In Doug Berman’s vacation absence, a gang from Proskauer Rose has taken the reins at Sentencing Law & Policy.  While they haven’t exactly filled Doug’s shoes for the most part, a “practice tip” from former New Jersey AUSA, now Proskauer partner,  Matthew Queler is quite good and certainly something that every defense lawyer involved in multi-defendant cases should be aware of.

Intra-case proportionality is, like gravity, an unseen force that will have an important impact on where your client comes to rest.Most judges employ their own personal rough sense of justice – consciously or not.As important as downward departures and § 3553 are, there is one almost immutable reality:the ringleader is not going to get less time than the mid-level supervisor, who is not going to get less time than the mope.(The one arguable exception is where criminal history categories are materially different.)If you represent the ringleader, once the less culpable defendants are sentenced, you are at the mercy of the job the other defendants’ attorneys did.

The concept of intra-case proportionality is critical to sentencing, as one of the strongest arguments available to both sides is where a defendant fits within the structure of the criminal enterprise.  This applies with equal force, perhaps even greater force, in general criminal cases as well as white collar, even though many lawyers don’t think of a drug gang as an enterprise in the sense of a corporation.  But indeed, establishing where your defendant fits within the scheme of the group will prove to be one of the most significant factors in the sentence imposed.

In order to maximize the benefit (and of course, minimize the detriment) of being hurt, it behooves counsel in multi-defendant cases to work together so that sentencing occurs in a rational rather than random fashion.  Queler presents a hypothetical where you represent the company President, who is to be sentenced after the company accountant:

The accountant doesn’t have a lot of money, and is represented by a mediocre defense attorney, who walks his client into sentencing without preparing a sentencing submission, and does a ho-hum job extolling his client’s virtues.His client gets 16 months.Now, it’s your turn.Even though you put together the most compelling sentencing submission of all time, and the Judge’s law clerk actually cries while reading it, guess what?It won’t matter.Your client is going to do more than 16 months.Probably substantially more.After all, and as the Judge will probably ask you:How can your client get less time than the accountant when your client was the mastermind and ringleader?

That’s how the sentencing floor is established.  When the little guy goes first, his sentence mandates that your client, whose conduct is by definition more culpable because of his position in the enterprise, must receive a more severe sentence.  As Queler notes, it doesn’t matter if you’re the best lawyer on the face of the earth.  The floor has been established and you are now stuck with it.

The solution, which is always worthy of the effort even though it can’t always be accomplished, is to work together to have the top defendants sentenced first, and subsequent defendants sentenced in descending order of culpability and position within the enterprise.

The key is to try to work with the Judge’s Deputy and the other defense attorneys – even if some of the defendants have cooperated against the others – to arrange it so that the co-defendants are sentenced in order from most culpable to least, assuming of course you can all agree on what that order is.That way, everyone can build off the others’ efforts and each sentence lowers the ceiling for the next co-defendant, but no one’s sentence creates a floor.

While Queler’s tip is directed toward federal practice, and he uses white collar for his examples, the concept is applicable to every multi-defendant case regardless of court or crime.  The principle of avoiding the “sentencing floor” is one that every criminal defense lawyer needs to consider.

Maybe these Proskauer lawyers aren’t so bad after all?  Or maybe they just have too much experience with sentencing?  Naw, that’s not nice.  Kudos to Matthew Queler for posting about this great tip.