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Practicing Federal Criminal Law in Atlanta: Sometimes It Gets a Little Weird

Kish Law LLC

Most folks who know me or who might stumble across this blog recognize that I practice mostly federal criminal law here in Atlanta. I have been doing this for about 23 years now, and still enjoy my work immensely. Nevertheless, there are some aspects of being a criminal defense lawyer here in Georgia (or anywhere else for that matter) which are downright weird, scary and at times depressing. Let me explain a recent example of this.

My law partner Carl and I recently represented a very good and honorable family man in a large mortgage fraud prosecution. Our client was one of the least involved people in the whole scheme. He had nothing to do with the actual fraudulent transactions with the lending institution. After we talked the case over for a long time, this man decided that the best option for himself and his family was to enter a guilty plea, even though we had some serious doubts as to whether a jury would find him guilty at a trial.

Anyone who has ever read this blog knows how I ramble on about the Sentencing Guidelines and the spate of decisions in the past 7 years from the Supreme Court. One part of the Guidelines allows for a judge to consider a lower sentence if a defendant cooperates in the investigation or prosecution of other people. However, this reduction for cooperation only can happen when the prosecutor asks for it, in what we call a “5K” motion or a “Rule 35” proceeding. Individual prosecutors need to get approval from their supervisors as to how much of a reduction they can request for a particular defendant. Most U.S. Attorney’s offices have groups of senior prosecutors who screen these 5K requests, supposedly to make sure that they are handled uniformly.

Here’s the weird part. The Sentencing Guidelines are based on a table, which sets out ranges of potential sentences. The higher the number (and the greater the criminal history), the higher the range. However, the table is not a straight arithmetic progression, which is a fancy way of saying that a difference of one level up at the top end of the Guidelines results is far greater than a one level change at the bottom end. For example, a much more involved defendant might be at offense level 30, and if he gets a 2 level reduction for cooperating, his Guideline range is reduced by almost two years. On the other hand, a client barely involved in a case (like our recent client) who is down at level 15, will also get a 2 level reduction for cooperating, but this results in a mere 6 month reduction in his sentencing range.

In our recent case, we argued strenuously that this was unfair, that our client should get an even better reduction, in return for his cooperation (he had testified at trial against some other people). We did get a significant reduction in other areas of the sentencing process, but this case highlights some of the truly weird and unfair aspects of sentencing in federal court.

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