Thursday, April 2, 2015

Sentencing Guidelines Calculations Over the Top -- 4800 Months (4/2/15)

In my Tax Fraud and Money Laundering Class at the University of Houston Law School this past Monday evening, we discussed the Sentencing Guidelines.  We discussed the key sentencing driver for financial crimes (such as tax crimes) being the loss involved.  In a tax setting it is called the tax loss.

In a tax setting, with the combination of the tax table having a top offense level under the Tax Table, here, of 36 for tax loss over $400 million and the grouping feature, a tax crime whether charged in multiple counts or not (even with some specific offense additions or Chapter 3 additions and even without an acceptance of responsibility reduction) will likely not draw a sentence of life under the Sentencing Table here.  It is possible, but in terms of number of months, the sentence is likely at the extreme to be 405 months or less (the high end at offense level 42).

So, I was reading a case this week, United States v. Okun, 2015 U.S. Dist. LEXIS 37987, 1-20 (E.D. 2015) (no link provided).  Here is the opening, from which you can surmise it did not go well for Mr. Okun (emphasis supplied by JAT):
On March 17, 2008, a grand jury returned a three-count indictment charging Okun with mail fraud, bulk cash smuggling, and one count of making a false declaration. (ECF No. 1.) On July 10, 2008, a grand jury returned a twenty-seven count Superseding Indictment charging Okun with conspiracy to commit wire fraud and mail fraud, conspiracy to commit money laundering, thirteen counts of wire fraud, and multiple other counts of mail fraud, money laundering, bulk cash smuggling, and making a false declaration. (ECF No. 42.) On February 27, 2009, the Court granted the Government's motion to dismiss one wire fraud count and one mail fraud count (Counts 9 and 18). (ECF No. 207.) 
On March 3, 2009, the jury trial commenced. After the Government rested its case, Okun moved for a judgment of acquittal on all counts pursuant to Federal Rule of Criminal Procedure 29. (ECF No. 232.) The Court granted the motion with respect to the two remaining mail fraud charges (Counts 16 and 17), but denied the motion on the remaining counts. (Id.) Okun put forth no evidence in his defense. After two-days of deliberations, the jury returned its verdict, finding Okun guilty of the remaining twenty-three counts. (ECF No. 243.) 
On August 4, 2009, the Court sentenced Okun to 1200 months of imprisonment, a downward variance from the guidelines range of 4800 months of imprisonment. (J. 3, ECF No. 328.) Okun appealed, and on November 17, 2011, the United States Court of Appeals for the Fourth Circuit affirmed Okun's conviction and sentence. United States v. Okun, 453 F. App'x 364, 374 (4th Cir. 2011). On April 16, 2012, the United States Supreme Court denied a petition for certiorari. Okun v. United States, 132 S. Ct. 1953, 1953 (2012). On March 12, 2012, Okun filed his "MOTION FOR NEW TRIAL or, in the alternative, MOTION FOR SETTING ASIDE THE FINDING OF THE JURY." Since that time, Okun has inundated the Court with frivolous filings. As explained below, both Okun's "MOTION FOR SETTING ASIDE THE FINDING OF THE JURY" ("Rule 29 Motion") and his "MOTION FOR NEW TRIAL" ("Rule 33 Motion") will be denied.
What struck me most was the following sentence:  "On August 4, 2009, the Court sentenced Okun to 1200 months of imprisonment, a downward variance from the guidelines range of 4800 months of imprisonment."  Wow!  That was one helluva Booker variance (assuming the Guidelines calculation was correct; although technically, the 4800 months is not a range as indicated).  The variance was 75%.  The Booker variance was great.  But, the sentence was 1200 months, which I calculate to be 100 years.  At best with good time credit, the sentence would exceed 85 years which is, of course, a life sentence with probation or parole.

Here is what the Court of Appeals said on the original appeal, United States v. Okun, 453 Fed. Appx. 364 (4th Cir. Va. 2011), here:
Edward Hugh Okun operated a “Ponziesque” scheme, resulting in losses in excess of $125 million dollars. Following a jury trial, he was convicted on twenty-three counts arising from this scheme. He was sentenced to 1200 months’ imprisonment, a sentence 3600 months below the advisory Guidelines sentence. 
* * * * 
V. Sentence 
We review a sentence imposed by the district court under the deferential abuse-of-discretion standard, regardless of whether the sentence imposed is inside, just outside, or significantly outside the Guidelines range. United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008); see also Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007). The first step in this review requires us to inspect the record for procedural reasonableness by ensuring that the district court committed no significant procedural errors, such as failing to calculate or improperly calculating the Guidelines range, failing to consider the 18 U.S.C. § 3553(a) factors, or failing to adequately explain the sentence. United States v. Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010). 
In explaining the selected sentence, the district court is not required to "robotically tick through § 3553(a)'s every subsection." United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). Rather, the district court "must make an individualized assessment based on the facts presented," by applying "the relevant § 3553(a) factors to the specific circumstances of the case before it." United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (citation, internal quotation marks, and emphasis omitted). The district court must also state in open court the particular reasons supporting its chosen sentence and "set forth enough to satisfy" us that it has "considered the parties' arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority." Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 168 L. Ed. 2d 203 (2007). "If, and only if, we find the sentence procedurally reasonable can we consider" its substantive reasonableness. Carter, 564 F.3d at 328 (citation and internal quotation marks omitted). 
In this case, the sentence imposed is both procedurally and substantively reasonable. First, the district court properly calculated the applicable Guidelines range. Okun was convicted of one count of conspiracy to commit mail fraud and wire fraud, one count of conspiracy to commit money laundering, twelve counts of wire fraud, seven counts involving money laundering, one count of bulk cash smuggling, and one count of making a false declaration. The convictions were grouped together for sentencing purposes and produced a single offense level of 53, ten levels above the highest offense level on the Sentencing Table. A total offense level of more than 43 is to be treated as an offense level of 43. U.S. Sentencing Guidelines Manual (USSG) Chapter 5, Part A Sentencing Table, comment. (n.2). Okun's criminal history category was I. Under the Guidelines, offense level 43, in criminal history category I, provides an advisory Guidelines sentence of life imprisonment. Because none of the counts of conviction carried a statutory maximum sentence of life imprisonment, the district court applied USSG § 5G1.2, which governs sentencing on multiple counts of conviction. n5 As such, Okun's advisory Guidelines sentence was the statutory maximum sentence on all counts of conviction combined—4,800 months.
   n5 The statutory maximum sentences for the counts of conviction varied from five to twenty years. USSG § 5G1.2(d) states: "If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. In all other respects, sentences on all counts shall run concurrently, except to the extent otherwise required by law." USSG § 5G1.2(d) 
Next, the district court considered the relevant § 3553(a) factors, emphasizing the extensive harm caused by Okun's conduct, and the need for adequate deterrence and to protect the public from further crimes by Okun. The district court also considered Okun's heart condition. 
Okun's main challenge to his sentence is that the district court did not consider his age and lack of criminal history in imposing sentence. However, we have repeatedly emphasized that the district court is not required to apply § 3553(a) in a checklist fashion. Johnson, 445 F.3d at 345. Here, the district court made extensive findings supporting the imposition of a variance sentence 3600 months below the advisory Guidelines sentence. After reviewing those extensive findings, we are satisfied that the district court considered the parties' arguments and had a reasoned basis for exercising its own legal decisionmaking authority. Rita, 551 U.S. at 356. Accordingly, we reject Okun's challenge to his sentence. n6
   n6 Okun also complains that his sentence exceeded the length of sentence typically imposed in similar cases. Under 18 U.S.C. § 3553(a), one relevant sentencing factor is the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. 18 U.S.C. § 3553(a)(6). We note the sentence imposed in this case is in line with sentences imposed in similar white-collar cases. See, e.g., United States v. Lewis, 594 F.3d 1270, 1278 (10th Cir.) (affirming 310-year sentence for a defendant convicted by a jury of an investment fraud of over $40 million dollars), cert. denied, 130 S. Ct. 3441, 177 L. Ed. 2d 347 (2010).
I tried on quick calculations to figure out exactly how the Guidelines calculations came to 4800 months (again, not as stated, a range, but still ...).  I did not have the patience to plug through SG § 5G1.2, here.  But apparently the defendant did not contest the calculation, so I suppose it was correct.

I should note that the Commentary Application Notes has the saving grace for us guys who are challenged by the provision:
Usually, at least one of the counts will have a statutory maximum adequate to permit imposition of the total punishment as the sentence on that count.  The sentence on each of the other counts will then be set at the lesser of the total punishment and the applicable statutory maximum, and be made to run concurrently with all or part of the longest sentence.  If no count carries an adequate statutory maximum, consecutive sentences are to be imposed to the extent necessary to achieve the total punishment.
The total punishment is the punishment indicated by the Sentencing Table.

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