‘‘Drawn from Nowhere’’: A Review of the U.S. Sentencing Commission’s White-Collar Sentencing Guidelines and Loss Data


In “Drawn from Nowhere“: A Review of the U.S. Sentencing Commission’s White-Collar Sentencing Guidelines and Loss Data, I review tens of thousands of white collar sentences to provide empirical support for the position that the federal judiciary views loss as a poor indicator of offense seriousness, especially as loss increases.  I conclude, therefore, that loss no longer should play a central role in federal sentencing and briefly canvass some options for amending USSG 2B1.1.


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Ex Post Facto Applies to the Advisory Guidelines


Today the U.S. Supreme Court decided Peugh v. United States (http://www.supremecourt.gov/opinions/12pdf/12-62_5g68.pdf).  At issue was whether the Ex Post Facto clause still applied to the U.S. Sentencing Guidelines after they became “effectively advisory” back in 2005 in United States v. Booker.  In Peugh, the defendant was found guilty of bank fraud after a trial.  He argued at sentencing that the 1998 version of the guidelines applied, which set a range of 30-37 months.  The government argued, and the district court and Seventh Circuit, however, held that the 2009 version of the guidelines applied, which yielded a range of 70-87 months.  He was sentenced to 70 months.

Justice Sotomayor (who had a great interview on last night’s 60 Minutes), writing for the 5-4 majority, resorted, interestingly enough, to empirical studies on the effect the guidelines have on judges when imposing sentences for justifying the holding: “Peugh points to considerable empirical evidence indicat­ing that the Sentencing Guidelines have the intended effect of influencing the sentences imposed by judges. Even after Booker rendered the Sentencing Guidelines advisory, district courts have in the vast majority of cases imposed either within-Guidelines sentences or sentences that depart downward from the Guidelines on the Gov­ernment’s motion. In less than one-fifth of cases since 2007 have district courts imposed above- or below-Guidelines sentences absent a Government motion    Moreover, the Sen­tencing Commission’s data indicate that when a Guide­lines range moves up or down, offenders’ sentences move with it. The federal system adopts procedural measures intended to make the Guidelines the lodestone of sentencing. A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sen­tence to constitute an ex post facto violation.” Id. at 12-13 (citations omitted).

Thus, it ultimately appears that what some call the psychological “anchoring effect” supported the Court’s holding–that ex post facto still applies even to “advisory” guidelines.  But this then begs the question as to how advisory the guidelines truly are.  While ostensibly “purely advisory,” it appears that both legally and psychologically there are limits to the advisory nature of the guidelines.  Legally because of the applicability of ex post facto; psychologically as reflected by empirical evidence.  But when courts sentence more often outside the guideline range than within—as in child pornography possession cases and nearly so in fraud cases—perhaps this empirical factor eviscerates the advisory nature of that guideline altogether in the sense that the guideline provides no advice at all.


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Covina teacher suspected of distributing child porn


Authorities believe a Covina middle school teacher arrested Wednesday on suspicion of distributing child porn over the Internet may have molested children.

Read full article here:

http://www.latimes.com/local/lanow/la-me-ln-covina-teacher-child-pornography-20130606,0,4747340.story


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Republican Congressman will address inequities in federal prison sentences with new bill


The federal justice system is far more rigid than state systems. No federal board of pardons exists. If you are sentenced to federal prison, you will either serve your full sentence or die trying.

Read here for full article:

http://www.deseretnews.com/article/765631374/Prison-incentives-costs-of-warehousing-federal-prisoners-becomes-increasingly-higher.html?pg=all


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Mark Allenbaugh to discuss trends in child pornography sentencing at MACDL 2013 seminar


http://www.mainemacdl.org/associations/13449/files/MACDL%20Brochure%20final.pdf


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Nation’s Criminal Defense Bar Launches Publicly-Available Resource for Resisting and Challenging Excessive Sentences


Washington, DC (May 22, 2013) – NACDL is pleased to offer, as a resource for its members and as a service to the public, a collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences. The resource – Excessive Sentencing: NACDL’s Proportionality Litigation Project – is available at www.nacdl.org/excessivesentencing

NACDL President Steven D. Benjamin said: “The United States now leads the world in incarceration, with more than 2.2 million people behind bars, as a result of overcriminalization and excessive sentencing. NACDL’s Excessive Sentencing Project being launched today is the type of resource for practitioners, judges, policy advocates, and the general public that embodies NACDL’s tireless work to fulfill its mission. The tools provided in this expansive online resource will be deployed to improve America’s criminal justice system and will result in more humane, rational and proportional sentencing of those convicted of a crime.”

Development of this new resource was inspired in part by the Supreme Court’s recent landmark constitutional decisions in Graham v. Florida, 130 S. Ct. 2011 (May 17, 2010), and Miller v. Alabama, 132 S. Ct. 245 (June 25, 2012), which pronounced new Eighth Amendment limits on when and how states can impose life without parole prison terms on juvenile offenders. The state profiles and related materials provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012. They are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms.

The primary academic supervisor of this resource is Professor Douglas A. Berman of The Ohio State University Moritz College of Law, who is also the creator, author and editor of the leading Sentencing Law and Policy Blog, an affiliate of the Law Professor Blogs Network. He is also the co-author of the case book, Sentencing Law and Policy: Cases, Statutes and Guidelines. Professor Berman intends to update these materials regularly as developments in the law warrant and new information becomes available.

On the project’s landing page – www.nacdl.org/excessivesentencing – there is a free, nearly 90-minute sentencing skills webinar featuring Professor Berman and Stephen Hardwick, an assistant public defender in Columbus, Ohio, where he specializes in appellate advocacy on behalf of clients convicted of capital offenses and other felonies.


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AFDA Webinar on USSC Child Pornography Report


TOPIC: The U.S. Sentencing Commission’s February 2013 Child Pornography Report
DATE: May 01, 2013
http://afda.org/web/videos/AFDA_Defense_Strategies_In_Child_Pornography


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NACDL Podcast on the new Sentencing Commission Report on Child Pornography


Issues in Child Pornography Law & Sentencing. We speak  with two of the nation’s leading experts in this area — Michael  Iacopino, co-chair of NACDL’s Sex Offender Policy Committee and an attorney  in private practice based in Manchester, New Hampshire. Iacopino is also the  immediate past president of the New Hampshire Association of Criminal Defense  Lawyers. We also hear from Mark Allenbaugh, former staff attorney to the U.S.  Sentencing Commission, who is the co-chair of NACDL’s Sentencing Committee and  an attorney in private practice with offices in the D.C. area, Ohio and  California. The discussion also covers the recent U.S. Sentencing Commission Report to Congress.

Podcast of Issues in Child Pornography Law & Sentencing (May 9, 2013)


Posted in Child Pornography, Federal criminal defense sentencing |

Ariel Castro Charges: Man Accused In Ohio Abductions Appears In Court On Kidnapping, Rape Charges


CLEVELAND — A Cleveland man was arraigned Thursday on charges of rape and kidnapping after three women missing for about a decade and one of their young daughters were found alive at his home earlier in the week.

Full article:

http://www.huffingtonpost.com/2013/05/09/ariel-castro-charges_n_3244333.html?utm_hp_ref=daily-brief?utm_source=DailyBrief&utm_campaign=050913&utm_medium=email&utm_content=NewsEntry&utm_term=Daily%20Brief


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James Holmes To Enter Insanity Plea In Aurora Movie Theater Shooting Trial


DENVER — The man accused in the deadly Colorado theater shootings wants to change his plea to not guilty by reason of insanity, his lawyers said Tuesday, despite their fears that the plea could severely hamper his ability to mount a defense against the death penalty.

Read the full article here:

http://www.huffingtonpost.com/2013/05/07/james-holmes-enters-insanity-plea_n_3232660.html?ir=Crime&utm_campaign=050713&utm_medium=email&utm_source=Alert-crime&utm_content=FullStory


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