Marc Dreier, who stands as a testament to the fact that stealing a ton of money doesn’t mean you have good taste in art, has decided to plead guilty to the superseding indictment for his $400 Million fraud, according to the WSJ Law Blog. 

Gerald L. Shargel, Dreier’s lawyer, said his client will enter a guilty plea to all the charges in a superseding indictment unsealed in March — conspiracy, securities fraud, money laundering and five counts of wire fraud. Dreier will plead guilty without a deal in place with the government, Shargel said. His lawyer had previously indicated they expected a quick resolution of the case.

This appears to be an open plea, meaning that there is no deal on the table.  As was asked when Bernie Madoff did the same thing, why?

Unlike the Madoff cases, where the open plea made little sense given how many issues were on the table and lost in the process, an open plea in this case appears to have some very different considerations.  Shargel is a very smart lawyer, and no doubt has calculated the decision with great precision. 

My bet is that the government offered Dreier bupkus on the deal.  A plea to a guidelines sentence with three points off for acceptance.  Big deal.  In the typical SDNY plea agreement, he would have given up his opportunity to argue for a downward departure, and more significantly, an appropriate sentence under 3553(a).  He would be locked into the worst possible scenario, conceding the propriety of the guidelines and agreeing to be sentenced within them. 

In a post-Booker, non-mandatory guidelines world, the open plea may offer far more opportunity to obtain a fair sentence than the government is inclined to provide by agreement.  There’s little doubt that the evidence against Dreier was going to slam dunk him, but that’s not the end of the story.  This was such a bizarre scenario that there is likely to be some strong mitigating factors to consider.  The government wasn’t impressed?  Who cares.  The sentence is no longer left to the government’s discretion alone. 

Which brings us to the judge, Jed Rakoff.  While Judge Rakoff is no softie, he has shown himself to be bold and reasonable, having rejected the guidelines and mandatory minimum stacking approaches when he finds them to exceed that which is necessary to fulfill the purpose of 3553(a).  It will be no walk in the park, but Shargel and Dreier at least have a judge who will listen to reason and give them every opportunity to make their pitch for an appropriate sentence.

Unlike Madoff, who has little chance of ever walking the earth a free man again, Marc Dreier may well have a chance to breath free air some day.  After all, he only stole $400 Million, a drop in the bucket compared to the big boy these days.  And if there is any chance that he will do so, this appears to be the route most likely to succeed.

It’s not up to Shargel to put together a sentencing pitch that encompasses the mitigating factors that will help Judge Rakoff to conclude that Marc Dreier need not spend the entirety of his life in prison to satisfy the legitimate sentencing considerations of 3553(a).  This should be a fascinating, and instructive, lesson in sentencing when the time comes.