Federal Sentencing Tips


Recent Court Decisions and News Impacting Sentencing

Rule 35 and Prior State Sentences

United States v. Hankton, No. 16-31126 (5th Cir. Nov. 16, 2017)

In Hankton, defendants, at their federal sentencings, had the time they had served on prior, related state sentences credited toward their federal sentences. Quoting Hank Sadowski, former and now-retired Bureau of Prisons’ Regional Counsel, who has written and lectured extensively on the subject and is now consulting with our law firm, the panel noted that this was “probably the single most confusing and least understood federal sentencing issue.”

Thirteen days after sentencing, the government filed a Rule 35(a) motion to correct the sentences to remove the credit for the prior state sentences. The district court, the probation officer and defendants had to scramble with just one day remaining in the 14-day time limit for correcting sentences under Rule 35(a) to address the government’s motion. “Under this extreme time pressure, the district court granted the Government’s motion.”

The panel first emphasized that Rule 35(a) “is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mind about the appropriateness of the sentence.”  Second, even if Rule 35(a) allowed district courts to correct legal errors, they must be clear errors—the crediting of prior, related state sentences are anything but clear, according to the panel. According to the panel, “[t]he real error here occurred when the Government convinced the district court at the eleventh hour that the court was impinging on the BOP’s authority.” While the “BOP [is] primarily responsible for ensuring that defendants receive credit for previous time served,” “[s]entencing courts, however, retain residual authority to reduce defendants’ sentences based on previous time served related to their offenses. U.S.S.G. § 5G1.3(b) permits a court to adjust a sentence if a defendant has served time on an undischarged term.”  The panel then explained the intricacies of various Guidelines provisions for how and when sentencing courts may reduce a defendant’s sentence based on previous state time served. The panel concluded by vacating the district court’s order “correcting” the sentences and reinstated the original judgment.  

Will Former National Security Adviser Flynn Serve Time?

United States v. Michael T. Flynn

On Friday, December 1, 2017, former National Security Adviser Lt. Gen. Michael T. Flynn (ret.) pleaded guilty to an Information charging him with one count of making false statements pursuant to 18 U.S.C. 1001 in connection with the Government’s investigation of Russian meddling in the 2016 presidential election. A section 1001 charge carries a maximum penalty of 5 years imprisonment and a $250,000 fine. Per the terms of his very generous plea agreement, however, Flynn and the Government will recommend to Judge Rudolph Contreras of the U.S. District Court for the District of Columbia that the applicable Guideline is 2B1.1 and that his final offense level, with acceptance of responsibility, is no more than four. Thus, Flynn’s sentencing range would only be zero to six months’ imprisonment with a fine range of $500 to $9,500.

According to our sentencing analysis of U.S. Sentencing Commission sentencing data, between 2006 and 2016, there were 1,250 defendants who pleaded guilty to violating section 1001, were sentenced under 2B1.1, with a final offense level of 4 and in Criminal History Category I. The national average sentence was two months and the median was zero months, i.e., probation. Given that Flynn is cooperating with the Government pursuant to his plea agreement, he could receive a term of probation and a modest fine.

However, as the Guidelines calculation in the plea agreement is not binding on the Court, Judge Contreras could apply the Guidelines in a less favorable fashion.  For example, Judge Contreras could use the “Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials” Guideline at 2C1.1 (by way of a cross-reference from 2B1.1), which we estimate would increase Flynn’s offense level to 18 since he was a high-level government official at the time of his offense conduct. Judge Contreras also could add an additional two levels for obstruction of justice for a total of 20.  With acceptance, that would reduce Flynn’s final offense level to 17 for a sentencing range of 24-30 months.

Still, the likelihood of probation even here is high. There were only 31 such cases sentenced under 2B1.1 with a final offense level of 17 in CHC I between 2006 and 2016. The average sentence was nine months and the median was only five months. The average downward departure from the bottom of the Guidelines range for cooperation was 21 months, which would take Flynn to a sentence of imprisonment of just three months if he receives an average downward departure for his cooperation.

Still, given his level of cooperation, a sentence of imprisonment still would be highly unlikely even under this scenario. In fact, if Flynn is sentenced after November 1, 2018, it is likely that favorable amendments to the Guidelines now pending before the U.S. Sentencing Commission will have taken effect by then, which would reduce Flynn’s final offense level by at least one additional level, making a probationary sentence even more likely under either sentencing scenario.

We will monitor the case as it progresses (as well as others who have been indicted or pleaded guilty in connection with Special Counsel Mueller’s investigation) and update our readers accordingly.

About Alan Ellis
Alan Ellis is a criminal defense lawyer with offices in San Francisco and New York, with 50 years of experience as a practicing lawyer, law professor and federal law clerk. He is a nationally recognized authority in the fields of federal plea bargaining, sentencing, prison matters, appeals, habeas corpus 2255 motions and international criminal law.

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