since fiscal year 2011.

  • Immigration offenses accounted for the largest single group of federal crime — a position held by drug offenses in fiscal year 2017.

  • Immigration offenses increased from 30.5% in fiscal year 2017 to 34.4% in fiscal year 2018 while drug and firearms offenses decreased.  

  • Methamphetamine offenses, the most common drug type in the federal system, continued to rise (up from 30.8% of drug offenses in fiscal year 2016 and 34.6% in fiscal year 2017 to 39.8% in fiscal year 2018).

  • 75% of federal offenders were sentenced under the Guidelines Manual in fiscal year 2018.

Interestingly, as reveled by this prior post, these annual materials were released by the USSC last year in early March.  I presume the government shutdown and the lack of commissioners has something to do with these data coming out a few months later this year.  I am hopeful it will not take me a few months to find a few data stories to highlight from these latest USSC documents, and I welcome the help of readers to identify just how the Trump era is now looking through the lens of federal sentencing statistics.

May 8, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, May 02, 2019

Summer sentencing (with notable particulars) for first college admission scandal parents to enter pleas in court

This Los Angeles Times article, headlined "Bay Area couple first to plead guilty in college admissions scandal," reports on a huge high-profile federal fraud case now getting ever closer to sentencing for one pair of defendants. Here are the details:

A Northern California couple who secured their daughters’ spots at UCLA and USC with bribes and rigged tests pleaded guilty Wednesday to fraud and money laundering offenses, the first parents to admit their guilt before a judge in an investigation that has sent shivers through circles of Silicon Valley, Wall Street, Hollywood and some of the country’s most elite universities.

Davina Isackson of Hillsborough, Calif., pleaded guilty to one count of fraud conspiracy. Her husband, real estate developer Bruce Isackson, pleaded guilty to one count of fraud conspiracy, one count of money laundering conspiracy and one count of conspiracy to defraud the United States. They will be sentenced July 31. In Davina Isackson’s plea agreement, prosecutors recommended a sentence at the low end of federal guidelines that call for 27 to 33 months in prison. For Bruce Isackson, they suggested a sentence at the low end of 37 to 46 months in prison.

Of the 33 parents charged in the investigation, the Isacksons are the only ones to have signed cooperation deals with prosecutors. If prosecutors decide the couple provided useful and credible information, they can recommend that a judge sentence them below the federal guidelines.

Investigators want to learn from the couple who at UCLA and USC knew of an alleged recruiting scheme they used to slip their two daughters into the universities as sham athletes, The Times has reported. The Isacksons’ older daughter, Lauren, was admitted to UCLA as a recruited soccer player, given a jersey number and listed on the team roster as a midfielder for an entire season, despite never having played the sport competitively, prosecutors alleged.

To ensure she got in, they said, her parents transferred $250,000 in Facebook stock to the foundation of Newport Beach college consultant William “Rick” Singer, which Bruce Isackson later wrote off on the couple’s taxes as a charitable gift....

The Isacksons tapped Singer’s “side door” the following year to have their younger daughter admitted to USC as a recruited rower, prosecutors alleged. The couple also availed themselves of Singer’s test-rigging scheme, prosecutors said, in which he bribed SAT and ACT administrators to turn a blind eye to his 36-year-old, Harvard-educated accomplice.

With the help of the accomplice, Mark Riddell, the Isacksons’ younger daughter scored a 31 out of 36 on the ACT, prosecutors said. Her father paid Singer’s foundation $100,000 and wrote it off on taxes as a charitable gift.

I find notable that federal prosecutors think that two+ years of imprisonment is necessary for one of these the Isacksons and that three+ years is necessary for the other in accord with guideline calculations. But, because it appears that these defendants may be providing "substantial assistance," the feds may ultimately be recommending lower sentences as a kind of compensation for this kind of cooperation.

Prior related posts:

May 2, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (4)

Monday, April 29, 2019

"Booker Circumvention? Adjudication Strategies in the Advisory Sentencing Guidelines Era"

The title of this post is the title of this notable new paper authored by Mona Lynch and now available via SSRN.  Here is its abstract:

This article addresses the question of policy circumvention in federal courts by examining how legal actors have differentially adapted their adjudicatory practices after U.S. v. Booker (2005) rendered the federal sentencing guidelines advisory rather than mandatory.  By linking two distinct bodies of scholarship — the courts-as-communities scholarship that assesses and explains locale-based variations in criminal court operations and the socio-legal “law and organizations” scholarship that addresses how organizational actors translate and implement top-down legal policy reforms — this article argues that law-as-practiced is always temporally and spatially contingent.

Expanding on prior quantitative research that addresses district-specific adaptations to Booker, this article reports on findings from a qualitative study recently conducted by the author of four federal districts.  Based on these findings, this article examines within-district changes and between-district variations in: (1) legal actors’ perceptions of whether the Booker policy change impacted local practices and outcomes, and if so, the extent of its impact; (2) how legal strategies and practices have changed at three stages of the criminal process: charging, pre-conviction plea negotiations, and formal sentencing; and (3) interviewees’ perceptions about whether Booker contributed to greater racial or other disparities in case out-comes.

Findings indicate that a dynamic, proactive adaptation process is taking place, conditioned by local norms but not fully dictated by those norms.  They also make clear that changes in sentencing outcomes in the post-Booker period are not simply the result of liberated judges exercising their discretion, but rather are jointly produced by courtroom workgroup members through both contestation and cooperation.  This inquiry is especially timely given both ongoing and proposed changes in federal sentencing policy that aim to maintain severity in punishment, re-impose constraints on legal actors, and threaten to exacerbate racial and ethnic inequalities in the federal criminal system.

April 29, 2019 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, April 08, 2019

Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal

This press release from the US Attorney's Office for the District of Massachusetts, headlined "14 Defendants in College Admissions Scandal to Plead Guilty," reports on the latest developments in the highest profile college fraud case I can recall. Here are the basics:

Thirteen parents charged in the college admissions scandal will plead guilty to using bribery and other forms of fraud to facilitate their children’s admission to selective colleges and universities. One coach also agreed to plead guilty.

The defendants were arrested last month and charged with conspiring with William “Rick” Singer, 58, of Newport Beach, Calif., and others, to use bribery and other forms of fraud to secure the admission of students to colleges and universities. The conspiracy involved bribing SAT and ACT exam administrators to allow a test taker to secretly take college entrance exams in place of students, or to correct the students’ answers after they had taken the exam, and bribing university athletic coaches and administrators to facilitate the admission of students to elite universities as purported athletic recruits....

All of the defendants who improperly took tax deductions for the bribe payments have agreed to cooperate with the IRS to pay back taxes.

Plea hearings have not yet been scheduled by the Court. Case information, including the status of each defendant, charging documents and plea agreements are available here.

The charge of conspiracy to commit mail fraud and honest services mail fraud provides for a maximum sentence of 20 years in prison, three years of supervised release, and a fine of $250,000 or twice the gross gain or loss, whichever is greater. The charge of conspiracy to commit money laundering provides for a maximum sentence of 20 years in prison, three years of supervised release, and a fine of $500,000 or twice the value of the property involved in the money laundering. The charge of conspiracy to defraud the United States provides for a maximum sentence of five years in prison, three years of supervised release, and a fine of $250,000. Sentences are imposed by a federal district court judge based upon the U.S. Sentencing Guidelines and other statutory factors.

Though the recitation of statutory maximum sentence sounds really serious, clicking through to the plea agreements reveals that the relatively low dollar amounts in these frauds entails relatively low guideline sentencing ranges. Specifically, for Felicity Huffman the government calculates in the plea agreement a guideline range at offense level 9 to result in a sentence range of 4 to 10 months. Notably, Huffman disputes the amount of "loss or gain" in her offense and suggests her guideline sentencing range is only 0 to 6 months.  And, significantly, the government agrees to advocate for only the low end of its calculated range, so it will be seeking only a four month sentence for Huffman.

I have not yet had a chance to look though all the other plea agreements, but I would guess their terms are comparable.  And especially because all these defendants are already suffering (and will continue to suffer) all sorts of non-traditional punishments, I am not really bother at all that they are not looking at severe guideline ranges.  But perhaps others are, and I welcome their comments on whether and how they think justice is being served in these cases now that we are moving into the sentencing phase.

April 8, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (8)

Sunday, March 24, 2019

Interesting new TRAC data on intra-courthouse judge-to-judge differences in sentences

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University maintains lots of data on the work of federal courts and federal agencies. Seemingly inspired by the recent sentencing(s) of Paul Manafort, TRAC completed a "study of judge sentencing differences at 155 federal courthouses across the country" in which "the judge with the lowest average prison sentence was compared with the judge with the highest average sentence at each courthouse."  At this page, TRAC summarizes its findings this way:

Based upon case-by-case sentencing records, the Transactional Records Access Clearinghouse (TRAC) at Syracuse University found that half of federal judges served at courthouse where the average prison sentence differed by at least 23 months depending upon which judge handled the case.  Sixty-six of these judges served at six courthouses where the average prison sentence length differed by more than 48 months.

The Orlando courthouse in the Middle District of Florida with seven judges had a range of over 80 months between the judge with the shortest versus the longest average prison sentence.  This was followed by the Greenbelt courthouse in Maryland with over 64 months difference among the seven judges serving there....

To examine current sentencing differences at each of the 155 federal courthouses included in the study, read the full report [at this link].

Because TRAC is comparing average sentences for each federal judge directly without controlling for the specific caseloads of these judges, variations in average sentences could reflect caseload differences as much as judicial differences. But in the full report, TRAC reasonably notes that due to "the fairly large number of defendants sentenced by each judge, where there is random assignment of cases to judges then statistically speaking each judge should have closely comparable caseloads so that differences in the nature of the offenses and defendants' histories are roughly comparable."

Ultimately, this TRAC report provides a crude and incomplete account of intra-courthouse judge-to-judge differences because just one or two outlier judges could and would make a courthouse look bad in this TRAC accounting.  Still, it is interesting and useful to be reminded statistically of what all federal criminal justice practitioners know well, namely that most judges have their own distinctive and unique approaches to sentencing decision-making.

March 24, 2019 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (4)

Tuesday, February 26, 2019

Paul Manafort's sentencing memorandum in DC makes pitch for a sentence "significantly below" ten years

As reported in this Politico piece, counsel for "Paul Manafort, the former Trump campaign chairman, pleaded on Monday for a federal judge to spare their 69-year-old client from a sentence that would essentially send him to prison for the rest of his life."  Here is more about the latest sentencing filing:

In a 47-page filing, Manafort’s attorneys described a client who has been “personally, professionally, and financially” broken by special counsel Robert Mueller’s Russia investigation and who deserves a sentence “significantly” below the statutory maximum of 10 years he faces after pleading guilty in Washington to a pair of conspiracy charges.

“Mr. Manafort has been personally and financially devestated [sic] as a result of his conduct and the forfeiture he has agreed to,” his lawyers wrote. “There is no reason to believe that a sentence of years in prison is necessary to prevent him from committing further crimes.”

Manafort’s lawyers added that he “poses no risk to the public, which itself has certainly been generally deterred from engaging in similar conduct based on the widespread negative publicity this case has garnered, as well as his incarceration in solitary confinement.”

Two federal judges are scheduled to sentence Manafort twice next month over criminal charges brought by Mueller’s office, including tax and bank fraud, as well as witness tampering and unregistered lobbying for a foreign government. U.S. District Court Judge T.S. Ellis III is scheduled first in Virginia, on March 8, and U.S. District Court Judge Amy Berman Jackson in Washington goes second, on March 13.

The memo that Manafort’s attorneys submitted Monday aims to rebut Saturday’s filing from Mueller, who told Jackson that the longtime Republican operative “repeatedly and brazenly violated the law” for more than a decade and should be considered for a total sentence in the roughly 17-to-22-year range by stacking her sentence on top of the one Ellis issues.

The full filing is available at this link, and here is an excerpt from its introduction:

Mr. Manafort, who over the decades has served four U.S. presidents and has no prior criminal history, is presented to this Court by the government as a hardened criminal who “brazenly” violated the law and deserves no mercy.  But this case is not about murder, drug cartels, organized crime, the Madoff Ponzi scheme or the collapse of Enron.  Rather, at its core, the charges against the defendant stem from one operable set of facts: Mr. Manafort made a substantial amount of income working as a political consultant in Ukraine, he failed to report to the government the source and total amount of income he made from those activities, and he attempted to conceal his actions from the authorities. He has accepted full responsibility by pleading guilty to this conduct....

Mr. Manafort has been punished substantially, including the forfeiture of most of his assets. In light of his age and health concerns, a significant additional period of incarceration will likely amount to a life sentence for a first time offender.

Some prior related posts:

February 26, 2019 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Saturday, February 23, 2019

Latest Manafort sentencing memorandum from Special Counsel pulls few punches

As reported in this Politico article, a "federal judge should consider giving former Trump campaign chairman Paul Manafort a sentence that would send him to prison for at least 17 and a half years, special counsel Robert Mueller said in a court filing made public Saturday."  Here is more from the article about the filing and the legal context now:

Manafort faces a pair of sentencing hearings in the coming weeks in Virginia and in Washington where judges will determine what punishment he should face in two separate criminal cases brought by Mueller’s office involving tax fraud, bank fraud, unregistered lobbying for a foreign government and witness tampering.

The latest submission from Mueller accuses Manafort of a bold, brazen and wide-ranging series of crimes carried out over decades and continuing while Manafort was managing the Trump campaign in the summer of 2016, although prosecutors seemed to avoid mentioning the president directly in their new filing....

The new court submission in Washington released on Saturday makes no explicit recommendation about how much prison time Manafort should serve, but urges U.S. District Court Judge Amy Berman Jackson to consider making the longtime political consultant and lobbyist serve a total sentence in the roughly 17-to-22-year range by making her sentence consecutive to one a Virginia judge is expected to impose ahead of her early next month.

Jackson has the power in her case to sentence Manafort to up to ten years: the maximum allowed by law for the conspiracy and obstruction of justice crimes he pleaded guilty to before her last year as part of plea deal.

Last week, Mueller’s prosecutors told U.S. District Court Judge T.S. Ellis in Alexandria that sentencing guidelines applicable to Manafort’s case there call for him to serve between 19 and a half and 24 and a half years in prison. The prosecution team also made no explicit recommendation for a sentence in that case, beyond urging that the punishment be “serious” and adequate to deter others from similar conduct.

In theory, Ellis could sentence Manafort to as long as 80 years in prison on the charges of tax fraud, bank fraud and failing to report foreign bank accounts that he was convicted of at a high-profile jury trial last August.

The full 25-page filing (with a few redactions) is available at this link. Here is part of its introduction:

Based on his relevant sentencing conduct, Manafort presents many aggravating sentencing factors and no warranted mitigating factors. Manafort committed an array of felonies for over a decade, up through the fall of 2018.  Manafort chose repeatedly and knowingly to violate the law— whether the laws proscribed garden-variety crimes such as tax fraud, money laundering, obstruction of justice, and bank fraud, or more esoteric laws that he nevertheless was intimately familiar with, such as the Foreign Agents Registration Act (FARA).  His criminal actions were bold, some of which were committed while under a spotlight due to his work as the campaign chairman and, later, while he was on bail from this Court. And the crimes he engaged in while on bail were not minor; they went to the heart of the criminal justice system, namely, tampering with witnesses so he would not be held accountable for his crimes.  Even after he purportedly agreed to cooperate with the government in September 2018, Manafort, as this court found, lied to the Federal Bureau of Investigation (FBI), this office, and the grand jury.  His deceit, which is a fundamental component of the crimes of conviction and relevant conduct, extended to tax preparers, bookkeepers, banks, the Treasury Department, the Department of Justice National Security Division, the FBI, the Special Counsel’s Office, the grand jury, his own legal counsel, Members of Congress, and members of the executive branch of the United States government.  In sum, upon release from jail, Manafort presents a grave risk of recidivism. Specific deterrence is thus at its height, as is general deterrence of those who would engage in comparable concerted criminal conduct.

Some prior related posts:

February 23, 2019 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, February 15, 2019

Special Counsel's office files sentencing memorandum for Paul Manafort seemingly supporting guideline range of 235 to 293 months' imprisonment

As reported in this Politico article, headlined "Mueller: Manafort deserves 19.5 to 24.5 years in prison for Virginia convictions, Special Counsel Robert Mueller filed this submission "to address the sentencing of defendant Paul J. Manafort, Jr."  The Politico piece, along with lots of other press accounts, report that "Robert Mueller’s office recommended on Friday that Paul Manafort get up to 24-and-a-half years in prison for his conviction last summer for financial malfeasance."  But a careful read of the submission reveals that there is no firm sentencing recommendation in the memo, rather its introduction and conclusion includes these passages hedging a bit:

As an initial matter, the government agrees with the guidelines analysis in the Presentence Investigation Report (PSR) and its calculation of the defendant’s Total Offense Level as 38 with a corresponding range of imprisonment of 235 to 293 months, a fine range of $50,000 to $24,371,497.74, a term of supervised release of up to five years, restitution in the amount of $24,815,108.74, and forfeiture in the amount of $4,412,500.

Second, while the government does not take a position as to the specific sentence to be imposed here, the government sets forth below its assessment of the nature of the offenses and the characteristics of the defendant under Title 18, United States Code, Section 3553(a). The defendant stands convicted of the serious crimes of tax fraud, bank fraud, and failing to file a foreign bank account report.  Manafort was the lead perpetrator and a direct beneficiary of each offense.  And while some of these offenses are commonly prosecuted, there was nothing ordinary about the millions of dollars involved in the defendant’s crimes, the duration of his criminal conduct, or the sophistication of his schemes.  Together with the relevant criminal conduct, Manafort’s misconduct involved more than $16 million in unreported income resulting in more than $6 million in federal taxes owed, more than $55 million hidden in foreign bank accounts, and more than $25 million secured from financial institutions through lies resulting in a fraud loss of more than $6 million.  Manafort committed these crimes over an extended period of time, from at least 2010 to 2016. His criminal decisions were not momentary or limited in time; they were routine.  And Manafort’s repeated misrepresentations to financial institutions were brazen, at least some of which were made at a time when he was the subject of significant national attention.

Neither the Probation Department nor the government is aware of any mitigating factors. Manafort did not commit these crimes out of necessity or hardship.  He was well educated, professionally successful, and financially well off.  He nonetheless cheated the United States Treasury and the public out of more than $6 million in taxes at a time when he had substantial resources. Manafort committed bank fraud to supplement his liquidity because his lavish spending exhausted his substantial cash resources when his overseas income dwindled....

In the end, Manafort acted for more than a decade as if he were above the law, and deprived the federal government and various financial institutions of millions of dollars.  The sentence here should reflect the seriousness of these crimes, and serve to both deter Manafort and others from engaging in such conduct....

For a decade, Manafort repeatedly violated the law.  Considering only the crimes charged in this district, they make plain that Manafort chose to engage in a sophisticated scheme to hide millions of dollars from United States authorities.  And when his foreign income stream dissipated in 2015, he chose to engage in a series of bank frauds in the United States to maintain his extravagant lifestyle, at the expense of various financial institutions.  Manafort chose to do this for no other reason than greed, evidencing his belief that the law does not apply to him.  Manafort solicited numerous professionals and others to reap his ill-gotten gains.  The sentence in this case must take into account the gravity of this conduct, and serve to both specifically deter Manafort and those who would commit a similar series of crimes.

Some prior related posts:

February 15, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, February 13, 2019

Paul Manafort facing potentially longer sentence after judge concludes he failed to comply with plea deal

As reported in this new Politco piece, a "federal judge ruled partly in favor of special counsel Robert Mueller on Wednesday that Paul Manafort violated the terms of his guilty plea by lying to federal prosecutors and a grand jury." Here is more and why this is ultimately a sentencing story:

The decision by U.S. District Court Judge Amy Berman Jackson confirms some of Mueller’s latest set of charges against the former Donald Trump campaign chairman that he lied during guilty-plea-stipulated cooperation sessions about his contacts with Konstantin Kilimnik, a longtime aide alleged to have ties to Russian intelligence.  Jackson, however, ruled that Mueller had “failed to establish by a preponderance of the evidence” that Manafort intentionally made a false statement about his contacts with the Trump administration.

The judge’s four-page ruling against Manafort [which is available here] means the 69-year old political operative will likely get an even stiffer penalty at his March 13 sentencing hearing in Washington, D.C., federal court.  She said Mueller was “no longer bound by its obligations under the plea agreement” terms he’d reached with Manafort in September, including the special counsel’s pledge to support a less-stringent sentence.

Manafort had previously been on track to get a 10-year cap on his prison sentence in his D.C. case under the terms of the original plea deal he struck with Mueller, which limited the charges he faced to conspiracy against the U.S. and conspiracy to obstruct justice while dropping foreign-lobbying and money-laundering charges.

The plea agreement had also called for Manafort to serve time concurrently from his D.C. case with any sentence he gets from his convictions in Alexandria, Va., on charges of bank and tax fraud.  But with Jackson’s order on Wednesday, Mueller is now free to recommend that Manafort serve his sentences consecutively.

Both Jackson and U.S. District Court Judge T.S. Ellis III, who presided in Manafort’s trial in Virginia and had postponed sentencing until the dispute over the lying charges was resolved, will have the final say in the decision on whether he serves back-to-back or simultaneous sentences.

Some prior related posts:

February 13, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Monday, February 04, 2019

"18 U.S.C. § 3553(a)’s Undervalued Sentencing Command: Providing a Federal Criminal Defendant with Rehabilitation, Training, and Treatment in 'the Most Effective Manner'"

The title of this post is the title of this notable new (and very timely) article authored by Erica Zunkel now available in the Notre Dame Journal of International & Comparative Law.  Here is its abstract:

The vast majority of federal criminal defendants are sentenced to prison, and non-incarceration sentences have become vanishingly small.  During the sentencing process, federal district court judges are required to consider what sentence will provide the defendant with necessary rehabilitation and treatment in the most effective manner pursuant to 18 U.S.C. § 3553(a)(2)(d).  Courts regularly undervalue, ignore, or even violate this statutory command.  Some courts seem to believe that the Bureau of Prisons can provide adequate rehabilitation and treatment and do not explain how this squares with what the statute requires.  Other courts barely engage with the issue.  Only a minority of courts take the statutory command seriously. 

This is problematic because evidence shows that the Bureau of Prisons is ill-equipped to provide defendants with the most effective rehabilitation and treatment, particularly medical care and mental health care.  This Article concludes that the courts should take § 3553(a)(2)(D)’s mandate much more seriously in sentencing federal criminal defendants. Likewise, defense attorneys should engage in vigorous advocacy at sentencing to ensure that courts understand the Bureau of Prisons’ severe limitations in providing effective, let alone adequate, rehabilitation and treatment.

February 4, 2019 in Booker in district courts, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, January 31, 2019

US Sentencing Commission releases new report titled "Revocations Among Federal Offenders"

Research reports are coming so fast and furious from the US Sentencing Commission, it seems that all I have time for on a busy Thursday is to blog about yet another notable USSC report. Yesterday, as flagged in this post, the new USSC report was on economics crimes; today, the USSC released this 41-page report titled "Revocations Among Federal Offenders." This USSC webpage provides this "Summary" and "Key Findings":

Summary

This publication explores a subset of the Commission’s criminal history rules—those regarding the revocation of terms of probation, parole, supervised release, special parole, and mandatory release.  These rules affect an offender’s criminal history score and Criminal History Category.  This report analyzes the nature and prevalence of revocations, and explores the impact of revocations upon safety valve relief and the career offender guideline.

Key Findings

The key findings of the Commission’s study of revocations are that:

  • Only a minority of offenders (35.0%) with criminal history points under the federal sentencing guidelines had at least one scored conviction with a revocation. Most often such offenders had only one such conviction.

  • For the minority of offenders who did have at least one scored conviction with a revocation, it often increased their criminal history score and resulting Criminal History Category. Among offenders with at least one scored conviction in their criminal history, three-fifths (60.2%) received additional criminal history points, and just under a third (30.9%) received an increase in Criminal History Category. For those offenders who received an increase into a higher Criminal History Category, the impact was generally limited to one Criminal History Category.

  • The rate at which offenders had at least one scored conviction with a revocation varied significantly depending on the type of federal offender. Firearms offenders were the most likely (54.3%) and immigration offenders the least likely (20.9%) to have at least one scored conviction with a revocation. However, the impact of such convictions on their criminal history scores and Criminal History Categories varied much less. Among offenders with at least one such conviction, firearms offenders were the most often (66.2%) and immigration offenders least often (55.9%) to receive additional criminal history points. Furthermore, among offenders who received additional criminal history points, those points resulted in a higher Criminal History Category most often for drug trafficking offenders (53.1%) and least often for firearms offenders (42.9%).

  • The Commission cannot state with certainty how often revocations are based on new crimes versus technical violations because the underlying basis for the revocation could not be determined in 38.7 percent of the cases studied. However, between 38.9 percent and 77.5 percent of the revocations studied were for new crimes, and between 22.5 and 61.1 percent were for technical violations.

  • Prior revocations did not significantly limit offender eligibility for the statutory safety valve, which relieves certain drug trafficking offenders from otherwise applicable statutory mandatory minimum penalties. Of the drug trafficking offenders studied, only 2.3 percent appear to be ineligible for the safety valve based solely on scored convictions with revocations.

  • Prior revocations had a more significant impact on offenders who received the career offender enhancement at §4B1.1. Of the career offenders studied, 10.7 percent qualified for the career offender enhancement in part because of scored convictions with revocations.

January 31, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

US Sentencing Commission releases new report titled "What Does Federal Economic Crime Really Look Like?"

Cover_2019-econ-crimeContintuing its steady production of research reports to start 2019, the US Sentencing Commission yesterday released this 87-page report under the title ""What Does Federal Economic Crime Really Look Like?". This USSC webpage provides this "Summary" and "Key Findings":

Summary

This publication provides data on the broad variety of economic crime sentenced under §2B1.1.  The Commission undertook a project to systematically identify and classify the myriad of economic crimes sentenced under §2B1.1 using offenders' statutes of conviction and offense conduct.  The Commission used this two-step methodology to assign the 6,068 offenders sentenced under §2B1.1 in fiscal year 2017 to one of 29 specific types of economic crime.

This publication provides, for the first time, data from this new project as well as a brief description of the study's methodology.

Key Findings

  • The economic crime guideline (§2B1.1) accounts for approximately ten percent of the federal caseload and encompasses a wide variety of conduct.

  • Embezzlement and theft offenders consistently accounted for about one-quarter of all economic crime offenders, ranging from 24.6 to 28.3 percent during the five years studied.  Financial institution fraud and government benefits fraud offenders have also been among the top five most prevalent type of economic crime offenders.

  • The offense severity, as measured by several guideline enhancements, varied significantly across the 17 specific types of economic crime that were the focus of this report.  In particular, median loss amounts varied substantially, with four specific offense types involving median losses far exceeding the median loss amount for all economic crime offenders of $131,750: securities and investment fraud ($2,105,620), health care fraud ($1,086,205), mortgage fraud ($999,721), and government procurement fraud ($739,455) and two specific offense types with the lowest median loss amounts: mail related fraud ($1,815) and false statements ($0).  These differences are particularly noteworthy because the loss calculation is the primary driver of the guideline calculation under §2B1.1.

  • The application rates of other guideline provisions measuring offense severity and offender culpability also varied significantly across the specific types of economic crime. For example, the victims enhancement applied in 78.1 percent of securities and investment fraud compared to 2.4 percent of false statements offenses, and the sophisticated means enhancement applied in 37.5 percent of advanced fee fraud compared to 0.6 percent of mail related fraud.

  • The average sentences varied significantly across the specific types of economic crime. Securities and investment fraud offenders received the longest average sentences at 52 months, more than twice as long as the average sentence for all economic crime offenders of 23 months.  False statements offenders received the shortest average sentence at five months.

  • Offender characteristics also differed across economic crime types.  For example, White offenders accounted for a substantial majority of securities and investment fraud (79.9%), computer related fraud (70.5%), and government procurement fraud (62.3%), while Black offenders accounted for the largest proportion of tax fraud (55.0%), identity theft (49.4%), and credit card fraud (45.0%).

January 31, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (1)

Wednesday, January 23, 2019

FAMM writes extended letter to Prez Trump to "strongly discourage" re-nomination of Bill Otis to US Sentencing Commission

As reported in this prior post, back in March 2018 Prez Trump announced this notable slate of nominations to the US Sentencing Commission.  Though it is usually only hard-core sentencing nerds like me who pay much attention to USSC nominations, this slate of nominees, especially the nomination of Bill Otis, prompted considerable critical commentary from various sources (which I covered in posts here and here).  Perhaps in part because these nominees were controversial, the Senate never acted on them in 2018 and the nominations lapsed when the "old" Senate officially adjourned.

It is fairly common, once a new Senate is in place, for a President to simply renominate many past nominees who were not acted upon by a prior Senate.  The folks at FAMM, however, are now actively advocating that Prez Trump not follow this tradition in the case of Bill Otis.  Specifically, this new FAMM press release reports that "FAMM sent a letter to President Donald J. Trump discouraging the re-nomination of William Otis to the U.S. Sentencing Commission."  Here are some passages from the start and end of the four-page letter, which is authored by FAMM President Kevin Ring:

I am writing to strongly discourage you from nominating William Otis to serve on the U.S. Sentencing Commission. Mr. Otis’s long and controversial record, marked by hostility to evidence-based criminal justice reform, contradicts your administration’s leadership in passing the First Step Act....

Given these roles the Commission is expected to play, it is vital that the individuals appointed to serve on the Commission approach their job with an open mind and a willingness to consider fully all of the data and evidence available to them.  Over the years, FAMM has disagreed with the policy views held by nominees to the Commission, but we did not oppose their confirmation because we believe that, once confirmed, they would be persuaded and guided by data and evidence.

The very extensive public record of Mr. William Otis gives us no such hope.  Mr. Otis is an ideologue who seems impervious to evidence and data....

When you nominated Mr. Otis last year, FAMM broke its 27-year-long policy against taking a position on nominees to the Commission.  We believed then, and continue to believe today, that Mr. Otis would damage the Commission’s ability to tackle initiatives in a collaborative and thoughtful way.

We do not wish to silence Mr. Otis and his views. Mr. Otis certainly has a place in the public policy debate on criminal justice policy.  That place, we respectfully submit, is not one of the seven seats on the U.S. Sentencing Commission, where an openness to evidence and data is crucial.  Please do not nominate him again.

The final paragraph of this letter really struck me because of two practical ironies.  First, the decision by Prez Trump to nominate Bill Otis to the USSC actually did serve to effectively silence him as he stopped blogging at Crime & Consequences and did not make any public statements amidst all the debates over federal criminal justice reform that raged in 2018.  Second, because there are currently only two active Sentencing Commissioners and four are needed to form a quorum, the US Sentencing Commission is itself effectively silenced right now with respect to making any changes to the sentencing guidelines until at least two more members are nominated by the President and confirmed by the Senate.

Prior related posts:

January 23, 2019 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (1)

Wednesday, January 09, 2019

Fourth Circuit affirms officer Michael Slager "conviction" (by a judge at sentencing) of murdering Walter Scott

I noted in posts here and here back in December 2017 that, after the high-profile shooting and then state and federal prosecutions of former South Carolina police officer Michael Slager for killing Walter Scott, the real action in his case became a federal sentencing "trial" after Slager pleaded guilty to a federal civil rights offense.  This "trial" was really a judicial inquisition in which a federal sentencing judge took testimony at a sentencing hearing in order to decide whether Slager's crime was "really" second-degree murder or voluntary manslaughter for purposes of calculating the appropriate guideline range.  

Notably, the presentence report in Slager's case suggested a prison term of between 10 and 13 years based on the conclusion that his crime should be viewed as voluntary manslaughter (and his defense attorneys requested an even lower sentence).  But federal prosecutors successfully argued that the district court should, after applying the guidelines for second-degree murder and obstruction of justice, impose a prison sentence for Slager within an enhanced guideline range of roughly 17 to 22 years of imprisonment.  The judge, after a multi-day hearing, "convicted" Slager of second-degree murder and ultimately imposed a 20-year prison term.  Yesterday the Fourth Circuit affirmed the sentence in US v. Slager, No. 18-4036 (4th Cir. Jan 8, 2019) (available here). Here is how that opinion gets started and a passage from the heart of the opinion:

Defendant Michael Slager (“Defendant”), a former officer with the North Charleston Police Department, admitted that he “willfully” shot and killed Walter Scott (“Scott”), when Scott was unarmed and fleeing arrest.  Defendant further admitted that his decision to shoot Scott was “objectively unreasonable.”  Based on those admissions, Defendant pleaded guilty to depriving Scott of his civil rights under color of law.  The district court sentenced Defendant to a 240-month term of imprisonment.  Before this Court, Defendant argues that the district court reversibly erred in setting his sentence by: (1) using second-degree murder as the sentencing cross-reference for his offense rather than voluntary manslaughter, and (2) applying a two-level enhancement for obstruction of justice.  Finding no reversible error, we affirm Defendant’s sentence....

“When sentencing courts engage in fact finding, preponderance of the evidence is the appropriate standard of proof.” United States v. Span, 789 F.3d 320, 334 (4th Cir. 2015) (citations and alterations omitted). We “will not reverse a lower court’s findings of fact simply because we would have decided the case differently.” Id. (quoting Easley v. Cromartie, 532 U.S. 234, 242 (2001)).  Instead, clear error exists only when “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (quoting Easley, 532 U.S. at 242)....

Because Santana’s video does not capture the entirety of the disputed period, the court based many of its factual findings on its assessment of the credibility of the two testifying eyewitnesses to the encounter: Defendant and Santana.  Examining at length each of Defendant’s four accounts of the encounter, the court discredited Defendant’s testimony as “contradictory,” “self-serving, evolving, and internally inconsistent.” Slager, 2018 WL 445497, at *4–6.  The record amply supports that credibility determination....

In conclusion, the district court did not reversibly err by inferring Defendant’s malice from the facts it found credible. Moreover, the court did not reversibly err by determining that Defendant’s malice was not negated by “sudden quarrel or heat of passion.” Accordingly, the court properly cross-referenced second-degree murder.

I take no issue with the substantive conclusions of the courts here, but I still always find it jarring when district judges at sentencing are resolving factual disputes and reaching judgments about criminal behavior that have long traditionally been classic jury issues. But, thanks to the remedial opinion in Booker, these matters can still be resolved by judges at sentencing because their findings result in only advisory recommendations rather than sentencing mandates.

Prior related posts:

January 9, 2019 in Advisory Sentencing Guidelines, Blakely Commentary and News, Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Tuesday, January 08, 2019

US Sentencing Commission releases big new report on "Intra-City Differences in Federal Sentencing Practices"

Cover_intra-city-differencesThe US Sentencing Commission has just released its second big research report of the new year with this 138-page report titled "Intra-City Differences in Federal Sentencing Practices." (The main text of the report is less than 30 pages, with the other 100+ full of detailed appendices.)  This USSC webpage provides links, an overview and conclusions from the report:

Overview

This report examines variations in sentencing practices — and corresponding variations in sentencing outcomes — in the federal courts since the Supreme Court’s 2005 decision in United States v. Booker.  The United States Sentencing Commission analyzed the sentencing practices of federal district judges in 30 major cities located throughout the country to determine the extent of the judges’ variations in imposing sentences in relation to the city average.

This report is the second in a series of reports updating the analyses and findings of the Commission’s 2012 Report on the Continuing Impact of United States v. Booker on Federal Sentencing.

Conclusions

Although the trend of increasing differences among judges slowed after 2011, the increasing differences in sentencing practices first reported at the district level in the Commission’s 2012 Booker Report generally persist to this day, even within the same courthouse. In particular, the Commission finds that:

  • From the Booker to Gall Periods, 23 of the 30 cities had increases in their total spreads, and 22 of 27 cities (those with at least five judges in all three periods) had increases in their standard deviations.  From the Gall to the Post-Report Periods, 20 of the 30 cities had increases in their total spreads, and 16 of the 27 cities (those with at least five judges in all periods) had increases in their standard deviations, although the magnitude of the increases was less than the magnitude of the increases from the Booker Period to the Gall Period.

  • In terms of the overall changes during the 13 years, from the Booker Period to the Post-Report Period, 25 of the 30 cities saw a net increase in their total spreads and 23 cities of the 27 with reported standard deviations saw a net increase in their standard deviations.

  • Considering all 30 cities together as a representative sample of the country as a whole, the average total spreads for all 30 cities in the three periods increased from 18.2 in the Booker Period to 23.7 in the Gall Period to 27.6 in the Post-Report Period.  The average standard deviations for the 27 cities (those with at least five judges) grew from 5.8 to 7.7 to 8.3 during the same three periods.

  • In most cities, the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case.

Once I have a chance to review this data a bit more, I may have more to say about its findings and other takeaways.  But it seems already worth noting that any justified concerns about data showing that "the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case" are at least a bit mitigated by the passage of the FIRST STEP Act.  Those defendants unfairly receiving longer sentences because their cases were assigned to distinctly harsh sentencing judges are now generally going to be able to earn a greater portion of time off their long sentences (and have more opportunities to seek earlier release through other means) thanks to various new provisions of the the FIRST STEP Act.

January 8, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (1)

Monday, December 24, 2018

"Fifty Years of American Sentencing Reform — Nine Lessons"

The title of this post is the title of this notable new paper authored by Michael Tonry now available via SSRN. Here is its abstract:

Efforts to standardize sentences and eliminate disparities in a state or the federal system cannot succeed; distinctive practices and norms, diverse local cultures, and practical and political needs of officials and agencies assure major local differences in sentencing practice.  Presumptive sentencing guidelines developed by sentencing commissions, however, are the most effective means to improve consistency, reduce disparity, and control corrections spending.  Federal sentencing guidelines have been remarkably unsuccessful; they should be rebuilt from the ground up.  Mandatory sentencing laws should be repealed, and no new ones enacted; they produce countless injustices, encourage cynical circumventions, and seldom achieve demonstrable reductions in crime.  Black and Hispanic defendants are more likely than whites and Asians to be sentenced to imprisonment, and for longer; presumptive sentencing guidelines reduced racial disparities initially and over time, but most states do not have presumptive guidelines.  Use of predictions of dangerousness to determine who is imprisoned and for how long is unjust; predictive accuracy has improved little in 50 years and current methods too often lengthen prison terms of people who would not have committed violent crimes.  Except in the handful of states that have effective systems of presumptive sentencing guidelines, parole release is an essential component of a just and cost-effective sentencing system in the United States.

December 24, 2018 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (0)

Friday, December 14, 2018

Federal judge frets about trend to conceal from public view information about cooperation sentencing credits

A helpful reader made sure I saw the work of US District Judge D. Brock Hornby published this week online in the ABA Journal discussing the history and recent trends in the federal system concerning defendants getting sentencing credit for cooperation and the pressure to disguise these realities due to concern about the threat of violence against cooperators in federal custody. My understanding is a longer version of this work with appear in the Spring 2019 print issue of Judicature, but the substance of his commentary can be seen now in these two spots under these headlines:

Here are a few paragraphs from each part of this work:

Defendants want their cooperation secret for their safety; prosecutors want it secret, so that defendants are not afraid to cooperate.  Many judges comply with these requests, and some districts have adopted standing orders to preserve cooperation secrecy.  But nationally, and sometimes even within individual districts, it is a patchwork quilt.

Today’s federal sentencing landscape includes courts where the courtroom is physically closed for any cooperation discussion; courts where the courtroom is not closed but any cooperation discussion occurs out of public hearing in chambers or at a private sidebar (some judges hold a pro forma sidebar even where there is no cooperation so that observers cannot infer cooperation from the sidebar); courts where everything is done in open court without sidebars; courts where the lawyers submit cooperation details under seal but the judge announces the sentencing rationale in open court; courts where transcripts of some or all of the above are sealed; courts where virtually nothing is sealed; courts where docket entries are structured so that outsiders cannot determine whether a defendant has cooperated; and probably other variations....

No federal judge wants to be responsible for the death or assault of a sentenced defendant who cooperated.  The judge has determined the offender’s punishment, and it does not include violence in prison.  But the judge’s role is limited.  The judge cannot determine the facility that the BOP will select for a particular defendant and the resulting risks. The judge cannot disguise the nature of the crime of conviction — for example, a crime such as child molesting that might provoke violence against the offender in prison.  The judge cannot ensure the adequacy of prison medical care.  These and other consequences are all outside the federal judiciary’s role.

What the judge can do — must do — is preserve the American public’s trust in the integrity and transparency of the federal judicial system.  Americans are entitled to know the role that cooperation plays in federal criminal law and sentencing.  If the threat of violence deters some defendants from cooperating, then the Justice Department must deal with that consequence in evaluating how it prosecutes cases, or it must find the resources and the way to help the BOP do its job of making prisoners — including cooperating prisoners — safe.

At the end of the day, encouraging or discouraging cooperation is not the business of federal judges.  That is the executive branch’s role.  Judges constitute an independent branch of government with distinctive responsibilities.  Our charge is to sentence convicted defendants fairly, based on all the facts and circumstances and the law, and to explain as clearly as possible to the public, the defendant and the victims how we reach the sentence we pronounce.

As some of us say, a sentencing proceeding is a community morality play in which society’s values are publicly applied and affirmed.  We should not let the violence of prisoners — even a violence that the BOP apparently cannot control — drive federal sentencing underground.

December 14, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Thursday, December 13, 2018

US Sentencing Commission published proposed amendment, including a big change to determining a "crime of violence"

As reported in this press release, the "United States Sentencing Commission voted today to publish for comment proposed amendments to the federal sentencing guidelines, including a proposal concerning how sentencing courts determine if a prior conviction is a “crime of violence” under the guidelines."  Here is more:

At a public meeting, Circuit Judge William H. Pryor Jr., the Acting Chair of the Commission remarked, “The ‘crime of violence’ definition continues to cause extensive litigation with inconsistent sentencing outcomes, often resulting in offenders whose conduct is obviously violent in nature failing to qualify for sentencing enhancements. These results are particularly troublesome given the risk to public safety posed by violent offenders.”

The sentencing guidelines provide increased penalties for offenders with a prior conviction that is a “crime of violence” or “controlled substance offense” (e.g., the career offender guideline). Under the guidelines, the sentencing court must determine whether a prior conviction falls into either of those categories. Circuit caselaw currently limits the sentencing court’s analysis of the prior conviction to the elements of the statute of conviction (referred to as the “categorical approach”), without any consideration of the defendant’s actual conduct in the offense. Today’s proposed amendment would enable the sentencing courts to consider the conduct that formed the basis of the offense of conviction as well as the elements of the statute of conviction. The Commission is requesting input on this proposal and the appropriate sources of information the courts might use to ensure that clear and reliable evidence of prior violent conduct is accounted for at sentencing.

The Commission also published a proposal to clarify the definition of certain enumerated offenses and provide clearer guidance how to treat inchoate offenses in determining whether an offense is a crime of violence.  The proposed amendment addresses specific application issues and general concerns raised by the Department of Justice in their August 2018 annual letter to the Commission.

The Commission is finalizing a study in which it found that violent federal offenders recidivate much more often, more quickly, and commit more serious offenses than non-violent federal offenders.  The Commission expects to publish its full findings and other reports on revocations and mandatory minimum penalties in early 2019 (view related studies).

Acting Chair Pryor also provided an update at the meeting on the Commission’s top priority this amendment cycle — examining the current federal sentencing system and operation of .... the guidelines.  In the coming weeks, the Commission will release a report comparing federal judges’ sentencing practices within 30 major metropolitan U.S. cities.  “These findings raise important questions about the advisory guidelines system. We need to study and consider new approaches that more adequately achieve the goals of the Sentencing Reform Act—including the goal of avoiding unwarranted sentencing disparity — within the constitutional parameters set forth by the Supreme Court in Booker,” stated Acting Chair Pryor.

In light of the Supreme Court’s decision in Koons v. United States and recent circuit conflicts, the Commission also proposed revisions to how retroactive sentence reductions are determined when mandatory minimum penalties are present in the case. The Commission also published several proposed amendments responding to recently enacted legislation.

These proposed amendment could prove to be quite consequential if they become actual amendments, but the press release further explains why the USSC may not have a quorum to start the new year and will need to have new confirmed members quickly to be able to complete  official business (my emphasis added):

Today’s public meeting gave the current commissioners the opportunity to work together for the last time, as the terms of Acting Chair Pryor and Commissioner Rachel E. Barkow expire at the end of the 115th Congress.  “I have had the privilege of working alongside Commissioner Barkow since she was confirmed by the Senate five years ago. Her steadfast commitment to fair sentencing and quick ability to process sentencing data served the Commission and the public well,” said Acting Chair Pryor.  “She has made substantial contributions to the work of the Commission.  I will miss her.”

Acting Chair Pryor also thanked the advisory group members whose terms are expiring, including Ronald Levine, Chair of the Practitioners Advisory Group and T. Michael Andrews, Chair of the Victims Advisory Group.

As the terms of Acting Chair Pryor and Commissioner Barkow expire, two voting commissioners will continue to serve terms (Senior District Judge Charles R. Breyer and District Judge Danny C. Reeves).  The Commission must have at least four voting commissioners for a quorum. At least three of the commissioners must be federal judges and no more than four may belong to the same political party.  Commissioner Patricia K. Cushwa (ex officio, U.S. Parole Commission), and Commissioner David Rybicki (ex officio, U.S. Department of Justice) serve as non-voting members.

December 13, 2018 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Latest developments and discussions surrounding FIRST (baby) STEP Act

Yesterday, the Senate Judiciary released this press statement titled "Senate & House Lawmakers Release Updated First Step Act."   Here are key passages and links from the release:

A bipartisan, bicameral group of lawmakers today released revised text of the First Step Act to continue building support for criminal justice reform. This update was brokered by the White House and a bipartisan group of lawmakers in both chambers of Congress. Majority Leader Mitch McConnell and Speaker Paul Ryan have pledged to take up the revised package before the end of the year....

The revised legislation further clarifies eligibility for earned time credits following successful completion of evidence-based recidivism reduction programs, and expands on the existing list of disqualifying offenses. The changes address points raised by some law enforcement groups and provides for additional transparency in the Bureau of Prisons’ risk assessment framework.  A summary of the update can be found HERE.  Text is available HERE.

The First Step Act is endorsed by President Trump and cosponsored by more than a third of the Senate, evenly balanced among Democrats and Republicans. The recent updates to the bill have garnered the support of additional senators in recent days, including Senators Thom Tillis, Ted Cruz, David Perdue and John Cornyn....

The First Step Act is backed by a number of law enforcement groups, including the nation’s largest police group. It’s also supported by 172 former federal prosecutors including two former Republican U.S. attorneys general, two former deputy attorneys general and a former director of the FBI along with sheriffs from 34 states across the country. The National Governor’s Association, which represents the governors of all 50 states, praised the bill. A broad coalition of conservative and progressive groups along with a host of business leaders and faith-based organizations also support the First Step Act.

As the title of this post indicates, I am tempted to rename the FIRST STEP Act the First Baby Step Act because all of the latest carve outs in the latest version of the bill have made an already watered-down reform effort even more watery. But, because even a baby step is still so much better than no step at all, I remain very excited about the FIRST STEP Act and hope to be able to officially celebrate its enactment in the coming weeks.

And, of course, Senator Tom Cotton is not eager to go down without a fight here, and the press is rightly talking about his prominent role in the debate over this bill.  Here is a sampling of recent coverage:

December 13, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Tuesday, December 11, 2018

Any recommendations or predictions for Michael Cohen's upcoming sentencing?

Prez Trump's former lawyer, Michael Cohen, is scheduled to be sentenced by US District Judge William Pauley in New York City on December 12 after his guilty plea to charges including campaign finance fraud and lying to Congress.  As detailed in prior posts linked below, Cohen is asking for "time served," while federal prosecutors seek a "substantial term of imprisonment" of around 3.5 years.  This lengthy CNN commentary by Elie Honig, headlined "Why sentencing judge may not show Cohen 'mercy'," predicts that prosecutors are more likely to be happy with the outcome than Cohen.  Here are excerpts:

First, what sentence is Judge William Pauley likely to impose? I've appeared in front of Judge Pauley in many cases. He is fair but tough. Lawyers and defendants often find him intimidating. He has administered tongue-lashings to many prosecutors (yes, including me), defense attorneys and litigants. He has a serious, formal demeanor on the bench....

In my experience, Judge Pauley is a stern sentencer, particularly where the defendant has exploited a position of authority and acted out of greed or arrogance. The SDNY prosecutors, clearly aware of this tendency, noted in its sentencing memo last week that Cohen, "an attorney and businessman ... was motivated to do so [commit crimes] by personal greed, and repeatedly used his power and influence for deceptive ends."

Judge Pauley can show mercy to a truly unfortunate or disadvantaged defendant, but he does not usually take kindly to abuse of power. Under the federal sentencing guidelines, the SDNY argues that Cohen faces a sentencing range of 51 to 63 months.  The federal guidelines are based on a chart: one axis reflects the defendant's prior criminal history (for Cohen, none) while the other reflects the seriousness of the offenses (for Cohen, fairly serious -- offense level 24 out of a maximum of 43).  The range is not binding but it is important. Judge Pauley must consider the range, but he can sentence within, above or below it at his discretion....

Judge Pauley likely will give Cohen some credit for providing useful information to Mueller, but almost certainly won't let Cohen walk, given the SDNY's tepid support for only a modest reduction....

The big question then is whether Cohen will continue cooperating after sentencing. Cohen vows in his sentencing memo that he will. However, once he has been sentenced, his incentive to cooperate diminishes.

There is a mechanism in the federal rules -- Rule 35 -- that permits the prosecutor to ask the judge for a reduced sentence if the defendant provides valuable cooperation after his original sentence was imposed. If Cohen receives a sentence that he simply cannot bear, he will be highly motivated to continue providing assistance to Mueller, and perhaps to come clean on previously undisclosed topics, in hopes of earning an eventual Rule 35 motion.  Paradoxically then, the more time Cohen gets on Wednesday, the more likely he may be to cooperate fully with Mueller as the investigation builds to a crescendo.

The stakes on Wednesday undoubtedly will be high for Cohen and for his ability and incentive to cooperate moving forward.  Cohen's future cooperation, in turn, will affect Mueller's ability to penetrate into the heart of corruption in the Trump campaign and the White House.

In a discussion with a member of the media, I predicted that Cohen would get a sentence in the 2.5 to 3 year range. I am incline to stick with that prediction for now, though I would like to hear reader predictions of what they Judge Pauley will do at sentencing or even recommendations as to what they think Judge Pauley should do at sentencing.

Prior related posts:

December 11, 2018 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Michael Flynn in sentencing memo requests probation "not to exceed one year ... along with 200 hours of community service."

As reported in this Politico article, headlined "Flynn pleads with judge for no jail time," a high-profile defendant is asking for a low-impact sentencing outcome. Here are the basics:

Michael Flynn’s attorneys asked a federal judge on Tuesday to spare the former Trump national security adviser any jail time because of his “extensive cooperation” with special counsel Robert Mueller.

In a 178-page sentencing memo, Flynn’s attorneys pleaded for leniency by citing their client’s “exceptional record of military service” and “his genuine contrition for the uncharacteristic error in judgment that brought him before this court.”

Flynn, who pleaded guilty last December to lying to the FBI during the early stages of its counterintelligence investigation into Russian meddling in the 2016 election, should instead be sentenced to one year of probation with minimal supervision conditions and 200 hours of community service, his lawyers said.

The retired Army general, his lawyers added, has shown he has a “deep respect for the law, as reflected in his extensive cooperation with the government’s efforts to get to the truth and to enforce the laws.”

U.S. District Court Judge Emmet Sullivan is scheduled to sentence Flynn on Dec. 18 for his guilty plea for making false statements to the FBI. Mueller’s office last week highlighted Flynn’s cooperation — including 19 interviews with the special counsel and other Justice Department prosecutors — in their own memo suggesting that Flynn get little or no jail time for his behavior.

The full filing is available at this link, and it runs 178 pages due to dozens of exhibits mostly in the form of letters in his support. The memo itself runs only just over a dozen pages and it starts with this "Preliminary Statement":

The defendant, through his attorneys, submits this Memorandum in Aid of Sentencing and respectfully requests that the Court grant the Government’s Motion for Downward Departure pursuant to § 5K1.1 of the United States Sentencing Guidelines, and sentence him to a term of probation not to exceed one year, with minimal conditions of supervision, along with 200 hours of community service.  General Flynn has accepted responsibility for his conduct.  He has cooperated extensively with several Department of Justice investigations, as detailed in the addendum to the Government’s Memorandum in Aid of Sentencing.  As the Government has made clear, his cooperation was not grudging or delayed.  Rather, it preceded his guilty plea or any threatened indictment and began very shortly after he was first contacted for assistance by the Special Counsel’s Office. Following extraordinary public service in the United States Army, during which his innovations as a highly decorated intelligence officer saved countless American lives, and a lifetime of faithful devotion to his family and fellow service members and veterans, as described in the powerful letters of support that accompany this submission, a sentence of non-incarceration is both appropriate and warranted.

Prior related posts:

December 11, 2018 in Booker in district courts, Celebrity sentencings, Criminal Sentences Alternatives, Federal Sentencing Guidelines | Permalink | Comments (1)

Tuesday, December 04, 2018

Special Counsel says non-incarceration sentence for Michael Flynn is "is appropriate and warranted"

As reported in this Politico article, headlined "Mueller: Flynn gave ‘substantial assistance’ to probe, recommends little to no prison," the Special Counsel tonight submitted a memorandum in aid of sentencing defendant Michael Flynn. Here are the basics:

Michael Flynn, President Donald Trump’s former national security adviser, provided “substantial assistance” to the ongoing investigation of Russian interference in the 2016 election and should be sentenced to little if any prison time for making two “series of false statements” to the FBI, special counsel Robert Mueller's team recommended in a court filing on Tuesday.

Flynn participated in 19 interviews with the special counsel and other Justice Department prosecutors and aided multiple investigations, Mueller’s prosecutors said in a heavily redacted filing that offered limited insight into the information Flynn provided.

“The defendant deserves credit for accepting responsibility in a timely fashion and substantially assisting the government,” Mueller’s team wrote in a seven-page memo. MO “The defendant provided firsthand information about the content and context of interactions between the transition team and the Russian government,” prosecutors add later. “Additionally, the defendant’s decision to plead guilty and cooperate likely affected the decisions of related firsthand witnesses to be forthcoming with the [special counsel] and cooperate,” they write.

U.S. District Court Judge Emmet Sullivan, a Bill Clinton appointee, is scheduled to sentence Flynn on Dec. 18. Before that, Flynn’s lawyers have their own Dec. 11 deadline to file a memo describing his cooperation and outlining whatever other factors they think the judge should consider in handing down the sentence.

The full filing is available at this link, and it begins this way:

The United States of America, by and through Special Counsel Robert S. Mueller, III, respectfully submits this memorandum in aid of sentencing defendant Michael T. Flynn.  On December 1, 2017, the defendant pleaded guilty to one count of making materially false statements to the Federal Bureau of Investigation (“FBI”), in violation of 18 U.S.C. § 1001(a).  As calculated by the United States Probation Office, the defendant’s applicable Total Offense Level is 4, Criminal History Category I, resulting in an advisory guideline range of 0-6 months.  That offense level and guideline range, however, do not account for a downward departure pursuant to Section 5K1.1 of the United States Sentencing Guidelines reflecting the defendant’s substantial assistance to the government, which the government has moved for contemporaneously.  Given the defendant’s substantial assistance and other considerations set forth below, a sentence at the low end of the guideline range — including a sentence that does not impose a term of incarceration — is appropriate and warranted.

Prior related post (from Dec. 1, 2017):

December 4, 2018 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, White-collar sentencing | Permalink | Comments (0)

Friday, November 16, 2018

News and notes from the front lines of the debate over the FIRST STEP Act

The decision by President Donald Trump to support the FIRST STEP Act, discussed here and here, was a critical necessary development for the law to have a chance to passage.  But it was not alone sufficient to ensure the bill even gets a vote, especially as there is talk of Senate Majority Leader Mitch McConnell still being less than eager to advance the bill to the Senate floor.  Various political players and possible ups-and-downs surrounding the bill are well covered in these new articles from the New York TimesPolitico and the Washington Post:

I want so very, very badly to be optimistic about the prospects for the FIRST STEP Act, in any form, to become law very, very soon.  But the pessimistic bet has been a winning one on the federal statutory criminal justice reform front for the last eight years, as politics and gridlock have trumped effective policy advancement.  One would hope that, in a properly functioning democracy, a bill with the support of the President and probably close to 90% of all members of Congress could and would become law.  But I am fearful that these reality may still not be enough to get the FIRST STEP Act into law.  Time will tell (and likely in the next few weeks).

UPDATE Here are some more discouraging headlines and stories for those who may have become unduly optimistic after Prez Trump's endorsement:

November 16, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Monday, November 05, 2018

Could the FIRST STEP Act, with sentencing reforms added, get through Congress in just a matter of weeks?

The question in the title of this post is prompted by this new Washington Examiner article headlined "Prison reform bill to include sentencing, setting up post-election fight." Here are excerpts:

Criminal justice reform advocates say sentencing reform provisions will be included in legislation unveiled shortly after midterm elections Tuesday, triggering an intense lame-duck struggle over attaching penalty reductions to a White House-backed prison reform bill.

The First Step Act passed the House in a 360-59 vote earlier this year, but without sentencing reforms, at the behest of Republican opponents.  Reform advocates expect rapid legislative action after a pre-election pause, and believe there will be enough votes to pass the expanded legislative package.

Two people close to the process tell the Washington Examiner that a bipartisan group of senators has agreed to attach a set of sentencing reforms to the House-passed bill.

The additions include shortening federal three-strike drug penalties from life in prison to 25 years, reducing two-strike drug penalties from 20 years to 15, allowing a firearm sentencing enhancement to run concurrently with the underlying penalty, and allowing retroactive sentencing for crack cocaine cases judged under tougher historical laws.

“We are very excited about it. We think that the four reforms that are in the bill are ones that make sense,” said Mark Holden, the general counsel of Koch Industries and an influential conservative reform advocate. “From what we understand, there are enough votes — plenty — for it to happen,” Holden said. Holden said it’s his understanding that the sentencing language will also expand a “safety valve” option for judges to use discretion.

Both Holden and another person close to the legislation drafting process, who asked not to be identified, said there is wording to reduce concern about illegal immigrants benefiting from sentencing reform. The second person said the provision is being finalized, but there will be “a clarification saying this does not change existing statutes relating to undocumented individuals in the federal system.”

A spokeswoman for Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, an influential advocate of the reforms, did not respond to requests for comment.

Holden said he expects the White House, particularly presidential adviser and son-in-law Jared Kushner, to forcefully back the bill.  Last month, Trump said in a Fox News interview that Attorney General Jeff Sessions’ longstanding opposition to reforms did not represent him. "If he doesn't [support reform], then he gets overruled by me.  Because I make the decision, he doesn't," Trump said Oct. 11....

It’s unclear how a group of Republican skeptics, such as Sen. Tom Cotton of Arkansas, will react. Senate Majority Leader Mitch McConnell, R-Ky., has promised a whip count after the election, and advocates believe it will make it clear with overwhelming support....

Last month, clemency advocates including Amy Povah of CAN-DO Clemency and Alveda King, the anti-abortion evangelical leader, hosted a panel at a Women for Trump event at Trump International Hotel in Washington.  Povah hopes that Congress passes the legislation, and that Trump will supplement the reform with generous use of his constitutional pardon powers. Last month, Trump said "a lot of people" are jailed for year for "no reason" and that he was actively looking to release some.

Povah said clemency would be particularly appreciated around the holiday, including Thanksgiving, when presidents pardon turkeys, disillusioning people who are looking for one. “I think Trump said it best, he said that he’s going to release a lot of people and I think a lot of people in prison took that seriously and literally," Povah said.  "He sent a lot of hope in that humans may be in line, maybe for the first time included in the Thanksgiving pardon."...

Trump has spoken repeatedly about his desire to release inmates from prison after commuting the life sentence of drug crime convict Alice Johnson in June at the request of celebrity Kim Kardashian West.  At a second Trump-Kardashian meeting, the TV star urged freedom for Chris Young, who was arrested at 22 and sentenced to life in prison for drug dealing. She brought with her former federal judge Kevin Sharp, who had imposed the sentence due to rigid federal laws he argued made little sense.  On his own, Trump mentioned another inmate, Matthew Charles, who returned to prison this year after a court found his drug sentence was reduced in error.

Some of many prior related posts:

UPDATE: I just saw that Law360 also has a new article on this front under the headline "Hard Decisions Loom In Lame-Duck Push For Sentencing Reform."  This lengthy piece starts with this sentence: "Over the next two months, Republican lawmakers have a chance to pass the most comprehensive criminal justice reforms in a generation, a combination of prison and sentencing reforms that stand to improve the lives of more than 180,000 federal inmates."

November 5, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Clemency and Pardons, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (1)

Tuesday, October 30, 2018

US Sentencing Commission releases FY 2018 third quarter (repackaged) sentencing data

US Sentencing Commission has now released here its "3rd Quarter ... Preliminary Fiscal Year 2018 Data."  As previously noted in this post when the USSC released data on offenders sentenced during the first half of fiscal year 2018, the Commission has altered how it accounts and reports sentencing data.  This new data run explains "the Commission is again updating the way it presents quarterly data. In this report, all analyses that involve a comparison of the position of the sentence imposed to the guideline range that applied in the case are presented in a new way. Sentences are now grouped into two broad categories: Sentences Under the Guidelines Manual and Variances."  As I see it, this means within-guideline and "traditional departure" sentences are grouped together, while all Booker-allowed variances are broken out distinctly.

As I have said before, nothwithstanding this repackaging aside, we can still look at the "within-guideline" number on Tables 8 and 8A for direct comparisons on this front between the first three quarters of of FY 2018 and all federal sentencing data from the last full year of the Obama Administration (in this FY 2016 data report).  Doing so shows that the within-guideline sentencing rate has increased from 48.6% in FY 2016 up to 50.5% in the first three-quarters of FY 2018.  Without a more intricate and sophisticated analysis controlling for caseloads and other factors, this upward movement in within-guideline sentences does not alone provide conclusive evidence that "Trump era" changes in prosecutorial policies and practices is having a direct impact on federal sentencing outcomes.  But these new data continue to be suggestive of trends to watch as more cases more through the pipeline and as new federal prosecutors and judges are impacted by new commands and advocacy from Main Justice.

Prior related post:

October 30, 2018 in Booker in district courts, Criminal justice in the Trump Administration, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, October 23, 2018

Terrific discussions of guideline commentary and agency issues in the Sixth Circuit (while a defendant loses appeal again)

Yesterday a Sixth Circuit panel handed down an interesting and intricate opinion in US v. Havis, No. 17-5772 (6th Cir. Oct. 22, 2018) (available here), that likely will be of even greater interest to administrative law gurus than to sentencing fans.  The start of the opinion for the court authored by Judge Thapar frames and sets up what follows:

What we do is sometimes less important than how we do it.  The United States Sentencing Commission has the power to promulgate the Sentencing Guidelines.  But Congress has limited how it may exercise that power.  Those limits are important — not only because Congress thinks so, but because they define the Commission’s identity in our constitutional structure.

Jeffery Havis claims that the Commission has disregarded those limits.  And he may have a point.  But a prior published decision of our court requires that we reject this part of his argument.  Following that precedent and finding Havis’s other arguments unavailing, we affirm his sentence

For the defendant, what follows must be especially discouraging: he loses the appeal 2-1 ,and the two votes against him seem to agree that his arguments are compelling but foreclosed by circuit precedent that can only be reviewed via an en banc proceeding. For administrative law gurus, there are many pages with thoughtful judges debating the pros and cons of whether Auer deference presents constitutional problems in this context. As a sentencing fan, I found this passage from Judge Thapar (among many others in all the opinions) notable:

[I]n criminal cases, ambiguity typically favors the defendant.  If there is reasonable doubt, no conviction. In re Winship, 397 U.S. 358, 364 (1970). And if a statute is ambiguous, courts construe the statute in the criminal defendant’s favor.  E.g., United States v. Santos, 553 U.S. 507, 514 (2008) (describing the “venerable” rule of lenity).  But not here. Auer would mean that rather than benefiting from any ambiguity in the Guidelines, Havis would face the possibility of more time in prison than he otherwise would.  So in this context, Auer not only threatens the separation of powers but also endangers fundamental legal precepts as well.  See Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 732–33 (6th Cir. 2013) (Sutton, J., concurring) (highlighting problems with requiring the rule of lenity to bow to Auer deference); see also Perez v. United States, 885 F.3d 984, 990–91 (6th Cir. 2018) (suggesting that the rule of lenity might apply in considering sentencing enhancements under the Armed Career Criminal Act).

For both sentencing and administrative law fans, Havis is a must read.

October 23, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)