Thread by @McAdooGordon

Denney Case. Judge Moss directed the govt & @shipwreckedcrew to file pleadings by noon today to explain their positions on how the Sentencing Guidelines apply to his case. Technically, that calculation is not necessary for a plea proceeding.

The judge does have to advise the defendant of the statutory maximums for incarceration, fines, etc., of any mandatory minimums that apply in the case, & the court's obligation to use the Sentencing Guidelines in determining the sentence in his case. And they routinely do that.

It's customary in federal court also that the judge covers some things from the plea agreement, including any AGREEMENT as to the Guidelines applications. But every written plea agreement says the judge ISN'T bound even by the agreed application (unless a special rule is invoked)

There's no agreement at all in Denney's case, or invocation of the special rule for binding the judge, so there's nothing in writing to show what sentence the Guidelines may generate for him, which made Judge Moss nervous on Monday. It shouldn't have.

The judge knowing what range the sentence may be in isn't part of the plea procedure. Even where there's an agreement in a written plea, the probation office's conclusions may be radically different when they do their report to the court.

So- at best -it's a general idea at this stage of the case. But it's a crutch that Judge Moss is used to having even though it's really irrelevant to the plea itself. The question at the plea is whether the decision to plead is voluntary & knowing, & whether the facts support it.

Judge Moss will probably say tomorrow that it plays into whether Denney's decision to plead is knowing & voluntary, but logically it really doesn't because no matter what the lawyers estimate the sentencing range to be, they may not be right anyway.

And, in a case w/no stipulated facts or guidelines application, the range is going to depend in part on things that Judge Moss himself is going to have to decide at the sentencing, so there is simply no way to know with certainty what the range is at this stage. This is normal.

But it's unusual in the sense that most cases have a written plea agreement & that's what Judge Moss is used to. That doesn't change the inherently unknowable nature of the issue at this point. It's an illusion that the written plea agreements provide more certainty - they don't.

It just makes the judge more comfortable. So, he ordered the parties to submit estimates & they did so today. The Govt's calculation comes to level 25, with a range of 57 to 71 months. That's what Judge Moss estimated on Monday also, which doesn't seem like a coincidence. 🙄

At first blush I'd say the calculation is a bit different than what they've asked for in similar cases, so they may have conformed their estimate to what Judge Moss just threw out on Monday to curry favor with him. We'll see.

Their pleading is here:

drive.google.com/file/d/1C2PkUx…

Denney's estimate is Level 22, w/a range of 41 to 51 months because he is going to dispute some of the enhancements that the Govt wants & he points out that he also has multiple theories to ask the court to further reduce that calculation. His pleading:

drive.google.com/file/d/1in3fud…

This illustrates why is makes good sense to sometimes, (not always & not usually, but sometimes) plead to the indictment. Having no agreement w/DOJ means that Denney's counsel is free to dispute the Guidelines applications & facts that the DOJ is relying on to support . . .

its application of the Guidelines, and to make other arguments that the DOJ would have required him to waive in a plea agreement. Now in this case, @shipwreckedcrew can argue everything he thinks helps Denney as part of the sentencing process - to Probation and to the judge.

Even if they both rule against him on every single thing (not likely but possible for sure), he's still no worse off than if he'd just accepted everything the DOJ demanded in a plea. And in this case, if nothing else, he'll have only one charge & not one that involves honesty.

Honest (really dishonesty) offenses can tend to create more problems after a case is over than others, in terms of licenses, clearances, testimony in court, etc. Obstruction of justice is the kind of case that causes those problems.

So, overall, this case is a good example of how, w/procedural moves, a smart defense counsel even in a difficult case can make some improvements in the final outcome of a case that can matter to a client long after the judge and prosecutor in the case have forgotten all about it.

Specifically under the Guidelines, Denney is disputing 2 things: 1) that he used a dangerous weapon (a pipe) in a way that gets 4 levels under the Guidelines instead of 3, & 2) that he engaged in "planning" that justifies another 2 levels. In general each level adds 5-6 months.