Bush Commutes Libby's Sentence

[reciprocity]

wait, it is my understanding that perjury has a base offense level of 14 under the Federal Sentencing Guidelines Manual. Now while Booker did say that any finding of fact which elevated the offense level must be ruled upon by the jury, under a Criminal History Category I, a base offense level 14 falls well within zone D and carries a recommended sentence of 15-21 months.

Likewise, the "Obstructing or Impeding the Administration of Justice" adjustment (+2 offense levels) was found beyond a reasonable doubt by a jury.

Maybe I'm looking at the wrong sentencing guidelines (http://www.ussc.gov/2006guid/gl2006.pdf), or interpreting them wrong. If you could cite to the guidelines you referenced, or let me know what finding of fact that elevated the offense level in the sentencing hearing was not presented to the jury, because I'm having a hard time following.

Oh, I was actually compounding the charges wrong (using §3D1.2 (d) instead of (a)-(c))

But, even still, pursuant to §3D1.4 there were two additional offenses that were "equally serious or from 1 to 4 levels less serious" so once you factor in the aforementioned obstruction increase, you end up with an offense level of 18, which for a first-time offender carries a recommended sentence of between 27 and 33 months.

AGAIN, I'm not arguing that the commutation was "wrong" because there's no standard for that. I'm just arguing that it's not something I'm going to celebrate.

(and, honestly, what really upsets me about this is that we have a guy who commutes someone's 30 month sentence because it was excessive, but stood by as governor of Texas while the state executed 150+ criminals BUT THAT'S AN ENTIRELY DIFFERENT COOOONVERSATION!)

and, honestly, what really upsets me about this is that we have a guy who commutes someone's 30 month sentence because it was excessive, but stood by as governor of Texas while the state executed 150+ criminals BUT THAT'S AN ENTIRELY DIFFERENT COOOONVERSATION!)

Eric - your df is one lucky woman - and you can tell her I said so!

[rainbabies]

anyone remember clinton pardoning 140 people on the last day of his term?

http://en.wikipedia.org/wiki/List_of_pe ... ll_Clinton

they all pardon people on their way out. http://en.wikipedia.org/wiki/List_of_pe ... _president

[rainbabies]

i hate politicians

Reminds me of when the blacks all cheered after OJ was cleared.

Not ALL "the blacks" cheered. (Do people really still talk this way - or worse, think this way?) :huh:

CORRECTION: Reminds me of when many of those tracing their ancestry to Africa cheered after OJ was cleared.

Here in LA, it seems many of my AA patients prefer to be called "black" and have corrected me. It wasn't meant to imply anything more than that. Although I still write AAM and not BM in my charts, as BM means bowel movement in my head.

~Russ (a.k.a vanillaface)

[reciprocity]

Eric - your df is one lucky woman - and you can tell her I said so!

thanks! as the pressure increases this month, I'm sure she'll need MANY MANY reminders!

[GrayMatterWife]

My comments in CAPS below.

wait, it is my understanding that perjury has a base offense level of 14 under the Federal Sentencing Guidelines Manual. Now while Booker did say that any finding of fact which elevated the offense level must be ruled upon by the jury, under a Criminal History Category I, a base offense level 14 falls well within zone D and carries a recommended sentence of 15-21 months.

Likewise, the "Obstructing or Impeding the Administration of Justice" adjustment (+2 offense levels) was found beyond a reasonable doubt by a jury.

Maybe I'm looking at the wrong sentencing guidelines

YOU NEED TO REFER TO THE SENTENCING GUIDELINES IN EFFECT AS OF THE TIME OF THE CRIME, NOT AT THE SENTENCING. THAT WOULD BE 2003. THEY MAY BE THE SAME/SUBSTANTIALLY SIMILIAR--I DON'T KNOW. NOT AT THE OFFICE RIGHT NOW AND DON'T HAVE MY USSG AT HOME...(NOT THAT MUCH OF A DORK!)

(http://www.ussc.gov/2006guid/gl2006.pdf), or interpreting them wrong. If you could cite to the guidelines you referenced, or let me know what finding of fact that elevated the offense level in the sentencing hearing was not presented to the jury, because I'm having a hard time following.

Oh, I was actually compounding the charges wrong (using §3D1.2 (d) instead of (a)-(c))

But, even still, pursuant to §3D1.4 there were two additional offenses that were "equally serious or from 1 to 4 levels less serious" so once you factor in the aforementioned obstruction increase, you end up with an offense level of 18, which for a first-time offender carries a recommended sentence of between 27 and 33 months.

AGAIN, I DO NOT HAVE MY USSG HERE WITH ME. HOWEVER, I DO KNOW THAT THE RECOMMENDED RANGE, BEFORE CROSS-REFERENCING, WAS ANYTHING FROM PROBATION TO A CONFINEMENT SENTENCE OF BETWEEN 15-21 MONTHS. THAT'S BEEN PRETTY WIDELY PUBLISHED.

ONCE THE CROSS-REFERENCING IS APPLIED (EFFECTIVELY, AN UPWARD ENHANCEMENT FOR THE FACT THAT THE FEDERAL GRAND JURY WAS INVESTIGATING THE IIPA VIOLATION AT THE TIME THE FALSE STATEMENTS WERE MADE), BUMPS THAT TO A SENTENCE OF PROBATION ALL THE WAY UP TO A MAX OF NO MORE THAN 30-37 MONTHS.

I WOULD ARGUE THAT THE SENTENCE IS UNREASONABLE UNDER BOOKER FOR TWO REASONS: FIRST, IF THE USSG RANGE WAS CORRECTLY CALCULATED (BY INCLUSION OF THE CROSS-REFERENCE), THE JUDGE FAILED TO PROPERLY CONSIDER THE OTHER 3553 FACTORS, AS REFLECTED IN THE RECORD BY HIS DISMISSIVENESS OF ANY ARGUMENT FOR CONSIDERATION OF THESE FACTORS. I ALSO WOULD ARGUE THAT THE INCLUSION OF THE CROSS-REFERENCE WAS NOT APPROPRIATE.

AGAIN, I'm not arguing that the commutation was "wrong" because there's no standard for that.

RIGHT.

I'm just arguing that it's not something I'm going to celebrate.

I HEAR YOU.

(and, honestly, what really upsets me about this is that we have a guy who commutes someone's 30 month sentence because it was excessive, but stood by as governor of Texas while the state executed 150+ criminals BUT THAT'S AN ENTIRELY DIFFERENT COOOONVERSATION!)

OH, COME'ON...THAT MAKES A CUTE SOUND BITE, BUT... HE SHOULDN'T DO JUSTICE BY A MAN HE BELIEVES WAS WRONGLY OVERPUNISHED BECAUSE HE DIDN'T SHOW LENIENCY TO PEOPLE HE DID NOT THINK WERE BEING WRONGLY PUNISHED?

[GrayMatterWife]

I was wondering about that myself. According to the Washington Post article, Libby IS appealing. If his sentence is upheld, would Bush then have to reissue a commutation or would the first still cover it? If it does, wouldn't Libby only be appealing the guilty conviction and the $250,000 fine at this point?

Since his confinement sentence has been commuted, he can no longer appeal the imposition of that sentence, as it is mooted out, I believe. Bush would not have to reissue a commutation, in any event.

However, the commutation should not have any effect on whether he can appeal the actual conviction.

OH, COME'ON...THAT MAKES A CUTE SOUND BITE, BUT... HE SHOULDN'T DO JUSTICE BY A MAN HE BELIEVES WAS WRONGLY OVERPUNISHED BECAUSE HE DIDN'T SHOW LENIENCY TO PEOPLE HE DID NOT THINK WERE BEING WRONGLY PUNISHED?

I have a hard time believing he actually looked at any of those cases, b/c none of his cronies were involved. The rate at which the death penalty is given / carried out is higher in TX than anywhere else. Hard to believe none of those were excessive.

But again - a different discussion.

[reciprocity]

I haven't read the sentencing opinion, was it published?

What I'm saying is that you don't need to cross-reference to the IIPA violation to reach a sentence of 30 months.

I understand that the BASE SENTENCE for perjury is 15-21 months, and I think my post reflects that. The link I provided is to the most recent federal sentencing guidelines, which spell out pretty clearly that perjury carries a base offense level of 14, and also reflects the increases I outlined.

Moreover, I think the existence of the Grand Jury Investigation and its subject matter is pretty clearly something that the Court should have taken under judicial notice pursuant to FRE 201(b), so again, Booker wouldn't apply.

As to my "cute sound byte" the same process convicted and sentenced Mr. Libby and those 150 people. I think I'm pretty justified to be skeptical. But yeah, that's an opinion on which reasonable people can differ, which is why I put it forth as the underlying cause of my emotional connection to this issue in as much as one exists, not a rationale for any action nor justification for any conclusion, nor evidence of any wrongdoing.

[GrayMatterWife]

I haven't read the sentencing opinion, was it published?

THE SENTENCING OPINION...MMM...I WOULD DOUBT IT. USUALLY THOSE ARE JUST ORAL READINGS INTO THE RECORD. BUT THE CONVICTION DOCUMENTS (INCLUDING THE BOXES THE JUDGE "CHECKS" TO INDICATE WHY HE FOUND A CERTAIN WAY) SHOULD BE AVAILABLE AS PART OF THE RECORD. BUT THOSE ARE HIGHLY STANDARDIZED AND PRETTY UNILLUMINATING FORMS, USUALLY.

What I'm saying is that you don't need to cross-reference to the IIPA violation to reach a sentence of 30 months.

I DON'T THINK THAT IS CORRECT. ALL THE ANALYSIS I'VE SEEN INDICATES THAT THE CROSS-REFERENCE APPLICATION IS REQUIRED. BUT I HAVE NOT SEEN THE SENTENCING TRANSCRIPT, SO I'M GOING BY WHAT I'VE READ IN THE PAPERS. BUT REGARDLESS OF WHETHER THE SENTENCE WAS WITHIN OR VARIED UPWARD FROM THE USSG CALCULATION, IT STILL WAS WILDLY ABOVE THE US PROBATION'S SENTENCING RECOMMENDATION--AND THAT RECOMMENDATION INCLUDES EXTENSIVE ANALYSIS OF THE RELEVANT FACTS SURROUNDING THE CRIME AND THE DEFENDANT HIMSELF. THESE REPORTS ARE USUALLY SHOWN QUITE A BIT OF DEFERENCE (BUT THEY CERTAINLY AREN'T BINDING). I WOULD ARGUE THAT THIS SHOWS A DISREGARD OF RELEVANT 3553 FACTORS.

Moreover, I think the existence of the Grand Jury Investigation and its subject matter is pretty clearly something that the Court should have taken under judicial notice pursuant to FRE 201(b), so again, Booker wouldn't apply.

REGARDLESS OF JUDICIAL NOTICE AS TO THE GJI, A DEFENDANT HAS A CONSTITUTIONAL RIGHT TO A REASONABLE SENTENCE. HE WAS SENTENCED UNDER THE USSG, HE CAN CHALLENGE UNDER BOOKER. IF THE JUDGE CONSIDERED ANY FACT TAKEN BY JUDICIAL NOTICE IN DETERMINING SENTENCING, HE NEEDED TO NOTE IT AS PART OF THE RECORD AS THE BASIS FOR HIS SENTENCE AND ANY DEPARTURES.

As to my "cute sound byte" the same process convicted and sentenced Mr. Libby and those 150 people. I think I'm pretty justified to be skeptical. But yeah, that's an opinion on which reasonable people can differ, which is why I put it forth as the underlying cause of my emotional connection to this issue in as much as one exists, not a rationale for any action nor justification for any conclusion, nor evidence of any wrongdoing.

I DON'T AGREE THAT THE PROCESSES ARE THE SAME, BUT I KNOW A LOT OF FOLKS WHO FEEL AS YOU DO.

[GrayMatterWife]

I haven't read the sentencing opinion, was it published?

What I'm saying is that you don't need to cross-reference to the IIPA violation to reach a sentence of 30 months.

Hey, I was really interested in the USSG calculations, too, so I Googled for "Libby calculate sentencing", etc. and found nothing! I was shocked! Nobody (that I could find) algorithmically (is that a word?) has quoted the court to explain the range. However, I found the below-article from MotherJones.com (super liberal, so I'm not being one-sided!) that lays out pretty much what I've read. It was written ahead of the sentencing. It notes that everybody agrees on the 15-21 month range, but the fight was over whether the cross-reference to the IIPA should hike up the range. And the MotherJones author dead-on nailed the Judge's sentence!

There is one mischaracterization on MotherJones's part I would note: the author argues that Libby asks the Judge not to apply the USSG. That's not really correct. Libby asked for a nonconfinement sentence under the USSG.

From MotherJones.com:

. . .

In federal court, sentences are determined using a system of guidelines that has two main components: a defendant's criminal history and an "offense level" based on the nature of the crimes for which he was convicted. After someone is convicted of a crime, a probation officer prepares a report that lays out a preliminary calculation of these factors, which results in a recommended sentencing range. The probation officer also identifies possible grounds for downward or upward departures from that range. The government and the defense then argue about the findings and calculations in the report, submit memos and make oral presentations, after which the judge decides what sentence to impose. Judges don't have to follow the guidelines, but they usually do.

Everyone in the case thus far -- the probation officer, the defense attorneys, and the prosecutors -- agrees that the base offense level for Libby is 15 to 21 months. The Special Counsel is arguing, however, that, under the federal sentencing guidelines, the court should increase this range because Libby's perjury and obstruction of justice interfered with an investigation into possible violations of the Intelligence Identities Protection Act and the Espionage Act. If the court accepts this argument, Libby could receive a sentence ranging from 30 to 37 months.

The defense, on the other hand, is arguing that the judge should not follow the guidelines at all. Instead, they say, Libby should merely be sentenced to probation because: (1) he has an outstanding record of government service; (2) he will lose his law license; (3) he and his family have suffered, financially and otherwise, as a result of the prosecution; (4) his conduct was an aberration; and (5) he is unlikely to commit crimes in the future.

Given that, as the government points out, Libby used his position in the White House to commit the crime for which he was convicted; that he has not used his law license for many years and would likely never have to again; that the families of all defendants' suffer and that, unlike most defendants, Libby has a massive legal defense trust fund; that he committed his crime not once, but four times over a period of many months; and that doesn't think he did anything wrong, I suspect the judge will not be giving Libby probation. Indeed -- for what it's worth -- I consider it far more likely that he will receive a sentence of approximately 30 months.

[reciprocity]

I don't see any dicta in Booker to indicate that a disregard for possible mitigating factors is unreasonable. As I read the decision, it merely says that any fact that increases the defendant's punishment above the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Since the existence of the Grand Jury investigation was proven beyond a reasonable doubt, the cross-reference was proper under the Booker standard as written.

The analysis I've seen indicates that the prosecution argued for the cross-reference, but I haven't seen any reports that indicate the basis for the sentence, and as I understand it, the Court has a pretty wide degree of leniency in how it doles out sentences.

But really, this legal analysis has absolutely nothing to do with the present issue, and if you're right, there's still plenty of time for the legal system that you trust to execute people to vindicate Libby!

[reciprocity]

I haven't read the sentencing opinion, was it published?

What I'm saying is that you don't need to cross-reference to the IIPA violation to reach a sentence of 30 months.

Hey, I was really interested in the USSG calculations, too, so I Googled for "Libby calculate sentencing", etc. and found nothing! I was shocked! Nobody (that I could find) algorithmically (is that a word?) has quoted the court to explain the range. However, I found the below-article from MotherJones.com (super liberal, so I'm not being one-sided!) that lays out pretty much what I've read. It was written ahead of the sentencing. It notes that everybody agrees on the 15-21 month range, but the fight was over whether the cross-reference to the IIPA should hike up the range. And the MotherJones author dead-on nailed the Judge's sentence!

There is one mischaracterization on MotherJones's part I would note: the author argues that Libby asks the Judge not to apply the USSG. That's not really correct. Libby asked for a nonconfinement sentence under the USSG.

From MotherJones.com:

. . .

In federal court, sentences are determined using a system of guidelines that has two main components: a defendant's criminal history and an "offense level" based on the nature of the crimes for which he was convicted. After someone is convicted of a crime, a probation officer prepares a report that lays out a preliminary calculation of these factors, which results in a recommended sentencing range. The probation officer also identifies possible grounds for downward or upward departures from that range. The government and the defense then argue about the findings and calculations in the report, submit memos and make oral presentations, after which the judge decides what sentence to impose. Judges don't have to follow the guidelines, but they usually do.

Everyone in the case thus far -- the probation officer, the defense attorneys, and the prosecutors -- agrees that the base offense level for Libby is 15 to 21 months.

In fact, I also have pointed out many, many times that the base offense level is 15 to 21 months, but if you look at the increases I outlined above, that base offense level is increased at least 3 levels to result in a higher sentencing range for the entirety of the charges for which he was convicted.

See the following:

wait, it is my understanding that perjury has a base offense level of 14 under the Federal Sentencing Guidelines Manual. Now while Booker did say that any finding of fact which elevated the offense level must be ruled upon by the jury, under a Criminal History Category I, a base offense level 14 falls well within zone D and carries a recommended sentence of 15-21 months.

Likewise, the "Obstructing or Impeding the Administration of Justice" adjustment (+2 offense levels) was found beyond a reasonable doubt by a jury.

...

pursuant to §3D1.4 there were two additional offenses that were "equally serious or from 1 to 4 levels less serious" so once you factor in the aforementioned obstruction increase, you end up with an offense level of 18, which for a first-time offender carries a recommended sentence of between 27 and 33 months.