Thread by @McAdooGordon

Roger Stone sentencing: so you know

There are multiple parts to a federal sentencing hearing that the judge must work through before a final decision can be announced.

This thread explains them a bit so you can understand what will/is happening.

/1

First the judge has to decide the correct level/range.

The base level for obstruction of justice cases is 14.

The govt & Probation Office are arguing for 4 additional enhancements. The judge has to rule each one separately. The final level depends on those rulings. /2

After that there are two devices she can use to deviate from the “final” level to either add more levels or subtract levels. These two devices are called “departures” & “variances.” The defense will probably argue for both; the govt’s position on these is muddy in their memos. /3

Once she rules on departures & variances she will say what final final level she’s sentencing at & give the range. Then she announces where w/in that range she’s sentencing & how. So a 0-6 month range could be probation, it could be 2 months to serve in prison or 6 months, etc./4

So you can follow it, here is the sentencing table. The number ranges are in months. /5

So you can see that starting at level 14, the range starts at 15 to 21 months. Stone is in the Category I columns on the far left because he has no prior record. That puts him in Zone D (the zig-zag lines), which presumptively means prison under the Guidelines. /6

The four potential enhancements are:

1. Threat to a witness- 8 levels;
2. Substantial interference with justice - 3 levels;
3. Extensive scope - 2 levels;
4. Obstruction of his own trial - 2 levels.

If the judge applies them all, the final level is 29, carrying 87-108 months./7

If she applies none, it stays at 14. If she applies some but not others, the final level depends on exactly which ones. There are several possible combinations, obviously. /8

The lawyers argue for & against each of these, one at a time. There is case law interpreting them in addition to the plain wording of the Guidelines. It would not surprise me if she doesn’t apply all four enhancements. Some are weaker than others under the case law. We’ll see./9

The Probation Office has concludedall four apply, but the judge has to make her own decision applying the case law. Judges will disagree with Probation if they think the lawyers arguments on the case law are correct. /10

Once the “final” level is set, she will turn to the departure & variance arguments. Departures are changes to the level based on arguments that the Guidelines recognize. Co-operation w/the govt like in Gen. Flynn’s case is an example. They can add or subtract levels. /11

No one is asking to add levels in this case, so she will consider arguments from both sides about whether a departure to reduce the levels is appropriate under the Guidelines. /12

Usually, a judge won’t rule on that right then, but will then listen to the arguments on a variance. A variance is a change in the sentence from the established Guidelines level to a different sentence based on arguments under the sentencing statute rather than the Guidelines./13

The Guidelines are only one factor under the statute & the Suoreme Court has said that its calculation is NOT presumptively the correct or reasonable sentence. /14

That is one reason why - there are several- that all the hullabaloo about the prosecutors’ original recommendation being “correct” because it was the Guidelines calculation is nonsense. That’s not what the law is. /15

Under the sentencing statute, the defense can argue mitigating factors that are outside the Guidelines or not taken enough into account under the Guidelines, etc. /16

The govt’s second sentencing memo asks for a sentence less than the Guidelines calculation with all four enhancements added on, but is a bit vague as to which theory they think justifies that. It will be interesting to see what they say in court. /17

After hearing all the factors argued from both sides & from Stone if he wants to speak, the judge will say whether she’s applying a departure or variance or both & where she finally comes out on the level & finally what actual sentence she’s imposing. /18

To experienced practicioners, the level 29 (87-108 month) sentence calculation under the Guidelines is patently absurd in this case. I think it was extremely likely that Judge Berman Jackson was never going to give that sentence. /19

In fact, it was & still is very likely she was always going to give a sentence even lower than the revised govt recommendation. It will be interesting to see if she still does so & what the reactions will be. A more likely sentence was always going to be about 1 to 2.5 years. /20

Of course, you can never say for sure what a judge will do, & the govt’s recommendation carrries weight with the judges, but in general, cases like Stone’s in our court would seldom get sentences of more than 30 months max, I’d say. /21

The current govt recommendation is a bit above that at 37-48 months because effectively they asked her to drop the 8 level enhancement for the threat, just to balance out the case overall. She doesn’t have to do that, of course, or do it that way. /22

So I’m following a live thread & the judge applied 3 of the 4 enhancements, and noted that the threat one may be too heavy, signaling she’s going to depart or vary. The level she settled on before departure ms or variances was 27, not 29. /23

It’s a little hard to tell from the live tweet whether she gave a departure, a variance or both (her written order will say) but she cut the level from 27 to 21, which has a range of 37 to 46. That’s the range the second govt memo recommended. She actually gave him 40 months./24

Stone will not serve 40 months in prison no matter what. With good time credits, he’ll serve about 34 months, and sometime in the last six months or so of that he’ll likely be moved to a half-way house. /25

For what it’s worth, I see three sentencing that could potentially be raised on appeal: 1. The decisions to apply the enhancements at all; 2. The overall reasonableness if the sentence, & 3. That a different judge should have sentenced him based on the “threat” to her. /26

Not all issues that exist get raised on appeal - you have to pick your best three (four at a stretch). Sentencing issues often get left out altogether because you’re trying to get a new trial. /27

An observation: if the court was going to comment so extensively on the evidence at sentencing, it would’ve probably been better to rule on the new trial motion first. If there’s any chance of granting that, the court’s comments have now potentially reached the new jury pool. /28

For what it’s worth, if I were a judge: I think the correct Guidelines calculation is level 22 & I would have departed down to level 16 & given him 27 months. /29