Sentencing Class @ OSU Moritz College of Law

Student guest-post discusses "Wide Receiver Busts (Non-Draft Edition)"

A couple more students got me some more "top-flight" guest-post material in time to get a little credit for the effort. I will post the entries periodically, and start with this sports-related sentencing post for all those who have (like me) already spent a little too much time watching football since classes ended:

It’s no great surprise to learn that an athlete is in legal trouble, but the recent investigations of (now former) Bears receiver Sam Hurd and Bengals receiver Jerome Simpson break the mold of DUI’s and t-shirt thefts.  Simpson and Hurd were both investigated for drug distribution crimes that carry major federal sentencing consequences, yet Simpson is still reeling in passes for Cincinnati’s playoff drive while Hurd was quickly waived by Chicago.

Hurd wasn’t just waived because he isn’t as good a player -– 8 catches for 109 yards to Simpson’s 40 catches for 629 yards and 3 TD’s –- his situation is far more dire.   Both cases are federal and implicate the sentencing guidelines. Simpson received a shipment of 2.5 pounds of Northern California marijuana while Hurd told an undercover federal agent that he wanted to buy between 5 and 10 kilograms of cocaine and 1,000 pounds of marijuana per week.

Hurd has been charged with conspiracy to distribute 500 or more grams of cocaine, and his case has been transferred to Texas. Under the federal guidelines § 2D1.1(c), that amount carries a base offense level of 26.   This is raised to 38, however, for a conspiracy of a continuing criminal enterprise under § 2D1.5 and a mandatory minimum of 20 years under 21 U.S.C. § 848.  Hurd could face life imprisonment under the same statute if his gross receipts over 12 months were over $10 million and he was a principal administrator.   Given that Hurd had offered to pay around $2.8 million a month for drugs, it seems likely he would meet these thresholds. It is an enormous jump under the statute from the base level 38 which would result in a sentence of 235-293 months (20-25 years) without any criminal history adjustments.

By contrast Simpson’s marijuana package would carry a base offense level of 10, and 6-12 months with no criminal history, though he may be subject to mandatory minimums if he is found to be part of an ongoing conspiracy and other packages were found in his home could lead to a higher base level. California federal prosecutors have taken over his case, and he is yet to be charged.   These facts indicate that Simpson may be cooperating to reduce his penalties and to help investigators go after drug suppliers in Northern California’s “Emerald Triangle.”

Given the penalties faced by Hurd, he is incentivized to follow Simpson’s lead (if he is in fact cooperating).   Though his lawyer has indicated that a guilty plea is not immediately forthcoming, the mandatory minimums provide a huge reason for him to identify bigger fish for the federal prosecutors to fry.

Background links:

• On Hurd Charges and transfer to Texas 
• Simpson investigation linked to California 

Hey sports fans, lots of federal sentencing stories to follow

As a big sports fan, I tend to get a kick out of being able to follow federal sentencing stories via the sports page.  And now, as detailed in these two recent posts from my main blog, there are two timely stories worth watching closely:

• Any predictions (or suggestions) for ... sentencing of Barry Bonds?
• NFL player arrested by feds for big-time drug dealing

The second story, concerning the Chicago Bears receiver Sam Hurd and his alleged involvement in a big cocaine distribution scheme, provides a particularly good opportunity for students to think about plea bargaining practices and high-profile defendants.  Should Hurd's defense attorney and/or the federal prosecutors handing the case be talking about trying to put together a quick plea deal before all the details of Hurd's alleged  offense conduct become the topic of ESPN debate?  Or should both sides be already thinking about the "fight to the death" approach that Jerry Sandusky's lawyers have adopted?

Anyone eager to talk more about these issues at a sports bar over drinks can/should come get me from my office late on Friday night.  In addition to working late this Friday to follow the Bonds' sentencing from the West Coast, I am a free agent through the evening because my family has a "girls night out" without me at a holiday cookie party.

US v. Fitch and the potential impact of uncharged offense conduct

As noted in this agenda post, our class this Tuesday will focus on the consideration of acquitted and/or uncharged conduct at sentencing, with particular emphasis on the Supreme Court's 1997 ruling in US v. Watts (excerpted in casebook, full text here) and the Ninth Circuit's ruling just last month in US v. Fitch (full opinion here).  To whet everyones' appetite, and perhaps begin our discussion via comments to this post, consider the start of the majority opinion in Fitch:

David Kent Fitch was convicted by a jury of nine counts of bank fraud, two counts of fraudulent use of an access device, two counts of attempted fraudulent use of an access device, two counts of laundering monetary instruments, and one count of money laundering.  The applicable Sentencing Guidelines range was 41-51 months.  At sentencing, however, the district judge found by clear and convincing evidence that Fitch had murdered his wife, and that her death was the means he used to commit his crimes. Relying on that finding, he imposed a sentence of 262 months.

Fitch appeals his sentence, arguing that the district court committed procedural error and that, in any event, its sentence was substantively unreasonable.  Because Fitch has never been charged with his wife’s murder, his sentence is a poignant example of a drastic upward departure from the Guidelines range — albeit below the statutory maximum — based on uncharged criminal conduct.  We have not had occasion to address a scenario quite like this, but are constrained to affirm.

Reconnecting on Feb 24 with the help of lots of notable current events

I have heard great reports about the class this past week from our two kind guest lecturers.  When we (finally!) get the chance to reconnect this coming Wednesday, I would be happy and eager to provide any kind of direct follow-up to what you covered this past week (and students are encouraged to use the this post for any follow-up comments or requests based on the guest presentation).

In addition to any needed follow-up, I plan for this week's class to involve mostly reconnection after we've been away from each other quite a while thanks to snow days and other complications.  Specifically, here are my main agenda items for this week's class on Feb 24:

1.  Confirm due dates and expectations for mid-term assignment and final white-paper

2.  Wrap up focused discussion on the death penalty with emphasis on appreciating the importance (and interplay) of the distinct concepts of discretion, disparity, discrimination and sentencing severity. 

For this part of the class discussion, consider how you (or others) would answer this question: Would you prefer a modern justice system in which the 500 worst murderers each year all got executed or one in which only 50 of these 500 worst murderers were executed, but that some (hard to identify) discriminatory factors will probably play a role in selecting which exact 10% of the worst 500 murderers get executed?

3.  Discuss which (of so many) interesting current-events developments we might want make a special focal point for focused discussion in the weeks before Spring Break. 

For this part of the class discussion, consider these posts of note from around the blogosphere:

• Mandatory minimums and automatic weapons: United States v. O'Brien and Burgess, [SCOTUS] Argument preview
• Canada's Supreme Court authorizes discount for police misconduct while upholding mandatory sentencing term
• DOJ suggests "extraordinary" leniency justified for Bernie Madoff's lieutenant
• "Race and Gender as Explicit Sentencing Factors"
• "Judicial Discrection: A Look Back and a Look Forward Five Years After Booker"

As always, students are welcomed and encouraged to get a running start on a discussion of these (and other) topics via the comments to this post.

You be the judge: what sentence would you give to Gilbert Arenas following his plea?

As detailed  this Washington Post article, which is headlined "Arenas awaits sentence on gun charge, fate in NBA," the gun fun had by NBA star Gilbert Arenas last month has now made him a great subject for discussion and debate in a sentencing seminar.  I have asked this same sentencing question in this post at my main blog, and here are the key legal basics to keep in mind as reported by the Post:

Arenas won't know whether he must serve jail time until his March 26 sentencing and remains free until then.  The government indicated it will not seek more than six months, although the judge can give Arenas anywhere from probation to the charge's maximum term of five years.  Guidelines call for six to 12 months.

I am especially interesting in having students think about these Chapter 2 "who sentences" topics as we contemplate Arenas's possible sentencing fate:

1.  How should the fact that Arenas is suffering a multi-million dollar "punishment" from the NBA and the Washington Wizards impact Arenas's sentencing outcome?

2.  How should the fact that DC's advisory sentencing guidelines impact Arenas's sentencing outcome?

3.  How should the fact that prosecutors have agreed not to seek a prisoner term of more than six months impact Arenas's sentencing outcome?

4.  Are there any victims of Arenas's offense of one count of carrying a pistol without a license in the District of Columbia whose interests should be considered?

5.  How should the fact that Arenas agreed to plead guilty impact Arenas's sentencing outcome?

6.  If Arenas were to start doing prominent and significant anti-gun-violence community service, how should that fact impact Arenas's sentencing outcome?

7.  Should any sentencing outcome be subject to appeal (by either prosecutors or Arenas)?

Two intersting opinions on sex and drugs from two different appeals courts

This week we will start to apply some of our lessons about the challenges of sentencing theory (Chapter 1 of our text) to the story of who sentences (Chapter 2 of our text).  To get a running start on this topic, and also to further everyone's interest in sentencing stories surrounding sex offenders and drug offenses, I offer here links to two really fascinating opinions handed down this week from two different appellate courts.  Though reading these new cases is not technically "required," I will happily make either (or both) of these cases the focal point of discussion in coming classes if students express an interest in them.

First, from the First Circuit, we get US v. Perazza-Mercado, No. 07-1511 (1st Cir. Jan. 21, 2009) (available here), which covers (frequently litigated) issues surrounding broad conditions of supervised release for a federal sex offender. The start of the majority opinion sets out the basic issues:

This case requires us to address the validity of two conditions of supervised release imposed on a defendant convicted of unlawful sexual contact with a minor.  The first condition prohibited the defendant from having any access to the internet at home during the fifteen-year supervised release period. The second condition prohibited the possession of pornography generally.

Second, from the Wisconsin Court of Appeals, we get Harris v. Wisconsin, 2009 Wisc. App. LEXIS 39 (Wisc. Ct. App. Jan. 21, 2009) (available here), in which a Milwaukee man convicted of selling cocaine got his sentence reversed because the judge who sentenced him referred to the man's "baby mama" and asked him where "you guys" find women to support them while they stay home.