An Example of the Difference Between Pleading and Not Pleading (10/14/14)

Over 95% of federal criminal cases are resolved by plea agreement.  One of the reasons is that, in the Sentencing Guidelines calculations, defendants who plead will usually qualify by the plea for the acceptance of responsibility two or three level decrease in the Guidelines calculation.  Moreover, by pleading, the defendant may make himself or herself more attractive for a Booker downward variance from the reduced Guidelines range already reduced for acceptance of responsibility.  Conversely, by going to trial, a defendant generally forgoes any realistic hope of an acceptance of responsibility adjustment or any favorable Booker downward adjustment and may behave at trial in a way that will not endear the sentencing judge to the defendant.

These dynamics played out in United States v. Morgan, 2014 U.S. App. LEXIS 19025 (11th Cir. 2014), here.  There the appellant, Morgan, and three others -- one her husband -- were indicted for one count of conspiracy (18 USC § 371), seven counts of funds taken by fraud (18 USC § 2314), six counts of money laundering (18 USC § 1957), and three counts of tax perjury (26 USC § 7206(1)).  Two of the other defendants each pled guilty to two nontax counts (one conspiracy count and one other); one was sentenced to 51 months and the other -- her husband -- was sentenced to 121 months.  There is no explanation for the differences in these two sentencings.  The third of the other indicted defendants resides in Denmark, has not been extradited and presumably is a fugitive from justice.

Morgan did not plead.  There is no indication that she was offered a plea, but defendants are usually offered a plea of some sort.  Sometimes the central person in a large crime with several counts will not be offered a plea, except on onerous terms.  At any rate, she went to trial.  Moreover, when she went to trial, she waived her Fifth Amendment privilege and testified.  That's bad enough, for the resulting cross-examination can make the defendant look very bad.  But, not only did she open herself to cross, she lied in her testimony.  Not good.  She was convicted on all counts.  The maximum possible punishment for the counts of conviction (stacked) was 264 years imprisonment.  The advisory calculated Guidelines range exceeded that maximum, so the Guidelines range became that maximum.  The judge sentenced her to 420 months (35 years), thus making a major Booker downward variance.  The sentencing was reversed on appeal.

On remand for sentencing, the sentencing judge "subtracted two levels from Morgan's offense level for the erroneous abuse-of-trust enhancement and determined Morgan's correct Guidelines range was 324 to 405 months of imprisonment."  The judge then sentenced her to 405 months imprisonment, stating that "nothing had changed in the case other than the enhancement for abuse of a position of trust."  (The judge could therefore have left the sentencing at 420 months, but did give her a 15 month lesser sentence.)  The judge stated that Morgan had not accepted responsibility and that "a 405-month sentence was appropriate, regardless of Morgan's life expectancy."


On this second appeal, Morgan urged that her sentence was substantively unreasonable because of the sentencing disparity between her and the two defendants that had pled.  The 11th Circuit rejected the argument, reasoning:

Morgan's 405-month sentence is substantively reasonable under the totality of the circumstances and the § 3553(a) factors. Her numerous offenses involved more than 80 victims and a loss of over $17.5 million. Morgan never accepted responsibility for her actions and does not dispute that she lied on the stand during trial. Although she argues the district judge erroneously continued to view her as one who had abused a position of trust with the victims, the record shows otherwise. At the resentencing hearing, the judge acknowledged the abuse-of-trust enhancement no longer applied and focused on the amount of loss, the number of victims, and Morgan's complete lack of remorse. The judge also addressed the need to protect the public from future crimes by Morgan. 

Morgan went to trial, lied on the stand, and was convicted of all 22 offenses. John Morgan and Bowman, on the other hand, each pled guilty to only two offenses and cooperated with the government. Therefore, Morgan is not similarly situated to John Morgan and Bowman, and her substantially higher sentence is warranted. Docampo, 573 F.3d at 1101.

So, it appears that Morgan made two mistakes.  First, she failed to make a plea deal.  Her husband got the worst sentence for the two who pled.  He pled to two counts -- conspiracy (5 years) and 1957 money laundering (10 years).  The aggregate maximum sentence for those two counts was 15 years (180 months).   Presumably, with the conspiracy conviction, the relevant conduct that pushed his wife's Guidelines up above her maximum aggregate, would have pushed his Guidelines up as well. He was sentenced to 121 months, thus achieving what appears to be a substantial Booker downward variance.  Presumably, had she pled, Morgan might have achieved that or some similar result.  Second, Morgan took the stand and lied.  For a combination of those reasons, she was sentenced to 405 months.  Every case has special facts that explain such apparent anomalies, but I suspect that much of the difference is accounted for by the second factor.

The message here, though, that the systemic pressure to plead guilty in the federal system is major, hence the 95+% plea rate..

For more on the prevalence of plea bargains see:

• Plea Bargains Generally and in Tax Cases; Moneyball (Federal Tax Crimes Blog 3/24/12), here, discussing 2012 Supreme Court cases on pleas in the federal system.