Members Only: Sentencing Resource Materials

   2016 ECWCC - Sentencing Panel          Judge Shira Scheidlin           2015 Sentencing Panel 

Welcome to the White Collar Department's members only sentencing resources page. This page and the linked material below are intended to assist criminal defense lawyers with arguing for variances and departures from the fraud Sentencing Guidelines. Here you will find a broad range of invaluable materials specific to white collar sentencing issues and concerns, including detailed sentencing memoranda tailored to specific white collar crimes; helpful sentencing transcripts; briefing materials relating to key Supreme Court sentencing decisions; notable federal appellate opinions; and even economic loss variance tables.  

White Collar Sentencing Memoranda and Transcripts 

United States v. Melvin Cwibeker, Sentencing Memorandum of Defendant (E.D.N.Y. Apr. 6, 2016) (sentencing in which the government was asking for 78-97 months, the PSR recommended 97-121 months but the Court ultimately sentenced the defendant to only 12 months and a day of imprisonment).

United States v. Jesse C. Litvak, Reply Sentencing Memo of Defendant at 7-8 (D. Conn. July 8, 2014) (arguing that the ABA proposal is instructive on how loss arbitrarily inflates a defendant's culpability and sentence).

United States v. Jesse C. Litvak, Sentencing Memo of Defendant at 53-56 (D. Conn. June 27, 2014) (asking the Court to be guided by the ABA proposal, which would result in no imprisonment to 6 months under the defense theory or 24-30 months under the government theory, as opposed to the PSR recommendation of 108-135 months).

United States v. James B. Client, Sentencing Memorandum on Behalf of James B. Client (sample sentencing memo) 

United States v. Robert Rivernider, et al, Sentencing Transcript at 208-212 (D. Conn. Dec. 18, 2013) (sentencing in which the government was asking for 324-405 months, the PSR recommended 262-327 months, but the Court sentenced the defendant at 144 months under the guidance of the ABA proposal).

Key Supreme Court Sentencing Opinions Post-Booker  

Molina-Martinez v. United States, U.S. Supreme Court held that when appellate courts review errors in the application of the Sentencing Guidelines, the defendant is not required to identify any additional evidence to show he received an incorrect sentence. If a defendant has shown that the court mistakenly applied a higher sentencing range to his sentence, then his substantial rights have been affected. Related resources:

Peugh v. United States involved a farmer who committed various federal frauds.  The U.S. Supreme Court held the that Constitution's ex post facto clause prohibited federal courts from sentencing a defendant based on Guidelines that were promulgated after he committed his crimes, especially when the new version of the Guidelines provides a higher sentencing range than the version in place at the time of the offense. Related resources:

Missouri v. Frye and Lafler v. Cooper, U.S. Supreme Court decisions holding that criminal defendants have a Sixth Amendment right to effective assistance of counsel during plea negotiations, including when they miss out on, or reject, plea bargains because of bad legal advice.  Related resources:

Southern Union Company v. United States, in a case examining the roles of jury and judge in setting corporate fines, the U.S. Supreme Court held that rule set out in Apprendi v. New Jersey that certain non-conviction elements of a crime must be proved to a jury applied to criminal penalties as well.  Related resources:

 Other Notable White Collar Federal Circuit Sentencing Opinions                                                   

 
United States v. Musgrave  (May 2016), Sixth Circuit affirming as substantively reasonable the lower courts re-sentencing of defendant to one day of imprisonment, five years of supervised release, 24 months house arrest, and a $250,000 fine for convictions of bank and wire frauds when the Sentencing Guidelines range was 57 to 71 months.  
 

United States v. H. Ty Warner (July 2015), Seventh Circuit affirming the sentence of two years’ probation with community service as substantively reasonable upon a plea of guilty to willful tax evasion when the Sentencing Guidelines range was 46 to 57 months. 

United States v. Prosperi  (July 2012), First Circuit affirming the sentence of six months of home monitoring, three years of probation, and 1,000 hours of community service as reasonable after defendants conviction of mail fraud, highway project fraud, and conspiracy to defraud the government, even though the Sentencing Guidelines range was 87 to 108 months, because the finding on the loss was “imprecise” and “did not fairly reflect the defendants’ culpability.”  

United States v. Fuchs (March 2011), Seventh Circuit rejecting application of the abuse of trust enhancement under U.S.S.G. 3B1.3. 

United States v. Engle (January 2010), Fourth Circuit rejecting four year probation sentence as substantively unreasonable in tax evasion case.    

United States v. Nacchio (July 2009), Tenth Circuit reversing and remanding the District Court’s loss calculation in an insider trading case. 

United States v. Stephanian and United States v. Ter-Esayan (June 2009), First Circuit, in credit and debit card fraud cases that acknowledged the circuit split on whether card holders who were temporarily deprived of funds, suffered “actual pecuniary harm” for the purpose of calculating a sentencing enhancement, upholding the enhancement application.  

United States v. Tomko (April 2009), Third Circuit en banc upholding a sentence of probation, which was a downward variance based upon Gall, in a tax evasion case and NACDL Amicus Brief in Support of Appellee Tomko

United States v. Thurston (October 2008), First Circuit affirming a 3-month sentence, which was a downward variance based upon Gall, in a medicare fraud case. 

White Collar Sentencing Variance Charts 

The federal sentencing statute, 18 U.S.C. 3553(a)(6) directs the court to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." This chart of sentencing variances in high-dollar fraud cases post-Booker, compiled by NACDL member William Athanas, was created to assist defense lawyers in identifying such cases. It updates an enhances an earlier variance chart originally created by federal defenders as part of their "James B. Client" model sentencing brief, available at www.fd.org. This chart is sortable by a number of data points, including date, loss amount, jurisdiction, guideline range, and length of sentence. Although we believe the information in this chart is accurate, it is neither an exhaustive list of cases nor intended to supplant independent legal analysis and verification. If you have any cases you think should be added, please send them to Mario Meeks at mmeeks@nacdl.org  

Chart of White Collar Mandatory Minimums, NACDL (June 2010)

Fraud Sentencing Table, NACDL (2005-2009)

Pictured from left to right: (1) 2016 East Coast White Collar Seminar panel entitled “Not Your Usual View from the Bench” with panelists, Hon. Stefan Underhill, Hon. Barbara Jones (ret.), Hon. Nancy Gertner (ret.), and Hon. Paul Friedman; (2) Hon. Shira Scheindlin (ret.) giving the keynote address at the 2015 East Coast White Collar Seminar; and (3) 2015 East Coast White Collar Seminar panel entitled “The Practitioner’s Guide: How to Get the Best Outcome at Sentencing” with panelists Leigh Skipper, Marcia Shein, and Hon. Gerald Bruce Lee.  

 

 

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