Crime in the Suites: An Analyis of Current Issues in White Collar Defense
Posts Tagged ‘Federal Sentencing Guidelines’
May 15
2017

DOJ’s New Charging and Sentencing Policy Will Disproportionately Impact Vulnerable Populations

On May 10, 2017, Attorney General Jeff Sessions issued a memorandum that expressly rescinds previous Department of Justice (DOJ) policy and directs federal prosecutors to “charge and pursue the most serious, readily provable offense” against federal defendants.

The likely result of this harsher approach to the enforcement of federal drug laws is a return to mass incarceration, with disparate impacts on communities of color and victims of the opioid epidemic.

In addition to this express directive to charge the most serious offense, the policy also requires prosecutors to disclose to sentencing judges “all facts that impact the sentencing guidelines or mandatory minimum sentences” in a given case. For drug-related crimes, such facts include drug quantity and prior convictions, both of which can trigger minimum sentences that judges must impose.

Sessions’ memorandum does allow for exceptions in limited cases. If prosecutors conclude that strict application of the charging policy is not warranted in a particular case, the prosecutor should consider whether an exception is justified. Any decision to depart from the policy must be approved at the highest levels of the Justice Department and documented in the defendant’s case file.

With respect to sentencing, prosecutors are expected to recommend a guidelines sentence in most cases. Prosecutors may recommend a guidelines departure or variance in certain cases, but the recommendation must be approved and documented in the case file.

During the last election cycle, then-Senator Jeff Sessions campaigned on behalf of the self-described “law and order” candidate, Donald Trump. Therefore, it should come as no surprise that, as Attorney General, Sessions implemented this harsher policy for the charging and sentencing of federal crimes, or that he repudiated the previous administration’s approach.

In expressly rescinding “any inconsistent previous policy” of the DOJ related to charging and sentencing, Sessions’ memo targets the policies of his predecessor, former-Attorney General Eric Holder, concerning mandatory minimum sentences and recidivist enhancements against non-violent drug offenders.

In contrast to Sessions’ approach, the Justice Department under the Obama Administration pursued a “Smart on Crime” initiative that sought to promote fairer enforcement of federal laws and, importantly, alleviate disparate impacts of the criminal justice system—particularly on vulnerable populations.

Federal prosecutors were directed to make charging decisions in drug cases based on case-specific factors, such as the defendant’s conduct and criminal history, circumstances related to the offense, the needs of the community, and federal resources and priorities. They were also directed to avoid charging decisions that would trigger mandatory minimum sentences in the cases of low-level, nonviolent drug offenders. Prosecutors had discretion at sentencing and discouraged recidivist enhancements for low-level, non-violent drug offenders.

The Obama Administration’s clemency initiative applied these same standards, and resulted in the granting of clemency to hundreds of federal inmates serving lengthy sentences for low-level drug crimes.

Holder wanted the Department to be smart on crime, Sessions wants it to be tough. Under the current new policy, federal prosecutors must take a harsher approach to enforcement of federal drug laws. The likely result will be a return to mass incarceration with high costs to the tax payer and disproportionate impacts on communities of color and victims of the opioid epidemic—populations that candidate Trump promised to help.

The Justice Department’s new charging and sentencing policy shifts leverage back to prosecutors. Defendants in drug cases are more likely to negotiate a plea deal than contest federal charges and risk being sentenced to a mandatory minimum. Defendants not subject to a mandatory minimum may be just as likely to contest their charges. If they do, their best hope for leniency will be the sentencing courts; prosecutors now have limited discretion to cut any slack.

Jan 06
2015

Even Governors Go To Jail

mcdonnell x-large

Photo Credit:  Steve Helber, AP

This afternoon, the long-running saga of Robert McDonnell came to what may be the end (not counting appeals) when the former Virginia Governor was sentenced to serve two years in prison after a jury convicted him of bribery while in office.  As with many cases, this one has lessons to teach for those of us who carefully follow sentencing advocacy in federal criminal cases.

One lesson that we have observed before – but is worth repeating – is how powerful it can be to present a sentencing judge with written or spoken testimonials about the otherwise good character of the defendant. In the presentence report, the Probation Department had recommended an advisory sentencing range under the U.S. Sentencing Guidelines of more than ten years, though the judge concluded that the proper advisory range was 6-1/2 to 8 years.  But the defense presented some 440 letters in support of the former Governor, as well as live testimony from a number of witnesses.  Even the Assistant United States Attorney, who asked for a harsh sentence to be imposed on Mr. McDonnell, conceded that the letters and testimony were moving.

That, of course, is the point: When a criminal defendant – especially one convicted by a jury that rejected his testimony – comes before a judge for sentencing, all that the judge knows about him is that he has committed a crime.  Letters and testimony help the defense to present the judge with a three dimensional human being, and facilitate the judge’s fuller consideration of the imposition of a fair and just sentence.  In the case of Rajat Gupta, Judge Jed Rakoff was moved by the letters of hundreds of supporters to sentence him to a two-year sentence despite prosecutors’ calls for a sentence of ten years in prison.  Here, Judge James Spencer was likewise motivated by evidence of Mr. McDonnell’s character to find that a sentence of eight years “would be unfair, it would be ridiculous, under these facts.”

But there is also a second lesson to be learned from Mr. McDonnell’s sentencing, and it is also one that is often repeated: No one is above the law, and indeed, we may hold our public officials to a higher moral standard in their conduct.  Judge Spencer’s comments at sentencing reflected this view: “A price must be paid,” he said. “Unlike Pontius Pilate, I can’t wash my hands of it all. A meaningful sentence must be imposed.” For that reason, among others, Judge Spencer rejected defense lawyers’ calls for a non-incarceration sentence that they had suggested, which could have included thousands of hours of community service.

Nov 15
2013

Peugh Ruling Affirms Sentencing Guidelines at the Time of the Crime are Applicable

In a key sentencing decision handed down this year, the United States Supreme Court held that the Ex Post Facto Clause is violated when a defendant is sentenced under provisions of the Federal Sentencing Guidelines promulgated after he committed the crime and those new provisions result in an increased risk of greater punishment. In addition to clarifying the proper application of different versions of the Sentencing Guidelines, this is a particularly significant decision because the Supreme Court has now held that even post-Booker, an error in calculating merely advisory guidelines ranges still invalidates the sentence.

Marivn Peugh and his cousin Steven Hollewell were charged in 2008 with nine counts of bank fraud in connection with a check kiting scheme from 1999 to 2000 that allegedly caused the bank to suffer over $2 million in losses. Hollewell pleaded guilty to one count of bank fraud and was sentenced to one year and one day imprisonment. Peugh pleaded not guilty and went to trial where he testified that he had not intended to defraud the banks. Peugh was nonetheless convicted by the jury of five counts of bank fraud, although he was acquitted of the remaining counts.

At the time of Peugh’s offense (in 1999 and 2000), the 1998 Guidelines were in effect. Under the 1998 Guidelines, the base offense level applicable to his offense was six, and thirteen levels were added for a loss amount of over $2.5 million, creating a total offense level of nineteen. The government argued for an additional two level enhancement for obstruction of justice, which brought the total offense level to 21. Since Peugh was a first time offender in criminal history category I, he had an advisory sentencing range of 37-46 months under the 1998 Guidelines.

When Peugh was sentenced in 2010, the district court applied the 2009 Guidelines which were then in effect. Under the 2009 Guidelines, the base offense level applicable to Peugh’s conduct was now seven, and the enhancement for a loss value of over $2.5 million added an additional eighteen levels. After adding the two level enhancement for obstruction of justice, Peugh’s total offense level under the 2009 Guidelines was 27 – six levels higher than under the 1998 Guidelines.  With a criminal history category of I, the advisory range for sentencing was 70-87 months – roughly double the range under the earlier version of the Guidelines. The district court sentenced Peugh to 70 months imprisonment, at the low end of the advisory Guidelines and he appealed the decision.

The U.S. Court of Appeals for the Seventh Circuit affirmed the sentence from the district court and quickly dismissed Peugh’s argument that the sentence violated the Ex Post Facto Clause. Relying on its own 2006 decision in United States v. Demaree, the Court held that the advisory nature of the Sentencing Guidelines post-Booker makes moot any argument that the application at sentencing of an increased Guidelines range at sentencing was not in effect at the time of the offense violates the Ex Post Facto Clause. This ruling was no surprise given that the Seventh Circuit has reaffirmed this proposition twice since it issued its 2006 ruling in Demaree.

The Supreme Court granted certiorari to resolve a Circuit split on this issue.  On appeal, the focus of the Court’s analysis was on whether the Guidelines – which, post-Booker, are admittedly advisory – are sufficiently material to judges’ decisions about sentencing to warrant application of the Ex Post Facto Clause. In support of his argument, Peugh relied upon empirical evidence showing the judges are indeed influenced in their sentencing decision making by the Guidelines even if those Guidelines are not binding. On the other hand, the government argued that there was no precedential basis for the application of the Ex Post Facto Clause to a provision of law that is merely advisory.

In its holding the Court emphasized that the intent of the Ex Post Facto Clause was that it “ensures that individuals have fair warning of applicable laws and guards against vindictive legislative action.” Even where these concerns are not implicated, the Court held that the Ex Post Facto Clause also “safeguards a fundamental fairness interest.” The Court noted that, while the Guidelines are advisory, judges are still required, under Gall and by statute to begin their sentencing determination by correctly calculating the applicable Sentencing Guidelines range.  The Court noted that continued vitality of the Guidelines in encouraging uniformity in sentencing by creating procedural hurdles that make the imposition of a sentence outside the guidelines range less likely. In doing so, the majority rejected the argument in Justice Thomas’ dissent that the advisory nature of the Guidelines means that do not “meaningfully constrain” a judges’ discretion.

The ruling in Peugh provides clear guidance to district judges that the version of the Sentencing Guidelines to be applied is the one in place at the time that the defendant committed his or her conduct constituting an offense. Of course, the Court’s ruling does not resolve how that principle will apply in cases involving charges such as conspiracy that may occur over a substantial period of time during which there may be multiple versions of the Guidelines. That issue and others will undoubtedly be the subject of litigation to come.

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About Ifrah Law

Crime in the Suites is authored by the Ifrah Law Firm, a Washington DC-based law firm specializing in the defense of government investigations and litigation. Our client base spans many regulated industries, particularly e-business, e-commerce, government contracts, gaming and healthcare.

Ifrah Law focuses on federal criminal defense, government contract defense and procurement, health care, and financial services litigation and fraud defense. Further, the firm's E-Commerce attorneys and internet marketing attorneys are leaders in internet advertising, data privacy, online fraud and abuse law, iGaming law.

The commentary and cases included in this blog are contributed by founding partner Jeff Ifrah, partners Michelle Cohen and George Calhoun, counsels Jeff Hamlin and Drew Barnholtz, and associates Rachel Hirsch, Nicole Kardell, Steven Eichorn, David Yellin, and Jessica Feil. These posts are edited by Jeff Ifrah. We look forward to hearing your thoughts and comments!

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