Thread by @shipwreckedcrew

For those kvetching over the DOJ position on possible consecutive sentences if Sec. 1512(c)(2) is thrown out by the Supreme Court, having some understanding of how this process actually plays out -- regardless of what DOJ claims it is going to ask for -- is important.

The idea that "Sentence XX" is appropriate regardless of what happens with Fischer is legally illiterate -- not a first for DOJ in these cases and I've said that in writing.

The FIRST obligation of a Judge at sentencing is "Get the Guideline calculation correct."

Where Sec. 1512 was the offense of conviction that drove the Guideline calculation, that means the whole process starts over.

If the Guideline Calculation with a Sec. 1512 conviction is 41-51 months - very common - and w/out Sec. 1512 it is 24-30 months on a different offense...

Then the Judge begins the process at 24-30 months -- and decides from there what is an appropriate sentence taking into consideration both aggravating and mitigating factors.

The fact that the previously imposed sentence was 41 months -- based on a recc'd range of 41-51 -- does not mean 41 is the correct sentence on resentencing if the new recc'd range is 24-30 months.

The Govt may want that and say it is possible by "stacking" misdemeanor sentences.

In other words, add the misdemeanor sentences - 6 or 12 mos - to the end of the new sentence of 24 mos, in order to get back to 41 mos.

But that argument is using a bucket to bail water out of a sinking boat.

There are standards for when consecutive sentences are called for.

And all of this runs contrary to the ridiculous DOJ practice in nearly every case - as a matter of policy -- to ask for sentencing calculations that are typically double or more what the Courts have ended up imposing in the vast majority of cases.

The Govt's past ridiculous sentencing proposals in hundreds of cases have made it an unserious participant at a lot of sentencing hearings -- which is reflected in numerous sentences imposed that are no where close to what the Govt was seeking.

"You asked for a sentence of 204 mos, and I imposed 54 mo. Why should I accept now your claim that 54 months is the right sentence for resentencing when that wasn't your position the last time we were here?"

I expect to hear versions of that often in the months ahead.