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Federal Sentencing Hearings: Sometimes You Lose When You Win

Kish Law LLC

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.

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.

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