It's game on for the Fumo appeal.
Ending months of suspense and anticipation, the federal prosecutors in Philadelphia who secured the conviction of former Pennsylvania state Sen. Vincent Fumo have been granted permission to pursue an appeal to challenge Fumo's 55-month prison sentence as too lenient.
That means Fumo, too, will be pursuing his own cross-appeal to challenge his conviction.
Fumo had initially allowed the deadline to pass for taking an appeal, but his lawyers had vowed that if the prosecutors appealed the sentence, they would appeal the conviction.
Convicted in March 2009 on all charges -- 137 counts of fraud, tax offenses and obstruction of justice -- Fumo was sentenced in July 2009 by Senior U.S. District Judge Ronald L. Buckwalter to a term of 55 months in prison. His co-defendant, longtime aide Ruth Arnao, was convicted of 45 counts and sentenced to one year and one day in prison.
The prosecutors -- Assistant U.S. Attorneys Robert Zauzmer and John Pease III -- had fought for a much stiffer term for Fumo, arguing that the federal guidelines called for a term in the range of 21 to 27 years.
In August 2009, Michael Levy, then the U.S. Attorney, announced that prosecutors would be seeking approval from Washington to pursue appeals of both Fumo's and Arnao's sentences.
Such decisions to approve appeals by government prosecutors are ordinarily made by the solicitor general, but current Solicitor General Elena Kagan transferred the duty in Fumo's case to Acting Solicitor General Neal Katyal because she is gearing up for her own Supreme Court confirmation hearings.
Katyal's decision comes as the Philadelphia prosecutors' deadline for filing their brief was fast approaching.
But lawyers who are familiar with the process said such close timing is typical, and that the Solicitor General's Office typically approves such appeals on the basis of a finalized brief.
Under the typical process, Fumo's lawyers -- Samuel J. Buffone of Buckley Sandler in Washington, D.C., and Peter Goldberger of Ardmore, Pa. -- would have been given an opportunity to be heard just prior to the solicitor general's decision.
Court records show that the 3rd U.S. Circuit Court of Appeals has set a four-step briefing schedule that calls for the prosecutors to file their initial brief on July 1, with Fumo's main brief due 60 days later in which his lawyers will both respond to the government's appeal and make their own cross-appeal arguments.
The government then has 30 days to file a brief that both responds to Fumo's brief and replies to Fumo's responses to the government's appeal; and finally, 30 days after that, Fumo's lawyers file a "fourth-step" brief that replies to the government's response arguments.
Under the current schedule, Fumo's final brief would be due in late October, but lawyers said the 3rd Circuit frequently adjusts the briefing schedule, especially in complex appeals.
Fumo's sentence was far below those recommended by probation officers. The original pre-sentence report for Fumo gave a recommended prison term in the range of 21 to 27 years.
When news first came out in August 2009 that prosecutors might appeal the sentence, lawyers had mixed reactions to the news.
Some had predicted that there wouldn't be any appeal because Kagan, or her top deputy for criminal cases, Michael Dreeben, would refuse to approve it.
But another lawyer predicted last year that the government would not only get permission for the appeal, but is "likely to win on at least a few issues" related to how Buckwalter calculated the sentencing guidelines.
Although the federal sentencing guidelines are now "merely advisory," they remain an important part of the sentencing process and an accurate calculation of the guidelines is the starting point for every sentence.
In Fumo's case, several lawyers said, the prosecutors are likely to appeal Buckwalter's refusal to add so-called "enhancements" that were recommended by the probation officer, such as a two-level enhancement for committing perjury.
One lawyer said last year the government may also focus on Buckwalter's remarks during the sentencing hearing that appeared to be inaccurate, including comments suggesting that Fumo never "pocketed" any money from his crimes and that Fumo had never been in trouble before.
Several lawyers predicted last year that, if the appeal does go forward, the prosecutors would be facing a hostile court.
"The rules of the game have changed. Sentencing is back in the hands of the [district] judge. And the appeals courts are increasingly loathe to overturn any sentence -- even those they disagree with," one lawyer said in August 2009.
"This is all about Tomko," another lawyer said last year, referring to the appeal in the 3rd Circuit brought by the government to challenge a sentence of home confinement for a wealthy confessed tax cheat who would serve his time in a luxurious mansion, which his crimes had helped to pay for.
Prosecutors in Tomko complained that the defendant was getting a "gilded cage" sentence, but the appellate court ultimately concluded that the trial judge had considered all the appropriate factors and that his sentence should stand.
Fumo's case could be attractive to the Justice Department, one lawyer said, as a counterpart to Tomko.
Ohio State University law professor Douglas Berman, an expert on sentencing issues, said last year that Fumo's case is loaded with complicated issues.
Berman, who writes the blog Sentencing Law and Policy, told The Legal Intelligencer in August 2009 that strategically the government may decide to pursue the appeal because it is unhappy with specific aspects of Buckwalter's guidelines calculations and may be intent on getting those rulings overturned so that other judges in future political corruption cases don't follow them.
