A federal judge in Brooklyn has rebutted the criticism by a top Department of Justice official that many federal judges have "lost" their "moorings to the sentencing guidelines" in major fraud cases.
The attack on a "regime" of judges who impose fraud sentences "inconsistently and without regard to the federal sentencing guidelines" appeared in a letter sent in June by Jonathan J. Wroblewski, the director of the Office of Policy and Legislation to the chief of the U.S. Sentencing Commission, Judge William K. Sessions III.
Last week, Eastern District Judge John Gleeson responded to Wroblewski's implication that, as Gleeson put it, fraud sentences "are inexplicably and unjustifiably all over the lot."
In a 16-page "statement of reasons" for a fraud sentence, Gleeson wrote that the discrepancies between guideline sentences and actual sentences is not evidence of the unmooring of judges, but rather indicative of the difficulty of capturing the nuances of a complex case in a list of guidelines.
The 539-page Sentencing Guidelines Manual is only one of eight factors that judges are statutorily required to consider at sentencing, Gleeson added.
He also noted that if judges had truly become unmoored from the guidelines, then prosecutors would appeal sentences more frequently -- only 18 of the 1,711 below-range fraud sentences issued last year were appealed.
"[I]n determining whether reforms are needed, and especially in determining whether the existing guideline should be burdened with even more adjustments, the Commission should examine whether our system already provides an adequate solution for the claimed 'unacceptable' outcomes the Department complains about," Gleeson wrote in United States v. Ovid, 09-CR-216. "I suggest that it does, in the form of appellate review, and for all of the handwringing in the DOJ Letter about unacceptable sentences, the Department for the most part has not even tried to avail itself of that solution."
The federal sentencing guidelines were set forth by the U.S. Sentencing Commission, which was established by the Sentencing Reform Act of 1984. The central goal of the guidelines was to create uniformity of sentencing by federal judges in felony cases.
Since the U.S. Supreme Court held in 2005 that the then-mandatory guidelines violated the Sixth Amendment right to a jury trial, in United States v. Booker, 543 U.S. 220, the guidelines have been only advisory.
Gleeson's rejoinder to Wroblewski's criticisms came in his statement of reasons for sentencing defendant Isaac Ovid, an ordained minister, who started two hedge funds that he failed to register with the SEC and that went bankrupt, costing his congregants and investors millions of dollars.
Ovid pleaded guilty in March to conspiring to commit securities fraud and was sentenced to 60 months in prison -- exactly 12 1/2 years less than the low end of the guideline range of 210 to 262 months.
In his statement of reasons, the judge quoted for three pages the arguments made by the prosecution at sentencing in favor of departing from the guidelines and granting the 60-month plea deal: Ovid's actions did not begin as a fraud, he did not collect a salary nor deposit money in secret accounts, he came clean to his investors and "heavily" demonstrated remorse.
Such factors do not always neatly fall within a guidelines grid, the judge wrote.
"Even though the prosecutor was justifying his plea bargain, not imposing sentence, I couldn't help thinking as I listened to his various reasons for why it was all right to cap Ovid's sentence at 60 months that this is what sentencing judges do," Gleeson write.
"We canvass all of the many features of the case that bear on the culpability of the defendant. Though some of those features have been considered by the Sentencing Commission and incorporated into the Guidelines calculation, many are not. But they are still part of the nature and circumstances of the offense, or part of the history and characteristics of the defendant, and thus may (indeed must) be factored into the sentence by the judge."
The judge noted that judges must explain their reasons for each sentence, and that "those reasons, and the sentences they support, are subject to appellate review" -- an option the Justice Department pursued in only 1 percent of the below-guideline sentences last year.
Last week's opinion marks the continuation of an ongoing public debate between Gleeson and Wroblewski. In May, the judge moderated a standing-room-only discussion on federal sentencing. The panelists included, among others, Wroblewski and Sessions, the chair of the Sentencing Commission.
Wroblewski declined to comment.