FEDERAL SENTENCING FOR DUMMY: MANAFORT SCORES A 38, AND NOT ON THE BACK NINE AT MAR-A-LAGO
Owen Douglas Moore, Mixed Media on Paper, 2018**
As those with cooperation, immunity and non-prosecution agreements try to leach and transform their way into fresh, fertile soil, Mr. Mueller continues tunneling through thick layers of ripe sewage, while the country tries to hold its breath—and nose. The Southern District of New York and New York Attorney General tunnel a similar path. The indictments and convictions are piling up and the seriousness of crimes increasing as the Office of Special Counsel nears bottom, so federal sentencing and how it works is an increasing focus of public discourse. Friday last, Mr. Mueller's team filed a memorandum setting forth the government's position on Mr. Manafort's sentencing which is now scheduled for March 13, 2019. The Mueller sentencing memorandum is linked below. The memorandum itself is 27 pages with over 90 pages of exhibits, only nominally redacted from public view. The memorandum with attachments tells a compelling story of extensive criminal activity of lengthy duration, along with a failed cooperation agreement.
Mueller Sentencing Memorandum:
What follows is a very brief, non-nuanced overview of a very complicated system, much too complex in my opinion, of federal sentencing. The unfortunate people who are convicted of a federal crime or crimes enter a mysterious world where its occupants speak an unfamiliar language and the heavily cross-referenced and interconnected rules—which matter a lot—are nearly indecipherable. The judge will usually set a date for sentencing a couple months after the conviction or guilty plea (assuming the defendant is not keeping and fulfilling a cooperation agreement with the expectation of a reduced sentence), and direct the United States Office of Probation and Pretrial Services (“Probation Office”) to prepare a “Presentence Investigative Report” (“PSR”). PSRs are and remain the confidential property of the court and are not available to the public. The Probation Office will provide a draft of the PSR to the prosecution and defense for their input and shortly before sentencing will issue a final PSR to the court and the parties. Thereafter, the parties may submit their own sentencing memorandums to the court to address their respective positions on sentencing, including any concerns with or challenges to the contents of the final PSR.
I expect Mr. Manafort’s counsel will submit their own memorandum in aid of sentencing. That memorandum will, undoubtedly, challenge many of the factual and legal arguments in the PSR and in Mr. Mueller’s sentencing memorandum, including the Probation Office’s calculation of what is known as the Federal Sentencing Guidelines range (“Guidelines range”)—a length of time, in months, the defendant’s overall conduct qualifies him/her for residency in a federal correctional facility. The length of time is determined by a numbering system. The higher that number, known as “offense level,” the longer the Guidelines range. The offense level is derived from a variety of potential sources in the United States Sentencing Commission Guidelines Manual.
I have spoken with federal judges who, predictably, consider sentencing the most difficult part of the job. Judges want as much information as possible about the defendant in preparation for sentencing in order to make a fully informed decision. The PSR will include a comprehensive history—social/family, education, military, employment, financial, medical/mental health, criminal—of the defendant and of the procedural and substantive history of the case and related conduct that brings the defendant before the court for sentencing.
One of the Probation Office’s most important responsibilities is to calculate and include in the PSR the Federal Sentencing Guidelines offense level. What does that mean? In Mr. Manafort’s case, as revealed in the government’s sentencing memorandum, the Probation Office calculated Mr. Manafort’s total offense level at 38. That’s a big number in this context. Huge. Mr. Mueller agrees with the Probation Office’s calculation. The Guidelines range for an offense level 38 is 235-293 months in a federal correctional facility. See Sentencing Table below.
Does this mean Mr. Manafort must be sentenced within that range? No. Under current law, sentencing within the Guidelines range based on the offense level is no longer mandatory. The Guidelines range is the starting point, but now is only one of a number of factors or characteristics sentencing judges may consider.
Back in the day, federal sentencing was left to the near exclusive discretion of the judge. The result was considerable disparity across the country between and among sentences for people convicted of the same or similar crimes. If you guessed at least some of the disparity could be traced to differences in race, ethnicity, geography and idiosyncrasies of individual jurists, you would be correct. In an effort to create some measure of uniformity, predictability and, in theory, fairness, Congress created the United States Sentencing Commission, an independent agency within the judiciary, in 1984 to develop a set of broad-brush sentencing “guidelines” that seldom, if ever, considered the individual characteristics of the person standing before the court, sometimes shackled and flanked by federal marshals. Congress took sentencing to the other extreme, reducing the courts’ near limitless discretion to simple math and pinning the tail somewhere within the Guidelines range. Judges weren’t all that relevant anymore.
The Commission issued its first set of guidelines in 1987. The Commission revises and updates the Guidelines annually. While nominally “guidelines,” they were mandatory on federal sentencing courts from 1987 until 2005—that is, with few exceptions a judge was required to sentence a defendant within the Guidelines range of months as determined by the offense level. A 2005 landmark Supreme Court case, United States v. Booker, transformed the Guidelines range from mandatory into one of several relevant factors courts shall consider. In effect, the Supreme Court found within the Sixth Amendment a basis to instruct federal sentencing judges to consider a broad range of factors set forth in the federal sentencing statute and not to impose a sentence greater than necessary to accomplish the purposes of the statute, Congress be damned. The pendulum swung back toward the middle. Judges are instructed to consider sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public from further crimes of the defendant, and provide the defendant with needed educational or vocational training, medical care, or other corrective treatment. Judges are permitted to give each factor the weight s/he deems appropriate in the overall analysis and ultimate sentence.
Each federal crime is given a “base offense level,” a specific number (which along with other adjustments translates into the total offense level and the resulting Guidelines range in months). The more serious the crime, the higher that number. Crimes involving serious physical injury or death, kidnapping, sexual assault,human trafficking, espionage, hijacking, terrorism, bombs, firearms, carry very high base numbers, 20s or 30s. All Guidelines numbers can be increased or adjusted by quantity and by other aggravating factors. The higher the quantity of drugs involved in the crime, the higher the offense level. The more images of child porn on the computer, the higher the offense level. The more money laundered, stolen or withheld from the United States Treasury, the higher the offense level. The higher the total offense level, the longer the Guidelines range.
The offense level can be increased by what are known as enhancements (aggravating characteristics, such as the number of or types of victims, the sophistication of the crime, the means of committing the crime, whether the defendant was an organizer or leader of criminal activity that was otherwise extensive, whether the conduct resulted in or threatened failure of a financial institution, among many others). The offense level can be decreased by acceptance of responsibility—entering a timely plea agreement with the government. The Guidelines range is also subject to increase depending on the extent and seriousness of a defendant’s criminal history. “Criminal History” categories are identified along the top of the Sentencing Table, above.
Parenthetically, and relevant to Mr. Manafort’s botched cooperation agreement, a section in the United States Sentencing Commission Manual encourages criminal defendants to earn time off their ultimate sentence by providing “substantial assistance” to the government in the resolution of other crimes. If the prosecutor is satisfied with that “substantial assistance,” the government will file a motion with the court explaining the assistance and making a recommendation to the sentencing judge of some reduction in the time-to-be-served.
The offense level calculation for certain financial crimes gives an example of how the process works. The following is taken from the United States Sentencing Commission Guidelines Manual 2016, a 628 page tome. https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2016/GLMFull.pdf As shown below, the crimes carry a base offense level, a number, that increases by how much money was involved in the crime. Once the enhancements for aggravating circumstances are added and any mitigating circumstances subtracted, the total offense level can then translate into the Guidelines range in the Sentencing Table. Again, that Guidelines range is only the starting point.
“§2B1.1. Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States
(a) Base Offense Level: (1) 7, if (A) the defendant was convicted of an offense referenced to this guideline; and (B) that offense of conviction has a statutory maximum term of imprisonment of 20 years or more; or (2) 6, otherwise.
(b) Specific Offense Characteristics (1) If the loss exceeded $6,500, increase the offense level as follows:
LOSS (APPLY THE GREATEST) INCREASE IN LEVEL
(A) $6,500 or less no increase
(B) More than $6,500 add 2
(C) More than $15,000 add 4
(D) More than $40,000 add 6
(E) More than $95,000 add 8
(F) More than $150,000 add 10
(G) More than $250,000 add 12
(H) More than $550,000 add 14
(I) More than $1,500,000 add 16
(J) More than $3,500,000 add 18
(K) More than $9,500,000 add 20
(L) More than $25,000,000 add 22
(M) More than $65,000,000 add 24
(N) More than $150,000,000 add 26
(O) More than $250,000,000 add 28
(P) More than $550,000,000 add 30.”
If someone commits a qualifying financial crime that starts with a base offense level 7, and the crime involves a loss of $25,000,000 or more but less than $65,000,000, the 7 is increased by 22 to 29. Inevitably, the crime will involve other aggravating circumstances that increase the number to, say, 33 or higher. An offense level 33 translates into 135-166 months on the Sentencing Table, unless the defendant has a prior criminal history placing him in higher “Criminal History Category” depending on its extent. Simple, right?
If/when sentencing outside the Guidelines range, however, the judge must explain on the record—in open court—the basis for the departure. Sentencing under federal law is pursuant to 18 U.S.C. § 3553. As noted, the statue explains how and what the court may consider in sentencing. The body of case law that has developed over time addressing these sentencing factors is considerable.
Will Mr. Manafort be sent to prison for 19+ years? Possibly. Mr. Mueller says he could find no characteristics within the 18 U.S.C. 3553(2) sentencing factors to mitigate the Guidelines range. Mr. Manafort’s counsel will likely challenge the Guidelines range and advance their view of mitigation. Regardless, it is very likely Mr. Manafort will spend the rest of his life in a federal correctional facility unless pardoned, given his "totally unfair treatment." During his allocution Mr. Manafort may plead that the sentence will be longer than his remaining years and he won’t be able to serve the time. If that occurs, expect the judge to tell him, “do your best.”
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**Owen Douglas Moore, 13 years old, lives in San Antonio Texas and is my oldest grandson. He gave me this drawing for Christmas. Thank you Owen.