A big news story in the world of white-collar criminal defense came out this week — specifically about a longtime president Trump ally and friend Roger Stone. In short, Mr. Stone was found guilty in 2019 by a jury of seven counts: one count of obstructing a congressional investigation, five counts of making false statements to Congress, and one count of witness tampering. His case is set for sentencing on February 20th.
Prior to sentencing in a federal lawsuit, the prosecutors and the defense attorneys can both file sentencing recommendations. Basically, what they think the sentence should be. In this case, the government filed a sentencing recommendation of 87 to 108 months. After that was filed, the Department of Justice said that’s not accurate and does not accurately reflect the government’s position.
How Sentencing Works
Sentencing works differently in federal cases. In Mr. Stone’s case, the base offense level is a 14. The government in its sentencing memorandum estimate it at an offense level of 29. This equates to a sentencing of 87 to 108 months due to Stone’s lack of criminal history. Basically, they said the sentencing was inappropriate. They didn’t say that the calculation was wrong, rather it did not accurately reflect their position.
What the Department of Justice Did
What the Department of Justice said was it overstated the seriousness of the offense, and it’s not appropriate.
This is important for two main reasons:
- The Department of Justice undermined its own prosecutors. That’s a big deal. Typically, what happens is prosecutors have to get approval from their superiors before making plea agreements, filing substance of motions, or making other similar decisions. We weren’t involved with this case, but we can assume, and it’s not an outrageous assumption to assume that the sentencing recommendation was run up the flagpole (at least up to the chair of the office in which the prosecutor sat in this case). The Department of Justice undermined them publicly, and then they filed a second subsequent sentencing memorandum. They essentially said that the calculation, or the additions that were added to that offense level to increase it, we’re technically applicable, but inappropriate.
- Now the second reason why this is so important is that the government essentially said that even if the guideline range is correct, it overstates the seriousness of the offense. That is a big deal. The government doesn’t say that very often. Typically, the government will ask for and request a sentence within the guideline range. They will say that a sentence within the guideline range is appropriate. It doesn’t happen very often where the government will say, “Hey we think that the range is appropriate, but we still think it overstates the seriousness.”
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In cases of plea agreements or in cases where a person accepts responsibility and then helps another investigation by cooperating by testifying, the government often will ask that a sentence be reduced. In this case, where a jury found the defendant guilty and the government said the guideline range might technically be correct, but it overstates the seriousness, is a big deal. That’s why it’s reverberating throughout the White Collar criminal defense world.