Articles Posted in Sentencing

The media and “the Internets” are all agog over yesterday’s filing in the Mueller Investigation by which the Office of Special Counsel said that one of its cooperating witnesses in that federal criminal case, former General and National Security Advisor Michael Flynn, has provided “substantial assistance”.  I’ve been handling federal criminal cases for over 35 years, and have been on the “giving” and “receiving”end of substantial assistance.  Despite the furor in the media, I wanted to talk a little about how these things work in the real world.

For starters, the idea that those who cooperate with prosecutors get a better “deal” is not exactly news. This practice of trading info for jail time is probably as old as crimes and criminal justice systems.  However, the absolutely horrible 1984 Comprehensive Crime Control Act, inter alia, wrote this practice into federal criminal law.  For the first time, this law created specific statutes, Guidelines and Rules of Procedure that encapsulated the practice of rewarding someone for “snitching.” Continue reading

OK, here’s my second post on the annual amendments to the Federal Sentencing Guidelines, rules that govern imposition of a criminal sentence in all federal courts from Alanta to Alaska, from Maine to Moultrie (way down in South GA, look it up if you’re not familiar with it).  There are two good defense-friendly amendments I will mention, but first, a little more history (poor readers, you know my inclinations).

Over the past 30 years, there have been a number of trends we see in these yearly Guideline amendments.  For the first 15-20 years, virtually all such amendments resulted in harsher sentences.  Then, when Congress and the public began finally listening to those of us hollering about how the United States had turned into the country that incarcerates the largest percentage of its population, the rules slowly began to soften.  It also helped when fiscal hawks joined the “defense” side of the argument, pointing to the millions of dollars wasted when locking up low-level offenders.  The past 10-15 years have included a number of amendments that actually reduce or make sentences less harsh than earlier versions of the Guidelines.  The 2018 amendments are more down the middle, a few that jack up sentences (for newer offenses like dealing fentanyl or designer drugs)  and others help to soften the blow for many of my clients.  Today, I want to discuss two defense-friendly changes effective 11-1-18.

First, there is a change concerning the “acceptance of responsibility” rules, found at USSG §3E1.1.  Remember that a defendant can earn up to 3 points “off” the scoring rules when he or she “accepts responsibility”, which generally means pleading guilty and doing so early enough so that the prosecutor did not have to actually do some work preparing for trial.  However, experienced readers know about Presentence Reports, defense objections, and the all-important federal sentencing hearing where arguments on each side are presented to the Judge, whose rulings on contested issues can have a huge impact on the sentencing “range” and therefore the ultimate sentence.  One of the biggest issues is often the scope of “relevant conduct”, meaning how much stuff done by other people will the Defendant in court be held accountable for?  Over the years, some prosecutors and truly mean judges took the position that a Defendant who fights against relevant conduct can lose the 3-point reduction because that Defendant has not shown he or she is truly accepting responsibility.

Here is a photo of one of the bookshelves of my Atlanta officer where I handle lots of federal criminal cases. IMG_0658  If you look closely you will see row after row of Federal Sentencing Guidelines Manuals, stretching from the current version back to the slim original 1987 Guidelines.  I just got done ordering the newest version.  Each year, like clockwork, the United States Sentencing Commission issues a new and amended version of the Guidelines.  Each year, this annual version comes into effect on November 1.  Just like the New Year celebrations make people take stock and consider their lives, the yearly issue of the Sentencing Guidelines caused me to reflect on this three-decade experiment in using “Guidelines” to impose a federal criminal sentence. I will write several posts about the Guidelines, their changes, and how all of this impacts lawyers and clients involved in a federal criminal case.

Let’s start by discussing the increased complexity of the Sentencing Guidelines.  My original 1987 version was a slim 557-paged tome, while the most recent version is a two-volume set that exceeds 2100 pages total.  One reason that the materials are more lengthy is that every year, the Sentencing Commission also publishes all the earlier amendments as part of the current year’s issue.

Many lawyers do not appreciate the importance of having all of the earlier amendments.   I like to keep all of my old books just so that I can trace back the lineage of the current Guideline and its predecessors.  Sometimes, researching the Guidelines is a bit of an archeological expedition, with the attorney peeling back layers of history in order to figure out the reasoning behind the current version of a particular rule.

All lawyers need to keep up with their reading, and criminal defense attorneys are no different.  I’ve been plowing through recent federal criminal cases, and came across three (not from the Atlanta area) that deal with the financial aspects of a federal criminal sentence.  Each sort of reminds me of the Ojay’s song, “For the Love of Money”  with that great refrain, “Money Money Money Money, MONEY!”

OK, class, let’s remember the basics.  A federal criminal sentencing hearing involves more than just the amount of time a person might have to go to prison.  A federal judge can also impose three distinct types of financial orders that require payment.  First there is a “fine”, which usually can be up to $250,000 per count, this money is considered “punishment” and the payment goes directly to Uncle Sam.  Next, there is “restitution”.  This is supposed to pay back victims any loss they suffered from the crime, and while the Defendant pays this money to the Clerk of the Court, the money goes back to the victim eventually.  Then, we have the often misunderstood “forfeiture.”  Under the current version of this old doctrine, property used in or obtained as a result of a crime belongs to the government from the moment the crime took place.  If that property has been used up (or in the case of real money, has been spent) then the government can try to get an equal amount out of the Defendant using the “substitute assets” rule.  The forfeiture payments also go right to the U.S.  And, here’s the kicker: if a Defendant is able to pay, he or she can be forced to pay all three amounts for the same crime, meaning triple whammy for any person of means who is convicted of a federal offense.

Now to our recent decisions discussing some of these financial aspects of federal criminal sentencing.     In United States v. Green 16-3044-2018-07-31, the Defendant’s Mom got VA benefits, and when her mother passed away, Ms. Green kept spending the monthly check without telling the VA. This went on for many years, and it took many years more before the government got around to charging her with a crime in New York.  Ms. Green was required to pay restitution, but the question was how far back did her restitution obligation go, especially since many of the monthly payments were outside the 5-year statute of limitations?  The prosecutors argued that embezzlement of this sort is a “continuing crime”, meaning that they wanted her to pay restitution back to the point when the Defendant’s mother died. Nope, said the Second Circuit, only those within the limitations period qualify as restitution.

My criminal defense office is in Atlanta, but as a lawyer my clients are from various parts around the country.  Readers of this blog know that the majority of my clients face federal criminal charges.  One long-standing client recently died, it was very sad, he was in his late 50’s and is survived by his wife of three decades and seriously disabled child.  I was very troubled by this man’s case, for I felt he did not commit a crime.  However, the prosecutors threatened to go after his wife, leading this client to decide to plead guilty to protect his spouse.  The Judge imposed a 6-month sentence and ordered my client to pay a substantial “forfeiture”.  The client passed away recently, leading me to ponder the criminal defense lawyer’s duties when his or her client dies and some parts of a case are still unresolved.

For many years, I have known about a somewhat quirky rule which says that death can end a criminal case. The theory goes like this: if a criminal Defendant is convicted, that conviction is not “final” until his or her appeal rights are over.  If the Defendant dies while the case is on appeal, the courts are supposed to dismiss all the charges “ab initio,” which is fancy Latin for “from the beginning.”  The theory is that the case might have been reversed by the higher courts, and it is unfair to saddle the Defendant’s family with a conviction or monetary payment without the chance to take full advantage of appellate rights.  I’ve had this happen a few times, before, and have filed one of the strangest documents any lawyer gets to file: “Defendant’s Suggestion of Death.”  I simply do not understand why we always call it merely a “suggestion” of death, for the condition seems final enough to flat-out say  “my client died, dismiss his case.”  Anyway, I’ve had a couple of cases dismissed because of my client’s untimely death.

However, my client’s death recently got me thinking so I did some additional research.  Many of my readers know that at the sentencing hearing there are several different types of “punishment” that can be imposed in a federal criminal case.  Jail time is the most obvious, but a Judge can also impose supervised release (which comes after any imprisonment and can result in more time in custody if the person violates the conditions of release), a fine (money paid to the U.S. Treasury), restitution (which is paid back to “victims”, but the Defendant makes the payment to the Clerk’s office), and forfeiture (which is a legal theory saying that the property or proceeds from a crime belong to the government from the moment the crime happens and the Defendant needs to give them up).  I started pondering the impact of a Defendant’s death on all of  aspects of a sentence, including restitution, fines and forfeiture. Amazingly, the answers turn on when the Defendant dies, and where.

Sentencing Hearings are one of the things I handle often as a criminal defense lawyer here in Atlanta and other parts of the country.  I also write occasionally about how the press and criminal cases intersect, and the increasing abdication by the press when they simply re-print whatever “press release” gets issued by some prosecutor’s office.   Today I just finished a two day sentencing hearing in federal court.  There likely will be some press coverage about the case, but I will leave that for another day.  Instead, I want to talk more specifically about how sentencing hearings operate in theory, and in practice.

People who are familiar with the kind of work that I do know that a sentencing hearing needs to happen any time someone is convicted of a federal crime (whether that conviction comes after a trial or after a plea of guilty).  The first thing that happens is that the person gets interviewed by a United States Probation Officer, who creates a lengthy document called the “Presentence Investigation Report” or “the PSR.”   The PSR generally has two parts.  One is sort of a miniature biography of the Defendant, while the other portion is where the Probation Officer makes recommendations about how to calculate the Sentencing Guidelines.  These Guidelines result in a “range” of months for a particular case.  This range is the starting point, because after the Judge calculates the Guidelines and gets that range, the Judge then needs to decide what is a “reasonable sentence.”  The factors for a reasonable sentence are found in another law called title 18 United States Code, Section 3553.  After the Judge considers those factors, the Judge decides if the 3553 factors suggest a sentence that should be inside, higher, or lower than the range suggested by the Sentencing Guidelines.  At least this is the way it is supposed to work.

However, note that a Judge can stay within, go higher or go lower than the Guidelines but only after first calculating those Guidelines.  Experienced lawyers in the federal criminal justice system (and by this I mean BOTH prosecutors and criminal  defense lawyers) know that it is easier for a judge to give a sentence that is at least close to the Guideline range.  Prosecutors therefore advocate for calculating the Guidelines that result in a higher range, defense lawyers argue for applying the Guidelines that result in a lower range. Obvious, right?

I’m working on a case with a very talented Atlanta-based criminal defense lawyer.  Our clients were accused of and later convicted for fraud involving several businesses.  These are a somewhat different type of white collar offense, for some of the crimes are what we call “securities fraud”, meaning fraudulent conduct relating to the offering or sale of what most people call “stocks”.  However, our clients are going to be sentenced soon, and we are preparing for the upcoming sentencing hearing.  This other attorney and I are running headlong into the extraordinarily unfair sentencing guidelines in these type of federal cases.  Although the Guidelines are extremely unfair, we discovered that a lot of federal judges have been extremely critical of these Guidelines and have extensively criticized this approach over approximately the past decade.

First, a little history (those who know me remember that I majored in history and often try and place issues into historical context for better understanding).  The Guidelines came into effect in 1987, and were supposed to iron out differences between the sentences issued by different judges.  Then, we had the big corporate meltdowns in the early 2000’s, Enron, Worldcom, Arthur Anderson, etc.  Congress responded with what is usually called “Sarbanes/Oxley“, a series of laws designed to prevent such corporate high-level shenanigans.  All fine and good, from my viewpoint.  However, (and here’s the “unfair sentencing guidelines part” coming back), as part of this Sarbanes/Oxley law Congress also told the United States Sentencing Commission to greatly ratchet up the sentences imposed on high-level corporate fraudsters, the kind who led to Enron, Worldcom, Arthur Andersen, etc.  Again, fine and good.

The problem, of course, is that the Sentencing Commission created new and extremely punitive Guidelines that are more of a “one-size-fits-all” set of enhancements for most corporate offenders if a case involves securities or stocks.  As a respected Senior Judge in New York wrote in the opening lines of his decision in United States v. Parris:  “I have sentenced Lennox and Lester Parris today to a term of incarceration of 60 months in the face of an advisory guidelines range of 360 to life. This case represents another example where the guidelines in a securities-fraud prosecution “have so run amok that they are patently absurd on their face,” United States v. Adelson, 441 F. Supp. 2d 506, 515 (S.D.N.Y. 2006), due to the “kind of `piling-on’ of points for which the guidelines have frequently been criticized.” Id. at 510.”

Most readers know that I am an Atlanta-based lawyer who handles lots of federal sentencing hearings, along with just about all other aspects of representing people and companies who are investigated or prosecuted for federal crimes.  Because of my work,  I try to keep tabs on developments in the court system that can impact my cases.  Today, the United States Supreme Court issued two rulings that talk about seemingly esoteric parts of a sentencing hearing.  One case involves an overlooked “mistake”, while the other discusses the amount of justification a judge needs to provide for making a sentencing decision.

The first case is Rosales-Mireles v. United States.    I understand human frailties, we all make mistakes.  But somehow, EVERYONE INVOLVED in this person’s case somehow missed that the U.S. Probation officer double-counted a previous misdemeanor conviction that had been imposed on Florencio Rosales-Mireles.  No one caught the mistake, which changed the U.S. Sentencing Guideline range from 70-87 up to 77-96  months.  Believing that the correct range was the higher number, the sentencing judge imposed a 78 month sentence, one month longer than the presumptive “low end” of the range.  On appeal, the Defendant’s lawyer recognized the mistake and asked for a correction.  That’s when his team ran headlong into the maw of what is called “plain error.”  This rule makes it near to impossible to win because there must be a finding that any error affected the Defendant’s “substantial rights.” The bottom line from this case is that the Supreme Court somewhat relaxed this otherwise stringent rule, and allowed the case to be sent back down for another sentencing hearing.

The other case is Chavez-Meza v. United States.  A portion of the law governing federal sentencing proceedings says that the Judge must “state in open court the reasons for [imposing] the particular sentence.”  However, an earlier Supreme Court decision, which discussed this aspect of the sentencing hearing, ruled that “[t]he law leaves much . . . to the judge’s own professional judgment.”  This is especially so when “a matter is . . . conceptually simple . . . and the record makes clear that the sentencing judge considered the evidence and arguments.”  Here, some amendments to the Sentencing Guidelines reduced the range that applied to Mr. Chavez-Meza’s case.  After the change, the defense lawyer asked for 108 months, but the Judge imposed 114 months. The Judge did not hold a hearing, but merely checked a box on a form for reducing the sentence.  The 5-Justice majority said that was OK. The dissenters pointed out the “serious problem” with this decision: “the difficulty for prisoners and appellate courts in ascertaining a district court’s reasons for imposing a sentence when the court fails to state those reasons on the record.”  This might not seem like a big deal, but it can be.  When we are arguing for an appropriate sentence, I always want to know the Judge’s thinking, for sometimes we can tailor our arguments to that thought process and get a better result.  This case is disappointing because it allows Judges to hand out a sentence without providing any background as to the Judge’s reasons.

We represent lots of people convicted of federal white collar crimes, and in many of these cases, our clients have defrauded or caused losses to individual or institutional victims. We always try to have our client pay back to any victim as early as possible, if the client was truly responsible for the victim’s loss.  Repayment is not only the right thing, it also helps us in trying to get the best possible sentence.  However, we often run into the situation where the client needs to avoid prison in order to keep working to pay off the defrauded victims.  The United States Court of Appeals for the Eleventh Circuit, right here in Atlanta, recently issued an opinion that reversed a criminal sentence imposed on a woman who was unable to make full restitution.  The case is United States v. Pate, and can be found here.

Ms. Pate is a native of Polynesia, and she married a man from the mainland when she was very young.  By all accounts, she was totally dependent on her husband when the couple moved to South Florida.  Ms. Pate also worked in a bank and had befriended an elderly couple who were customers of the bank.  When her husband died leaving her completely alone, doctors and friends all noted that she went into a tailspin.  She ended up embezzling about $176,000 from the elderly couple.  When confronted, she confessed, and pled guilty to embezzlement by the employee of a federally insured bank.  Continue reading

We handle lots of federal criminal cases.  Many of our cases end up with a sentencing hearing. At the sentencing hearing, a federal judge decides what kind of punishment to impose on our client.  A case yesterday from the United States Court of Appeals for the Eleventh Circuit reminds us that sometimes our client can end up losing, even if it appears at first that we “win.”  This case reminds us that attorneys handling federal sentencing hearings need to think through what might happen if they convince the judge they are right about some aspect of a sentencing hearing.  Yesterday’s case is United States v. Slaton, and can be read here.

Mr. Slaton was a letter carrier for the U.S. Postal Service in beautiful Birmingham, Alabama, where I was handling a federal sentencing hearing just yesterday.  He lived about 30 miles away, so he needs to drive to and from work.  Mr. Slaton hurt his back, and eventually received disability benefits, reporting constant pain and need for various therapies.  Other evidence made it appear that he was faking his injuries, with evidence that he regularly went to the gym, remodeled homes, and drove long distances.  He was indicted for a variety of charges, such as making false statements in order to obtain worker’s compensation benefits, wire fraud, and theft of government property.  A jury convicted him of all counts.

The Judge who presided over the trial also conducted a sentencing hearing.  As any reader of this Blog knows, this is the point in the process where a Probation Officer prepares a Presentence Investigation Report to begin the process of calculating the wickedly complex Federal Sentencing Guidelines.  As we have discussed recently in another post, the concept of “loss” is exceedingly important in such cases.  The sentencing judge felt that the “loss” was lower than what the prosecutors wanted,  which led the Judge to calculate the potential Guideline “range” as suggesting 18-24 months custody.  The Judge was obviously not all that impressed with the government’s case, and decided that Slaton did not need to go to jail, and thus take up even more tax dollars.

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