What Judges Really Think

United States v. Fishman, 631 F. Supp. 2d 399 (S.D.N.Y. 2009)

Fishman was a partner at law firm Latham & Watkins, and pled guilty to a multi-year scheme in which committed dozens if not hundreds of acts of dishonesty and fraud -- an offense made worse by the fact that he was an attorney and therefore an officer of the Court. 

But Fishman had some things going for him -- significant charitable and civic activities, particularly his work at the Sinai Schools.  And based on that work, Fishman received a sentence of 15 months imprisonment, even though his advisory Guidelines range was 27 to 33 months.

What's most interesting in the case, though, is views expressed by the Court when confronting offenders who present so much positive information in such a persuasive manner.  Indeed, the Court's detailed explanation shines a light on what judges might really think and, thus, gives guidance to defense lawyers in preparing sentencing memoranda.  It's worth reading in its entirety.  Here are some excerpts:

As a point of departure, the Court notes that Fishman's presentation, though stressing points that argue for uniqueness, distinction and individual consideration, in fact is not uncommon. The Court has heard much of the argument in echoes from similar pleas for mercy frequently urged in this courthouse, indeed in courtrooms across the country. In particular, Fishman's argument falls into a pattern advanced by a subset of the white collar criminal. This category encompasses a select class: distinguished, reputable, highly esteemed model citizens such as Fishman. The list of their achievements and virtues is long and impressive. At home, they are good family men and women, caring spouses, loving parents, loyal and reliable to friends. At work, they are looked up to as outstanding professionals and business partners. To their community's charities and public causes they are generous patrons and sponsors. And as worshipers they are devout, often rising as leaders of the congregation.

Yet, for all of their outward rectitude, these otherwise good people suffer a fatal flaw: they sometimes lead a double life. Somewhere at the core, in a distorted dimension of the soul, the public image they present is as false as the lies they tell to sustain the appearances of an exemplary life. And somehow, for reasons that always defy reason, they fall into crime, doing wrongful deeds that seem aberrational, selfish and greedy acts that, when caught, they claim are entirely out of character with their otherwise law-abiding lives.

Typically, these offenders appear at their sentencing well-represented and well-prepared, offering ample reasons why the Court should exercise exceptional discretion and show maximum leniency. A key aspect of the evidence proffered in mitigation consists of medical records and psychological evaluations attesting that the defendant's criminal conduct, so at odds with an upright character, was driven by some recently diagnosed mental disorder, or ungovernable impulse, other unknown inner or outer demon he could not conquer that made him do it. An outpouring of sympathy and support from relatives, friends, business colleagues, community leaders, and even some of the victims, accompanies the presentation. The beneficiaries of the defendant's charitable work, in some cases intensified since his arrest, testify about his devotion of good will and donation of resources, and underscore the loss they and the larger community would suffer if deprived of the defendant's invaluable contributions to their public services. And of course, the defendant rises in the courtroom to convey profound, personal apologies for all the sorrow he has caused to all the people with whom he broke faith and hurt and betrayed and shamed.

As it ends, the presentation comes to several conclusions it urges the Court to adopt: that the defendant has already shown full rehabilitation and earned redemption; that there is absolutely no likelihood of recidivism from this defendant and thus no threat of future harm to society; that no further need exists to punish the defendant because he has been wracked long enough by shame, by ruin of his family and personal life, by loss of his primary means to earn a livelihood. The purposes of sentencing thus having been satisfied, ergo: a sentence of any incarceration would serve little or no useful purpose; probation would suffice.

Let me stress at this point that the Court is not unmindful or unsympathetic to these points. There is much in Fishman's plea to commend the compassion it seeks to evoke. But the argument goes only so far. Compelling as it sounds on the surface, it fails in some essential ways. Fundamentally, it is flawed by what it omits. In particular, it makes no account of several other circumstances courts are instructed to weigh adequately in ordering a fitting sentence: to reflect the severity of the crime; to promote general respect for the law; to avoid unwarranted sentencing disparities; and to consider the impact of the crime not only on its immediate victims, but on the larger social order. These principles are interrelated. They share vital links with some basic legal and philosophical concepts, ideals emblematic of the law profoundly significant for sentencing to ensure a right and just result for all concerned: fairness, balance, proportionality, and equality of treatment under law for relatively similar persons and circumstances. In sentencing, these principles seek to ensure that judgments overall fairly align so as to achieve, like planets in orbit, a special form of equilibrium, a proper balance in the delicate symmetry of justice.

Contrition / Family Circumstances And A Non-Guidelines Sentence

United States v. Guzman, No. 08-CR-332 (JBW), 2009 WL 1617942 (E.D.N.Y. June 2, 2009)

Guzman pled guilty to count two of a twelve-count indictment charging a scheme to defraud a bank.  For his offense, Clark faced an advisory Guidelines range of imprisonment of 33 to 41 months.  Yet he was sentenced to a year-and-a-day.  Why?  "The defendant appears to be contrite and has close family relationships."

Once Again, The Safety Valve

United States v. Smith, No. 08-CR-545 (JBW), 2009 WL 971682 (E.D.N.Y. April 2, 2009)

How do you get from a five year mandatory minimum sentence and an advisory Guidelines range of 37 to 46 months down to a sentence of only a year and a day?  The safety valve, of course.  Also, it doesn't hurt that you've got a nice sentencing story and a couple of bucks to forfeit:

The defendant is intelligent and thoughtful, and he has taken responsibility for his criminal acts.  He has a loving family that will support him in leading a lawful life moving forward.  Given the defendant's long history of involvement with drugs as well as his past problems with alcohol and gambling, treatment will be critical in his rehabilitation; he has expressed his intent to take full advantage of those programs.  He agreed to forfeit all the drug proceeds -- nearly a quarter of a million dollars -- recovered from him by law enforcement at the time of his arrest, a factor in the defendant's favor for purposes of sentencing.

What Is Acceptance Of Responsibility?

United States v. Valencia-Lopez, No. 08-1628-cr (2d Cir. Feb. 27, 2009) (found here)

Valencia-Lopez argued on appeal the district court erred in denying him a two-level reduction for acceptance of responsibility pursuant to Section 3E1.1 of the Guidelines.  Specifically, the district court had determined that no reduction for acceptance of responsibility was appropriate because "he gave an original proffer in which he was not truthful" about his relevant conduct.  And that was good enough for the Second Circuit.

While potentially technically accurate, this result seems inconsistent with practice.  In my experience, acceptance of responsibility points are routinely awarded when a defendant pleads guilty and accepts responsibility for his offense.  And for good reason.  Indeed, the Second Circuit focuses on what Valencia-Lopez said during a single proffer concerning certain unidentified "relevant conduct."  It does not note (and we do not know) what he may have said at subsequent proffers and/or at his plea hearing and/or at his sentencing hearing. 

Role Determination Based On Cooperating Witness' Say-So

United States v. Scippio, No. 07-0480-cr (2d Cir. Jan. 15, 2009)

Scippio argued on appeal that: (1) he was entitled to a minor role adjustment; and (2) the district court had failed to account for disparities between his sentence and those of his co-defendants.

As to the first issue, the Second Circuit noted that "it is not enough that a defendant played a lesser role than his co-conspirators; his conduct must have been minor when compared to the average participant in such a crime."  Fair enough.  But, as evidence of Scippio's role, the Second Circuit found that no minor role was played because of what he did (delivering drugs to many different drug dealers and collecting proceeds of sales) and what a cooperating witness said about him (calling him a "manager").  I can understand the first point, but the word that a cooperating witness attaches to someone's role seems a thin basis upon which to determine role.  We'd need to be understand what the cooperating witness meant by "manager" before basing such a determination on his word selection.

As to the second issue, the Second Circuit disposed of it quickly, finding that the district court had, in fact, considered his co-defendants who had accepted responsibility for their offenses and had not threatened cooperating witnesses.

Government Crosses The Line And Breaches Plea Agreement

United States v. Griffin, Docket No. 05-4016-cr (2d Cir. Dec. 21, 2007)

An important case involving the circumstances under which the Government can be held to account for breaching a plea agreement.

The Government agreed in Griffin's plea agreement "not to oppose the recommendation that the Court apply the two (2) level downward adjustment of Guidelines § 3E1.1(a) (acceptance of responsibility) and further agree[d] to move the Court to apply the additional one (1) level downward adjustment of Guidelines § 3E1.1(b)."  The plea agreement, however, also permitted the Government to "respond at sentencing to any statements made by the defendant or on the defendant's behalf that are inconsistent with the information and evidence available to the government." 

That's what the Government did, and that's what got it into hot water with the Second Circuit.

Specifically, in response to Griffin's objections to the PSR, the Government discussed the possible downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1 in two separate written submissions.  It first noted that "the government is troubled by some of the defendant's objections which seem to raise questions regarding whether the defendant has truly accepted responsibility."  The submission continued by stating that "[h]owever, the defendant did timely notify authorities of his intention to enter a guilty plea, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently." 

But that wasn't all it said.  It made a second submission in response to Griffin's arguments -- permitted by the terms of the plea agreement -- that no relevant conduct was applicable to his sentencing beyond that to which he pled guilty.  In that second submission, the Government wrote that "the defendant is attempting to limit his conduct to only that to which he pled guilty," which "leads the government to question whether the defendant has truly accepted responsibility pursuant to U.S.S.G. § 3E1.1(a)."  The Government then reviewed the legal framework of a downward adjustment for acceptance of responsibility, concluding: "It is unclear whether the defendant's objections to the inclusion of all the relevant conduct rises to the level of outweighing his acceptance of responsibility.  Suffice it to say that the defendant's objections to the relevant conduct raises [sic] questions on the issue of acceptance."

Well, that was just too much for the Second Circuit -- it was "well beyond the pale."  According to the Second Circuit:

No discussion of an acceptance of responsibility adjustment was solicited by the court.  It was not an effort simply to correct an inaccurate representation of relevant sentencing law.  Nor did the government merely provide information or evidence in response to any statements by the dedendant.  Instead, the government, on its own initiative, warned the court about what it considered to be "troubling" statements by the defendant in his submission to the court in anticipation of sentencing. (Internal citations omitted.)

In a word, the Government breached the plea agreement by encouraging the sentencing court to deny an adjustment for acceptance of responsibility. 

The remedy?  Two were available: (a) specific performance; and (b) permitting withdrawal of the guilty plea.  Since Griffin sought only specific performance, the Second Circuit vacated the sentence and remanded for resentencing.  In doing so, it directed that the case be reassigned, fearing that "[i]f the district court were again to deny acceptance of responsibility, there is no way to be certain that the government's breach had no effect on that determination."

Griffin, however, was not a unanimous decision.  A dissent was filed.  It's conclusions are well-summed up by its introductory paragraph:

The majority concludes that this case should be remanded to a new district court judge for specific performance of the government's promise not to object to defendant's request for an acceptance of responsibility adjustment.  It does so in the name of preserving the integrity of the plea bargaining process and public confidence in the federal criminal justice system.  I agree with my colleagues that courts must be vigilant in holding the government to its promises.  I submit, however, that the majority's analysis overlooks a crucial fact in this case -- defendant's own prior breach of the agreement.  In my view, remand will seriously undercut the very policy concerns the majority seeks to protect.  I therefore respectfully dissent and vote to affirm the judgment.

Denial Of Acceptance Responsibility Affirmed

United States v. Phillips, No. 06-0960-cr (2d Cir. Dec. 4, 2007) (found here)

Phillips appealed (among other things) the district court's refusal to include a three-level reduction for his acceptance of responsibility.  The Second Circuit found that the district court had based its decision "on certain statements Phillips made to the probation officer and to the court regarding his motivation for committing the crimes.  The district court found these statements illogical and disingenuous and believed that they demonstrated that Phillips did not clearly accept responsibility for his actions." 

While surely the district court was authorized to deny the three-level reduction, the standard for obtaining the reduction is in practice quite low.  Phillips must have really screwed it up.  It would have been nice to have had the Second Circuit describe his conduct in more detail so that defense counsel could be on notice as to what NOT to have their clients say and do (although it is generally obvious to most defense counsel).

Not A Blissful Sentence

United States v. Bliss, No. 06-3039-cr., 2007 WL 3196346 (2d Cir. Oct. 30, 2007)

Sometimes you win.  Sometimes you lose.  In Bliss' case, he both won and lost at the same time.  No harm, no foul, though.  He ended up in the same place.

Bliss initially pled guilty to 11 counts of an indictment charging a litiny of sex crimes involving children.  In February 2004 the district court sentenced him to 264 months imprisonment, smack-dab in the middle of his Guidelines range of 235 to 293 months imprisonment.  The Second Circuit reversed in November 2005, finding that the district court improperly applied the obstruction of justice enhancement, and for consideration of whether to resentence pursuant to Booker.

At resentencing, the district court removed the enhancement for obstruction of justice.  But it also declined to apply the 3-level reduction for acceptance of responsibility.  Now, the district court had solid grounds for doing so.  After all, the Second Circuit had directed that Bliss' "flight from the jurisdiction may be punished by withholding the acceptance of responsibility credit."  But this sure sounds like sour reversal grapes on the part of the district court.

Bliss's recalculated Guidelines range was 262-327 months -- even higher than his original Guidelines range.  (He might have been thinking -- "This appeal was a great idea!").  The district court, however, imposed the same sentence of 264 months imprisonment.

I Want My 5K (Even Though I Ran)

United States v. Carmon, No. 06-0165-cr (2d Cir. May 2, 2007) (found here)

Carmon appealed his sentence arguing that his intentional pre-sentence flight was not a sufficient basis for declaring that he had breached his plea and cooperation agreement.  The Second Circuit responded with what seems obvious: (1) by absconding Carmon forfeited any rights he arguably may have had based on his cooperation agreement with the Government (including to the filing of a 5K1.1 letter); (2) intentionally failing to appear for sentencing is so inherently obstructive of the administration of justice that it -- standing alone -- is sufficient to support an obstruction of justice enhancement; and (3) intentionally failing to appear for sentencing constitutes a failure to accept responsibility for one's offense.

Some defendants . . . wow.

Acceptance Of Responsibility And The Entrapment Defense

United States v. Taylor, Docket No. 05-6764-CR., 2007 WL 162706 (2d Cir. Jan. 23, 2006)

Taylor addresses the question of whether a defendant who asserts the entrapment defense at trial may also qualify for an downward acceptance of responsibility adjustment under the Guidelines.  Ultimately, the Second Circuit punts on the question (while at the same time noting that the question "has bedeviled our sister circuits").  Specifically, the Second Circuit found that the district court detrermined that Taylor was not entitled to the downward adjustment based on the facts at issue (a fact-based decision that could only be disturbed if it was "without foundation") and not based on any conclusion that the adjustment was inconsistent with the entrapment defense as a matter of law (a law-based decision that could be reviewed de novo).  We'll have to wait for another day to get an answer from the Second Circuit on this question.