Scooter Libby's Sentencing Guidelines

By Jeralyn, Section Lewis Libby Trial Coverage
Posted on Tue Mar 06, 2007 at 08:56:13 PM EST
Tags: Libby Trial (all tags)

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Now that Scooter Libby has been convicted of four of five counts, what sentence is he likely to receive?

First off, for non-lawyers, the 25 years you hear about are not what he will get. They are the maximum sentence authorized by statute. The maximum sentence for obstruction is 10 years; false statements and perjury, 5 years.

In reality, sentences are based on the U.S. Sentencing Guidelines. Until a few years ago when the Supreme Court decided Booker v. United States (argued in the Supreme Court by TalkLeft blogger TChris), the guidelines were mandatory. Now, they are given serious consideration or even great weight, but they are not binding and the Court must consider the factors in 18 U.S.C. 3553(a). That could result in a lower sentence for Libby -- or not.

On to the Guidelines, below the fold:

Analysis from:

Wonkette (who consulted a lawyer)
White Collar Crime Blog
Sentencing Law and Policy (more from other lawyers in the comments here)

Here are the applicable guidelines.

The guideline for Obstruction of Justice is here. The base level is 14, but 3 points can be added "If the offense resulted in substantial interference with the administration of justice."

The Perjury guideline is here. It also is a level 14 but "If the perjury, subornation of perjury, or witness bribery resulted in substantial interference with the administration of justice, increase by 3 levels."

"Substantial interference with the administration of justice" includes a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based upon perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources.

The False Statement guideline is here.

The guideline enhancement for Abuse of Special Trust, which may or may not apply, is here.

If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels.

After calculating the guidelines for each offense, the grouping rules have to be considered because he was convicted of more than one count.

There are also various downward departures, but I don't see any of those being applicable. Nor do I see Libby getting any credit for "acceptance of responsibility."

After the final offense level is computed, it's cross-referenced with criminal history category, which if Libby has no prior convictions, will be I. Then you go to this chart and find the sentencing range.

My preliminary estimate: I think the lowest his guidelines will be is the 15 to 21 month range and the highest would be the 24 to 33 month range.

Because he was a high level government official and a lawyer who obstructed justice, I would expect the judge to sentence him towards the high end of the applicable sentencing range, particularly if enhancements aren't applied.

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Scooter Libby's Sentencing Guidelines | 13 comments (13 topical)

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Thanks for this post (5.00 / 1) (#2)
by digdugboy on Tue Mar 06, 2007 at 09:29:16 PM EST

What I would like the judge to consider is what the sentence would be for a conviction for outing a covert agent. Regrettably I will not get my wish.

McCain

digdugboy (none / 0) (#10)
by jimakaPPJ on Wed Mar 07, 2007 at 02:48:44 PM EST

That would because that's not what happened.

[ Parent ]

: Your Proof ppj? (none / 0) (#11)
by squeaky on Wed Mar 07, 2007 at 02:50:06 PM EST

[ Parent ]

Thanks Jeralyn.. (none / 0) (#1)
by Teresa on Tue Mar 06, 2007 at 09:26:14 PM EST

this non-lawyer really appreciates your thoughts on this and other legal matters. The verdict is in but I will still be reading your terrific blog.

acceptance of responsibility (none / 0) (#3)
by ltgesq on Tue Mar 06, 2007 at 11:12:31 PM EST

i had a client in el paso get a downward departure for a of r just because he did not testify at trial.

It's not impossible (none / 0) (#4)
by Jeralyn on Tue Mar 06, 2007 at 11:30:33 PM EST

I agree. But in this case, I can't see Libby making a persuasive case for it when he's not going to apologize and admit his wrongdoing between now and sentencing.

I think Team Libby, which may be augmented by a sentencing law expert between now and sentencing, is far more likely to focus on reasons for departure or for not adhering to the guidelines than for an acceptance of responsibilty reduction. The more Wells claims after trial that Libby was innocent, the less likely he'll get that reduction.

Perjury is a serious crime (none / 0) (#5)
by Che's Lounge on Wed Mar 07, 2007 at 12:58:50 AM EST

Hang in there Scooter. Ollie North is a rich man.

Acceptance of responsibilty... (none / 0) (#6)
by Deconstructionist on Wed Mar 07, 2007 at 06:53:25 AM EST

is not absolutely precluded by going to trial but, it is basically only available where the trial was based on a purely legal defense. That means that the defendant did not contest the facts which the jury must have necessarily found to reach its verdict (including the existence of crimnal intent) but argued that his admitted conduct did not violate the stature he was charged with violating or he went to trial to preserve a constitutional issue.

Also the offense level must work out to 16 or greater prior to consideration of AOR to get the 3rd level upon motion of the government.

I also think that it is possible (none / 0) (#7)
by Deconstructionist on Wed Mar 07, 2007 at 07:05:10 AM EST

for the TOl to be 19 (14 +3 if substantial interference is found as a Specific offense characteristic with respect to any of the 4 counts and +2 if the aggravating factor of abuse of position of public trust from chapter 3 is appled)

19 and crim histoty I is 30-37 months

Agreed (none / 0) (#8)
by windy city atty on Wed Mar 07, 2007 at 01:53:14 PM EST

I think Jeralyn and deconstructionist are right on the money as far as guideline sentencing. Although team libby will likely argue that his crimes are outside the "heartland" because of his oh so important job and that his years of public service should factor into some type of leniency.

The next question I have: will the Court let scooter out on bail while he appeals (assuming post trial motions are denied)? If the appeal process takes a yr or two, and is likely intentionally delayed by team libby, will Libby be pardoned by Bush in his last week of office before Libby actually gets sent to the federal pokey?

Any guesses on that?

: Libby (none / 0) (#9)
by Deconstructionist on Wed Mar 07, 2007 at 02:45:53 PM EST

is currently out on bond pending SENTENCING. his appeal right has not yet ripened. that happens when the judgment becomes final after imposition of sentence. The satandard for bond pending appeal ia a bit more stringent han the standard now applicable (essentially that he is not a danger to the community or risk of flight. Once the sentence is imposed the Court has to make the additional finding that the appeal has merit and is liekely to result in some relief (see highlighted below).
§ 3143. Release or detention of a defendant pending sentence or appeal
(a) Release or Detention Pending Sentence.--
(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of sentence, other than a person for whom the applicable guideline promulgated pursuant to 28 U.S.C. 994 does not recommend a term of imprisonment, be detained, unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142 (b) or (c). If the judicial officer makes such a finding, such judicial officer shall order the release of the person in accordance with section 3142 (b) or (c).
(2) The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence be detained unless--
(A)
(i) the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or
(ii) an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; and
(B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.
(b) Release or Detention Pending Appeal by the Defendant.--
(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds--
(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142 (b) or (c) of this title; and
(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in--
(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment, or
(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.
If the judicial officer makes such findings, such judicial officer shall order the release of the person in accordance with section 3142 (b) or (c) of this title, except that in the circumstance described in subparagraph (B)(iv) of this paragraph, the judicial officer shall order the detention terminated at the expiration of the likely reduced sentence.
(2) The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained.
(c) Release or Detention Pending Appeal by the Government.-- The judicial officer shall treat a defendant in a case in which an appeal has been taken by the United States under section 3731 of this title, in accordance with section 3142 of this title, unless the defendant is otherwise subject to a release or detention order. Except as provided in subsection (b) of this section, the judicial officer, in a case in which an appeal has been taken by the United States under section 3742, shall--
(1) if the person has been sentenced to a term of imprisonment, order that person detained; and
(2) in any other circumstance, release or detain the person under section 3142.

[ Parent ]

Fitzgerald's request (none / 0) (#12)
by sphealey on Wed Mar 07, 2007 at 03:03:47 PM EST

While I personally think the investigation is over and done with, it will be interesting to hear Fitzgerald's sentence request. If he comes out arguing strongly for an upward departure into the 25-year realm, then there might be some there there. Again, I don't think so, but it will be interesting to see and probably a bit worrying for Libby as well.

sPh

: I don't think that range of (none / 0) (#13)
by Deconstructionist on Wed Mar 07, 2007 at 03:09:10 PM EST

guidelines departure or variance under § 3553 (a)
is remotely possible and I don't think Fitzgerald would even suggest it. I think most likely he would push for application of both the SOC and chapter 3 adjustment described above and ask for a setence at or near the top of the resulting range. Possibly, he might move for a setence somewhat above the guidelines range but its no good tactics for a prosecutor to push a position so extreme the judge thinks he is grandstanding, and i don't think he'll do it.

[ Parent ]