The Sentencing Hearing:

The prosecutor says Robel lied about knowing if Dzhokhar's backpack was taken from dorm room and whether he saw other potential evidence. He also says he lied about deleting information from his personal computer. He compares Robel to Matanov, Dias Kadyrbayev and Azamat Tazhayakov. Under the plea deal with Matanov, Matanov's sentence would be 30 months. The prosecutor says Robel should get more time than Matanov because Matanov went to the police on his own while Robel did not. He says their lies were different and that Robel waited a week before talking.

The judge thinks the terror enhancement applies but is "simply a blunt instrument" and is not helpful in calculating sentence so he will not use it in calculating the sentence.

According to the prosecutor, "this defendant not only fenced with them but he parried their thrusts for days and days." He said Robel was basically playing "rope-a-dope" with investigators. The judge disagreed, saying "I wouldn't call this fencing."

The prosecutor said Robel's lies were calculated to deceive. The judge didn't buy the Government's attempt to cast Robel's lies as more serious than Manatov's lies. He said the differences seemed "incidental" and he was looking for major differences.

The Judge asked the Government, "So why does this defendant fall at 63 months?" It responds that Robel is the least culpable, Dias Kadyrbayev is the most culpable and Azamat Tazhayakov is in the middle. The judge pointed out that Dias Kadyrbayev got 72 months, Azamat Tazhayakov got 42 months, and it is asking for 30 months for Matanov. The judge thinks Dias and Azamat were more culpable than Robel. The Government says Azamat's testimony was critical to convicting Robel (so Azamat's sentence should be less than Robel's.) The judge doesn't understand why the Government is asking for a sentence for Robel that is twice what is asking for Matanov.

The Government responds that Robel was the first friend to learn of Tsarnaev's involvement. It says Dias and Azamat were foreigners with cultural differences, while Robel was not. It says Robel claimed to be too high on pot to call the police but he wasn't too high to text with Tsarnaev. It says his family has connections in high places (apparently referring to former Gov. Michael Dukakis.) It says Robel lied repeatedly when the Boston Marathon Bombing investigation "was at its embryonic stage.” (He didn't even speak to investigators until a week after the bombing, by which time Tamerlan was dead and Jahar was in custody.)

The Government says Robel's lies were "calculated to deceive” and rehashes them. Here's a recap of the statements the jury found Robel lied about, and the statements it found were not lies.

It's apparent by now the Government is not going to get the sentence it is asking for. The Government falls back on deterrence, saying it is the most important factor. It talks about his "cavalier and callous attitude" and now says his conduct was "outrageous." It says "his first impulse was to be as unhelpful as possible." The Government finishes with the bizarre statement, "This defendant should not be treated different from any bank robber."

The defense gets its turn. It talks about Robel and his mother's history. Robel's mother was an Ethiopian refugee who came to Boston, went to college and became a social worker, while raising Robel as a single parent. He was raised as an Orthodox Christian. The family is very religious. He was sheltered by his mother and spent most of his time with her. (Background and pleadings here.) It says the court has received 98 letters of support for him.

Robel's lawyer says like many of the students and teachers, Robel was in disbelief that Dzhokhar committed such a heinous crime. None of them called police either. (Calling the police is not legally required, but the Judge and Government say it is a moral requirement and the Judge has considered the moral failure in deciding sentences for the others.) He says being questioned in connection to a terrorist attack "was a confusing, threatening event" for Robel.

Robel's lawyer points out the difference between lies that coverup things and lies by which one merely seeks to distance himself. He says Robel was just trying to distance himself. He mentions the jury was out for 6 days. (The jury also found he didn't make 4 of the 9 charged false statements.) He says it was Robel who led the FBI to Azamat and Dias' apartment and provided their phone numbers.

Robel's lawyer says Matanov's lies were much more egregious. He didn't remove or destroy evidence like Dias or Azamat. He points out that General Petraeus lied and got off with no jail time, but Robel is facing up to 16 years in prison.

He says Robel has been on home detention while on bond for 2 years. The defense asks the judge to sentence him to an additional 2 years of home detention so he can continue his education. (I think he should be sentenced to probation with no additional home detention. The felony conviction is enough punishment.)

The judge sentences Robel to 36 months in prison. He blasts his marijuana use and says the "use of drugs is not just recreational. Its fundamentally eviscerating large portions of our population.” He says Robel will be a positive influence on his fellow inmates. (What about their effect on him?) The judge said his crime had a significant impact on the community. (I disagree -- Robel did not remove anything from the dorm room. The jury found Robel did not lie about what he saw or heard in the dorm room. It found he lied about not being in the dorm room, and learning after that night that his friends had taken the backpack from the dorm room. The jury found he did not lie when he denied discussing get rid of the backpack with his friends. The jury clearly rejected the "written confession" the FBI presented. I don't see any impact on the community from his false statements.)

The judge asked " "What do you say to other person who are in the position of Mr. Phillipos?" My answer: Keep your mouth shut and don't talk without a lawyer present.

The sentence is not what the Government wanted, but in my opinion, far more than necessary considering his offense and background and the purposes of sentencing.

Robel was an honor student in high school. He was in college at the time of the bombing, and had taken a semester off. The family has the strong support of their church. 98 people, including the former Governor, wrote support letters. He had never been arrested before. In addition to his strong family and community ties, he was active in civic youth programs in the city.

Robel has no history of violence. He complied with the terms of his pre-trial supervision. He presents no identifiable risk to public safety. He will forever be branded a felon. He may be denied certain licenses and employment opportunities. He will be subject to supervision for an extended time after prison and have significant restraints on his liberty. He has suffered significant shame and humiliation.

In deciding on a federal sentence, the judge must impose a sentence sufficient, but not greater than necessary, to comply with the purposes of sentencing as contained in 18 U.S.C. § 3553(a)(2). 18 U.S.C. § 3553(a) directs the judge to consider sentences other than imprisonment. 18 U.S.C. § 3582 provides that in considering whether to impose a term of imprisonment, the court shall recognize that imprisonment is not an appropriate means of promoting correction and rehabilitation.

A sentence to probation, with or without home detention, would have been sufficient but not greater than necessary to achieve the purposes of sentencing. It would have better addressed his needs and sufficiently protected the public. It would serve the principle of deterrence. It would also comport with 18 U.S.C. § 3582 (a), which provides "imprisonment is not an appropriate means of promoting correction and rehabilitation.".

The judge pointed out Robel did not have to talk to law enforcement, but once he did, he was not allowed to mislead them.

Moral of the story: Keep your mouth shut. The privilege against self-incrimination exists for a reason it. Use it. Our prisons are filled with people who thought if they could only tell their side of the story, the cops would see it their way. They rarely do.

As for a sentence promoting respect for the law: Don't expect it from Robel. According to this reporter, his reaction in the hallway after being sentenced was, "This is horsesh*t." The judge had the opportunity to impose a sentence for which Robel would be grateful, and which would have resulted in him continuing his education and having no further contact with criminals. By choosing instead to impose a sentence that is unnecessarily harsh and punitive, Robel's attitude forever will be one in which he feels victimized by the system. Even the fine is overkill. He clearly doesn't have the funds, since he was declared indigent by the Court when the Court agreed to fund his defense under the Criminal Justice Act. The fine will be a huge burden for years.

The cases against all three of these teenage students, Dias, Azamat and Robel, should have been pleaded to misdemeanors. The Government has ruined three lives, while they ruined the life of no one.

These kids were not involved in the bombing and had no advance notice of it. No bomb-making materials were found in Dias and Azamat's apartment. They were under no obligation to call authorities and tell what they knew, or to make any statements at all. Morality is subjective. Putting them in prison for years serves no one, not even "Team America" , as the FBI agent cheesily referred to the Government's team.("The agent admitted needling Phillipos by telling him if he wasn’t on “Team America,” he was “on the bench.”)

Robel will appeal his conviction and sentence. I hope he is granted an appeal bond.