Recall, the PSR is a document prepared by a U.S. Probation Officer who works for the Judge.  The PSR is only prepared if a Defendant is either found guilty by a jury, or if he or she admits to committing a crime in a guilty plea proceeding.

The PSR has two basic part.  First, the Probation Officer (or “the PO”) outlines the crime and as part of that then makes recommendations as to how the Sentencing Guidelines might apply to that conduct.  Second, the PO writes up what is essentially a miniature biography of the accused person, with information about the Defendant’s family, education, health, financial situation and other factors that  might impact what is or is not a “reasonable sentence”.

The PO then gives both sides the opportunity its to submit “objections” to the initial version of the report.  If one side or the other does not like something that the PO has written, they can try to change the PO’s position on something before the final PSR is sent to the Judge.  This is a very important stage, in that the failure to properly object can sometimes prevent an otherwise good sentencing argument from being raised in a later appeal.

The final PSR goes to the Judge no later than 10-14 days before the sentencing hearing.  The Judge begins the sentencing hearing by first referring to the PSR, and discusses whether there are any unresolved objections.  As a result, the PSR is sort of the jumping off point for the hearing, so getting this document into the best shape possible from the defense perspective is crucial.

Today I am drafting objections to a PSR.  There always is the temptation to write out a long explanation of why the PO got it wrong, but the longer I do this work (we are over 40 years now) the more that I find a short and directly focused attack often works the best.

My client in this second matter is an extremely bright guy who made some mistakes and got involved in a fraud scheme. I could tell shortly after he and others were indicted together that the prosecutor suspected but did not yet realize that my client was actually the brains behind the operation.  We decide to take the chance of going through the “proffer” exercise.  I have written before on this, but it is worth describing once again.

When a federal prosecutor believes that a suspect or Defendant has valuable information that might assist in the prosecution of other people, the prosecutor will sometimes ask the defense lawyer to bring the client in for a “proffer.”  The Government asks for these to see if the accused person has important and useful information, and also to assess whether my client might make a good witness if he or she decides to cooperate against others.

These proffer sessions to me are much like taking a test drive at an auto dealer.  The driver is not obligated to buy, nor is the dealer obligated to sell.  They just want to see whether the vehicle fits that particular person.

The dangerous part of the proffer is that the defense lawyer does not necessarily know everything that the prosecutor and federal agents know, so the lawyer needs to thoroughly and completely prepare his client beforehand.  Furthermore, some people have a hard time admitting when they did something wrong, so quite often the attorney needs to assist his or her client in the way they admit what they did, as much as the actual admission itself.

In the case I am discussing, we spent a lot of time with the client working on the method for admitting what he did.  It seemed to work.  At the end of the proffer session, the prosecutor marveled, saying that he was surprised that my client was so clear and forthright when admitting what he had done.  That clarity and certainty came  back to help the client when he was asked to testify against one of his co-Defendants.  Although the client had already started his sentence, he followed my advice and continued to cooperate truthfully.  Amazingly, within an hour of his testimony, we had a ruling from the Judge letting him out of jail to recognize his assistance.  It was one of those unfortunately rare situations where I walked a client out of custody based on my work for him or her.

There are a couple of lessons from these two cases discussed in these recent posts.  First, avoiding jail in a federal fraud case is difficult.  Second, every case is different, and the attorney needs to pick the correct strategy and tactics that seem best for that client under those circumstances.

Many people contact us because they are fearful that they might go to a federal prison for one of these fraud-type cases.  A case I recently finished included some of the arguments that help such clients avoid a jail sentence in a federal fraud prosecution.

My client was married to one of the other people charged in a large federal fraud prosecution.  Her spouse was a former law enforcement official who convinced his wife and others to get involved in a certain business proposition.  As you likely guessed already, that business proposition was based on false and untrue (meaning fraudulent) statements in loan applications sent to various banks.

The prosecution made a big deal about her husband’s law enforcement status.  The Judge imposed a lengthy jail sentence on the husband.

When we prepared to go to the sentencing hearing for the wife, we rounded up our best arguments.  First, we noted that there were others who had trusted the husband based on his law enforcement status, yet these others had not been charged with crimes.  These other uncharged people also knew that the bank applications contained untrue information, yet the Government let them go without being charged.  So, our first argument was that a spouse should be given at least the same amount of credit when she simply following the lead of her husband into a business venture.  Second, we focused on my client’s family obligations.  Without revealing confidential information in this blog post, it made a big impact when we explained to the Judge what would happen with the family if the wife was incarcerated.  Third, I did my best to maintain good relations with both the Prosecutor and the Probation Officer.  While they are my opponents and I often do not agree with them, maintaining good relations can help in a close case.  Here, it did help, for the Prosecutor did not really put up much of a fight when we asked the Judge to figure out a way to avoid sending my client to a prison.  Furthermore, the Probation Officer was the one who came up with the suggestion as to the method that could allow the Judge to impose a sentence that did not contain any further time in custody.  Fourth, my client decided to trust me and the strategy I had mapped out.

The Fifth and final factor is more difficult to describe, but might be the most important.  I knew this Judge very well from having appeared before him many times.  I have also been on professional programs with this Judge, and had the chance to talk with him about non-lawyer issues. I have a fairly good idea of what arguments work, and those which won’t work.  Knowing the Judge can sometimes be a tremendous help when crafting the best argument in trying to keep a client out of prison.

All of these factors came together in this recent case.  The Judge said he was going to do something he never does, and he gave my client a sentence that kept her at home with her family.  As you can imagine, she is very relieved.

Every case is different.  Nevertheless, when trying to avoid a prison sentence in a federal fraud case, it is so important that the attorney map out a multi-pronged strategy when trying to help the client avoid jail.  This recent case was gratifying not only because my client avoided prison, it also made me feel good that our strategy was the proper course to take.

A PSR is the document that is sort of the beginning and the end of a federal criminal sentencing process.  If a Defendant is found guilty, by pleading or through a jury verdict, the sentencing hearing does not happen right away.  Instead, federal sentencing hearings happen 2-3 months after the plea or verdict.  During this intervening period, a United States Probation Officer (often called the “PO”) has to prepare the PSR, which is a lengthy document designed to tell the Judge more about the Defendant as a person and how the federal sentencing guidelines might apply to that person and his or her crime.  See more on the sentencing process here.

The start of the PSR is when the PO wants to interview the Defendant.  Here is often Mistake #1 made by inexperienced or substandard lawyers.  To being with, it is close to malpractice for the lawyer to NOT attend this session with the PO, although I have seen lots of lawyers allow their clients to do so, often with disastrous results for the client down the road.  The PO is basically an arm of the court and works for the Judge, so this is mostly the first time for the accused person to make an impression, good or bad.  Also, there are pesky rules and court cases holding that a false or even misleading statement to the PO can qualify as “obstruction of justice”, so the lawyer damn well should be present to make sure that his or her client does not lie or otherwise screw up this first impression on the Judge’s PO!

The PSR, as mentioned, is lengthy.  It has a large section in which the PO makes his or her own recommendations as to how the Guidelines might apply in the case.  This is a second mistake some attorneys make.  The lawyer should be prepared, well before this interview, to alert the PO to any potential Guideline or factual disputes, and how defense counsel sees the issue.  I try to keep in contact with various PO’s, mostly to make sure they understand my position.  I have found that I get better results for my clients through a good reputation with the probation department as being an attorney who knows the law and takes reasonable positions regarding the sentencing guidelines.

After 6-8 weeks, the first version of the PSR is sent to the federal criminal defense lawyer. The rules generally give the lawyer around two weeks to file a response to the initial PSR, which must include any “objections” to the facts or the methods used by the PO in making recommendations concerning the sentencing guidelines.    Like I am about to do in a few minutes, it is imperative that defense counsel go over the report with her or her client BEFORE the objections are due.  Again, inexperienced lawyers miss this opportunity to make sure that the client knows exactly what is going on in the case.

Last, there are the objections to the initial PSR.  This is a complex subject, probably more so that I am prepared to discuss this morning.  However, this is often the place where the federal criminal defense lawyer can have the largest impact on the overall sentencing process.  The objections set the table, so to speak, for the issues to be discussed at the sentencing hearing in front of the Judge.

For starters, the federal prison system is operated by a huge organization called, oddly, the “Bureau of Prisons.”  Regular practitioners usually call it “BOP.”  The BOP operates throughout the entire country.  There are various “security levels” amongst the many federal prisons, and these fall into three basic categories, High, Medium and Low.  High security is what you think it is, a very restrictive prison housing inmates with very bad or violent prior criminal records, generally serving long sentences.  Medium and Low are also what one might anticipate, less restrictive environments with less dangerous inmates.  “Penology”, essentially the study of incarcerating people, has been around for a long time, and after all these years, the people in this business have a pretty good track record of predicting when an inmate will be dangerous and therefore in need of higher restrictions, versus someone who clearly is serving his or her only sentence and simply wants to do the time and get back to their life. As a result of this experience, prison officials put less dangerous people in far less restrictive prisons, thus making it a little bit easier for that person to “do time”, and less expensive for BOP to house that same person. For example, my client who just called operated some businesses in South Florida in which he and others did some fraud.  BOP clearly understood he is no danger, so they put him into an institution with the lowest possible security level, called a “prison camp.”  Camps are not dangerous, most don’t have walls or fences, and most inmates perform daily jobs and have access to educational and other programs.

One of the best things to come along in my 36 years of representing people who have to go into BOP custody is the use of an email system now available to most federal inmates.  I make it a practice of trying to stay in touch with clients serving time in BOP custody, and this system has been a tremendous benefit.  I no longer have to write a letter which takes many weeks to be delivered, and my clients can respond to me within a day, usually.  Also, clients can remain in almost daily contact with family and loved ones.

Federal sentences cannot be shorted by what used to be called “parole.”  That was eliminated as part of the much-derided Crime Control Act of 1984 and the associated Federal Sentencing Guidelines.   Currently, there are only two ways that a sentence can be shortened within the BOP system: “good time credits”, and RDAP.  Under the 1984 law, inmates are supposed to be eligible for reductions up to 54 days per calendar year if they behave.  Also, in the 1990’s Congress added some laws saying that if a person succesfully completes a “Residential Drug and Alcohol Program” (“RDAP”, get it) that inmate might be able to get as much as a 12-month sentence reduction.   Some minor cosmetic changes were made in, but I don’t see much benefit coming from, the recently enacted First Step Act

Doing time is a big subject.  I may return to this topic at some point down the road.  For now, I have to be satisfied that my client who just began serving his sentence is doing his time in the least restrictive environment possible, he will get email access, and I hope he earns all potential sentence reductions so he can get back to his life as soon as possible.

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.”

The 1984 law created the Sentencing Guidelines, which included the now-infamous “Section 5K1.1.”  The 1984 law also amended Rule 35 from the Federal Rules of Criminal Procedure. Both 5K1.1 and Rule 35 allow a Judge to lower a Defendant’s sentence as a reward for “substantial assistance” in the investigation or prosecution of “another person.”  The 5K “motion” generally asks the Judge to go below the “range” of sentence that comes from calculating the exceedingly complex Federal Sentencing Guidelines.  A “Rule 35” can, and usually does, come later.  For example, if a Defendant’s information or cooperation happen within a year of the original sentencing hearing (or within a year from when the information apparently because important), then a Defendant can sometimes get a second bite at the cooperation apple.

In practice, the prosecutor holds just about all the cards in this game.  Defendants sometimes provide hours and days of cooperation, only to hear the prosecutor claim, “oh well, we knew all that already, no help for you.”  A Defendant generally has no right to complain if a prosecutor plays a bait-and-switch game such as this (unless the prosecutor makes his or her decision based on some unconstitutional basis).

A “substantial assistance” reduction can only come about if a prosecutor asks the Judge for it.  A Defendant can moan and whine, outline his days of cooperation, and the Judge is powerless to reward the assistance without a request from the prosecutor.  However, some wily defense lawyers have been known to convince the Judge that while the Court cannot reduce the sentence for “substantial assistance” in absence of a request from the prosecutor, the Judge still has the power to lower the same Defendant’s sentence so long as the reduction is tied to some other sentencing rule, such as those laid out in 18 U.S.C. section 3553(a).

Another question I am often asked is “how much of a reduction can I expect from cooperating?” As usual, “it depends.”  One of the biggest factors is whether the Defendant has an ace up his or her sleeve, so to speak.  If defense counsel knows that the Defendant has some evidence or information that is crucial to a prosecutor’s long-range plan, then that attorney is in a much better spot when arguing for a very large sentence reduction.  Another factor that sometimes affects the quantity of a reduction is the presence of “cooperation committees” within many US Attorneys offices.  These are attempts to basically standardize the amount of a reduction that prosecutors can request, so that Defendant A and Defendant B are essentially treated equally so long as the information they each provide is also basically of the same value.

OK, but what about those folks on the other end, meaning people who get indicted based on the claims of witnesses who want a reduced sentence for providing “substantial assistance”? A certain person who likes to use Twitter has issued a bunch of messages lately about how horrible it is when people lie just to get a 5K or Rule 35. Unfortunately, both that person and his friends and family will have to join the unfortunate crowd of people I’ve represented the past three-and-a-half decades who often got plastered based on stories told by people who wanted to get out of trouble by placing the blame elsewhere.  It’s true, don’t believe me, it’s on The Internets.

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.

OK, that’s the good news from this year’s Guideline amendments.

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.

Other times, lawyers do not appreciate that they must have older versions of the Guidelines in order to understand the interplay between the the venerable ex post facto prohibition found in our wonderful Constitution and the “one book rule” (found at USSG §1B.11(b)).  The constitutional ex post facto rule basically says that punishment cannot be increased after the fact, meaning that the Sentencing Commission cannot jack up the penalty for a certain crime after it was committed.  However, many federal crimes, such as white collar offenses, healthcare fraud, or long-term drug conspiracies, often span many years.  Recall, the Guidelines change on a yearly basis, so the savvy reader ponders, “Which version is used?”  The Guidelines themselves say at section 1B1.11(a) that a Judge must use the version in effect on the date of the sentencing hearing, but if that version increases punishment, the ex post facto rule requires that same Judge to go back to the version in effect prior to the amendment to the Guidelines.   However, what if the old version has other rules that are less favorable to the client in other parts of the Guidelines?  In this situation, the “one book rule” comes into play, requiring that the Judge pick all of the rules from a single version of the Guidelines.  I know, I know, this is complicated.

This example of the interplay between the Constitution and the Guidelines one-book rule is a short example of how complex these rules are, in theory and in practice.  Federal Sentencing is a speciality, no two ways about it.  Many otherwise fine criminal defense lawyers are lost when they do not know enough about these wickedly complicated rules while handling a federal criminal sentencing hearing.  One place they can start is to call someone like me, an oddball who keeps all the books going back to 1987 so that we can do the best job possible representing a current client facing a federal criminal sentencing hearing.

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.

Next we have US v. Bradley 17-5725-2018-08-01[1],  involving the separate concept of forfeiture.  The conspiracy in Michigan and Tennessee netted around $1 million, and the Judge made Mr. Bradley jointly and severally liable for the whole amount, meaning anything his co-defendants did not pay he would be on the hook for.  A big forfeiture case handed down last year by the Supreme Court invalidated this, noted the Sixth Circuit: “The two requirements of the statute, the Court observed, ‘limit forfeiture under § 853 to tainted property’ and ‘define[] forfeitable property solely in terms of personal possession or use.’… But joint and several liability puts defendants on the hook regardless of their share of the fault or the proceeds, meaning it would require forfeiture of untainted property’ as well as amounts the defendant did not ‘obtain[].'”  Last year’s Supreme Court decision  “…puts an end to such collective liability.”

Finally, we have a case out of the Eighth Circuit, US v. Mann 17-2060-2018-07-27[1]  .  Technically, this is not a “criminal forfeiture” case, because the forfeiture of 93 weapons discussed came about years after Dr. Mann was convicted in Arkansas for placing a grenade in a tire leaning up against the vehicle of another doctor.  However, the case is interesting for one major reason.  At trial, Dr. Mann was charged with yet found not guilty of possessing a certain shotgun.  Then, the government brought a civil forfeiture against the shotgun, arguing that it belonged to the government.  Amazingly, winning the criminal charge did not prevent the government from prevailing in its civil forfeiture action regarding the shotgun. Go figure, or a client once said to me: “it’s the US versus me, we are in a US Court and the Judge is paid from the US treasury, yeah, this should be fair!”

Back to my reading…

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.

If a Defendant dies while his or her case is on “direct appeal”, then the charges are dismissed.  However, it is not a “direct appeal” if the person is asking for the Supreme Court to hear the case, so death when the case is up there seemingly does the descendants no good.  Without being too morbid, this rule says it is better to die when your case is in the court of appeals and not when it is with the Supreme Court.

But what about fines or restitution?  The answer turns on where the Defendant was convicted.  Some federal courts of appeal (including the Eleventh Circuit where I  mostly practice) say that because the Defendant’s death makes the conviction void “ab initio”,   there never was a conviction to begin with and the dead person’s estate and relatives are not obligated to pay fines or restitution.  However, it also turns out the rule is different depending on when the payment is made.  One case in this Circuit says that if the Defendant paid some money toward a fine or restitution before he died, then his estate does not get that money back. But when it comes to unpaid fines or restitution after the Defendant’s death, the Eleventh Circuit and similar courts say that the restitution obligation does not stand without a conviction.  These courts say if the victims want their money back they can always sue the dead person’s estate.  A different group of federal appellate courts have the opposite rule.  These courts all agree with the “void ab initio” principle when the Defendant dies on direct appeal, but these courts say that restitution orders can still be enforced against the dead Defendant’s estate for payments after the Defendant dies.  These courts base their rulings on the argument that restitution is not “punishment” and the victims should not be forced to sue in order to get their money back.

I’ve written before about how after we represent someone for many months and years, criminal defense lawyers get close to and know their clients very well.  This makes it even more sad when the person dies while the case is still ongoing.  However, the attorney needs to be aware of his or her duties, and the need to protect the client and his or her family in these situations.

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?

The fly in the ointment is sometimes the U.S. Probation Officer, the person who we in the business lovingly prefer to as the “PO.”  If the PO comes up with a Guideline range that is artificially inflated, the defense lawyer often has to spend so much energy and time arguing about getting it down to the “correct” range that the Judge has sort of run out of patience when that same lawyer then asks the Judge to go below the Guideline range when applying the 3553 factors.  I sometimes refer to this as the “height of the diving board” factor.

It is easier to jump off a diving board that is not very far above the water, but more difficult when the water is 20 feet down there.

Today’s sentencing hearing had the PO saying that the Guideline range was 325-405 months in custody.  After an entire day in court, we made a whole bunch of objections which led the Judge to conclude that the proper Guideline range was actually 168-210 months.  However, we spent so much energy in getting “down” to that range that we had a difficult time convincing the Judge to go much lower (although the Judge did so, but we can discuss that also at another time).

People (and by this I mean lawyers) often forget the huge impact that a PO can have on a case.  That is why I always attend all meetings with the PO and do my best to advocate for our point of view when discussing the case with them even before we go to see the Judge at the sentencing hearing.

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.”

That’s the problem with a Commission that tries to micromanage the sentencing process by imposing “points” for different kinds of conduct. Here’s an example.  These new sentencing rules added 4 “levels” (or points) anytime the offense “involved” the securities laws, and the Defendant was an “officer or director” “at the time of the offense.” This 4-level bump applies whether the Defendant was the CEO of a Fortune 500 international entity, or the Secretary of a 2-person company.  See what I mean, “one size fits all.”

We have a lot of work to do for this sentencing hearing, but I plan on writing more about this type of federal criminal case and the accompanying sentencing process.  Stay tuned!

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.

These cases will not apply in most federal sentencing hearings.  But, these rulings are important, if for no other reason than these opinion show the the United States Supreme Court continues to keep close tabs on the process of imposing a sentence in federal court pursuant to the Sentencing Guidelines.

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. 

Readers of this blog know about the Federal Sentencing Guidelines, and for Ms. Pate those rules suggested a sentence between 27-33 months.  Ms. Pate sold her remaining asset (her home) and brought a cashier’s check for $45,000 to the sentencing hearing.  By the time of the sentencing hearing the elderly victims had died, but their children asked that no jail sentence be imposed because Ms. Pate had been such a good friend and helper to their parents during their final years (other than stealing their money, of course).  Her lawyer also presented medical and psychological records demonstrating that her crime was totally connected to her feeling at a loss after the death of her husband. The lawyer asked that the sentencing judge impose a straight probation sentence.

The federal judge said he would only impose probation if Ms. Pate paid full restitution, in other words, if she somehow came up with more than the $45,000 she had brought to the sentencing hearing.  Because she did not have full restitution, he imposed a 27-month sentence. The judge reiterated that he would reduce the sentence to complete probation if Ms. Pate or her supporters came up with the remainder of restitution.

The Eleventh Circuit took a very dim view if this Judge’s sentence.  First, they immediately released Ms. Pate from custody right after the oral arguments. Next, they issued a strongly worded opinion, noting that several Constitutional principles prohibit the practice of imprisoning a person simply because that person has the inability to pay a certain amount of money.  More specifically, the appellate court noted that it is substantively unreasonable under the Sentencing Guidelines for a federal judge to “give significant weight to an improper or irrelevant factor” during the sentencing process.  While payment of restitution is relevant, it cannot be the sole factor distinguishing between a jail and non-jail sentence. “To say that the district court must consider the need to provide victims with restitution, however, is not the same thing as saying the court may sentence the defendant to prison solely because she was unable to pay the restitution in full. If anything, imposing such a sentence arguably cuts against that factor.”

This is an important case for many reasons.  The case highlights the need to try and repay victims, while also not using a particular Defendant’s relative lack of funds against him or her.  It is fundamentally unfair to let a wealthier Defendant buy his or her way out of prison, while an equally deserving person goes to prison because he or she cannot immediately pay off the victims. It is likewise important that the Court of Appeals agreed that imposing jail time can sometimes “cut against” a sentence if that means the victims won’t get repaid.  Finally, the case also teaches that good lawyers keep pushing, and the fact that the Court of Appeals let Ms. Pate out of prison is a good sign for her when the matter returns to the federal District Court, where it has been reassigned to a different Judge.

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.

Mr. Slaton’s defense attorney certainly felt good after the sentencing hearing, having just convinced a federal judge to not send to prison a man who had a complete trial yet was found guilty.  Here is where some lawyers who are not completely up to speed on federal criminal practice can get into trouble.  These attorneys do not always recognize that the government can also appeal the sentence!  It does not appear that happened in Mr. Slaton’s case, for his legal team seemed to put up a good fight each and every step of the way.  However, what we sometimes see with inexperienced lawyers in federal court also took place in this case, for Mr. Slaton appealed his conviction, the prosecutors appealed the sentence, and you can guess which side won on appeal.  That’s right, government win, defense loss–sentence reversed yet convictions upheld.  The technical reason for the sentencing reversal was that the Court of Appeals believed that the sentencing judge made a mistake when calculating “loss”.  Furthermore, the appeals judges believed that the sentencing judge relied on a fact that was contrary to the jury’s findings when deciding that no jail time was needed.

The good news for Mr. Slaton and his attorney is that the case was remanded for a new sentencing hearing.  The appellate judges did not flat out say that a “no-jail” sentence was illegal or wrong.  They hinted at that outcome, but gave the District Judge one more chance to impose a sentence without making any procedural errors.  While Mr. Slaton’s team has another chance, not all such Defendants are as fortunate.  We always urge lawyers to think about the consequences of “winning” a sentencing argument, especially if the “win” jolts the prosecutors into appealing themselves.

Most people reading this blog know that there are two types of rules that govern a sentence that is imposed for a federal crime.  First, Congress passes statutes, which many people call the “laws.”  The “statute” generally sets out any minimum punishment, along with the maximum sentence that can be imposed.  Second, way back in the 1980’s Congress created a body called the United States Sentencing Commission.  This group publishes the Sentencing Guidelines.  These Guidelines recommend a sentence somewhere between the minimum and the maximum set out by the statutes.

The Sentencing Guidelines are not only wickedly complex, they also are amended on an almost-yearly basis.  Each year, the Sentencing Commission recommends changes, which Congress either approves of rejects.  The yearly proposed amendments tend to come out in January, and go into effect the following November. The trick for the experienced federal criminal defense lawyer is to pick out the upcoming changes that might help their client, point out that it is unfair for the client to not get the benefit of that change simply because the sentencing hearing will not take place after November 1, and then try to convince the Judge that a lower sentence is therefore appropriate.

We used this tactic in today’s hearing.  My client was being sentenced for a crime that impeded the Internal Revenue Service.  For economic crimes such as this, a variety of factors can cause the Guidelines to go higher, factors such as the amount of “loss”, and the number of “victims.”  We pointed out to the Judge that the “loss” and “victim” concepts are part of the proposed changes to the Guidelines, and that if my client had been sentenced after November 1 of this year, he likely would be facing a lower sentencing range.  It worked, just not as much as I had hoped.  Today’s case just reminds me that getting the best and lowest sentence for a client requires lots of work, creativity and sometimes, just a bit of good fortune.  The key is to not give up and keep trying to do the best we can for our clients.

Mr. Robers was like so many Americans in the past decade. Some sharp operators figured out that inflated real estate values could be used to skim money off the top of mortgage loans. One necessary component of these schemes is that there needs to be a “straw buyer”, a person without any blemishes on their credit score, but who merely signs the paperwork for the loan application, and who has no intention in actually moving into the property. The straw buyer signs bogus paperwork claiming that he or she actually makes far more money that they really do, so the foolish banks and mortgage lenders regularly gave large loans to such people to fund the purchase of inflated real estate. When the loan closed, some of the loan proceeds would get skimmed to pay for the brokers or others who organized the scheme, the straw buyer normally got a small amount of money for signing the documents, and the house went into foreclosure when the straw buyer did not make any payments. The bank or mortgage lender then was stuck with a non-performing loan. Lenders generally then took the property back, which played a large part in the recent real estate debacle.

Mr. Robers was a straw buyer. He got $500 for each of the two times he signed on as a straw buyer. The feds brought criminal charges, and Mr. Robers pled guilty. At sentencing, the judge had to decide the amount of restitution Mr. Robers owed to the banks (or the entities that purchased the mortgage loans). Roberd’s attorney argued that the amount of the loan should be reduced by the value of the “property” that the bank took back, meaning the house. Robers also argued that the value of the house should be measured at the time when the bank foreclosed on the house, and not the greatly reduced value years later after the real estate market had crashed and depressed values nationwide. The Judge disagreed, using the lower value for the house, thus increasing the amount Roberd owed in restitution.

It seems that the federal courts of appeal are split in their approach to this issue. Some courts say that the word “property” means the real estate that secures the loan signed for by the straw buyer. Under this approach, the courts look to the value of that property at the time it is returned to the victim, meaning at the point when the bank forecloses and takes back the real estate. Using any other approach, these courts say, gives the banks an incentive to hold on to bad real estate hoping that values drop and the Defendant will need to make up the difference.

A second group of federal courts say that the word “property” in this context refers only to the money that a Defendant illegally got the bank to loan based on the bogus loan application. These courts hold that while the Defendant gets a credit if the underlying collateral is sold, there is no requirement that a judge must value the underlying real estate as of the date that the bank takes the property back.

Again, restitution issues pop up regularly in our practice. We look forward to reading the briefs in this case and seeing how the Supreme Court resolves this important federal sentencing question.

Mr Rodriguez was prosecuted in federal court in Miami, Florida. The prosecutors alleged that he ran a scheme to defraud investors.The evidence at trial revealed that Mr. Rodriguez was involved in four companies that sold coffee and other vending machines. Mr. Rodriguez posted Internet ads looking for investors. When a potential investor responded, Rodriguez had some associates contact them and inform them about their golden opportunity to invest in a new coffee machine, vending machine, or drinking water machine. He made various promises about the quality of the investment and the level of support he would provide to the investor. Unfortunately, it seemed that most of his promises were untrue, and investors lost money. The jury found Rodriguez guilty of mail and wire fraud.

But the story does not end there. Like all the federal criminal sentencing hearings we are involved with, Mr. Rodriguez had to be interviewed by a federal Probation Officer, who prepared a lengthy document called the Presentence Investigation Report, or “PSR”. The PSR contains information about the person to be sentenced, and also contains the Probation Officer’s recommendations as to how to apply the very complex Federal Sentencing Guidelines. However, and here’s the important part, any particular Guideline that increases the Defendant’s potential sentence must be based on facts, and the prosecution bears the burden of producing such facts.

The government requested an enhancement under the Guidelines by arguing that Mr. Rodriguez’s offense involved 50 or more victims. Under the Guidelines, the enhancement would be smaller if there were under 50 victims. The prosecutor submitted affidavits from 42 victims, as well as a summary chart indicating a total of 238 victims. Mr. Rodriguez’s lawyer “objected” and argued that there was insufficient evidence in the record to show that the offense involved more than 50 victims. The sentencing judge concluded that out of 238 individuals who bought machines, at least 50 must have been victimized.

In the Court of Appeals, Rodriguez’s attorney argued that the sentencing judge clearly erred by finding the case involved more 50 victims. The only evidence presented was the summary chart, and the 42 affidavits. There were no witnesses to authenticate what the chart represented, or to talk about how it was prepared, or by whom. There was no testimony or evidence from the trial itself tying the summary chart to any of the trial evidence. As the Court of Appeals put it, “the summary chart amounted to little more than an allegation by the government on a piece of paper that Mr. Rodriguez’s offense involved more than 50 victims.” The Appellate Court therefore ruled that it was improper to use the higher sentencing enhancement for cases that involve more than 50 victims.

Mr. Rodriguez will likely get a reduced sentence because his lawyer remembered to object at the crucial point in the sentencing hearing. People facing criminal charges need to assure themselves that any attorney they hire is well-versed in the law, and is prepared to object at the right time.

Mr. Edwards and his company were found guilty by a jury of wire fraud, mail fraud, and money laundering, all offenses arising out of a high yield investment scheme. In the scheme, Edwards solicited funds from investors by promising astronomical returns and then used the funds for extravagant personal expenditures. At sentencing, the district court ordered Edwards to pay the victims over six million dollars in restitution pursuant to the MVRA.

Mr. Edwards objected to the restitution ruling on a number of grounds, most of which were rejected. For example, the Court of Appeals applied long-standing law in holding that restitution is mandatory, and that the issue of whether the Defendant has enough money to pay is irrelevant. The appeals court also used a lot of precedent to support its ruling that restitution can be ordered for victims who never testify at trial, and even when a particular count related to a particular victim has been dismissed, so long as the other procedures under the MVRA have been followed.

However, the Eleventh Circuit held that when the MVRA procedures are not followed, then restitution is improper at least for those victims whose situation was involved in the wrong procedure. That’s what happened in the Edwards case. The important Presentence Investigation Report (or “PSI”, a very important document we deal with in all our federal cases that result in a sentencing hearing) suggested $850,000 in restitution to a person named “Reece”, whose foundation had sent money to the Defendant. However, the night before the sentencing hearing, the Probation Officer substituted other persons as the victims instead of Reece. There was no evidence in the record as to whether the Defendant had any personal connection with these victims. As a result, the Court of Appeals reversed this part of the restitution ruling.

Restitution can be very important, as it can follow a Defendant for many years after he or she has served a federal criminal sentence. This case is one more example of how people potentially facing federal criminal cases need attorneys well-versed in all aspects of the complex system of rules in federal court.

In federal courts each year, 25,000 people are convicted for drug offenses, with 45% of those convictions for lower level offenses. According to the Justice Department, the cost of incarceration in the United States was $80 billion in 2010. Despite the fact that the U.S. contains 5% of the world’s population, we incarcerate 25% of the world’s prisoners. Justice Department officials said federal prisons are operating at nearly 40 percent over capacity.

In Georgia, we have the fifth-largest prison system in the nation, and it costs us $1 billion a year. The Pew Center on the States found that 1 out of every 17 state dollars is consumed by this industry. And while prison populations dropped in half the states, Georgia was among the states that posted an increase.

Admitting the problem is the first step, but when will we see action? Holder has issued a directive to his 94 U.S. Attorneys located throughout the U.S. to create specific criteria for exactly when filing charges is necessary and to only trigger the mandatory minimum sentence statutes in limited circumstances. The idea here is to allow prosecutors and ultimately judges to have discretion over which crimes truly deserve harsh punishment based on the particular circumstances of a person’s case. It will now be up to each individual office how to interpret and implement this suggestion from Washington. The trouble is, prosecutors have always possessed this power of discretion – deciding who to prosecute and for which charge. The problems with our system have been known, and it has been within the power of the prosecution and legislature to do something about it.

And what about Georgia? Thankfully, some criminal justice reform began in the 2011-2012 legislative sessions. Changes were implemented such as slightly lower minimums for drug trafficking charges, modifications in the tiers of theft offenses, and increases in drug and mental health courts as alternative sentencing. However, there were no changes to Georgia’s recidivist sentencing laws that create long, mandatory minimum sentences without parole for small amounts of drugs and other minor property offenses. Kish and Lietz, P.C. has an appeal pending before the Georgia Supreme Court requesting its correction of a Judge’s inability to sentence our client to anything less than 10 mandatory years in prison without parole for less than .9 grams of crack cocaine. In that case, the prosecution could have decided not to request the enhanced sentence. Unfortunately, personal achievement and ego prevailed over practicality and logic. Would a directive from the U.S. Attorney have made a difference? Will Georgia lawmakers and courts follow the lead towards a healthier and more prosperous country, or will politics continue to stand in the way? Only time will tell.