In many states, prosecutors and defense attorneys have the ability to sentence bargain, meaning that in addition to determining what charges the client agrees to plead to, they also agree to a specific sentence that the court must then accept or reject. In the very few cases where the court rejects the sentencing recommendation, the client is afforded the opportunity to withdraw the guilty plea or accept the sentence as determined by the court. The federal system is much different.
I previously wrote about the ever-declining number of federal criminal trials due to the trial penalty: the additional months or even years added to a sentence after a conviction at trial, as compared to resolving the case by a plea agreement. This article focuses on another factor contributing to the trial penalty: punishment based upon acquitted conduct.
Whether you are being sentenced in federal or state court, it is critically important to carefully plan what you are going to say to the judge, both in written submissions and orally, before the sentence is imposed. Acceptance of responsibility and true remorse are key factors judges consider when imposing a sentence.
A recent article about a federal sentencing in Florida is a perfect example. A judge in the Southern District of Florida changed her mind and imposed a more severe sentence after listening to the defendant speak. The case involved a low-income housing fraud scheme. The defendant claimed contrition and responsibility, but immediately thereafter stated he did not act with fraudulent intent and never received a single complaint of underpaying a worker. Nearly a full year was added to his sentence as a consequence. His statement, according to the judge, was a far cry from any acceptance of responsibility she had heard in 30 years on the bench. The judge also remarked that she didn’t know who the defendant made the statement for, but suspected it was for members in attendance and their perception of him as a CEO of his construction firm.
Recent statistics show that about 96% of the criminal cases in federal court are resolved through guilty pleas. The number of cases going to trial has dramatically decreased in the past ten years. Thus, today’s criminal defense attorneys must be adept at negotiating the best possible resolution for their clients that choose to plead guilty.
Anyone facing a federal sentencing knows how difficult and daunting the U.S. Sentencing Guidelines can be for many types of crimes. For financial crimes, the amount of loss, number of victims, complexity of the scheme and the like can quickly ratchet someone with no prior offenses into the 10+ year range. With a system that does not allow for early release on parole, like most states, and that credits a defendant with only 54 days a year good time credit, sentencing in the federal system can be particularly harsh.
Stahl Criminal Defense prides itself on the detailed, exhaustively researched and nuanced sentencing presentations we make in federal and state court matters. Laura Gasiorowski, a member of the firm for 15 years, is especially gifted in working with clients and their families in crafting powerful presentations. With her background in death penalty mitigation, she is well equipped to investigate the client’s social, mental, and educational history and uncover the type of powerful mitigation evidence that often makes the difference. Knowing and understanding the Guidelines is crucial, but in addition to making the right legal arguments a sentencing memo has to individualize the client and present whatever personal characteristics, social history, or circumstances that mitigate culpability.
In the multiple investigations surrounding the Trump presidency and his administration, former National Security Advisor, General Michael Flynn, pled guilty to lying to the FBI and cooperated with the government. He cooperated ostensibly to earn a “substantial assistance letter” and downward departure motion, which is filed by the government on a defendant’s behalf to seek a sentence below the advisory U.S. Sentencing Guidelines’ range, in this case 0 – 6 months.
Much has been written about Paul Manafort’s conviction at his first trial, the potential decades long sentence, and his sudden plea and cooperation deal shortly before his second trial was scheduled to begin. This sequence of events alone is unusual as most defendants decide to cooperate in an effort to reduce their potential sentence well-prior to trial. Moreover, most federal prosecutors do not want to cooperate with a defendant who has contested charges, gone to trial and lost. Most unusual, and damaging to Manafort, is his apparent violation or beach of the cooperation agreement by his alleged lies to the government.
Rick Gates, Paul Manafort’s former business partner, is the star witness in the first trial resulting from the Special Counsel’s Russia collusion investigation in federal court in Virginia. Gates pled guilty to felony charges and agreed to testify against Manafort in an effort to receive a substantially reduced sentence. The government and defense agree on one thing – the cooperating defendant/witness is guilty of financial crimes, moral misdeeds and has lied repeatedly in the past. Despite that, Gates is on the witness stand, under oath testifying as a government witness in a highly publicized trial of great public interest.
Criminal defense attorneys representing non-citizen defendants are obligated to provide advice regarding the immigration consequences of a plea or guilty verdict. The Supreme Court’s decision in Padilla made it clear that failure to do so constitutes ineffective assistance of counsel.