Saturday, June 2, 2007

The Libby Sentencing

The sentencing of I. Lewis Libby is set for June 5 before U.S. District Judge Reggie Walton, and the defense sentencing filings are now available below.  In sharp contrast to the government's recommendation of a 30-37 month prison term under the Sentencing Guidelines, lawyers for the former chief of staff to Vice President Cheney ask for probation.  The Probation Office's presentence report, which is not available, determined that the Sentencing Guidelines provide for a base offense level of 14, which calls for a sentence of 15-21 months.  Both the prosecution and defense agree with the base offense level calculation, but the government has argued for enhancements to increase the sentence.  Libby's team agrees with the Probation Office's recommendation that the Judge depart downward based on three grounds: Libby's history of public service; the collateral consequences on his career from the conviction; and, the criminal conduct represents aberrant behavior unlikely to be repeated.  Based on these grounds, the defense seeks the sentence of probation.

What will the sentence be?  Jeralyn Merritt from TalkLeft guesses (here) that the sentence will be the Martha Stewart double-nickel: five months imprisonment and five months home confinement.  Professor Doug Berman of the Sentencing Law & Policy blog (here) hedges his bet on the sentence by guessing a range of "something between 1-2 years" -- that would cover a departure in either direction.  If those interested are in a sporting mood, a better approach is to wager on the over/under.  I would put that line for over/under at a sentence of one-year-and-one-day, a particular favorite in white collar crime cases.  The extra day means that the prisoner is eligible for the 15% good time credit under the Bureau of Prisons rules, so the actual sentence is a bit over ten months.  Moreover, the last portion can be served in a half-way house, so the time in an FCI is more like 8+ months. 

I peg my own guess at a year-and-a-day because that means the Judge could depart a bit from the Guidelines range, per Probation's suggestion, and still impose a substantial prison term.  Given that Judge Walton was not always pleased with the defense during the trial, I suspect he might not cut as much slack as he would otherwise.  After imposing the sentence, I also suspect the Judge will allow Libby to remain free on bail pending appeal.  Despite the statutory presumption that a convicted defendant goes to jail after sentencing, the trend in white collar crime cases has been to allow the defendant to remain free while pursuing the appeal, and there are certainly legal questions in the case that are sufficiently close to justify permitting Libby to remain out on bail. (ph)

Download us_v_libby_defense_opposition_sentencing_memo.pdf

Download us_v. Libby Defense Sentencing Memo.pdf

http://lawprofessors.typepad.com/whitecollarcrime_blog/2007/06/the_libby_sente.html

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