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Category Archives: Sentencing

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Alain Leibman’s Law360 Article About Justice Department’s Partial Retreat On Appeal Waivers

Posted in Constitutional law, Sentencing

Alain Leibman writes: We recently blogged here  and here about the DOJ’s blatant and increasingly harsh use of leverage against pleading defendants to force their waiver of important rights attendant to the sentencing and appeal process.  A fuller treatment of this issue, and of the recently-announced change in DOJ policy intended to partially ameliorate this unfairness,… Continue Reading

Federal Prosecutors May No Longer Be Able To Demand Blanket Appeal Waivers

Posted in Sentencing

Alain Leibman writes: Two weeks ago we posted here about a recent, fairly awful Third Circuit decision, United States v. Erwin, upholding boilerplate waiver-of-appeal clauses to the point of punishing a wayward appellant — who took a sentencing appeal in apparent violation of his waiver agreement — by setting his case down for resentencing and releasing… Continue Reading

Third Circuit Holds That Breach Of Agreement Not To Appeal Justifies Government’s Withdrawal Of 5K Motion

Posted in Sentencing

Alain Leibman writes: It has become the norm for the Government to insist in plea agreements, cooperating or otherwise, that the defendant waive his/her right to appeal the resulting sentence, as long as the sentence is no more severe than augured by the applicable advisory Sentencing Guidelines range.  So, if the facts of the case… Continue Reading

Government Cannot Punish Defendant Who Dares Present Sentencing Argument By Withholding Acceptance Of Responsibility Reduction

Posted in Sentencing

Alain Leibman writes: In the recent case of United States v. Evans, 744 F.3d 1192 (10th Cir. 2014), discussed here in the context of loss calculation for sentencing purposes, the defendant had entered into a plea agreement.  In it, the Government and defendant reserved their respective rights to argue about the amount of loss at… Continue Reading

Economic Downturn May Reduce “Loss” Amount Under Frauds Guideline Section

Posted in Sentencing

Alain Leibman writes: Under Section 2B1.1 of the Sentencing Guidelines, the sentencing section applicable in most fraud cases, the biggest driver of the advisory sentencing range is the “loss” occasioned by the defendant’s conduct, with the Court instructed to apply the greater of actual or intended loss.  Courts have held that Section 2B1.1 requires that… Continue Reading

To Charities and Board Members: Beware and Be Aware of Collateral Damage that May Ensue from Unrelated Legal Proceedings – Part III

Posted in Charitable board governance

Michael J. Kline writes: Part III of this blog entry will discuss and provide a list of ideas as to how charities may identify and respond to events affecting individual board members and others, such as convictions, consent decrees and admissions of wrongdoing, that may require disclosure in State Reports.  (Capitalized terms not otherwise defined in… Continue Reading

To Charities and Board Members: Beware and Be Aware of Collateral Damage that May Ensue from Unrelated Legal Proceedings – Part II

Posted in Charitable board governance

Michael J. Kline writes: Part II of this blog entry uses disclosures required for board members of charities to demonstrate the unrelated and unanticipated negative ripple effect that may flow from what may appear to be relatively unimportant consent decrees or admissions of wrongdoing discussed in Part I.  (Capitalized terms not otherwise defined in this… Continue Reading

To Charities and Board Members: Beware and Be Aware of Collateral Damage that May Ensue from Unrelated Legal Proceedings – Part I

Posted in Charitable board governance

Michael J. Kline writes: Background:  The Current Heightened Regulatory Climate for Settling Proceedings The increase in efforts by the Securities and Exchange Commission (“SEC”) in administrative proceedings to secure admissions of wrongdoing and/or consent orders from accountants highlights the need of charities and their board members to be vigilant as to how such types of… Continue Reading

Third Circuit Limits Restitution In Tax Conspiracy Convictions To Unreported Bribe Payments Made By Persons With The Requisite Intent To Defraud The IRS

Posted in Sentencing

In a recent case, United States v. Munchak, 2013 WL 2382618 (3d Cir., May 31, 2013), the Third Circuit remanded a restitution order entered on a tax conspiracy conviction because the restitution amount improperly included unreported bribe payments from persons who lacked the intent to be members of the conspiracy, and restitution as a matter of law is limited to taxes due on unreported payments made as part of the conspiracy offense of conviction.

The Intersection between Criminal Law and Bankruptcy Law: Can Filing for Bankruptcy Affect a Criminal Defendant’s Sentence?

Posted in Sentencing

The Second Circuit recently slammed the door on criminal defendants seeking to avoid their restitution obligations on the ground that their filing of a bankruptcy petition serves to stay enforcement actions against them, holding the proceedings before the sentencing judge to enforce restitution obligations are a continuation of the criminal action itself and so firmly within an exception to the automatic stay provisions of bankruptcy law.

Ninth Circuit Applies Substantive Reasonableness To Curb Lower Court’s Variance Discretion

Posted in Sentencing

The Ninth Circuit vacated a sentence constituting a significant downward variance for a convicted terrorist on substantive reasonableness grounds, because the district court did not adequately take into account the seriousness of the defendant’s offense and the need to protect the public from future crimes, and failed to give sufficient weight to the government’s assessment of the defendant’s level of cooperation.

Ninth Circuit Holds That Rule 35 Allows Judge To Consider The Entire Range Of Section 3553(a) Factors, Not Just the Extent Of Post-Sentencing Cooperation, When Resentencing Defendant

Posted in Sentencing

A Ninth Circuit decision has created for the first time the possibility of a broad-ranging resentencing hearing for a cooperating defendant, where if the government moves for a sentence reduction, then the court can consider once again the full range of Section 3553(a)’s sentencing criteria in deciding the extent of the reduction.

Going Well Beyond Current Federal Jurisprudence, New Jersey’s Supreme Court Strikes Down Gag Provisions In Plea Agreements

Posted in Sentencing

Drawing on a recent New Jersey Supreme Court opinion which struck down plea agreement provisions barring defense counsel from arguing mitigating evidence and advocating for a lower sentence, as inimical to the court’s need for full information to impose a just sentence, federal courts should likewise treat such gag provisions as unenforceable.

Second Circuit Criticizes Practice Of Denying Third Level Reduction For Acceptance Of Responsibility To Defendants Who Demand Sentencing Hearings

Posted in Sentencing

The Second Circuit recently halted a practice by which prosecutors had refused to move to further reduce a sentence where the defendant, who had otherwise qualified for that reduction through a timely acceptance of responsiblity for the offense, had the temerity to raise an issue at sentencing and thereby cause the government to prepare for a sentencing hearing.

The Ties That Don’t Bind — When A Commitment Solely To Recommend A Particular Sentence Allows The Prosecutor To Become A Stealth Advocate For More Jail

Posted in Sentencing

Recently the Third Circuit reaffirmed the principle that prosecutors must adhere strictly to the terms of plea agreements, including their promised sentencing positions, but the opinion actually endorses a prosecutor’s departure from those obligations to become a stealth advocate for a more severe sentence.

Department of Justice Grants Federal Prosecutors Greater Charging and Sentencing Discretion

Posted in Sentencing

On May 19, 2010, Attorney General Eric J. Holder, Jr. issued a memorandum addressing "Department Policy on Charging and Sentencing." The memorandum recognizes the advisory nature of the United States Sentencing Guidelines ("Guidelines"), emphasizes that charging and sentencing decisions must be made individually "on the merits of each case" rather than beginning and ending with… Continue Reading