The Guidelines Are “Ridiculous”: Governor McDonnell’s Two-Year Sentence

Bob_McDonnell_by_Gage_Skidmore

Photo by Gage Skidmore

Former Governor Robert McDonnell was sentenced today to two years in prison for public corruption. Given that the government asked for a sentence in the 10-12 year range, a two-year sentence is a remarkable outcome. In criminal defense work, sometimes what sounds like a stiff penalty is actually an incredible result.

I posted before about the verdict. Here are a few early thoughts on the sentence and the sentencing hearing:

Does This Case Mean that the Guidelines Don’t Matter? Early in the sentencing hearing, the judge gave the defense a victory by ruling that the guideline range was 78 to 97 months (6.5 to 8 years). The government and probation office had argued that the guideline range was in the 10 to 12 year range. The difference came in the calculation of loss (the size of the supposed bribes) and the judge’s refusal to conclude that Mr. McDonnell committed perjury when he testified. (See more below.)

Judge Spencer, of course, did not have to follow the guideline range since it is not mandatory. In fact, according to news reports, he said that judges need discretion in sentencing, saying that a 7 or 8 year sentence “would be unfair, it would be ridiculous, under these facts.”

I admit that when I read earlier today that the guideline range was 78-97 months, I thought that the ultimate sentence would be about 4 years. Boy, was I wrong. Every defense lawyer in the EDVA will be clamoring to have her case moved to Richmond.

No Obstruction by Testifying. One of the frustrating parts of sentencing is that if your client testifies at trial and is convicted anyway, the government will seek a sentencing enhancement for perjury. The government will argue that because the jury found your client guilty, your client must have been lying. In fact, official policy in the U.S. Attorney’s Manual states that “If perjury occurs at trial, the government should ask for application of section 3C1.1, the obstruction of justice enhancement, which increases the offense level two levels.”

Luckily for Mr. McDonnell, the court rejected this argument, explaining that “I don’t think it’s appropriate to punish [Mr. McDonnell] for putting on his case.”

It’s always a risk to have your client testify and the Sentencing Guidelines, coupled with DOJ’s view of the world, reinforces that risk. Mr. McDonnell was lucky this judge does not adopt the government’s approach.

Judge Spencer Is a Patient Man. Many judges are somewhat impatient at sentencing hearings and try to limit them. This was a long sentencing—lasting from 10 am until after 2 pm. Eleven witnesses testified for Mr. McDonnell, in addition to the reported 440 letters of support that were sent on his behalf.

Interestingly enough, the government had no “victims” testify. Huh, I guess there weren’t any.

Paying for Good Lawyers Makes a Difference. I would be curious to see the number of drug offenders who have a 78-97 month guideline range and are then sentenced to 24 months. I’m guessing you could count them on one hand.

Granted, this is an unusual case involving a former governor who undoubtedly did much good in his career. It was also a questionable prosecution under a novel interpretation of the law. But still—it’s an amazing outcome to see Judge Spencer go so far below the guideline range in a district not known for leniency in sentencing.

At last count, there were fourteen lawyers who entered appearances for Mr. McDonnell. Mr. McDonnell should be thanking every one of them because they played a huge part in creating the right sentencing story and attacking the government’s sentencing recommendation. Those lawyers were costly, I’m sure, but worth every penny.

How much would you pay to avoid 6 to 10 years in federal prison?

Looks Like Mr. McDonnell Will Be Heading to Jail Pending Appeal. For now, Mr. McDonnell will report to prison on February 9. His lawyers had filed a motion for bond pending appeal. It is not entirely clear from the news reports if that motion was formally denied but the judge said he must report on February 9 (as of the time of this post, there was no order on the docket).

Given that most appeals are long shots, some defendants voluntarily choose to start serving their sentence even if they appeal, figuring that the sooner they report, the sooner they will be released. That said, this case raises novel issues of what is an “official act.” Mr. McDonnell has solid legal grounds for appeal that have a chance of success. His lawyers may seek to have the judge reconsider his ruling on this issue.

What About Mrs. McDonnell? She will be sentenced on February 20th. We don’t yet know what the government will request. This sentencing result may affect their recommendation, since the government cannot expect that the judge will turn around and decide that she deserves 10 years in prison.

In fact, the judge has said today that those who blame Mrs. McDonnell for this wrongdoing are “dangerously delusional.” That seemed to be a primary defense theory. But even if the defense lost at trial, this is a huge victory at sentencing.

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