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 

Filings from government in US v. Blagojevich

I talk about some of the issues discussed in class concerning the upcoming sentencing on my main blog in this post, and here is a link to the government's sentencing memo in US v. Blagojevich.  I continue to look for an on-line version of the defense filing (and will give extra credit to any student who can find a link and post it in the comments).

In addition to the guideline stories I stressed in class, many other aspects of the government's memo merit consideration and comment.  And this local article from a Spingfield paper, titled "Federal sentencing a confusing process," might be of special interest and appeal as you think about how the public thinks about these sentencing issues in a high-profile setting without having had the benefit of an entire semester of Sentencing Class with Crazy Professor Berman.

Among other topics, I would very much welcome/encourage you to pretend to be Judge Zagel and script in the comments a sentence (and an explanation for the sentence) to be imposed on Rod Blagojevich.  For all we know, the Judge might read these comments before sentencing.

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.

US v. Ekwunoh, mens rea cases, war stories and class plans

I apologize for taking up (too?) much of class on Wednesday telling the war story of my very first real legal experience after law school (but perhaps a real-world war story about a non-capital case was a useful break from what we have been doing lately). If you want to read the Second Circuit's opinion in United States of America v. Caroline Oyibo Ekwunoh, 12 F.3d 368 (2d Cir. 1993), it is available at this link (and elsewhere on-line, of course).

In addition, I mentioned that the mens rea sentencing issue in Ekwunoh is discussed in the casebook (see pp. 321-25), and is also the subject recent Supreme Court debate in some other contexts.  Specifically, check out the links and other materials about these cases recently argued over before SCOTUS:

Flores-Figueroa v. United States (08-108) (argued Feb 25) —  concerning mens rea needed to trigger two-year mandatory sentence under federal identity theft law.

Dean v. United States (08-5274) (argued Feb 25)— concerning mens rea needed to trigger ten-year mandatory minimum sentence for discharging a gun during a violent crime.

Though I may in subsequent posts give everyone a distinct opportunity to talk about, e.g., whether you'd like more war stories and/or whether you understand the class's paper requirements and/or whether I effectively explained the methods of my madness, all those topics are also fair game in the comments to this post since we will not be together again for a full week.

The death penalty and plea bargaining

Especially as we are unpacking the past and present reality of who imposes death sentences, a new analysis of the death penalty and plea bargaining realities merits our collective attention.  The analysis appears in this new working paper, titled "The Death Penalty and Plea Bargaining to Life Sentences."  I discuss the report (and link to other notable posts on the topic) here at my main blog, and in light of our recent classroom discussion I wanted to spotlight one particular passage from the paper:

[Here is an accounting of] the disposition of cases in the sample used in this study. For every 100 suspects arrested by the police and charged with murder, 19 cases were rejected at initial screening and 81 went forward.  Of the 81, 42 went to trial and 39 pleaded guilty.  Of the 42 trials, 8 were acquittals and 34 were convictions.  Thus, of the 81 cases carried forward, 73 ended in convictions of some crime, though not necessarily of murder.  Of these, 65 were sentenced to incarceration of more than one year.

Keeping up with all the news bewteen classes

Death penalty news and developments continue apace even between our class meetings.  For example, as detailed here, on Friday the Supreme Court granted review in a case presenting "a test of federal courts' authority to overturn a state trial judge's decision to remove a juror from a capital trial because of that juror's views about capital punishment."  Also, as detailed here, the Washington Post has this provocative death penalty article in Sunday's paper.

As a general matter, I encourage members of the class to regularly stop by three great death penalty blogs — Capital Defense Weekly and Ohio Death Penalty Information and StandDown Texas Project — to keep up with current capital happenings.