For decades, some defense lawyers have been screaming into the void about how the economic loss guidelines for federal sentencing are out of whack, arbitrary, and many times just plain draconian. I’m lucky enough to have been doing it for about 10 years, and whenever a sentencing hearing is around the corner, I scavenge for more ammo to convince Judges to look past the nonsense that’s in section 2B1.1.
Some of the best weapons, though, come not from the defense’s argument, but from Judges who have found these numbers to be the equivalent of black box science. It’s as if the defense is telling the sentencing Judge, “Your Honor, it’s not just your
not-so-humble servant that says that, but some of your brethren have also said it!” Implied in that message is something like, “Your colleagues took the plunge and called BS on these things, and now this Court can too!”
Every now and then, you come across a sentencing order or opinion that can be used to tip the scale in favor of your client and shave some serious time off their sentence. Last week, I found a gem from U.S. Senior District Judge John L. Kane from Colorado. In an Order on Guidelines Calculations in the case of U.S. v. Moody (13-cr-87-JLK), Judge Kane refused to impose a guidelines sentence based on the numbers contained in the loss amount table. But the Judge went a step further than I’d never seen: The Judge specifically asked the folks at Sentencing Commission for guidance with regard to applying those numbers to that particular defendant. And the second kicker is that the folks from the commission
failed to couldn’t deliver the empirical data that Judge Kane had asked for:
When I sought specific information from the staff of the Sentencing Commission, I was advised that the Commission had reviewed thousands of case files and arrived at conclusions apparently based on a gestalt formed by the review. When I asked how many of these thousands of cases involved forty-nine year old women with no prior arrests or convictions or how many such defendants were engaged in full-time employment with the victim organization or what the average or median length of sentences for them was, I was advised that such information was not available. In sum, the advice was a demonstration of ipse dixit and offered no probity whatever. The absence of hard data makes it impossible to form an opinion as to the reasonableness of the guideline recommendation or, for that matter, a just decision in which all relevant factors are put in balance. Without specific information, it is not possible to apply the sentence criteria set out in 35 U.S.C. Sec. 3553.
Did the Commission ever expect that no
criminal defense lawyer Judge would call them out on their BS? Couldn’t they make something up, anything, that could justify why those numbers for that defendant could be supported by some empirical evidence? I mean, I’m sure they can answer why, let’s say, $1.5 million gets you 37 months in the can, while $1.51 million suggests a guideline that ends with 57 months. I could picture a group of nerds with calculators and super computers in a room really making sure these numbers pan out, because, after all, these are the numbers that Judges first look at when someone’s going to be sentenced to prison.
While rejecting to adopt the loss amount guidelines, Judge Kane also quoted Judge Underhill from the Second Circuit Court of Appeals, saying that as the loss amounts go up, the tougher it becomes for Judges to figure out an appropriate sentence:
The concurring opinion by Judge Underhill observes that the fraud guideline is not the product of the Sentencing Commission employing an empirical study, as its designated mission, to establish past sentencing practices for convictions of this crime. Rather, he writes, “[t]he history of bracket inflation directed by Congress renders the loss guideline fundamentally flawed, especially as the amounts climb. The higher the loss amount, the more distorted is the guideline’s advice to sentencing judges.
While we are here, there are a few other reasons why these guidelines are a mess. They hold people responsible for the intended, instead of actual, loss of the entire conspiracy. Imagine a couple of confederates running a Medicare fraud scheme in
south Florida Boise and billing $200 million during the scheme. If they make $10 million, each defendant gets sentenced for the $200 million billed, regardless of how much each dummy profited (if anything). Had the scheme involved $10 million, and they had actually stole $10 million, they get sentenced for only $10 million.
Plus, the guidelines don’t take into account how the money was spent. The sucker who spends it on Lambo SUVs and breast implants is in the same exact boat as the one who spent his loot on surgery for a loved one. It’s a one-sized-fits-all scheme (no pun) that looks like the product of a bunch of anal-retentive bureaucrats with their nose in the rulebook.
On a much more pleasant note, I once had the honor of writing with Judge Kane at Fault Lines, along with Judges Richard Kopf and Mark Bennett. I’ve used Judge Bennett’s research and sentencing opinions to really make a dent on meth cases, and hopefully Judge Kane can be my good luck charm for the next health care fraud sentencing. Judge Kopf, you’re up!