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April 3, 2009

Michael Vick, Victor Rita and other federal guideline calculation stories

I mentioned in class a few famous/notable cases involving interesting guideline calculation issues, and here now are some links to facilitate further reading for those who might be interested. 

Let's start with Michael Vick, whose case is in the news again these days.  As you may recall, Vick pleaded guilty (like our friend Kent) and you can/should check out his plea agreement and the case's fact summary.  Notably, the plea agreement stipulated to an ultimate offense level to 13 for a guideline range of 12-18 months.  But, a "Brief of Amici Curaie" filed by a group of "organizations concerned about animal welfare and responsible dog ownership" can be access here, and it asserted (1) that the "agreed upon offense level does not adequately reflect the nature of Vick's conduct nor his role in the offense," (2) that Vick's guideline offense level should be 20 and his sentencing range 33-41 months, (3) the court should impose a 57-month sentence and a $250,000 fine. 

Now on to Victor Rita, whose case was the subject of the Rita v. US ruling by the Supreme Court that appears at pp. 199-210 in our casebook.   Though I got the exact facts of Rita's crimes a bit off in class, I am right about how a cross-reference increased his guideline range.  Here are snippet's from the Supreme Court's discussion of how Victor Rita got in trouble and ended up faced a guideline sentencing range of 33-41 months:

The basic crime in this case concerns two false statements which Victor Rita, the petitioner, made under oath to a federal grand jury.  The jury was investigating a gun company called InterOrdnance....  The investigating prosecutor brought Rita before the grand jury, placed him under oath [and] Rita denied that the Government agent had asked him for [a machine gun] kit, and also denied that he had spoken soon thereafter about the [gun] kit to someone at InterOrdnance.  The Government claimed these statements were false, charged Rita with perjury, making false statements, and obstructing justice, and, after a jury trial, obtained convictions on all counts....

[P]ursuant to the Guidelines, the [presentence] report, in calculating a recommended sentence, groups the five counts of conviction together, treating them as if they amounted to the single most serious count among them (and ignoring all others). See USSG §3D1.1. The single most serious offense in Rita’s case is “perjury.”  The relevant Guideline, §2J1.3(c)(1), instructs the sentencing court (and the probation officer) to calculate the Guidelines sentence for “perjury . . . in respect to a criminal offense” by applying the Guideline for an “accessory after the fact,” as to that criminal offense. §2X3.1.  And that latter Guideline says that the judge, for calculation purposes, should take as a base offense level, a level that is “6 levels lower than the offense level for the underlying offense."  Here the “underlying offense” consisted of InterOrdnance’s possible violation of the machinegun registration law. The base offense level for the gun registration crime is 26.  See USSG §2M5.2.  Six levels less is 20.  And 20, says the presentence report, is the base offense level applicable to Rita for purposes of Guidelines sentence calculation.

Students will get lots and lots of bonus particulation points by using the comments for either (a) expressing interest in (and/or providing links to) other interesting guideline calculation cases, or (b)expressing in rank order with explaination how they think Kent, Vick and Rita stack up in terms of offense culpability and the purposes of punishment.  (Lots of thoughtful comments will also increase the chances I will cancel Friday's class.)

April 3, 2009 in Class activities | Permalink


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A couple of stories/issues that caught my attention that I think are interesting and relevant to this topic.

One is how guidelines calculation decisions play out in particular areas of law. I came across this story in the area of White Collar Crime, which discusses how the guideline decision on calculation of loss can have an impact on the ultimate sentence

Additionally, I came across a story of calculation error. While this is a state case, it still makes one wonder how often people simply mess up in applying sentencing guidelines.

Posted by: Zach | Apr 8, 2009 12:36:22 PM

Timely article from Politico about federal judges losing their patience with the missteps of prosecutors. Apparently, Prof. Berman is not the only one questioning the morality of prosecutors.


Posted by: Andy | Apr 8, 2009 7:33:24 PM

In order of moral blameworthiness of their underlying conduct (judged by our social, non-legal conclusions of what they actually did):

1. Kent
2. Vick
3. Rita

In order of 'wrongness' of the conduct which they actually were found legally guilty of:

1. Vick
2. Kent
3. Rita

So, there's actually an inverse relationship between how bad these defendants conduct was, and how much time they'll actually serve.

Posted by: Leon | Apr 14, 2009 11:16:09 PM

Offense Culpability
1) Kent. I am an avid dog lover, so my gut really wants me to list Vick as the most culpable, but even I will conceded that human suffering must take precedent over animal suffering. In addition to humans being theoretically more important than dogs, I can't overemphasize how Kent's positions of trust, authority, and criminal justice decision-making only increase the heinousness of his crimes. While everyone may not agree on this, I feel strongly that people of lower socio-economic classes and other disadvantaged groups are more sympathetic defendants. When one grows up in an environment that is "kill or be killed" (slight dramatization), it only makes logical sense to me that they are less likely to uphold, or be able to uphold, the criminal laws. However, when a FEDERAL JUDGE, who is a highly educated individual of a high socio-economic class, who is sworn to uphold the very laws he is breaking, and who passes judgment (in the most literal sense) upon those who violate the laws commits a crime as heinous as rape, well I can have no sympathy. Not only does he rape someone, he rapes his employees at the FEDERAL COURTHOUSE. I imagine the facts of this case have not gone unnoticed by the writers of Law and Order. Kent makes the most unsympathetic of defendants.
2) Vick - I think most people are hard pressed to imagine a motivation for Vick's crimes. Who wants to watch two dogs literally tear each other apart? The heinous and callousness of Vick's crimes make him especially culpable. Also, I think most people associated physical abuse of animals with deep seeded psychological/emotional problems.
3) Rita - I'm not sure Rita did anything wrong. As I stated below, I think separate gun crimes are illogical. If someone commits a crime with a gun, let's punish the crime itself.

Purposes of Punishment
1) Vick - retribution (just desserts seem quite fitting for someone who slammed dogs on the ground until they were dead), deterrence (a HUGE NFL star serving federal prison time sends a message), restitution (I understand he was required to pay for the care of every animal rescued from his dog rape/murder/fighting ring), rehabilitation (Vick claims he sees the error of his ways and is a better person for his time served. I believe people, even dog murderers, can change).
2) Kent - retribution (again, just desserts. The facts of this case make one wonder if its possible for Kent, but prison time is a start), deterrence (judges shouldn't rape employees), restitution (assuming he's ordered to pay)
3) Rita - retribution (I think this is silly, but I think gun laws are silly. If the gun is used to commit a crime, then let's just punish that crime.), deterrence (don't buy gun parts (?)), rehabilitation, education

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Posted by: dating girl | Dec 24, 2009 8:16:00 AM

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