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Sentencing Advocacy in White Collar Cases
In the Federal Courts
From 1987 until 2005, when the United States Supreme Court changed the law, the Federal Sentencing Guidelines were mandatory. Under that regime, federal judges were required in most cases to impose a sentence with the applicable guideline range, which is calculated by applying the rules set forth in the relevant Federal Sentencing Guidelines Manual to the specifics of the case. Things have changed quite a lot since then. Federal judges now have much more discretion in determining the appropriate sentence. They now often take into account the "history and characteristics" of the defendant apart simply from his criminal history. Under this scheme, federal judges in the Northeast very frequently impose sentences below the guidelines. This is not so in many other parts of the country, particularly in the South and the Midwest, where sentences typically are higher than in New York, New Jersey, and Connecticut.
In the Southern and Eastern District of New York, plea agreements permit defense lawyers to argue for a sentence below the guidelines range. In the District of New Jersey, most plea agreements bar the defense from making such arguments. It is important that a defendant retain counsel who is familiar with the peculiarities of each district and, indeed, of each judge. There is a huge disparity among the federal judges in each district. A defense lawyer must know the penchant of each judge so as to gauge what sentence is realistic. An attorney who advocates for an unrealistically low sentence loses the court's respect and his own credibility and ends up hurting his client's chances for a lenient sentence.
The Federal Sentencing Guidelines are the starting point in determining what sort of sentence a defendant is looking at. A lawyer who is familiar with the guidelines, which are quite technical, will be able to tell his client the approximate range of the sentence applicable to his case. In white collar crimes, the sentences are usually driven by the "loss," i.e., the amount of money the defendant or co-defendants in a conspiracy intended to make or the amount of the loss to the victims that was reasonably foreseeable. Such numbers can be huge and are frequently far in excess of the actual gain by the defendants or the loss suffered by the victims. When an experienced federal criminal defense lawyer calculates the sentencing guidelines range for a potential client, it can come as a real shock and will sometimes cause the client to look for a lawyer who has a more optimistic view of the application of the guidelines. There are such lawyers. Some of whom make unrealistic predictions out of ignorance because they are not intimately familiar with the Sentencing Guidelines Manual or because they do not want to scare off the potential client. A person accused of a white collar crime in the federal system should be prepared to face the fact that in many cases the Guidelines call for an unreasonably harsh sentence.
While before 2005, federal practitioners focused on finding departures from the guidelines in order to lessen the sentence, now lawyers seek variances based on the client's role in the offense and the history and characteristics of the defendant. The relevant statute, Title 18, United States Code, Section 3553(a) is a Godsend to white collar defendants.
Sentencing advocacy in white collar cases in the both the federal and state courts focuses on the "loss," the defendant's history and character, and his role in the offense. There is much law on the subject, and it is important that the practitioner familiarize himself with the case law applicable to the particular case presented by his client. In addition, the lawyer must use all of the resources available to him to determine the judge's track record in dealing with particular kinds of cases. Some judges are particularly offended by certain conduct, which to other more forgiving judges does not seem to be quite so terrible. The attorney must fashion his argument to the particular judge, taking into account his specific foibles. A white collar defense lawyer who is familiar with the court is frequently better equipped to obtain a favorable result than the lawyer who is a stranger to that court and that prosecutor's office.
The State Courts
White collar cases are being prosecuted with greater frequency in the New York State Courts than years ago, when complex frauds and tax cases were left up to the U. S. Attorneys' Offices. Now, particularly in New York and, to a lesser extent, in Kings and Queens Counties, prosecutors are comfortable prosecuting white collar crimes. With the passage of the Enterprise Corruption statute, which has become the darling of state prosecutors, white collar cases frequently carry harsher penalties than before the passage of that law. In some instances, it is possible to obtain a lenient sentence in a complicated white collar case when an experienced lawyer senses that the prosecutor is over his head or is simply not motivated to prepare a complicated case for trial – frequently a daunting task.
Jonathan Marks has been practicing sentencing advocacy in the federal and state courts, with great success, since 1978. He is skilled and experienced in achieving the best possible result through effective advocacy based upon his developing a deep understanding of the case and his client's history and characteristics. If you would like to speak to an experienced and accomplished New York criminal defense lawyer, call Jonathan Marks, P.C. at 212-545-8008.
