Sunday, May 24, 2009
The 18th Annual National Federal Sentencing Guidelines Seminar was held in Clearwater, Florida this past week. After opening comments from Kevin Napper (Carlton Fields), there was a lively panel titled Developments and a View from the District Court Bench,a panel moderated by Kevin Napper and Norman Reimer (Executive Director of NACDL) The panelists included Brian Albritton (US Attorney from the Middle District of Florida), Hon Fred Block (District Court Judge, Eastern District, New York), Hon. Steven Merryday (District Court Judge, Middle District of Florida); Hon. Robert Pratt (District Court Judge, Southern District of Iowa), and Hon. Ruben Castillo (Vice Chair, US Sentencing Commission). Judge Block noted that older judges (those on the bench longer, not age) may feel more comfortable taking the risk of going outside the guidelines, while the younger ones may be more concerned about going above or below the guideline range. He gave a preview of his approach to "interactive sentencing."
The Fraud/Theft breakout session was moderated by Michael Horowitz (Cadwalader, Wickersham & Taft). He provided important statistical material on white collar sentencing. His Powerpoints (Download FBA_Guidelines_Program_2009) noted how judges were sentencing in white collar cases post Supreme Court decisions in Booker, Gall, Rita, and Kimbrough. One interesting slide presented the medium loss amount for white collar offenders from 2000 to 2008. For 2008 the amount was $40,499. Benton Campbell, U.S. Attorney for the Eastern District of New York, and former ex officio member of the Sentencing Commission, remarked how this amount would not even be sufficient for a prosecution in his district. This comment demonstrates clearly that there are real differences - geographic ones - that demonstrate the importance of having judicial influence in sentencing. Benton Campbell also remarked how he liked the guidelines, but did say that the fraud losses will likely grow in future years. Mark Harrisof Proskauer, Rose, LLP, and a former Supreme Court Clerk to both Justices Powell and Stevens, in addition to Judge Flaum of the 7th Circuit, emphasized that "advocacy begins over fighting over loss." He provided some wonderful advice on offense specific arguments that can be made, such as motive and whether the defendant personally profitted. Athena Macinnis, Senior U.S. Probation Officer, Southern District of Mississippi, reminded everyone to consider the victims.
Also on this same panel, besides myself, was Hon. Ruben Castillo, district court judge from the Northern District of Illinois and Vice-Chair of the Sentencing Commission. He remarked how Congress, when they passed SOX, paid no attention to what the commission had done. By ignoring what the Commission had done, some sentences today could be "off the charts."
There were also wonderful panels that included Hon. Robin Cauthron, Micheal Dreeban, Beryl Howell, Gregory Poe, Elaine Terenzi, Hon. Paul Borman, Barry Boss, Robert O'Neil, Ted Simon, James Felman, and so many others. This was clearly a top-of-the-line seminar with a wealth of information. Other than the poor weather of Clearwater, Florida, truly not the norm, this was one of the best seminars of the year.