Monday, May 27, 2024

A last call for papers: Federal Sentencing Reporter issue on "Booker at 20"

M_fsr.2024.36.4.coverIn this prior post a couple of months ago, I set out the full call for papers for a forthcoming (early 2025) issue of the Federal Sentencing Reporter in which we will note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created by the Supreme Court's ruling in Booker.  As noted there and in subsequent posts, the "soft" deadline for receiving drafts for this FSR issue is this week (though we may have a bit of flexibility).  For full effect, here is a full reprint of the original call:

The US Supreme Court's January 2005 decision in United States v. Booker ushered in a new era for federal sentencing.  Through a dual set of dueling 5-4 opinions, Booker made the guidelines “effectively advisory,” rather than “mandatory,”  after the Court concluded that judicial fact-finding to increase mandatory guideline ranges violated the Fifth and Sixth Amendments.   The Court’s opinion essentially invited Congress to rework the federal sentencing system in the wake of this ruling, but the Booker advisory guideline system has proved remarkably durable: the mandatory guideline system was operational for 16 years, but we are now approaching the 20th anniversary of Booker and the advisory guideline system it created.

Though constitutionally and functionally a sea change, the Booker ruling has seemingly had a relatively limited effect on sentence severity and reliance on imprisonment in the federal system.  Data from the US Sentencing Commission reveal that in fiscal year 2003, the last full year of data before the disruptions of Booker and its predecessor ruling in Blakely v. Washington, just over 69,000 persons were sentenced in federal courts, with nearly 87% receiving a prison term and with the average prison term being 48 months.  Data from fiscal year 2023, the latest full year of federal sentencing data assembled by the Commission, indicate that just over 64,000 persons were sentenced in federal courts with nearly 93% receiving a prison term and with the average prison term being 52 months.  The relative consistency of federal sentencing outcomes in the Booker era is striking, especially given that Congress enacted two notable sentence-reducing statutes in this period through the Fair Sentencing Act of 2010 and the First Step Act of 2018.

Still, sentencing below guideline ranges has increased significantly in the Booker era, and lawyers and sentencing judges now place greater emphasis on the statutory sentencing factors of 18 USC § 3553(a) and relatively less emphasis on guideline particulars.  Data from FY 2023 indicate that only 42% of sentences are imposed within the guideline range, though the same Commission data reveal that the guidelines continue to exert a kind of gravitational pull on sentence lengths even though not regularly followed.  And, of course, Booker did not directly impact the force of statutory mandatory minimums, which still shape and cast shadows on plea bargaining and other aspects of the federal sentencing process. 

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with relatively light use of citations.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

May 27, 2024 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines | Permalink | Comments (0)

Sunday, May 19, 2024

Notable (and notably unclear) accounting of possible impact of retroactive application of new guideline amendments

The US Sentencing Commission has sent to Congress a handful of new guideline amendments that reduce the guideline range for some individuals (details here).  That means the USSC is statutorily required to decide whether these amendments should be applied retroactively to persons currently incarcerated.  Before a vote on retroactivity, the USSC staff typically prepares a retroactivity impact analysis to aid the USSC's deliberation over retroactivity, and this past Friday the USSC made public this 21-page document titled "Analysis of the Impact of Certain 2024 Guideline Amendments if Made Retroactive" (hereinafter "retroactivity memo").

The highest-profile amendment to be considered for retroactivity is on acquitted conduct, which redefines relevant conduct to exclude conduct for which the defendant was criminally charged and acquitted in federal court.  The retroactivity memo notes that the USSC staff estimated "that 1,971 persons currently incarcerated in the BOP were acquitted of one or more of the charges against them."  (Notably, that's not much more than 1% of the current federal prison population.)  But, as the retroactivity memo further explains, USSC research staff were "unable to determine whether and to what extent the courts may have relied upon any of the offense conduct related to the charge or charges for which the individual was acquitted in determining the guideline range; therefore, staff cannot estimate what portion of approximately 1,971 persons might benefit from retroactive application of the amendment."

I suspect only a limited percentage of persons who were acquitted of some charge could show that their guideline ranges were enhanced based on acquitted conduct.  But this reality, in my view, should make the Commission all that much more willing to have its new acquitted conduct guideline applied retroactively.  Though acquitted conduct guideline enhancements are relatively rare, those now serving prison time based on acquitted conduct ought to have a chance to argue for a reduced sentence.

Interesting, the retroactivity memo also details at length that all the other guideline amendments that might be made retroactive this year also have all sorts of data uncertainty regarding the reach of retroactivity.  Here is a cursory accounting drawn from the retroactivity memo: (a) one amendment restricting a 4-level enhancement applicable when a firearm's serial number of a firearm has been “altered or obliterated” could apply to as many as 1,452 current federal prisoners, but the amendment functions so that USSC "staff cannot determine in which of the 1,452 cases" might be impacted by the amendment"; (b) another amendment concerning the grouping rules for firearm offenses could impact "102 cases that met the criteria" of the new guideline, but the fact-specific nature of the grouping rules [meant] staff cannot determine with precision the cases in which the grouping rules might have been applied in a manner inconsistent with the amendment"; (c) another amendment to restrict how the drug guidelines should be calculated could impact "538 of those persons [who] were sentenced using a Base Offense Level" a certain way, but "staff cannot determine in which of the 538 cases the court may have applied a BOL" this way.

Long story short, it is clear that not very many current federal prisoners could possibly be impacted by making new guidelines retroactive (likely less than 2% of the current BOP population), but it is actually quite unclear if any significant number of current prisoners would benefit.  Whether and how these small numbers and the data uncertainty might impact the Commission's retroactivity decision remains to be seen.

May 19, 2024 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, May 16, 2024

Notable (below-guideline) sentence for key anti-abortion activist after trial conviction

As reported in this Washington Post article, a "30-year-old antiabortion activist who kept fetuses in a Capitol Hill home was sentenced Tuesday to nearly five years in prison for illegally blockading and breaking into a reproductive health clinic in D.C." Here is more about a number of sentencings in this case:

Lauren Handy, of Alexandria, Va., received a 57-month term and became the first person to be sentenced for the combination of conspiring to violate reproductive health rights under a federal civil rights law and violating the Freedom of Access to Clinic Entrances Act, a 1994 law that prohibits threats to and obstruction of a person seeking reproductive health services or providers....

Handy, convicted by a jury last year, was charged along with nine others after the group launched an antiabortion blockade at the Washington Surgi-Clinic in 2020.  Handy’s was the first of four clinic-access cases pending trial or sentencing around the country in which the Justice Department under the Biden administration has charged defendants with obstructing clinic access in combination with a conspiracy against rights — a civil rights law passed after the Civil War that makes it punishable by up to 10 years in prison to “conspire to injure, oppress, threaten, or intimidate any person” exercising a constitutional or legal right. Violations of the 1994 clinic access law alone are punishable by up to a one-year prison term.

Handy gained additional notoriety when, on the same day a federal indictment was announced against the defendants, D.C. police discovered five fetuses in a Capitol Hill rowhouse basement where she had been staying. The criminal trial, however, had nothing to do with the fetuses that antiabortion activists say they collected from outside the same D.C. abortion clinic, and authorities have not charged anyone in that matter.

Handy and co-conspirators live-streamed a preplanned “lock-and-block” blockade that used force and physical obstructions to shut down the D.C. clinic on Oct. 22, 2020, Kollar-Kotelly said in summarizing trial evidence. Prosecutors said Handy was the leader of the group that orchestrated the blockade and recruited participants, arranged lodging and used a fake name to book an appointment. A nurse was injured and patients were traumatized in the incursion, including two women who begged to enter for treatment and one who suffered a medical emergency, the judge said.

“It was not peaceful, and it was not contemplated to be peaceful,” Assistant U.S. Attorney Sanjay Patel argued in a 90-minute sentencing hearing. The government sought a sentence at the high end of a 63- to 78-month range recommended by federal guidelines — up to 6½ years — based on Handy’s leadership role, obstructive conduct, the violence and victims in the case.

Prosecutors called her “an active antiabortion extremist” who has organized clinic blockades around the country, resulting in four convictions for which she was sentenced up to 45 days in jail, with all terms suspended or pending appeal. Patel also cited the need for deterrence, saying that without a stiffer punishment “the purpose of sentencing may be lost on this defendant.”

Also sentenced Tuesday with Handy were John Hinshaw, 69, of Levittown, N.Y., who received 21 months of incarceration; and William Goodman, 54, of the Bronx, who was sentenced to 27 months....

Defense attorney Martin A. Cannon cited more than nine letters of support for Handy and likened her actions to those of civil rights leaders such as Martin Luther King Jr. and Rosa Parks, saying she “did not act out of self-interest, but … at her own peril,” in good faith and out of conscience.  Cannon said Handy was a peaceful, kindhearted person with a history of philanthropic work in Haiti and on behalf of homeless people who was “trying to save babies from being killed.”  He continued, “Lauren did nothing on her own that was violent or forceful.  She did not, I submit, anticipate any of the force that resulted.”

Kollar-Kotelly said that to the contrary, the evidence showed that Handy and her co-plotters planned to push their way into the clinic, and fretted beforehand over possible use of violence.  She said the case was “not a referendum on abortion, but violation of civil rights” of patients and medical practitioners.

The judge concluded that while Handy and her co-conspirators were entitled to have “very strong views about abortion,” she found it disheartening that they “showed no compassion or empathy to women patients who were human beings in pain and seeking medical care.”

Handy and seven co-defendants, including Idoni and Geraghty, were found guilty on all counts in two federal jury trials in August and September.  Another was convicted at a bench trial before a judge in November, and one pleaded guilty. The man who pleaded guilty, Jay Smith, 32, of Freeport, N.Y., received 10 months last year after pushing a nurse who fell and suffered an ankle injury in the blockade.  The remaining six will be sentenced later this month.

Kollar-Kotelly noted that other civil rights conspiracy cases involving the Freedom of Access to Clinic Entrances Act are pending in Tennessee, Michigan and Florida. Because no one else has been sentenced under the laws in combination, she said she relied on federal sentencing guidelines for the alleged and convicted conduct.

I have not followed these cases closely, so I may not have the facts right, but this certainly seems to be another situation involving a trial penalty.  Handy, who seemngly did not directly commit any violence, gets almost 5 years in prison after exercising her tiral rights; Smith, who injured a nurse, is sentenced to only 10 months after pleading guilty.  Handy does seem to have some aggravating history and a leadership role, so the differential here may be the result of various other factors.  But still, based on the facts reported here, I am not sure other facts really full account for Handy getting a sentence nearly six times longer.

May 16, 2024 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (21)

Sunday, May 12, 2024

New US Sentencing Commission data on retroactive application of criminal history amendments

Last year, US Sentencing Commission voted for (delayed) retroactive application of its Guideline amendments relating to criminal history.  There were two major parts to these amendment that reduced the sentencing range for certain defendants with "status" points (Part A) and for other defendants who would now be deemed "zero-point" offenders (Part B).   And last week, the Commission release some new data on how retroactivity is playing out in district courts.  Here are links to the USSC's data reports:

NEW Retroactivity Data on Part A

NEW Retroactivity Data on Part B

There are lots of interesting little stories in these data runs, but I figured I might  here highlight the top-line numbers. Specifically, for the Part A "status point" amendment, a total of 2,988 defendants have received sentence reductions averaging 10 months.  For the Part B "zero point" amendment, a total of 2,143 defendants have receive sentence reductions averaging 13 months.

Adding this up, we get at total of 57,738 months of reduced federal prison time (which is a little over 4800 years of imprisonment for those not great at dividing by 12).  Given that the average annual cost of federal incarceration is over $42,000, we might reasonably calculate a savings of over $200 million to US taxpayers resulting from the Commission's decision to make its new criminal history guidelines retoractive.

I presume future retroactivity data runs will report in some more defendants getting reductions under the new guidelines, and I also expect other data will also show a significant number of newly sentenced defendants also benefiting from these new criminal history guidelines.  And especially since there were built on the USSC's copious revidivism data, I am hopeful that there reduction do not come at any real public safety costs. 

May 12, 2024 in Data on sentencing, Federal Sentencing Guidelines, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, April 30, 2024

"A World Without Federal Sentencing Guidelines"

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

Most participants and observers of the criminal-justice system perceive the Federal Sentencing Guidelines as excessively harsh.  A foundational question has persisted since the creation of the Guidelines: is a guideline-based regime actually preferable, or should we embrace complete judicial discretion in sentencing?  For decades, analysts have resorted to hypothetical cases to explore this issue.  But a little-known world exists in which real federal sentences are imposed without any reference to sentencing guidelines: U.S. Sentencing Guideline §2X5.1.  This Article is the first to compare actual sentences imposed with and without guidelines for the same offenses and same types of offenders.

The analysis reveals that judges tend to impose harsher sentences in the world without sentencing guidelines. Variability is also more pronounced in sentences without guidelines: after a conviction for child endangerment, some parents received two years in prison and others received fifteen (even after adjusting for severity).  Two Black men convicted of a fourth and fifth non-accident DUI received ten years in prison while other offenders received probation (the median sentence is around twelve months’ imprisonment).  Recent Supreme Court cases affecting tribal jurisdiction, and the January 6, 2021, “Capitol Breach” cases, have led to an explosion in the number of these cases in many districts.

This Article argues that sentencing within a guideline framework, or within a data-based framework when guidelines are inapplicable, provides more certainty and minimizes unwarranted disparities.  The conclusions offer critical insights to states or other systems that do not currently have sentencing guidelines or do not meaningfully collect sentencing data.  Finally, this Article offers recommendations to courts, the United States Probation Office, and the Sentencing Commission to help advance a more just and efficient sentencing system.

April 30, 2024 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Tuesday, April 23, 2024

US Sentencing Commission's new compassionate release data suggest (small) uptick in sentence reduction grants to close 2023

The US Sentencing Commission yesterday released this new compassionate release data report, which includes data on "the compassionate release motions filed with the courts and decided during the first quarter of fiscal year 2024."  (For the USSC, the first quarter of FY 2024 is actually the last three months of 2023.)   I noticed some interesting data points in this report comparing the sentence reduction grants and grant rates of the last three months of 2023 to prior months in 2023 and even earlier years.

Specifically, the months of October and December 2023 saw the highest grant rates for these motions (22.3% and 23% respectively) than for any month since the heart of the COVID pandemic in summer 2020.  Indeed, as Table 1 in the new USSC data shows, the only other month with a greater than 20% grant rate for these motions since August 2020 was in December 2022.  In addition, the total number of sentence reduction grants in Q1 of FY 2024 was also up as compared to recent prior quarters: there were 119 total grants in Q1 of 2024 compared to 81 in Q4 and 111 in Q3 and 114 in Q2 of FY 2023.

What explains the uptick in grants of compassionate release motions in Q1 of FY 2024?  I have two working hypotheses, one general and one 2023 specific: (1) maybe judges are slightly more likely in general to grant these sentence reductions toward the end of the year during the holiday season; and/or (2) maybe judges were influenced a bit by the new US Sentencing Commission policy statement governing compassionate release, § 1B1.13, which became formally effective on November 1, 2023.

Also, as I have noted before in this space, some other notable data points here come from the variations in grant rates from various circuits and districts.  Here is one example in this latest data: in the Second Circuit in this quarter, nine of 12 total resolved sentence reduction motions were granted; in the Third Circuitthis quarter only one of 23 motions were granted.

Critically, my eyeball assessment of these latest data (which reflect small numbers and lots of potential confounding factors) may just be an effort to encourage more systematic analysis of how federal district judges are continuing to use their sentence reduction authority.  Especially with COVID-based reasons likely no longer driving a large number of requests or grants for compassionate release, I hope we start to learn more about what facts and factors are providing most consequential in this form of federal judicial (re)sentencing decision-making.

April 23, 2024 in Data on sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, April 22, 2024

Rounding up (modest) press coverage of US Sentencing Commission's unanimous vote to limit use of acquitted conduct in guideline calculations

As reported here, last week the the US Sentencing Commission voted unanimous to promulgate a number of notable new guideline amendments, including most notably an amendment to preclude the use of acquitted conduct in guideline calculations.  (The promulgated amendments passed by the Commission are posted here).  Perhaps because acquitted conduct sentencing reform is something I consider symbolically meaningful (and overdue), I view this unanimous guideline amendment to be a pretty big deal.  But, perhaps unsurprisingly, the USSC's vote has garnered only modest press coverage to date.  Still, I figured it was worth a quick round-up:

From Bloomberg Law, "US Sentencing Commission Votes for Major Guideline Amendments"

From Law360, "Sentencing Commission Limits Acquitted Conduct Sentencing"

From Reason, "U.S. Sentencing Commission Restricts Federal Judges' Ability To Use Acquitted Conduct at Sentencing: The little-known but outrageous practice allowed judges to enhance defendants' sentences using conduct a jury acquitted them of.

From Reuters, "US panel prohibits judges from sentencing for 'acquitted conduct'"

Also, a Senator's press release:  "Durbin Applauds Sentencing Commission's Unanimous Vote To Prohibit Acquitted Conduct From Being Used In Sentencing Guidelines: The Announcement Comes After Durbin, Grassley Reintroduced Their Prohibiting Punishment Of Acquitted Conduct Act"

Sharp-eyed readers may recognize that the Reuters heading is a bit inaccurate becayse the USSC did not (and perhaps feels it cannot) entirely prohibit sentencing on the basis of acquitted conduct given applicable sentencing statutes.  Rather, the Commission voted unanimously to prohibit courts from considering acquitted conduct when calculating the applicable guidelines.  As noted in the press release from Senator Burbin's office, it may be still necessary for Congress to enact the Prohibiting Punishment Of Acquitted Conduct Act in order to completely preclude judges at sentencing from ever considering acquitted conduct.

Prior recent related post:

April 22, 2024 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, April 21, 2024

Another call for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post last month, I set out the full call for papers for a forthcoming issue of the Federal Sentencing Reporter in which we plans to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created in Booker.  I previously threatened to repost this call every few weeks until the deadline thoward the end of May, and this week's interesting guideline amendment actions by the US Sentencing Commission (basics here) has me eager to do so.  For this post, I will not give all the background about Booker and be content with these shortened specifics:

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with relatively light use of citations.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

April 21, 2024 in Federal Sentencing Guidelines, Recommended reading, Who Sentences | Permalink | Comments (0)

"The Relative Severity of Criminal Sentences in the January 6, 2021, Capitol Breach Cases"

The title of this post is the title of this new article authored by Sam Merchant which now has an abstract available up on SSRN.  I typically will not link to an SSRN posting unless and until the full draft article is available for download.  But this article's findings seem especially timely and notable; so here is its abstract:

Many observers claim that judges are imposing disproportionately lenient sentences on January 6, 2021, “Capitol Breach” offenders.  Some have even suggested a racial or political motivation for lighter sentences.  Comparative data on these sentences and offenders, presented here for the first time, refute this narrative. Individuals convicted of felonies related to the Capitol Breach appear to actually receive longer sentences than individuals convicted of the same crimes outside of the Capitol Breach context.

But sentences in Capitol Breach cases may indeed be “lenient” for a deeper, more structural reason — the current Federal Sentencing Guidelines do not adequately account for the severity of the conduct that occurred on January 6, 2021.  There is a qualitative difference between federal offenses and the same offenses committed in the context of the “treason spectrum.”  English and American legal traditions have historically viewed treason, rebellion, and subversive activities as “the worst crimes of all” because they are crimes against all citizens and threaten the constitutional order.  Yet no sentencing enhancement addresses the increased severity of conduct involving offenses that are on the treason spectrum.

Recognizing the increased seriousness of other conduct, Congress and the Sentencing Commission have enacted an array of enhancements to punish, incapacitate, and deter offenders whose conduct involves a dangerous weapon, body armor, or even use of a fake website during an offense.  This Article proposes a new sentencing enhancement in the Federal Sentencing Guidelines that properly accounts for the relative severity of conduct involving offenses on the treason spectrum.  To reaffirm a commitment to democratic values, to deter future subversive conduct, and ensure that the legal system is equipped to respond to the severity of subversive conduct, policymakers and judges should send clear signal that subversive activities are indeed among “the worst crimes of all.”

UPDATE: It now appears that the full paper is available for download at this SSRN link.

April 21, 2024 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, April 17, 2024

US Sentencing Commission votes to promulgate guideline amendment to limit use of acquitted conduct in guideline calculations

At a public meeting this afternoon, the US Sentencing Commission voted to promulgate a number of notable new guideline amendments, including perhaps most notably an amendment to preclude the consideration of acquitted conduct in guideline calculations.  The Commission's vote on this acquitted conduct amendment appeared to be unanimous, but then there seemed to be some dissention about whether to conduct a data analysis and seek public comment on whether to make this acquitted conduct amendment retroactive.  The retroactivity analysis for the acquitted conduct amendment did get majority support, and I will be very interested to see what the USSC's data shows as to how many persons are currently imprisoned as a result of acquitted conduct guideline enhancements.

A lot more got done by the USSC at its public meeting this afternoon, and I hope to update this post with some of the official announcements from the Commission about its work later this afternoon.

UPDATE Here is the full text of this press release that the US Sentencing Commission just posted to its website under the heading "Commission Votes Unanimously to Pass Package of Reforms
Including Limit on Use of Acquitted Conduct in Sentencing Guidelines":

The bipartisan United States Sentencing Commission voted unanimously today to prohibit conduct for which a person was acquitted in federal court from being used in calculating a sentence range under the federal guidelines. The Commission’s seven members also joined together to pass a range of additional reforms, including those that bring uniformity to sentencing for certain gun and financial crimes and provide a potential downward departure based on age. “The reforms passed today reflect a bipartisan commitment to creating a more effective and just sentencing system,” said Commission Chair Judge Carlton W. Reeves. Watch the public meeting.

“Not guilty means not guilty,” said Chair Reeves. “By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system.” This reform comes amid robust debate on acquitted conduct from across the country.  Last year, several Supreme Court Justices called for the Commission to address acquitted conduct, while a bipartisan group of legislators in Congress introduced a bill limiting the use of acquitted conduct in sentencing.

In addition to limiting the use of acquitted conduct, the Commission revised its policy statement on age, permitting judges to downward depart based on age if appropriate in light of today’s richer understanding of the science and data surrounding youthful individuals, including recognition that cognitive changes lasting into the mid-20s affect individual behavior, culpability and the age-crime curve.  The Commission also moved commentary regarding the definition of “loss” to the body of the fraud, theft, and property destruction guideline to ensure courts uniformly calculate loss amounts.  And the Commission addressed a circuit conflict over how to properly punish crimes involving weapons with altered or obliterated serial numbers.

These and all other amendments passed by the Commission today will be posted here.  The Commission will deliver amendments to Congress by May 1, 2024.  If Congress does not act to disapprove the changes, they will go into effect on November 1, 2024.

April 17, 2024 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

Tuesday, April 16, 2024

Senator Kennedy introduces "Consensus in Sentencing Act" to increase USSC votes needed for guideline amendments

A helpful colleague alerted me to this fascinating new press release from the office of US Senator John Kennedy discussing the introduction of some fascinating new proposed legislation.  Here are the details from the press release reprinted here in full:

WASHINGTON – Sen. John Kennedy (R-La.), a member of the Senate Judiciary Committee, today introduced the Consensus in Sentencing Act to require the U.S. Sentencing Commission to achieve bipartisan agreement to make major policy changes.

The legislation would amend 28 U.S.C. § 994(a) to require that amendments to the Sentencing Guidelines receive five votes from the Commission’s seven voting members. 

“The Sentencing Commission for decades strove to achieve bipartisan agreement when adopting amendments to the Sentencing Guidelines. In recent years, the Commission has lost its way and begun forcing through amendments on party-line votes. My bill would help the Sentencing Commission revive its consensus-building culture,” said Kennedy. 

Background: 

  • The Sentencing Commission is made up of seven voting members. No more than four members can belong to the same political party. 
  • In a sharp break from its traditional bipartisan practices, the Commission’s current leadership has forced through several major policy changes to federal sentencing law on a party-line basis.
  • The Commission is currently considering several other major proposed changes.

Sens. Ted Cruz (R-Texas), John Cornyn (R-Texas), Tom Cotton (R-Ark.) and Marco Rubio (R-Fla.) cosponsored the legislation.

Full text of the Consensus in Sentencing Act is available here

I am pretty sure that recent US Sentencing Commission votes on a 4-3 basis were the adoption of the new sentence reduction (compassionate release) guidelines and the decision to make new criminal history rules retroactive. I believe all other actions by the current Commission have been unanimous, but I am not entirely sure about all vote tallies.

This bill has been introducted the day before the Commission is scheduled to conduct a public meeting with an agenda that includes "Vote to Promulgate Proposed Amendments."  The timing here cannot be pure coincidence, and I wonder if we should now expect some split votes (or not expect split votes) on some of these proposed amendment topics (eg, perhaps there is an proposed amendment on acquitted conduct that is driving controversy beyond the wall of the USSC building and all the way up to Capitol Hill).

I doubt that this bill to require five votes for guideline amendments will get enacted anytime soon, if ever.  But the bill's very introduction highlights that this active new Commission is garnering notable attention for its notable activity.

April 16, 2024 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, April 11, 2024

Call (again) for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post a couple of weeks ago, I set out a call for papers for a forthcoming issue of the Federal Sentencing Reporter to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created in Booker.  I plan to repost this call every few weeks until the deadline thoward the end of May.  So:M_ucpfsr_29_4_cover

The US Supreme Court's January 2005 decision in United States v. Booker ushered in a new era for federal sentencing.  Through a dual set of dueling 5-4 opinions, Booker made the guidelines “effectively advisory,” rather than “mandatory,”  after the Court concluded that judicial fact-finding to increase mandatory guideline ranges violated the Fifth and Sixth Amendments.  The Court’s opinion essentially invited Congress to rework the federal sentencing system in the wake of this ruling, but the Booker advisory guideline system has proved remarkably durable: the mandatory guideline system was operational for 16 years, but we are now approaching the 20th anniversary of Booker and the advisory guideline system it created.

Though constitutionally and functionally a sea change, the Booker ruling has seemingly had a relatively limited effect on sentence severity and reliance on imprisonment in the federal system.  Data from the US Sentencing Commission reveal that in fiscal year 2003, the last full year of data before the disruptions of Booker and its predecessor ruling in Blakely v. Washington, just over 69,000 persons were sentenced in federal courts, with nearly 87% receiving a prison term and with the average prison term being 48 months.  Data from fiscal year 2023, the latest full year of federal sentencing data assembled by the Commission, indicate that just over 64,000 persons were sentenced in federal courts with nearly 93% receiving a prison term and with the average prison term being 52 months.  The relative consistency of federal sentencing outcomes in the Booker era is striking, especially given that Congress enacted two notable sentence-reducing statutes in this period through the Fair Sentencing Act of 2010 and the First Step Act of 2018.

Still, sentencing below guideline ranges has increased significantly in the Booker era, and lawyers and sentencing judges now place greater emphasis on the statutory sentencing factors of 18 USC § 3553(a) and relatively less emphasis on guideline particulars.  Data from FY 2023 indicate that only 42% of sentences are imposed within the guideline range, though the same Commission data reveal that the guidelines continue to exert a kind of gravitational pull on sentence lengths even though not regularly followed.  And, of course, Booker did not directly impact the force of statutory mandatory minimums, which still shape and cast shadows on plea bargaining and other aspects of the federal sentencing process.  

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

April 11, 2024 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, April 10, 2024

Lots of notable new items on the US Sentencing Commission's website including geographic FY 2023 sentencing data

Though we are still a week away from hearing from the US Sentencing Commission about possible new amendments to the US Sentencing Guidelines, I noted that the Commission has updated its website with a bunch of new items that seemed worth flagging.  These are drawn from the new items scroll from the USSC website homepage:

TRAINING SESSIONS ARCHIVE (April 8, 2024)

You can now explore an archive of the Commission's recorded training sessions. Use the filters within the archive to find the training session that meets your specific needs. Learn More

PROBLEM-SOLVING COURTS PODCAST MINISERIES (April 9, 2024)

In this podcast miniseries, Commission staff chat with the federal judges who lead the problem-solving court programs available around the country. Parts One through Seven are out now!  Listen Here

FY23 GEOGRAPHIC SENTENCING DATA (April 8, 2024)

These data reports compare fiscal year 2023 sentencing statistics for each federal circuit, district, and state to the nation as a whole. Learn More

BASICS OF CRIMINAL HISTORY (April 8, 2024)

This updated eLearning module uses real-world scenarios to illustrate the basics of the criminal history rules as amended in 2023. Learn More

I find all the USSC's materials and content interesting, but my data nerdiness really gets hit by the data reports page with fiscal year 2023 sentencing statistics for each federal circuit, district, and state.  That page includes a US map that allows you to see that the border district of Maine had only 116 federal sentencings in FY 2023, whereas the border district of the Western District of Texas had 7,539 federal sentencings in FY 2023.  And that the District Utah had more federal sentencings in FY 2023 sentencings (761) than did New Jersey (723), even though New Jersey has nearly three times the overall population as Utah.  

April 10, 2024 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (2)

Monday, April 01, 2024

Lots of (little?) news and updates from the US Sentencing Commission

This morning I received an email from the US Sentencing Commission with some items that seemed blogworthy:

Meeting Rescheduled

Notice of Public Meeting

The Commission has rescheduled its last public meeting of the 2023-2024 amendment year for April 17 at 1:30 pm (ET).  At the meeting, Commissioners may vote to promulgate amendments to the federal sentencing guidelines. The meeting will be held in the Thurgood Marshall Federal Judiciary Building and will be streamed live.

New Data

IDA and JSIN Updates

The Commission has updated the Interactive Data Analyzer (IDA) and Judiciary Sentencing Information (JSIN). IDA now offers a brand new section presenting information on the prior convictions of individuals sentenced in the federal system. Visitors can also explore new data by the economic crime subtypes found under §2B1.1.

As previously noted in this post, the USSC had initially scheduled its concluding public meeting of the 2023-2024 amendment cycle, which includes "Vote to Promulgate Proposed Amendments," for April 10.  But now we have to wait another week to see if we get a vote on an acquitted conduct amendment and perhaps others from the Commission.

In the meantime, federal sentencing data junkies have the USSC's FY24 First Quarterly Data Report to check out, and this is a "preliminary data report [that] reflects information received on individuals sentenced through the first quarter of fiscal year 2024 (October 1, 2023 through December 31, 2023)."  My too-quick review of the data suggested that there are not big surprises (save perhaps a little dip in the total number of cases sentenced).

April 1, 2024 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (3)

Tuesday, March 26, 2024

Call for Papers: Federal Sentencing Reporter issue on "Booker at 20"

M_ucpfsr_29_4_coverThe US Supreme Court's January 2005 decision in United States v. Booker ushered in a new era for federal sentencing.  Through a dual set of dueling 5-4 opinions, Booker made the guidelines “effectively advisory,” rather than “mandatory,”  after the Court concluded that judicial fact-finding to increase mandatory guideline ranges violated the Fifth and Sixth Amendments.   The Court’s opinion essentially invited Congress to rework the federal sentencing system in the wake of this ruling, but the Booker advisory guideline system has proved remarkably durable: the mandatory guideline system was operational for 16 years, but we are now approaching the 20th anniversary of Booker and the advisory guideline system it created.

Though constitutionally and functionally a sea change, the Booker ruling has seemingly had a relatively limited effect on sentence severity and reliance on imprisonment in the federal system.  Data from the US Sentencing Commission reveal that in fiscal year 2003, the last full year of data before the disruptions of Booker and its predecessor ruling in Blakely v. Washington, just over 69,000 persons were sentenced in federal courts, with nearly 87% receiving a prison term and with the average prison term being 48 months.  Data from fiscal year 2023, the latest full year of federal sentencing data assembled by the Commission, indicate that just over 64,000 persons were sentenced in federal courts with nearly 93% receiving a prison term and with the average prison term being 52 months.  The relative consistency of federal sentencing outcomes in the Booker era is striking, especially given that Congress enacted two notable sentence-reducing statutes in this period through the Fair Sentencing Act of 2010 and the First Step Act of 2018.

Still, sentencing below guideline ranges has increased significantly in the Booker era, and lawyers and sentencing judges now place greater emphasis on the statutory sentencing factors of 18 USC § 3553(a) and relatively less emphasis on guideline particulars.  Data from FY 2023 indicate that only 42% of sentences are imposed within the guideline range, though the same Commission data reveal that the guidelines continue to exert a kind of gravitational pull on sentence lengths even though not regularly followed.  And, of course, Booker did not directly impact the force of statutory mandatory minimums, which still shape and cast shadows on plea bargaining and other aspects of the federal sentencing process.  

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

March 26, 2024 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Monday, March 25, 2024

US Sentencing Commissions publishes 2033 Annual Report and new retroactivity data on 2023 criminal history amendments

This afternoon, the US Sentencing Commission sent out an email that flagged a bunch of notable new materials on the USSC's website.  Data fans will be especially interested in a lot of these new items, which I link below.  But everyone should mark their calendars for April 10, 2024; the USSC has now created a key date though this Public Meeting Notice.  This will be the last scheduled public meeting of the 2023-2024 amendment cycle for the Commission and on the agenda is "Vote to Promulgate Proposed Amendments."  I am hoping an acquitted conduct amendment will be among those getting a positive vote from the Commission, but we will need to tune in on April 10 to see.

In the meantime, USSC and federal sentencing data junkies have some new items to check out, and here is how the USSC's email reports on these new materials:

(Published March 25, 2024) - The 2023 Annual Report highlights the Commission’s major activities and accomplishments during fiscal year 2023.  The Annual Report also includes a new in-depth analysis of federal sentencing trends and noteworthy shifts in the caseload.

(Published March 25, 2024) - The Commission has published its first analysis of motions for a reduced sentence pursuant to retroactive application of Parts A and B of Amendment 821, relating to Criminal History (effective November 1, 2023).

(Published March 25, 2024) - The Commission continues to release additional fiscal year 2023 federal sentencing data following publication of the 2023 Sourcebook of Federal Sentencing Statistics earlier this month.

March 25, 2024 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Sunday, March 24, 2024

Rounding up a few sentencing speculations a few days before Sam Bankman-Fried's sentencing

Though we are still a few days from the high-profile sentencing of former FTX CEO Sam Bankman-Fried, I have already seen some lengthy press pieces discussing the sentencing filings and speculating about how US District Judge Lewis Kaplan with weigh competiting arguments.  Here is a round up:

From Business Insider, "FTX's victims may get all their money back. The judge sentencing Sam Bankman-Fried might not care."

From CoinDesk, "U.S. Government's Legal Precedents Don't Support Lengthy Prison Term, Bankman-Fried's Defense Argues"

From Inc., "Is Sam Bankman-Fried a 'Super-Villain' or Just a Bad Trader?"

From Unchained, "SBF’s Prison Sentencing Is Coming Up. How Many Years Will He Get?"

I remain inclined to put the over/under for an imprisonment term here at 25 years, in part because I ccan readily imagine the sentence being somewhat shorter or somewhat longer. 

Prior related posts:

March 24, 2024 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (4)

Friday, March 22, 2024

"The Delinquent Guidelines: Calling on the U.S. Sentencing Commission to Stop Counting Defendants’ Prior Offenses Committed Before Age 18"

The title of this post is the title of this new article authored by Ian Marcus Amelkin and Nicholas Pugliese now available via SSRN. Here is its abstract:

The United States Sentencing Guidelines’ recidivism provisions recommend harsher punishment for defendants with a prior criminal record. The Guidelines authorize an accounting not only of a federal defendant’s criminal record as an adult, but also as a child. Prior offenses committed before age 18 enhance sentences for thousands of people each year, but the practice has not been widely explored in the academic literature. A federal defendant’s juvenile record can lead to a higher Guidelines range through a variety of mechanisms: it can increase a defendant’s criminal history category, increase the crime’s total offense level, qualify the individual for “career offender” status, and deny relief from mandatory minimum sentences.

The use of pre-18 priors to enhance later federal sentences is both constitutionally suspect and misguided public policy. First, the practice stands in tension with Supreme Court precedent recognizing “that children are constitutionally different from adults for purposes of sentencing” in a way that makes them “less deserving of the most severe punishments.” Second, it is unequitable to people of color, who are more likely to be prosecuted for their pre-18 conduct than their white counterparts who commit similar acts. Third, it generates unequal treatment between similarly-situated defendants, a result at odds with the Guidelines’ “primary goal” of fostering uniformity in sentencing. Finally, it raises problems of notice given that pre-18 offenders are not told that their juvenile or youthful offender cases, which are not “convictions” under most states’ laws, can later be used against them to enhance a future federal sentence.

Now that the Sentencing Commission is back in action following a three-and-a-half-year hiatus, this article recommends that the Commission amend the Guidelines to stop counting pre-18 prior offenses.

March 22, 2024 in Federal Sentencing Guidelines, Offender Characteristics, Who Sentences | Permalink | Comments (5)

Thursday, March 21, 2024

Intriguing spread in outcomes after Mississippi "Goon Squad" sentencings

I have not followed at all the ugly details involved in the so-called "Goon Squad" case from Mississippi, but a number of folks have flagged these cases for me this week as six police officers have been sentenced in federal court for abusing two men.  This new CBS News article provides some details under the headline "All 6 officers from Mississippi "Goon Squad" have been sentenced to prison for torturing 2 Black men."  Here are the basics:

Sentencing has concluded for the six white former officers in Mississippi who pleaded guilty to breaking into a home without a warrant and torturing two Black men.

High-ranking former deputy Brett McAlpin, 53, was the fifth former law enforcement officer sentenced this week by U.S. District Judge Tom Lee after pleading guilty to the attack, which involved beatings, repeated uses of stun guns and assaults with a sex toy before one of the victims was shot in the mouth. The final member of the group, 32-year-old former Richland police officer Joshua Hartfield, was given a sentence of about 10 years on Thursday afternoon....

Lee has also sentenced four other former law enforcement officers who were involved in the attack.  Christian Dedmon was sentenced to 40 years in prison for his role in that attack and another incident in December 2022.  Hunter Elward was sentenced to over 20 years in prison.  Two other officers, Jeffrey Middleton and Daniel Opdyke, were sentenced to 17.5 years in prison each.

For each of the deputies sentenced so far, Lee has handed down prison terms near the top of the sentencing guidelines. Lee has previously called the officers' actions "egregious and despicable." The attack involved beatings, repeated uses of stun guns and assaults with a sex toy before one of the victims was shot in the mouth in a mock execution gone awry.

Once inside, the officers mocked the victims with racial slurs and shocked them with stun guns. They handcuffed them and poured milk, alcohol and chocolate syrup over their faces. Dedmon and Opdyke assaulted them with a sex toy. They forced them to strip naked and shower together to conceal the mess, and Hartfield guarded the bathroom door to make sure the men didn't escape.

After Elward shot Jenkins in the mouth, lacerating his tongue and breaking his jaw, they devised a coverup. McAlpin pressured Parker to go along with it, asking him to keep quiet in exchange for his freedom. The deputies agreed to plant drugs, and false charges stood against Jenkins and Parker for months. McAlpin and Middleton, the oldest men of the group, threatened to kill the other officers if they spoke up....

Attorneys for several of the deputies said their clients became ensnared in a culture of corruption that was not only permitted, but encouraged by leaders within the sheriff's office.

Based on this article, I surmise the sentencing outcomes (and apparently the guideline calculations) for this joint criminal activity varied considerably because the roles of each defendant varied considerably (and it seems the one defendant who got the very longest sentence was being sentenced for two incidents).   I would be eager to hear in the comments from anyone who has followed these cases more closely about more of the sentencing details.

March 21, 2024 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (8)

Friday, March 15, 2024

Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried

The federal court in the Southern District of New York is scheduled, in less than two week, to sentence Sam Bankman-Fried following his trial conviction on multiple fraud charnges.  A few weeks ago, as noted here, SBF's lawyers submitted a lengthy sentencing memo arguing that his advisory guideline range is 63-78 months that that "a sentence that returns Sam promptly to a productive role in society would be sufficient, but not greater than necessary, to comply with the purposes of sentencing."  

Unsurprisingly, federal prosecutors have a different sentencing perspective.  And, in the run-up to the March 28 sentencing, it has not filled this even longer sentencing memorandum.  The argue that SBF's guideline range is literally off the charts:

Based on the foregoing, the adjusted offense subtotal is 60.  Because any offense level in excess of 43 is treated as an offense level of 43, 43 is the total applicable offense level. (PSR ¶ 89).  The defendant’s criminal history score is zero, which puts him in Criminal History Category I. (PSR ¶ 92).  Based upon these calculations, Bankman-Fried’s advisory Guidelines imprisonment range is life. (PSR ¶ 129).  However, because the statutorily authorized maximum sentence is 110 years’ imprisonment, which is less than life imprisonment, the applicable Guidelines sentence is 110 years’ (1,320 months) imprisonment. U.S.S.G. §§ 5G1.1(a), 5G1.2(d)

Notably, though, federal prosecutors do not ultimately advocate for a sentence of imprisonment for 110 years for SBF.  As explained at the end of its preliminary statement, the feds think that less than half of this term will do the trick:

The scope, duration, nature, and sheer number of Bankman-Fried’s crimes, the resulting harm they have caused, the willful disregard of the rule of law, and the absence of countervailing mitigating circumstances render him exceptionally deserving of a sentence that is sufficiently severe to provide justice for the defendant’s crimes and to dissuade others from committing similar crimes, and that will permit the defendant to return to liberty only after society can be assured that he will not have the opportunity to turn back to fraud and deceit.  Although it is unlikely (but not impossible) that the defendant will work in finance again, and will likely forfeit all of his ill-gotten gains, justice requires that he receive a prison sentence commensurate with the extraordinary dimensions of his crimes.  For these reasons, the legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment.

Because a "split the difference" approach often serves as a reasonable first guess for a contested sentencing outcome, I am tempted to put the over/under for an imprisonment term here at 25 years.  I am not familiar enough with Judge Lewis Kaplan's sentencing history to make a bolder prediction; folks in the comments are certainly welcome to do so.

Prior related posts:

March 15, 2024 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (10)

Thursday, March 14, 2024

US Sentencing Commission releases latest "compassionate release" data through Sept 2023

The US Sentencing Commission has now released its very latest data on sentence reduction motions on this webpage, which also includes additional graphics and context about court dispositions of what are typically known as "compassionate release" motions.  This Fiscal Year 2023 data run includes information through September 2023 (which is technically before the Commission's new guideline became law, but after it had been submitted to Congress).

As I have noted before, the long-term data going back to the height of the COVID pandemic period reveals, unsurprisingly, that we now see in FY 2023 many fewer sentence reduction motions filed or granted.  Though there are month-to-month variations, it would be roughly accurate to say that an average month of FY 2023 had a few dozen compassionate release motions granted and a few hundred of these motions denied nationwide.  In will be interesting to see if the relatively stable monthly patterns here change in any significant way in FY 2024 when the Commission's new guideline became the new law of the land (as of November 2023).

As I have noted before, among the striking stories in these data are the variations in application and grant rates from various districts.  As one example from the FY 2023 data, the Eastern District of Michigan granted half of a small number of sentence reduction motions (5 of only 10), whereas the Western District of Michigan granted none of a large number of sentence reduction motions (0 of only 60).  Similarly, the Northern District of Illinois granted nearly half of these motions in FY 2023 (13 of 27), whereas the Central and Southern District of Illinois each granted only one such motion out of a pool of 44 motions. 

There are all sorts of other interesting data points in this new report.  For example, it seems that a distinctively larger number of drug defendants secured sentencing reductions in FY 2023 (making up roughly 60% of the reduction grants while comprising only roughly 45% of the federal prison population).  Also, reasons reported by judges for granting these motions are also intriguing.

March 14, 2024 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, March 13, 2024

Latest issue of Federal Sentencing Reporter now (partially freely) available

This new latest issue of the Federal Sentencing Reporter includes a number of pieces on alternatives to incarceration, which I have described as a topic that seems at once forgotten and yet ever-present in the federal sentencing system.  FSR's publishers have graciaiously agree to make some of the materials in this new issue free to download for a limited time.  Since I help edit FSR, I view all the pieces in this new issue as "must reads," though folks may be especially interested in FSR's reprinting of notable speeches by US Sentencing Commission Chair Judge Carlton W. Reeves and BOP director Colette Peters which were delivered at the Center for Justice and Human Dignity’s October 2023 Summit “Rewriting the Sentence II.”

My brief introduction to this FSR issue, which is titled "A New Alternatives Agenda for the U.S. Sentencing Commission?," starts this way:

Data from the U.S. Sentencing Commission indicate that over a third of all sentenced federal defendants have no criminal history and that the vast majority of federal sentencings are for nonviolent offenses.  These realities might lead one to expect a significant number of federal sentences to involve alternatives to imprisonment, particularly given Congress’s instruction to the Commission that the sentence guidelines should ‘‘reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense.’’  But, in fact, over nine of every ten federal sentences involve a term of imprisonment; nearly all federal sentencings focuses on how long a defendant will be sent to prison, not whether he could be adequately punished without imprisonment.

March 13, 2024 in Criminal Sentences Alternatives, Federal Sentencing Guidelines, Recommended reading, Who Sentences | Permalink | Comments (0)

Thursday, March 07, 2024

Some notable developments and commentary on Sam Bankman-Fried's coming sentencing

Sam Bankman-Fried is scheduled to be sentenced three weeks from today, and his sentencing memo filed last week has already generated considerable comments (some covered here).  As we await the government's filing next week, I have seen a few recent notable developments and commentary that seemed worth flagging here (with links from the original):

From CoinPedia, "Sam Bankman-Fried Fights for Leniency: Will He Face 100 Years in Prison?".  An excerpt:

In an unexpected turn, a compelling letter has been submitted, urging Judge Kaplan to take a firm stance against leniency for Sam Bankman-Fried (SBF), co-founder of FTX. Emotions run high as the letter passionately argues against what it sees as “intellectual dishonesty” in pleas for leniency, especially regarding possible reimbursements for account holders.  The letter, written by a CBOE member on behalf of a market maker firm, sharply criticizes SBF’s alleged financial misconduct, describing a situation where funds are claimed to be stolen, gambled, and only partially recovered.

From Puck, "S.B.F.’s Sentencing Game Theory: Bankman-Fried’s lawyers appear to be setting the stage to appeal his sentence—and potentially redefine the definition of fraud, itself."  An excerpt:

Even if the six-year bid doesn’t sway Kaplan himself, its real purpose is likely to set the appellate stage — where Bankman-Fried will argue he was denied a fair trial when Kaplan prevented him from presenting his honest intentions with FTX.  As a fallback, he’ll attempt to convince the higher-ups to take a “textualist” approach to criminal sentencing.

From Slate, "The FTX Saga Twist That Might Save SBF in Sentencing: He could still get up to a century in prison."

So, to recap: In Bankman-Fried’s favor, it looks like his crimes may not wind up wiping out thousands of investors. But working against him is a long pattern of behavior that seems designed in a lab to infuriate a judge, who may also choose to lean on a presentencing report that says to throw the book at Bankman-Fried. “I think it’s hard to predict, but I’d be surprised if it weren’t a significant sentence,” [former AUSA Rachel] Maimin said.  Bankman-Fried is in danger of learning that there isn’t exactly a good way to come up for sentencing on seven federal felonies."

Prior related posts:

March 7, 2024 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, March 06, 2024

USSC hearings on acquitted conduct: the devilish details amid a fundamental criminal process debate

I was only able to listen to some of the 4+ hours of testimony and discussion today about acquitted conduct sentencing at the US Sentencing Commission, which is only on day one of its extended hearings regarding its proposed amendments to the US Sentencing Guidelines.  This USSC hearing page now has the written testimony of all 15 persons who appeared before the Commission to discuss acquitted conduct, and those fascinating written submissions capture much of the diversity and divergence in the views expressed on this long-simmering (long-boiling?) federal sentencing issue. 

As I listened to the public hearing, the testimony and discussion with Commissioners reinforced for me all the delivish details that necessarily arise in trying to define acquitted conduct, and in trying to develop clear sentencing rules concerning when and how such conduct should or should not be considered at sentencing.  Long-time readers know that I have long been troubled by sentence enhancements based on acquitted conduct, though I have also long recognized how challenging it can be to write sound and effective sentencing rules in this space.  Indeed, as the USSC hearing explored many of the delivish details today, it was clear how acquitted conduct's intricacies may largely explain why past Commissions have avoided these issues as a policy matter and why the US Supreme Court avoided these issues as a constitutional matter since its 1997 Watts decision.

And yet, while today's hearing made acquitted conduct complications ever so salient, it also help remind me that the issue is really just a variation on a criminal process debate well articulated 60 years ago by Herbert Packer in his classic "Two Models of the Criminal Process."  Prof Packer famously wrote about two criminal process models — that is, "two separate value systems that compete for attention in the operation of the criminal process" — in the form of "the Due Process Model and the Crime Control Model."  Though perhaps trite and obvious to many, today's USSC discussion highlighted for me how advocates for limits on acquitted conduct sentencing are often giving voice, in one way or another, to the Due Process Model while defenders of acquitted conduct sentencing are humming a variation on the Crime Control Model tune.

In addition (and perhaps providing just another take on the same point), I was reminded today of my colleague Alan Michaels' terrific 2003 article on "Trial Rights at Sentencing."  Though Prof Michaels only looks at Supreme Court jurisprudence regarding defense rights in that article, he usefully describes and summarizes his accouting of SCOTUS rulings this way:

Rights directed at a balanced and thorough process — in other words, rights that support accuracy concerns or that tend to put the prosecution and defense on a more even playing field — do apply at sentencing.  Rights that offer the defendant special protections — such as those that automatically resolve errors in the defendant's favor or primarily protect the defendant's autonomy — do not apply at sentencing. 

Framed only a bit differently, one might see concerns for sentencing "accuracy" to be a kind of Crime Control concern, and one that would counsel against preventing judicial consideration of acquitted conduct.  But the jury trial right is fundamental to our nation's vision of Due Process and our commiement to "defendant special protections," and that's surely why many are troubled by any judicial sentencing process that functioanlly disregards a jury's decision to acquit on certain charges.

Of course, Prof Packer stressed his "polarized models" are archtypes that do not capture the "conflicting schemes of values" that so many embrace.  Indeed, I suspect most everyone is eager to pursue both crime control and due process; and yet, a hard topic like acquitted conduct sentencing may require marking a hard choice about which models and values to prioritize.  It will be very interesting to see where the USSC winds up in this amendment cycle.

March 6, 2024 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (23)

Tuesday, March 05, 2024

US Sentencing Commission releases its 2023 Sourcebook of Federal Sentencing Statistics

I received via email this morning some exciting news for federal sentencing data nerds:

Today the U.S. Sentencing Commission released its 2023 Sourcebook of Federal Sentencing Statistics (covering October 1, 2022 through September 30, 2023).

The Sourcebook presents information on the 64,124 individuals sentenced in fiscal year 2023 — a federal caseload that held steady from the previous year.  The Sourcebook provides the public with a comprehensive and timely compilation of information received and analyzed by the Commission and collected from the 300,000+ sentencing documents submitted by the federal courts nationwide.

The Commission typically publishes its yearly Annual Report with its yearly Sourcebook, though the email I received indicted that this report would be forthcoming.  In future posts, I may try to mine some interesting factoids from the official FY2023 federal sentencing data, but I already noticed that it appears the number of sentencings in FY2023 (61,124) appears to be remarkably close to the sentencings completed in FY2022 (61,142 as reported in this prior post).

March 5, 2024 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Sunday, March 03, 2024

Exciting times for discussions of federal sentencing and its guidelines

Download (3)As flagged in this prior post, this coming week the US Sentencing Commission has scheduled two full days of hearings to receive testimony in response to its proposed amendments to the US Sentencing Guidelines released back in December (official notice and hearing schedule here).  I have been slowly working my way through the 800+ pages of the "Compilation of Public Comment" that the USSC officially posted here.  I have only made is through about 20% of the commments, in part because they are fascainating (and intricate) in many particulars.  I hope to be able to watch at least some of the live USSC hearings this coming Wednesday and Thursday, and I am especially intrigued by what various folks may have to say about the topics that are scheduled for day 1 ("acquitted conduct" and "simplification"). 

Excitingly, I do not have to wait until Wednesday to dive fully into my total geekdoom over federal sentencing and its guidelines.  As detailed here, tomorrow (March 4), the Ohio State community is incredibly lucky to have the Chair of the US Sentencing Commission, the Honorable Judge Carlton W. Reeves, coming to the Moritz College of Law to talk about the USSC's work.  I feel extra lucky because I have the honor of not only introducing Judge Reeves, but also thereafter moderating a conversation with two additional special judicial guests, the Honorable Chief Judge Algenon L. Marbley and the Honorable Judge Douglas Cole of the U.S. District Court for the Southern District of Ohio.  I know from many encounters and conversations that both Chief Judge Marbley and Judge Cole have extremely thoughtful perspectives on sentencing decision-making, and I hope to make the lunch-hour discussion a true feast for sentencing fans.

It is not too late to register here for this event taking place on Monday at the Moritz College of Law at The Ohio State University.

March 3, 2024 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (4)

Friday, March 01, 2024

DC Circuit panel rules that Jan 6 rioter should not be subject to key guideline enhancement for “substantial interference with the administration of justice”

The DC Circuit today handed down a notable panel opinion in US v. Brock, No. 23-3045 (DC Cir. Mar. 1, 2024) (available here), which afirms a key conviction and reverses a key guideline sentencing determination. Here is how the opinion starts:

Larry Brock participated in the violent January 6th riot at the United States Capitol that forced the evacuation of members of Congress and their staff and prevented Congress’s certification of the 2020 presidential election until the next day. After a bench trial, the court convicted Brock of six crimes, including corruptly obstructing Congress’s certification of the electoral count under 18 U.S.C. § 1512(c)(2). At sentencing, the district court applied a threelevel sentencing enhancement to Brock’s Section 1512(c)(2) conviction on the ground that Brock’s conduct resulted in “substantial interference with the administration of justice[.]” U.S.S.G. § 2J1.2(b)(2).

Brock challenges both the district court’s interpretation of Section 1512(c)(2)’s elements and the sufficiency of the evidence to support that conviction.  He also challenges the district court’s application of the three-level sentencing enhancement for interfering with the “administration of justice.” Because the law and the record in this case foreclose Brock’s legal and sufficiency challenges, we affirm Brock’s Section 1512(c)(2) conviction. As for Brock’s sentence, we hold that the “administration of justice” enhancement does not apply to interference with the legislative process of certifying electoral votes. For that reason, we vacate Brock’s sentence for his Section 1512(c)(2) conviction and remand to the district court for resentencing.

The sentencing discussion comprises nearly the last 20 pages of the 37 page opinion in Brock. Here are snippets of the discussion and analysis:

Brock argues that the district court improperly applied a three-level enhancement under the Sentencing Guidelines to his Section 1512(c)(2) conviction for “substantial interference with the administration of justice.” U.S.S.G. § 2J1.2(b)(2); see Brock Opening Br. 18–21. More specifically, Brock argues that “substantial interference with the administration of justice” as used in Section 2J1.2(b)(2) is limited to “judicial type proceedings” and does not encompass the legislative electoral certification process he was convicted of obstructing. Brock Opening Br. 19; see Brock Opening Br. 18–19. The government responds that “‘administration of justice’ * * * refers to the proper administration of law by all three branches of government.” ...

With great respect to our district court colleagues’ thoughtfully reasoned efforts to apply this Guideline, we hold that, for purposes of Sentencing Guideline 2J1.2, the phrase “administration of justice” does not encompass Congress’s role in the electoral certification process. Instead, Section 2J1.2’s text, context, and commentary show that “administration of justice” refers to judicial, quasi-judicial, and adjunct investigative proceedings, but does not extend to the unique congressional function of certifying electoral college votes....

[T]he government objects that “[t]here is no sound basis for assigning a significantly higher offense level to someone who violently interferes with a court proceeding than someone who violently interferes with a congressional proceeding.” Gov’t Br. 46–47. Maybe. But that is a policy argument the government can present to the Commission. It is textually indisputable that the Guidelines confine the Section 2J1.2(b)(2) enhancement to those offenses that interfere with the “administration of justice,” not the administration of everything Congress does, or the administration of government, or the administration of all laws broadly. We must apply the Guideline as written, and Brock’s interference with one stage of the electoral college vote-counting process — while no doubt endangering our democratic processes and temporarily derailing Congress’s constitutional work — did not interfere with the “administration of justice.”

The headline of this Washington Post piece about the ruling, "Appeals court ruling means over 100 Jan. 6 rioters may be resentenced," suggests that lots and lots of already sentenced Jan 6 defendants will benefit from this ruling.  But I would guess that most, if not all, of the defedants who entered pleas and received this enhancement may be precluded by an appeal waiver and collateral appeal waivers from seeking correction of an erroneous sentence.  (IN a quick google search, I found such a plea agreement in a case that seemed to include application of the enhancement.)  DOJ often has a way of insulating its errors, though I hope defendants who are serving extra time based on a legal error make all effort to find some way to have the sentencing error corrected.  Perhaps DOJ will be willing to forgo application of the waiver in these cases so that people who should be able to get resentenced have a means to get to court.

March 1, 2024 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (14)

Wednesday, February 28, 2024

Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"

For a number of reasons, I always find white-collar sentencings to be fasciniating, and the scheduled sentencing next month of Sam Bankman-Fried is already fitting that characterization.  The latest development in the run-up to the March 28 sentencing comes in the form of SBF's lawyers submitting late yesterday this 90-page sentencing memo.  This document assails many aspects of how the probation office calculated the applicable guideline range and makes an array of arguments based on all the 3553(a) sentencing factors.  This lengthy document concludes with this paragraph that is titled "Sam Bankman-Fried's Sentencing Request":

Sam Bankman-Fried respectfully submits that, for the reasons set forth above, an appropriate method of arriving at a just sentence would be to consider the Adjusted Offense Level (Subtotal) of 56, reduced by 30 levels based on zero loss, which yields an advisory Guidelines range of 63-78 months.  When the § 3553(a) factors are considered, including Sam’s charitable works and demonstrated commitment to others, a sentence that returns Sam promptly to a productive role in society would be sufficient, but not greater than necessary, to comply with the purposes of sentencing.

Here are a variety of press accounts of this sentencing filing and some related SBF activity:

From Business Insider, "Sam Bankman-Fried's lawyer says sentencing the FTX founder to a 100-year prison term would be 'grotesque' and 'barbaric'"

From CoinPedia, "SBF Fights for Crypto Fraud Leniency: 6 Years vs. 110?"

From the New York Times, "Sam Bankman-Fried Makes His Last Stand: Since the disgraced crypto mogul was convicted of fraud, his supporters have maneuvered to secure a lenient sentence, with his lawyers recommending he serve no longer than 6.5 years in prison"

From the Wall Street Journal, "Sam Bankman-Fried Calls for Shorter Prison Sentence, Citing Autism: Lawyers for the FTX founder say he wasn’t motivated by greed but by a desire to better the world through philanthropic giving"

Prior related posts:

February 28, 2024 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (6)

Sunday, February 25, 2024

US Sentencing Commission publishes public comment and plans for public hearing on proposed guideline amendments

I was pleased to discover on a lazy Sunday that the US Sentencing Commission is continuing to be quite busy.  Specifically, today the USSC officially posted here a "Compilation of Public Comment" concerning the proposed sentencing guideline amendments that the USSC set out back in December (details here).  The compilation comprises this 867-page pdf document, which  the USSC's describes as a "representative sample of public comment" that has been "carefully selected, redacted, and posted online to provide the public with the kind of information considered by the Commissioners during their deliberations." 

In addition, the Sentencing Commission today also noticed here its planned "Public Hearing on Proposed Amendments to the Federal Sentencing Guidelines" to take place in DC on March 6-7, 2024.  This hearing will be live-streamed, and the "purpose of the public hearing is for the Commission to receive testimony from invited expert witnesses on proposed amendments to the federal sentencing guidelines."  The topics and witnesses for the two hearing days are all fascinating, though I will admit to being especially interested in the topics of focus for day 1 ("acquitted conduct" and "simplification"). 

Prior related post:

February 25, 2024 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, February 14, 2024

Should AI be treated like a firearm for federal sentencing purposes?

The question in the title of this post is prompted by a speech given today by Deputy Attorney General Lisa Monaco "on the Promise and Peril of AI."  The full speech, as prepared for delivery, is available at this link, and here are excerpts including the portion leading to the query in the title of this post:

Today, as the Chief Operating Officer and the Number 2 person in the Justice Department, I — along with Attorney General Garland — am laser-focused on what may well be the most transformational technology we’ve confronted yet: artificial intelligence, and what it portends for our core mission.

Every new technology is a double-edged sword, but AI may be the sharpest blade yet. It has the potential to be an indispensable tool to help identify, disrupt, and deter criminals, terrorists, and hostile nation-states from doing us harm....

[But] we’ve already seen that AI can lower the barriers to entry for criminals and embolden our adversaries. It’s changing how crimes are committed and who commits them — creating new opportunities for wanna-be hackers and supercharging the threat posed by the most sophisticated cybercriminals.....

The U.S. criminal justice system has long applied increased penalties to crimes committed with a firearm.  Guns enhance danger, so when they’re used to commit crimes, sentences are more severe.

Like a firearm, AI can also enhance the danger of a crime.

Going forward, where Department of Justice prosecutors can seek stiffer sentences for offenses made significantly more dangerous by the misuse of AI — they will.  And if we determine that existing sentencing enhancements don’t adequately address the harms caused by misuse of AI, we will seek reforms to those enhancements to close that gap.

This approach will deepen accountability and exert deterrence. And it reflects the principle that our laws can and must remain responsive to the moment.

I am still thinking through the firearm/AI analogy, and I am not sure it really works. But I do get the idea that "AI can lower the barriers to entry for criminals" and that AI can, in various ways, make some criminal threats and dangers greater.  Just how our sentencing systems should deal with AI-involvement in crime is a topic sure to be of great interest in the years ahead.

February 14, 2024 in Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (0)

Monday, February 12, 2024

US Sentencing Commission publishes two public data briefings to inform comments on some proposed guideline amendments

I was intrigued to discover that the US Sentencing Commission's website today announces "Data Briefings on Proposed Amendments" to announce the publishing of "supplemental data to inform public comment on recently proposed amendments relating to youthful individuals and simplification."  This webpage, in turn, links to two distinct briefing pages that are introduced this way:

Supplemental Data: 2024 Proposed Amendment Relating to Simplification

The Commission is seeking public comment on proposed amendments to the federal sentencing guidelines.  In order to further inform commenters, the charts below depict data relating to application of departure provisions other than §5K1.1 or §5K3.1 (either alone or in conjunction with §5K1.1 or §5K3.1), i.e., "Other Departure."

Public Data Briefing: 2024 Proposed Amendment Relating to Youthful Individuals

The Commission is seeking public comment on proposed amendments to the federal sentencing guidelines. Commission staff prepared a data presentation to inform public comment on a two-part proposed amendment related to youthful individuals. This briefing presents data on the impact of juvenile adjudications on criminal history scoring and sentencing outcomes to help inform public comment.

Disappointingly, the USSC has not yet published any detailed data concerning its proposed amendment to the Guidelines Manual that includes three options to address the use of acquitted conduct for purposes of determining a sentence.  I am not sure if the lack of data on this front bodes well or ill for guideline reforms on that front.

February 12, 2024 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Monday, January 29, 2024

US Sentencing Commission releases its "Interactive Case Law Update" for 2023

I saw from the US Sentencing Commission website that the USSC last week released here its latest (now-annual) installment of its helpful circuit caselaw publication now titled "Inereacrive Case Law Update."  Here is how the USSC wedbsite describes this installment (which runs nearly sixty detailed pages):

Case Law Update provides brief summaries of select Supreme Court and appellate court decisions that involve the guidelines and other aspects of federal sentencing. Each quarterly release is replaced with a cumulative update. Cases appear in descending chronological order within a circuit.  Click the button below to access the interactive PDF and search by topic or circuit. Click the "Back to Home" text at the bottom of each page to return to the map and list of topics. 

January 29, 2024 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Sunday, January 28, 2024

Notable players and politics surrounding sentencing of leaker of Prez Trump's and many others tax records

A notable sentencing of a notable crime is scheduled for Monday morning in DC, and this new Roll Call piece provides links to the sentencing arguments and notes the interesting people and politics connected to the case.  The piece is headlined "Lawmakers back maximum prison sentence in tax record leak case," and here are extended excerpts (with helpful links from the original):

Members of Congress have backed a tough prison sentence for a man who pleaded guilty to leaking to the media tax records of Donald Trump, Sen. Rick Scott and billionaires Elon Musk, Warren Buffett and Jeff Bezos.  A sentencing hearing is set for Monday morning in Washington for Charles Littlejohn, a former contractor for the Internal Revenue Service, on one charge of disclosing tax return information without authorization.

Prosecutors have recommended that Judge Ana C. Reyes of the U.S. District Court for the District of Columbia sentence Littlejohn to five years in prison, arguing that he leaked the returns of over a thousand people, damaging the tax system and the public trust.  Prosecutors said the “unparalleled” disclosure warranted the maximum statutory sentence.  “There simply is no precedent for a case involving the disclosure of tax return and return information associated with ‘over a thousand’ individuals and entities,” prosecutors wrote.

Scott, R-Fla., announced Thursday that he was one of the people whose tax information was leaked by Littlejohn and said he intended to read a victim impact statement during Monday’s hearing.  Scott also published a letter that asked Attorney General Merrick B. Garland to attend and criticized prosecutors for allowing Littlejohn to plead guilty to a single criminal charge.  Scott wrote that Littlejohn’s crimes were “entirely aligned with the agenda of the Biden administration” and that Garland had politicized the Justice Department.  “Since you have steered the Justice Department down this partisan political path, you should be on hand personally to in some way be accountable,” Scott wrote....

Republican members of the House Ways and Means Committee, in a letter to the judge, criticized the DOJ’s handling of the case, particularly the fact that Littlejohn pleaded guilty to only one criminal count.  The letter, led by committee Chairman Jason Smith, R-Mo., argued Littlejohn took great steps to damage the tax system and evade justice and should receive the maximum five-year prison sentence.  “Mr. Littlejohn’s actions showed disdain for the rule of law and American confidence in our voluntary tax system.  He acted with an apparent political motivation and perhaps with an intent to impact a Presidential election,” the letter states.

According to court papers, Littlejohn stole information about “Public Official A” over several months in 2019 and provided them to a news organization which later published them.  In September 2020, The New York Times published a lengthy investigation about former President Trump’s finances, which showed he routinely lost money and paid little in taxes.  Littlejohn later stole information on thousands of wealthy taxpayers in 2020, according to court documents.  He later provided that information to another news organization, according to court documents, which published them in 2021....

In a filing last year in court, the government and Littlejohn stipulated to a sentencing guidelines recommendation for between eight and 14 months in prison, but both sides reserved the right to push for departures from those guidelines.  Littlejohn’s attorneys have argued for leniency, saying that Littlejohn believed he was acting in the public interest after becoming concerned about income inequality and tax dodging.  “He did not disclose the information for personal gain; nor did he intend to harm the taxpayers,” the sentencing memorandum said.

January 28, 2024 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (22)

Thursday, January 25, 2024

US Sentencing Commission schedules hearings for early March on proposed guideline amendments

Via email I learned this afternoon of the US Sentencing Commission announcement that it will have hearings in early March concerning the proposed guidelines amendments it promulgated last month (basics here). The announcement is here on the Commission's website, and reads as follows:

Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public hearing is scheduled for Wednesday, March 6 and Thursday, March 7, 2024 (time TBD). The public hearing will be held in the Mecham Conference Center of the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, NE, Washington, DC. The hearing will also be live-streamed.

The purpose of the public hearing is for the Commission to receive testimony from invited expert witnesses on proposed amendments to the federal sentencing guidelines.

The email I received also  provide a useful reminder (and links) concerning the Commission's request for public comment on its guideline amendment proposals: "The Commission is currently seeking comment on this year's proposed amendments. The Public Comment Submission Portal will accept comment through February 22, 2024." 

January 25, 2024 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Sunday, January 14, 2024

Notable district court ruling that circuit precedent precludes reduction of extreme stacked 924(c) sentence

A helpful reader made sure I saw a notable new denial of a sentencing-reduction motion in US v. Carter, No. 07-374-1 (ED Pa. Jan. 12, 2024) (available for download below).  I highly recommend the full 25-page opinion; it covers thoughtfully the legal debate over the US Sentencing Commission's new sentence-reduction guideline, a debate that is sure to play out in federal district and circuit courts across the nation in the months ahead.  Here is the start of the opinion and the ruling's concluding paragraphs:

Johnnie Carter is currently serving a de facto life sentence — 840 months, or 70 years — for a string of armed robberies he committed in 2007.  The bulk of this sentence was the result of Carter’s conviction on three charges brought under 18 U.S.C. § 924(c), each of which earned him lengthy, mandatory terms of imprisonment that must be served consecutively.  Congress has since enacted the First Step Act, Pub. L. 115-391, 132 Stat. 5222 (2018), which among its many provisions amended Section 924(c) to substantially lower these mandatory minimums going forward.  As a result, the Government agrees that Carter “is serving a long sentence that would be significantly lower if imposed under current law.”

Carter now moves to reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i).  That statute, commonly referred to as the compassionate-release statute, authorizes district courts to reduce an imposed term of imprisonment upon a finding that “extraordinary and compelling reasons warrant such a reduction.”  In support of his motion, Carter points to a recently promulgated policy statement from the U.S. Sentencing Commission, which states that an “unusually long sentence,” coupled with a non-retroactive change in the law, can constitute an extraordinary and compelling reason to modify a sentence. U.S.S.G. § 1B1.13(b)(6).  He further highlights his strong family ties, evidence of rehabilitation, and good conduct while incarcerated as “other circumstances” warranting a reduction.  Id. § 1B1.13(b)(5). The Government opposes the motion, arguing that the Sentencing Commission’s recent policy statement exceeds its statutory authority, and that Carter’s circumstances do not otherwise warrant a reduction....

When considered together, these factors paint a clear picture of a defendant who, while undoubtably having earned himself a significant term of imprisonment for serious and violent offenses, does not deserve to spend his life behind bars.  If permitted to do so, the Court would be inclined to agree with his argument that a shorter sentence would be “sufficient, but not greater than necessary, to comply with the purposes” of federal sentencing. 18 U.S.C. § 3553(a). But, as discussed in Parts II.A and II.B, supra, Third Circuit precedent forecloses a finding that “extraordinary and compelling reasons” warrant compassionate release.  Unless and until that changes, his remedy lies not with the judicial branch, but with Congress — which could make its amendments to Section 924(c)’s mandatory minima retroactive — or the executive — whose clemency power operates as “the ‘fail safe’ in our criminal justice system.” Herrera v. Collins, 506 U.S. 390, 415 (1993).

Carter’s progress towards rehabilitation has been laudable, and the sentence he is serving is both unduly long and grossly disproportionate to the sentence a similarly situated defendant would receive today.  But in light of the Third Circuit’s decision in Andrews, these considerations cannot serve as the kinds of “extraordinary and compelling reasons” required to find him eligible for compassionate release.  As such, his motion must be denied.

Download US v. Carter (E.D.Pa.) - DE417 - Opinion Denying Compassionate Release

I have explained in numerous prior posts why I think rulings like Andrews, the Third Circuit precedent that dictates the conclusion in this case that an "unduly long and grossly disproportionate" sentence cannot be modified, is a misreading of § 3582(c)(1)(A)(i).  As I see it, the plain text of applicable statutes, which state only that "rehabilitation alone" cannot be considered an extraordinary and compelling reason, do not permit circuit courts making its own policy by deeming other factors catergorically insufficient for ever serving as the basis of a sentence reduction.

Notwithsanding what seems like clear statutory text, prior to the Sentencing Commission's revision to guideline 1B1.13, the circuit courts divided almost evenly as to whether so-called "changes in law" could provide a basis for a sentence modification.  This new Carter ruling leads me to suspect we will see a similar pattern of rulings replicated in new rounds of motions and appeals.  At some point, the Supreme Court will need to weigh in. 

January 14, 2024 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, January 05, 2024

Two new papers examining administrative law issues around USSC's new sentence reduction guideline

Jaden Lessnick has posted to SSRN recently two notable new papers discussing administrative law issues related to the US Sentencing Commission's recent amendment to USSG § 1B1.13, the sentence reduction policy statement. Here are the titles, links and part of the abstracts of these pieces:

"Will Federal Compassionate Release Survive the Death of Chevron?"

This Essay charts an alternate path forward. It offers a theory of compassionate release untethered from the comfortable reliance on Chevron.  By parsing the statutory text and tracing the Court’s Sentencing Commission jurisprudence, this Essay shows why the policy statement binds federal courts even in the absence of Chevron deference.  On this theory, Chevron has only ever been a secondary justification for the application of the recent policy statement.  Whether Chevron lives or dies, courts are duty-bound to yield to the Commission’s determination that some changes in the law are extraordinary and compelling reasons for a sentence reduction.

"Is U.S.S.G. § 1B1.13 an Elephant, and Is § 994(t) a Mousehole? Why the Sentencing Commission’s New Compassionate Release Policy Statement Does Not Violate the Major Questions Doctrine"

This Article debunks the recent suggestion by many that the Commission’s updated compassionate release policy statement violates the major questions doctrine.  After describing the status quo lay-of-the-law, this piece proceeds through the text and statutory history of the sentence-reduction statutes to show why § 1B1.13’s changes-in-the-law provision is unlike the actions invalidated in the Court’s recent major questions cases, such as West Virginia v. EPA and Biden v. Nebraska.  Though the amended policy statement has been the source of recent political controversy, this Article shows that the policy statement actually reflects a narrowing of the Commission’s historical authority.  It concludes by confronting the nascent split among the Court’s conservatives on the status of the major questions doctrine’s clear-statement rule, contending that under either view, the Commission’s actions had clear congressional authorization.

January 5, 2024 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, December 30, 2023

Unsurprisingly, federal prosecutors content to focus on sentencing rather than a second trial for Sam Bankman-Fried

As reported in this CNBC piece, headlined "Prosecutors say they will not pursue second Sam Bankman-Fried trial," the feds have officially decided it will not seek a second criminal trial for high-profile fraudster Sam Bankman-Fried.  Here are excerpts from a lengthy piece that also previews the upcoming sentencing: 

Prosecutors have decided not to pursue a second trial against disgraced FTX founder Sam Bankman-Fried.  In a note to Judge Lewis Kaplan on Friday, the U.S. government explained that the decision to forego a second set of proceedings had to do with the fact that much of the evidence that would have been presented in a second trial had already been submitted to the Court during Bankman-Fried’s first criminal trial.

In November, following a month’s worth of testimony from nearly 20 witnesses, a jury found the former FTX chief executive guilty of all seven criminal counts against him following a few hours of deliberation.  Prosecutors added that the Court could consider the hundreds of exhibits already entered into evidence during these proceedings when he is sentenced next year.  “Given that practical reality, and the strong public interest in a prompt resolution of this matter, the Government intends to proceed to sentencing on the counts for which the defendant was convicted at trial,” continued the letter to Judge Kaplan.

Bankman-Fried, the 31-year old son of two Stanford legal scholars and graduate of the Massachusetts Institute of Technology, was convicted of wire fraud and conspiracy to commit wire fraud against FTX customers and against Alameda Research lenders, conspiracy to commit securities fraud and conspiracy to commit commodities fraud against FTX investors, and conspiracy to commit money laundering.  He had pleaded not guilty to the charges, which were all tied to the collapse of FTX and its sister hedge fund Alameda late last year.

The second trial, which had been slated to start in March, addressed an additional set of criminal counts, including conspiracy to bribe foreign officials, conspiracy to commit bank fraud, conspiracy to operate an unlicensed money transmitting business and substantive securities fraud and commodities fraud.

Damian Williams, the U.S. attorney for the Southern District of New York, wrote in the letter to the Court that “a second trial would not affect the United States Sentencing Guidelines range for the defendant, because the Court can already consider all of this conduct as relevant conduct when sentencing him for the counts that he was found guilty of at the initial trial.”

So now, the question of prison time goes to Judge Kaplan.  The sentencing date is March 28 at 9:30 a.m. ET. The FTX founder faces more than 100 years in prison....

In this case, the statutory maximum sentence is around 115 years, but there is a sliding scale for sentencing according to recommended guidelines given the scale of the crimes and the criminal history of the defendant. “I wouldn’t be surprised if SBF spends the next 20 or 25 years of his life in prison,” Renato Mariotti, a former prosecutor in the U.S. Justice Department’s Securities and Commodities Fraud Section, told CNBC.

“The sheer scale of his fraud was immense, he was defiant and lied on the witness stand, and Judge Kaplan had very little patience for his antics while out on bond. He will have more sympathy for the victims than he has for Bankman-Fried,” added Mariotti....  “The federal sentencing guidelines will likely be sky high, but they are just that — guidelines — and the judge is required to consider all of the circumstances surrounding SBF and his offense,” said Mariotti....

Former Assistant U.S. Attorney Kevin J. O’Brien, who specializes in white-collar criminal defense in NYC, thinks Bankman-Fried has the chance at a shorter sentence, telling CNBC, “Since judges have discretion even under the Guidelines, I believe his sentence will be in the 15 to 20 year range.” O’Brien added that given Bankman Fried’s age, he thinks the judge will be inclined to give him a chance to live a full life after his prison term.

Bankman-Fried’s case has been compared with that of Elizabeth Holmes, founder of medical device company Theranos, which ceased operations in 2018. Holmes, 39, was convicted in early 2022 on four counts of defrauding investors in Theranos after testifying in her own defense. She was sentenced to more than 11 years in prison, and began serving her punishment in May at a minimum-security facility in Bryan, Texas.

But former federal prosecutor Paul Tuchmann tells CNBC that he expects harsher terms for the former FTX CEO, because “the amount of losses that were suffered is simply staggering.” Tuchmann compared Bankman-Fried’s case to that of Bernie Madoff, who was sentenced to 150 years in prison. “Like Madoff, a lot of the losses in this case were small investors. They weren’t all large institutions, which really tends to create a greater pressure for a significant sentence,” said Tuchmann.

In this setting, it seems worth noting, yet again, how federal sentencing rules function to sometimes make jury trials and constitutional jury trial rights inconsequential.  Here, the US Attorney accurately notes that the federal sentencing guideline range will be calculated to produce the exact same recommended sentence with or without a trial and guilty verdict on additional charges. (Indeed, under current federal sentencing rules, even if SBF were acquitted on all counts in a second trial, the guideline calculation could be the same.)  Why bother with a second jury trial if the government can seek and secure punishment, under a lower standard of proof, at sentencing for the first convictions?

Prior related post:

December 30, 2023 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (27)

Thursday, December 21, 2023

US Sentencing Commission provides (not quite complete) "Year in Review"

The US Sentencing Commission sent me email today titled "A Look Ahead + Year in Review."  One email cannot, of course, cover all that the Commission has been doing in an eventful 2023, but I was struck more by what was barely mentioned than by what was included in the USSC's five-point "Year in Review."  Here is what's listed in the email I received:

1. Long-awaited First Step Act implementation and Compassionate Release policy statement update

Equipped with a quorum of Commissioners for the first time since 2018, the bipartisan United States Sentencing Commission voted in April to promulgate amendments to the federal sentencing guidelines, and, in August, authorized delayed retroactive application of parts of one amendment (Amendment 821 relating to criminal history).

2. Launched a new public comment portal

The Commission launched a new Public Comment Portal in January where the public can participate in the amendment process and submit comment online during formal public comment periods.

3. First public hearing witness panel solely comprised of formerly incarcerated individuals 

At its February public hearing on the proposed Compassionate Release amendments, the Commission convened a panel of formerly incarcerated individuals.

4. Updated analysis of oft-cited 2017 Demographic Differences report

In November, the Commission updated its research on demographic differences in federal sentencing finding that — after controlling for available personal and offense characteristics — sentencing differences across demographic groups persisted during the five years following the release of its 2017 Demographic Differences in Sentencing Report.

5. Commission proposed 2024 amendments relating to acquitted conduct and simplification of the current "three-step process"

The Commission proposed a number of possible amendments in November relating to consideration of acquitted conduct under the new Guidelines, expanded consideration of an individual’s youthful age at sentencing, and a proposal that would simplify the current "three-step process" followed by judges at sentencing by effectively removing step two — consideration of departures under the Guidelines Manual.

Though all five of these USSC's developments are certainly noteworthy, I view the most consequential and significant action by the USSC as its intricate amendments to the guidelines' criminal history rules and its decision to make those amendments retroactive. (This action is briefly referenced in item #1, but merits much more attention in my view.)  The USSC's data suggests that perhaps as many as half of all federal defendants sentenced in the future may have their guideline range impacted by these amendments and also that perhaps tens of thousands of current federal prisoners migth be able to get their sentenced reduced as a result of making these amendments retroactive.

I also find it interesting the Commission has flagged here its recent proposal to effectively remove "consideration of departures."  I hope I will get a chance in the coming days to explain why I am not a fan of this proposal, though the closing mention of this proposal has me now wondering if the USSC may already have its mind made up on this front.

December 21, 2023 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, December 19, 2023

US Sentencing Commission releases new report on "Education Levels of Federally Sentenced Individuals"

The US Sentencing Commission this week released this notable new research report titled "Education Levels of Federally Sentenced Individuals." This latest report is summarized on this USSC webpage, which also sets forth "Key Findings," in this way:

The Commission has previously published reports on the relationship between demographic factors and sentencing, but none have focused specifically on the educational attainment of federally sentenced individuals.  The federal sentencing guidelines provide that specific characteristics of sentenced individuals, such as education, may be considered at sentencing; yet there is little information published that examines differences across education levels.  This report provides an analysis of the federally sentenced individuals in fiscal year 2021 by educational attainment...

  • Most federally sentenced U.S. citizens had a high school degree (42.3%) or never graduated high school (28.4%).
     
  • The types of offenses committed by federally sentenced U.S. citizens varied by educational attainment.
    • For those with less than a high school degree, drug trafficking (42.0%) was the most common offense, followed by firearms (25.2%), immigration (11.5%), robbery (4.2%), and fraud (4.1%).
    • Sentenced individuals with an undergraduate or graduate degree were convicted more often for economic or sex offenses than sentenced persons with less education. Approximately one-third (32.9%) of sentenced individuals with an undergraduate degree were convicted of a fraud offense.
    • Similarly, fraud (42.2%) was the most common offense of conviction among federally sentenced persons with a graduate degree, though medical doctors were equally likely to commit fraud (37.6%) or drug trafficking (36.5%).
  • Federally sentenced U.S. citizens with more educational attainment had less extensive criminal histories than sentenced persons in lower educational attainment groups.
     
  • Sentencing outcomes for federally sentenced U.S. citizens varied by educational attainment.
    • Sentenced individuals with more educational attainment were more likely to receive probation.
    • Sentenced persons with more educational attainment were more likely to receive a sentence below the applicable guideline range.
    • Federally sentenced individuals with more educational attainment received sentences that on average were further below the applicable guideline range than those with lower educational attainment.
  • Whether the degree was key to the facilitation of the offense varied considerably by type of graduate degree.
    • A substantial majority of medical doctors (85.6%) and sentenced individuals with graduate degrees in nursing (82.1%) required their degree to commit the offense.
    • In contrast, 29.3 percent of lawyers required their degree to commit the offense, and 27.5 percent received a § 3B1.3 enhancement.

December 19, 2023 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (3)

Thursday, December 14, 2023

US Sentencing Commission publishes for comment 755 pages(!) of "Proposed Amendments to the Sentencing Guidelines (Preliminary)"

USSC-Seal_vFFAs summarized in this press release, this afternoon "the U.S. Sentencing Commission voted to seek comment on several proposals that would, among other things, limit the federal courts’ consideration of acquitted conduct and youthful convictions under the federal sentencing guidelines."  Here is more from the press release:

The bipartisan Commission voted today to publish for public comment several options to address the use of acquitted conduct for sentencing purposes. The proposed amendment comes after the Commission took up the issue during last year’s abbreviated amendment cycle but determined that more time and public comment was needed before promulgating amendments.  The U.S. Supreme Court recently denied several petitions for writs of certiorari related to the use of acquitted conduct.  In issuing the denials, four Justices indicated their support for the denial, in part, to give the Commission time to address the issue.

U.S. District Judge Carlton W. Reeves, Chair of the Commission, said, “When the Supreme Court tells us to address an issue, the Commission listens.  From continuing the use of acquitted conduct to restricting (or even eliminating) its use in sentencing, all options are on the table.  We need the input of stakeholders — from seasoned federal judges to the individuals who have been directly impacted by sentencing and incarceration — to settle on the best course of action.” (Access the Comment Portal.)

Prompted by evolving brain development research, the Commission also proposed changes that would limit the impact of prior juvenile convictions on criminal history scoring and expand consideration of an individual’s youthful age at sentencing.  Judge Reeves said, “Congress directed the Commission to draft fair and equitable guidelines that reflect advancements in knowledge of human behavior as it relates to the criminal justice process.  We look forward to the public’s input on how to ensure that federal sentencing reflects all of the relevant data and research around age, crime, and justice.”

The Commission also proposed an amendment that would simplify the current “three-step process” followed by judges at sentencing by effectively removing step two — consideration of departures under the Guidelines Manual.  The proposal would also more closely align Commission guidance regarding consideration of individual characteristics with the factors set forth by Congress in section 3553(a).

“The Commission has reported on the impact of the Booker decision on multiple occasions.  Today’s proposed amendment acts on these observations and, after nearly 20 years, would update the Guidelines Manual to more fully reflect the advisory sentencing guidelines system established by the Supreme Court in Booker,” said Judge Reeves.

As part of this year’s policy work, the Commission has also worked to compile and disseminate information on court-sponsored programs relating to diversion, alternatives-to-incarceration, and reentry.  While the Commission did not propose amendments on this priority, the Commission published program documentation and background information on its website.  The Commission has also released its first podcast episode in a miniseries highlighting the various problem-solving courts around the country. It is the Commission’s intent to continue to develop and update these resources throughout the amendment year.

Several other technical or clarifying amendments were proposed today, including amendments addressing the guidelines commentary, new laws, and several circuit conflicts.

Today’s proposals are all drawn from the final policy priorities the Commission unanimously approved in August 2023.  The proposed amendments and issues for comment will be subject to a public comment period running through February 22, 2024. A public hearing on the proposed amendments will be scheduled in Washington, D.C., at a later date.

The Commission will soon post information about public hearings as well as a data presentation on today’s Proposed Youthful Individuals Amendment.  Official text of proposed amendments and issues for comment will also be published in a forthcoming edition of the Federal Register.

December 14, 2023 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, December 07, 2023

In a different context, some more notable circuit caterwauling over the categorical approach to criminal history

In this post a few days ago, I flagged the notable opinion from a Third Circuit judge in US v. Harris, No. 17-1861 (3d Cir. Nov. 27, 2023) (available here), lamenting the ugly story of the Armed Career Criminal Act's reliance on the "categorical approach" to assess criminal priors required by Supreme Court precedent.   Today, I see a Second Circuit jurist authoring a distinct chapter of this ugly story in a different sentencing context.  Concurring in US v. Chaires, No. 20-4162 (2d Cir Dec. 7, 2023) (available here), Judge Sullivan explains why he thinks his circuit has it all wrong in its approach to "the 'controlled substance offense' predicate to U.S.S.G. § 4B1.1 — the career offender enhancement."  Hard-core sentencing fans may be uniquely able to work through the whole opinion, but it is worth the full read.  And Judge Sullivan's opinion ends this way:

Given the Commission’s indecision and the Supreme Court’s reluctance, I think it imperative that the courts of appeal converge on the best reading of the career offender enhancement.  To my mind, there can be little doubt which of the two options is that best reading.  The state-dependent approach is firmly grounded in section 4B1.2(b)’s text and will permit a relatively straightforward inquiry.  The categorical approach lacks any foothold in that text, has proven to be hopelessly difficult to administer, and illogically disqualifies untold numbers of state and federal narcotics convictions from serving as predicate offenses — even though those convictions were in fact premised on a federally controlled substance.  For these reasons, I continue to believe that section 4B1.2(b) calls for a state-dependent approach to controlled substance offenses, as six of our sister circuits have already held.  See Jones, 81 F.4th at 599 n.5.  I therefore urge the Second Circuit to correct this error through an en banc or mini en banc proceeding that would overrule our currently binding precedent in Townsend and bring us in line with the majority of circuits to have addressed this issue.   

December 7, 2023 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, December 03, 2023

Lots of (little?) stories in USSC's FY 2023 fourth quarter sentencing data release

Late last week, the US Sentencing Commission released on its website this latest quarterly data report, labelled "4th Quarter Release, Preliminary Fiscal Year 2023 Data Through September 30, 2023."  These new data provide the latest accounting of federal sentencings, and this latest data run seems to reflects the impact of the USSC 2023 guideline amendments.  Technically, the new guidelines did not become effective until November 1, 2023.  But the pending guidelines  — which, inter alia, changed some criminal history rules to benefit defendants — likely explains why Figure 2 shows a decline in the number of sentences imposed over the summer.  I suspect some judges delayed some sentencings until the new guidelines were effective.  Similarly, Figure 3 shows a record high number of variances in the last quarter, likely because some judges went forward with sentencings this summer and gave defendants the benefit of pending guidelines through a variance.

As I have noted before, a big COVID era trend was a historically large number of below-guideline variances, and this trend has now persisted over the last 13 quarters of official USSC data (as detailed in Figures 3 and 4).  I continue to believe this trend is mostly a facet of the different caseload and case mixes.  As I have also flagged before, for anyone who has long followed federal sentencing data and debates, the USSC's latest data on drug sentencing reflected in Figures 11 and 12 are especially striking.  These figures show, nearly half of all federal drug sentencings last fiscal year involved methamphetamine (roughly 9000 total), whereas fewer than 1000 crack defendants and fewer than 600 marijuana defendants were sentenced in federal court in FY 2023.

Finally, these fiscal year data provide just another reminder of the scope of the federal sentencing system.  The data show around 63,500 total sentences imposed in FY23, of with 92.5% included an imprisonment term.  These data mean that in an average week, an average of over 1,200 persons receive a federal sentence, and of those over 1,100 are being sentenced to federal prison.  

December 3, 2023 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Thursday, November 30, 2023

Notable resources and notice from the US Sentencing Commission

Via an official US Sentencing Commission email this afternoon, I received word on two new items of note and will just cut-and-paste the details here:

Public Meeting Scheduled for December 14, 2023 at 2:00pm (ET)

We invite you to join us on Thursday, December 14, 2023 at 2 p.m. (ET) for a public meeting of the U.S. Sentencing Commission.  The meeting will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in Suite 2-500 (South Lobby). The Commission will also livestream and record this event at the link below. The agenda follows:

  • Vote to Adopt August 2023 Meeting Minutes
  • Report from the Chair
  • Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment

Livestream Link

Problem-Solving Court Resources

(November 30, 2023) As part of its policy priority work this year, the Commission collaborated with chief judges, clerks of court, and chief probation officers from all 94 federal judicial districts to compile and publicly release information in support of problem-solving court program development. Access an interactive map, table of program documents, and a timeline of Commission work at the link below.

Explore Here

The big-ticket item here, of course, is "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."  Last year's proposed guideline amendments were quite significant and consequential, and I am excited to see in about two weeks if this year's proposals will merit the same description.

November 30, 2023 in Criminal Sentences Alternatives, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Monday, November 27, 2023

"Who Bears the Burden When Prison Guards Rape?"

The title of this post is the title of this new essay authored by Meredith Esser and available via SSRN. Here is its abstract:

Several recent scandals have highlighted the continued problem of institutional sexual abuse within the federal Bureau of Prisons (BOP).  Most notoriously, the rampant sexual abuse of women incarcerated at Federal Correctional Institution (FCI) Dublin, also known as the “rape club,” resulted in the prosecution and conviction of several high-ranking officials within FCI Dublin, including both the former Warden and former Chaplain who worked there for several years.  In response to these patterns of misconduct, the Federal Sentencing Commission’s new guidelines, which went into effect on November 1, 2023, now allow for victims of custodial sexual assault to apply for early release or sentence reductions based on that assault.  However, the Sentencing Commission’s reform in this regard comes with a caveat: to be eligible to move a sentencing court for early release, the assailant’s misconduct must have been established in a separate civil, criminal, or administrative proceeding.

Although the new guideline is commendable, a requirement that misconduct be substantiated in this way effectively places an impossible burden of proof onto incarcerated victims — in a manner inconsistent with other federal early release provisions — and in a context in which the incarcerated movant is in a particularly disadvantaged position to meet and litigate that burden.  For example, lack of access to counsel or discovery tools for survivors, and the need to litigate for one’s early release within a prison setting, make the effective litigation of the substantiation requirement impracticable in many circumstances.  Further, this Essay argues that this substantiation requirement counterproductively minimizes the experiences of survivors, discounts their accounts of sexual abuse, and elevates the adjudication of the assailant above the immediate needs of victims.

November 27, 2023 in Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, November 14, 2023

New US Sentencing Commission releases new updated report on "Demographic Differences in Federal Sentencing"

USSC-Seal_vFFThe US Sentencing Commission this morning released this notable new research report titled "Demographic Differences in Federal Sentencing."  As noted in this 2020 post, the USSC has completed similar reports looking at federal sentencing outcomes and the way its advisory guidelines function about every five or six years since the Booker ruling, and this latest report is summarized on this USSC webpage in this way:

The Commission has studied the issue of demographic differences in sentencing throughout its history.  In four prior reports, studying various time periods, the Commission has examined whether differences in the length of federal sentences imposed on individuals were associated with demographic characteristics of those individuals. 

Based on continued interest in this issue and consistent with best practices, the Commission re-examined and refined the analytical methods used in its previous reports to better understand sentencing disparity in the federal courts. Using new analytical techniques and newly available data, this report examines federal sentencing practices in the five fiscal years after the 2017 report to determine if the differences observed in the Commission’s prior reports continued to persist. 

This report presents the results of that work, and furthers the Commission’s mandates to establish sentencing policies and practices that eliminate unwarranted sentencing disparities and to serve as a center for information on federal sentencing practices.

The USSC webpage also sets forth these "Key Findings":

Sentencing differences continued to exist across demographic groups when examining all sentences imposed during the five-year study period (fiscal years 2017-2021). These disparities were observed across demographic groups — both among males and females.

  • Specifically, Black males received sentences 13.4 percent longer, and Hispanic males received sentences 11.2 percent longer, than White males.
  • Hispanic females received sentences 27.8 percent longer than White females, while Other race females received sentences 10.0 percent shorter.

The sentencing differences in the data the Commission examined largely can be attributed to the initial decision of whether the sentence should include incarceration at all rather than to the length of the prison term once a decision to impose one has been made. In particular, the likelihood of receiving a probationary sentence varied substantially by gender and race.

  • Black males were 23.4 percent less likely, and Hispanic males were 26.6 percent less likely, to receive a probationary sentence compared to White males.
  • Similar trends were observed among females, with Black and Hispanic females less likely to receive a probation sentence than White females (11.2% percent less likely and 29.7% less likely, respectively).

The sentencing differences were less pronounced when the analyses focused solely on cases in which a sentence of imprisonment was imposed, which comprise 94 percent of all cases sentenced during the five-year study period.

  • Focusing solely on these cases, Black males received lengths of incarceration 4.7 percent longer, and Hispanic male received lengths of incarceration 1.9 percent longer, than White males.
  • There was little difference among females receiving a sentence of imprisonment. The only statistically significant difference in the length of imprisonment among females was among Hispanic females, who received lengths of incarceration 5.9 percent shorter than White females.

Differences in the length of imprisonment across demographic groups were concentrated among individuals who received relatively short sentences.

  • Among individuals sentenced to 18 months or less incarceration, Black males received lengths of incarceration 6.8 percent longer than White males. The difference narrowed to 1.3 percent for individuals who received sentences of greater than 18 months to 60 months; but for sentences longer than 60 months, Black males received lengths of incarceration approximately one percent shorter than White males. Few differences were statistically significant when comparing sentences for females.

Across all analyses, females received sentences that were shorter, on average, than males.

  • When examining all sentences imposed, females received sentences 29.2 percent shorter than males. Females of all races were 39.6 percent more likely to receive a probation sentence than males. When examining only sentences of incarceration, females received lengths of incarceration 11.3 percent shorter than males.

November 14, 2023 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (36)

Monday, November 06, 2023

Were lots of new PRISMs filled in federal court last week as the new § 1B1.13 guideline became law?

The question in the title of this post is mostly designed to try to embrace a new term, PRISM, to refer to federal motions that are typically (and inaptly) called "compassionate release" motions.  Credit goes entirely to Doug Passon, who coins the term in the first part of this latest episode of his Set for Sentencing podcast.  Her explains that PRISM stands for "Prisoner Reduction In Sentence Motion."

Notably, federal law does not anywhere speak of "compassionate release" or making a motion for compassionate release.  Rather, 18 USC § 3582(c)(1)(A) describes the circumstances under which a prisoner can request a judge to "reduce the term of imprisonment."  That statutory section sets forth criteria that are about a lot more than just "compassion," and the US Sentencing Commission's key (and newly amended) guideline, titled "§1B1.13. Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A)", also addresses many topics that are not simply about "compassion."  Consequently, I see the term "compassionate release" motion to be an inaccurate term, whereas PRISM is an accurate and memorable acronym for the actual filings that prisoners can now bring directly to courts under the FIRST STEP Act.

Sadly, I fear that a long history of use of the term "compassionate release" in this context might mean that PRISM is not likely going to happen (like fetch, I fear).  But if PRISM has any hope to become a new moniker, now would seem to be the right time in light of the US Sentencing Commission's amended guideline officially becoming law on November 1.  As of that day last week, a lot more prisoners, I suspect, had a lot more opportunities to seek a sentence reduction.  I am not sure if anyone is keeping track of new PRISM filings, but I am sure this new guideline story will be worth watching closely under any name.

November 6, 2023 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, November 03, 2023

Prohibiting Punishment of Acquitted Conduct Act receives unanimous bipartisan support in US House Judiciary Committee

I noted in this post a few days ago that the US House of Representative Committee on the Judiciary on November 2 had a markup scheduled on a set of bills including the Prohibiting Punishment of Acquitted Conduct Act of 2023 (HR 5430).   I predicted that HR 5430 bill would move forward, but I was still pleased to see this press release from a bill sponsor about what transpired:

Congressman Steve Cohen (TN-9) today led the Prohibiting Punishment of Acquitted Conduct Act through the Judiciary Committee.  His bipartisan measure was approved 23 to 0.  In September, Congressman Cohen introduced the bipartisan, bicameral measure with Representative Kelly Armstrong and Senators Dick Durbin and Chuck Grassley. This legislation would end the unjust practice of judges increasing sentences based on conduct for which a defendant has not been convicted.  It will now advance to the full House of Representatives for a floor vote.

During today’s markup of the bill, Congressman Cohen said in part:  “I would like to emphasize that Kelly Armstrong (R-N.D.) was a strong supporter and an excellent cosponsor and I appreciate him and Senators (Dick) Durbin and (Chuck) Grassley on the Senate side as sponsors. Just about every Supreme Court Justice who’s been around lately – John Paul Stevens, Anthony Kennedy, and Antonin Scalia…Ruth Bader Ginsberg, Clarence Thomas, going down to (Neil) Gorsuch and (Brett) Kavanaugh have all said this needs to be changed.  So with that I would ask that we move forward and arrive at justice.  People should be convicted of proven crimes and sentenced for those crimes. That’s why we need this bill – to make sure that people are only sentenced for the crimes they were convicted of.”

So now we know that there is a least one issue that can garner bipartisan and even unanimous support in the US Congress, namely a statutory reform to prohibiting federal punishment based on acquitted conduct.  This notable vote committee certainly does not ensure Congress will get this bill to the desk of the President, but it should serve as a strong message to the US Sentencing Commission that it should have bipartisan support for any acquitted conduct reforms it might be considering during its current amendment cycle.

November 3, 2023 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, November 02, 2023

You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts?

This CNBC article reports on the high-profile federal jury convictions handed down this evening.  Here are the highlights with an eye on sentencing prospects:

A jury has found Sam Bankman-Fried guilty of all seven criminal counts against him. The FTX founder faces a maximum sentence of 115 years in prison.

Bankman-Fried, the 31-year old son of two Stanford legal scholars and graduate of Massachusetts Institute of Technology, was convicted of wire fraud and conspiracy to commit wire fraud against FTX customers and against Alameda Research lenders, conspiracy to commit securities fraud and conspiracy to commit commodities fraud against FTX investors, and conspiracy to commit money laundering.

He had pleaded not guilty to the charges, which were all tied to the collapse late last year of FTX and sister hedge fund Alameda. “Sam Bankman-Fried perpetrated one of the biggest financial frauds in American history,” Damian Williams, U.S. attorney for the Southern District of New York, said in a briefing after the verdicts were read. “The cryptocurrency industry might be new. The players like Sam Bankman-Fried, Fried might be new. But this kind of fraud, this kind of corruption, is as old as time and we have no patience for it.”

The trial, which began in early October, pitted the testimony of Bankman-Fried’s former close friends and top lieutenants against the sworn statements of their former boss and ex-roommate. The jury returned a swift verdict after receiving the case at around 3:15 p.m. on Thursday....

Judge Kaplan thanked the jurors for their service, and they were escorted out. Kaplan then asked about the second trial Bankman-Fried is facing on March 11. The government has until Feb. 1 to to let the court know if it it plans to still proceed. The sentencing date is March 28 at 9:30 a.m....

The monthlong trial was highlighted by testimony from the government’s key witnesses, including Caroline Ellison, Bankman-Fried’s ex-girlfriend and the former head of Alameda, and FTX co-founder Gary Wang, who was Bankman-Fried’s childhood friend from math camp. Both pleaded guilty in December to multiple charges and cooperated as witnesses for the prosecution. Most of the defense’s case was built on the testimony of Bankman-Fried himself, who told the court that he didn’t commit fraud or steal customer money, but just made some business mistakes.

The central question for jurors to consider was whether Bankman-Fried acted with criminal intent in taking customer funds from FTX and using that money to pay for real estate, venture investments, corporate sponsorships, political donations and to cover losses at Alameda after crypto prices plunged last year....

Bankman-Fried now awaits sentencing. His case has been compared to that of Elizabeth Holmes, the founder of medical device company Theranos, which ceased operations in 2018. Holmes, 39, was convicted in early 2022 on four counts of defrauding investors in Theranos after testifying in her own defense. She was sentenced to more than 11 years in prison, and began serving her punishment in May at a minimum-security facility in Bryan, Texas.

For sentencing purposes, I do not think Elizabeth Holmes is a perfect comparison for Sam Bankman-Fried.  But I expect SBF's lawyers are going to be eager to argue that Holmes and her sentence provide a proper benchmark for SBF's sentencing.  But I also expect the guideline range calculated for SBF to be higher than Holmes' calculated guideline range; in fact, it seem likely that the guidelines will recommend a life sentence for SBF.

But, of course, because the guidelines are only advisory, Judge Lewis Kaplan will have to assess all the 3553(a) factors to decide what sentence for SBF is "sufficient, but not greater than necessary, to comply with the purposes set forth" by Congress in 3553(a)(2). Though sentencing is not scheduled to take place for nearly five months, it is surely not too early for folks to use the comments to share their own views on a "sufficient, but not greater than necessary," sentence for SBF.

November 2, 2023 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (33)

Notable coverage of Third Circuit's latest jolt to loss calculation in federal fraud guidelines

In this post more than 30 months ago, I asked "Did a Sixth Circuit panel largely decimate the federal sentencing fraud guidelines (and perhaps many others)?"  That post was focused on US v. Riccardi, No. 19-4232 (6th Cir. Mar. 3, 2021) (available here), where the panel ruled that a quirky part of the commentary to the 2B1.1 fraud guideline improperly expanded the guideline term "loss."  I thought that ruling could further undermine the key 2B1.1 guideline commentary stating that "loss is the greater of actual loss or intended loss."  Notably, last year in US v. Banks, No. 19-3812 (3d Cir. Nov. 30, 2022) (available here), a Third Circuit penal embraced that thinking when holding that "the loss enhancement in the Guideline’s application notes impermissibly expands the word 'loss' to include both intended loss and actual loss." 

Savvy administrative law folks (or regular readers) likely know that this jurisprudence flows from the Supreme Court's work in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), which recast  "the deference [courts] give to agencies ... in construing agency regulations."  (Of course, the Kisor case had nothing to do with the federal sentencing guidelines, but lower courts have since grappled with whether and when Kisor means that the commentary to the guidelines no longer should always be followed.)  And savvy white-collar practitioners  likely know that this jurisprudence can be an especially big deal in high-profile fraud cases.  And this week, Bloomberg News has this lengthy discussion of some of the fall-out of the Banks ruling under the headline "Wall Street Fraudsters Rush to Cut Prison Terms With New Ruling."  I recommend the piece in full, and here are extended excerpts:

In the case of [Gary] Frank, who pleaded guilty in 2019 to inflating the revenue of his legal benefits company to borrow millions, there was a big difference between the amount he intended to cheat his victims (as much as $150 million) and their actual losses (as much as $34 million).  And that just may help him get out of prison early.

The fallout started last year after the 3rd Circuit US Court of Appeals ruled that Frederick Banks, a Pennsylvania man convicted of attempting to dupe Gain Capital Group LLC out of $246,000, should be resentenced.  The online trading company, the court found, suffered no actual losses given that it never sent him the funds.  The Banks decision is significant since the gap between actual and intended losses in fraud cases can be vast, greatly skewing the amount of prison time from barely any to more than a decade.

“The No. 1 variable that moves the needle in sentencings for white collar cases is the loss amount,” said Andrew Boutros, a white-collar defense attorney at Dechert. “The loss amount has a huge impact on the ultimate advisory sentencing range that the court calculates.”...

The ruling has sparked a debate on how much deference to give the US Sentencing Commission’s interpretation of its own guidelines, which includes a scale for federal judges across the country to follow for ratcheting up prison time based on losses to victims.  The commission suggests in its commentary using the greater of actual or intended loss when determining sentences.  But the appellate panel in Banks used a Supreme Court decision to challenge the commission’s authority to interpret its own rules in finding that only actual loss should be used to calculate sentences.

Prosecutors have tried to persuade judges that the sentencing commission’s interpretation deserves deference.  The Justice Department has warned that relying only on actual losses would let certain defendants off the hook who are unsuccessful in pulling off a scheme.  Defense attorneys for years have argued that relying on intended loss under the commission’s guidelines leads to overly harsh sentences that don’t reflect the criminal conduct. “We are getting these absurd results where nonviolent criminals are getting extraordinary sentences,” said defense attorney Tama Kudman.

Kudman successfully used the Banks ruling in Florida to persuade a judge that actual losses should only be taken into account when sentencing a lab owner found guilty of billing Medicare for unnecessary genetic tests.  Minal Patel billed Medicare for more than $463 million in tests but the actual loss to taxpayers was $187 million.

The Banks decision could significantly reduce prison time for defendants in securities and commodities cases since it is difficult to figure out actual losses in those situations.  “Prosecutors often rely upon intended loss as a proxy for actual loss in securities and commodities fraud cases,” wrote Paul Hastings attorneys in a client alert.  “This practice has allowed the government to calculate large loss amounts and seek high guidelines sentences where actual loss is incalculable or impractical to determine.”  It could also impact charging decisions, especially in 3rd Circuit territory, where prosecutors may think twice about devoting resources to cases with small actual losses.

In the year since the Banks ruling, defense attorneys have had limited success using the decision outside of the 3rd Circuit, which covers Pennsylvania, New Jersey, Delaware and the Virgin Islands.  In December, a federal judge in Michigan sided with the Banks ruling in a case involving a defendant who pleaded guilty to fraud against JPMorgan.  The judge reasoned that she didn’t have to defer to the sentencing commission because the definition of loss isn’t “genuinely ambiguous.”

In June, a North Carolina federal judge also agreed with the 3rd Circuit decision in supporting a lower sentencing guideline for a man who pleaded guilty to bank fraud against several financial giants, including JPMorgan, Wells Fargo and crypto exchange Coinbase Global Inc.  But the following month, a 6th Circuit panel shot down an attempt by a chemical engineer to rely on the ruling after she was convicted of stealing trade secrets from her former employers.  The panel criticized the 3rd Circuit for imposing a “one-size-fits-all definition” for loss that could “lead to vastly different sentences for similarly culpable defendants.”

In other cases, the 1st and 4th Circuits declined to take a position. “This is a new and fast-developing area of the law, and as of now, we do not have the kind of robust consensus in other circuits,” the 4th Circuit panel wrote.  That’s why some legal experts believe the Supreme Court will need to decide even though it has so far refused to take up the issue.

Judges, prosecutors and defendants have all urged the sentencing commission to make changes.  One defendant who is serving 95 years in prison for a cyber financial fraud scheme argued in an email to the commission to get rid of the intended loss interpretation since “it’s not based on fact, but rather off of subjective interpretation or ‘guess work.’”

November 2, 2023 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, November 01, 2023

Rounding up a few reactions to new federal sentencing guidelines going into effect

As noted here, the new US Sentencing Guidelines officially went into effect today.  This formal legal development prompted a few press pieces that merit a round-up:

From Bloomberg Law, "Significant Amendments to US Sentencing Guidelines Now in Effect"

From FWD.com, "Federal Sentencing Commission Advances Meaningful Criminal Justice Reforms"

From JD Supra, "Good News for White Collar Defendants and Their Lawyers – Recent Changes to the Sentencing Guidelines"

From Marijuana Moment, "Federal Sentencing Commission’s New Marijuana Guidelines Directing Judges To Treat Past Convictions More Leniently Officially Take Effect"

November 1, 2023 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)