Let’s talk Federal Sentencing Guidelines. It’s not a catchy subject. And the guidelines themselves are complicated as hell even for lawyers. For us laypersons they are downright dense. Just coming up with the “stock” recommendation take serious work and that’s before getting into the various factors that can lead to a recommendation greater or less than the initial calculation. But the federal guidelines exist for a reason, and a good one. And I think an overlooked factor has been how Trump going on trial in Manhattan next month is going to affect him, and not in a good way once he’s in federal court.
Among the 4 criminal indictments of Trump the New York “Hush Money” case has always been regarded as the “runt” of the litter. It’s “old news” for one thing. Perhaps not as solid a case legally according to some. And certainly, despite the sleaze factor (sex sells and him screwing a porn star is going to generate headlines again) the criminal penalties if convicted won’t be as severe as Trump faces in the other three cases. Still, by going first if Trump’s convicted in Manhattan the effects on what could well be the next case, the DC trial on January 6 related charges could be “bigly.” And if as judge Cannon intends to have happen the Florida case which involves National Security will really put the screws to Trump.
So just what are the Federal Sentencing Guidelines? Well, as I said earlier they came about for a good, even noble purpose. The idea is that regardless of jurisdiction sentences for serious federal crimes should be the same no matter who the defendant is or where their conviction takes place. It’s an attempt to provide in practice those words etched above the entrance to the SCOTUS building – Equal Justice Under Law. Joe Schmo who is convicted of a given crime(s) in say my home state of Illinois should get a sentence similar to what his cousin John Schmo would get for a similar crime(s) in North Carolina where I now live. Makes sense to me. As noted at the beginning of the link:
The United States Federal Sentencing Guidelines are rules published by the U.S. Sentencing Commission that set out a uniform policy for sentencing individuals and organizations convicted of felonies and serious (Class A) misdemeanors in the United States federal courts system. The Guidelines do not apply to less serious misdemeanors or infractions.
Again, these are guidelines for federal convictions. However, when calculating a sentencing recommendation state crimes can be and are factored in. Convictions, plea deals and other acceptance of guilt/culpability in prior acts/judgements can all be taken into account whether at the state or federal level. Trump’s first trial which will begin on March 25 involved State of New York criminal statutes. It convicted, in every subsequent case in federal court that conviction will “count” when calculating a sentence if convicted in federal court! Here are (from the link) the basics:
The Guidelines determine sentences based primarily on two factors:
- the conduct associated with the offense (the offense conduct, which produces the offense level)
- the defendant’s criminal history (the criminal history category)
The Sentencing Table[7] in the Guidelines Manual[8] shows the relationship between these two factors; for each pairing of offense level and criminal history category, the Table specifies a sentencing range, in months, within which the court may sentence a defendant. For example, for a defendant convicted on an offense with a total offense level of 22 and a criminal history category of I, the Guidelines recommend a sentence of 41–51 months.[9] If, however, a person with an extensive criminal history (Category VI) committed the same offense in the same manner in the same modern timeline and not during the older guideline periods, the Guidelines would recommend a sentence of 84–105 months.[7]
If SCOTUS declines both a stay of Trump’s DC trial prep resuming and also to hear his appeal he could be headed to court in DC by sometimes in late May. IF. (Come on SCOTUS! Deny him, dump the blame on the DC Circuit like we all know you want to do and let Jack Smith get on with it already!) The fun part (for me) is that if things work out that way Trump will already be a convicted felon when he goes on trial in DC. That changes things and in more than one way. However, let’s stick to the topic at hand which is how if Trump is a convicted felon by the time he goes on trial in DC it would affect things if he’s convicted in DC.
Had the DC case on Jan. 6 related charges gone first it would have been Trump’s first conviction. That would have gotten him some important consideration when calculating a sentence. A “first time offender” gets more lenient treatment than a repeat one. Now, a single conviction doesn’t bump someone up into the “serious” category of repeat offender but it does matter. Again, this all gets complicated as hell but factors that can cause a recommendation UP from the standard include:
There are victim-related adjustments for hate crime motivation or vulnerable victims; official victims; restraint of victims; and terrorism. Adjustments can apply depending on the offender’s role in the offense, which can include an aggravating role, a mitigating role. Enhancements apply for abuse of a position of trust or use of a special skill, using a minor to commit a crime, and use of body armor or a firearm in drug trafficking crimes and crimes of violence.
In addition, there are enhancements related to obstruction of justice, including obstructing or impeding the administration of justice, reckless endangerment during flight, commission of an offense while on release, and false registration of a domain name.
Adjustments also apply in cases involving multiple counts.
Well that’s interesting. Those parts about abuse of a position of trust, obstructing or impeding the administration of justice (including an official proceeding like counting Electoral Votes? Perhaps?), commission of an offense while on release (like documented violations of gag orders perhaps?) and of course multiple counts caught MY eye. And what I blocked out above is just a summary. The guidelines are in a series of manuals.
Still, had the DC case been the first conviction it would have mitigated in Trump’s favor. Now, I hope I’ve made clear that a single felony conviction in court up in New York state/Manhattan doesn’t make Trump a high level repeat offender under the guidelines. However, it changes the calculus with Trump and NOT in a good way for him. And, just in case someone in the right place happens to read this I hope it will get passed along.
If you look at what I’ve provided there’s something about pleading in open court. However, one doesn’t have to openly admit guilt in open court. There’s an allowance for a “determination” of guilt so let’s all go way back in time to when Trump was young. Along with his father Fred, Donald Trump signed off on a consent decree with DOJ regarding criminal violations of rental practices by the Trump Org, which was Fred and Donald Trump. Technically, they didn’t have to admit guilt to the court, but they DID agree to the terms and were forced to correct the illegal application of race in their rental practices. Oh how I hope that bit of history gets another day in the sun!
So what am I driving at with all this? Bad as a conviction in DC would be for Trump when all is said and done, because he is… well Trump and fought to delay his trial it won’t be his first conviction. It will also give weight to that long ago business with the DOJ and that Consent Decree. Alvin Bragg was quite willing to go last even though he obtained the first criminal indictment. Now he’s going first. New York State might not have much in the way of a penalty for a conviction, but it sure as hell will matter down the road. Say down in DC if Trump is convicted there! Trump might get as little as probation for all I know up in New York. But as a convicted felon it’s going to haunt him once convicted in DC. Even if the Georgia RICO case gets delayed there’s still the trial down in Florida.
Judges can (and do) sometimes depart from the sentencing recommendations. I ranted very recently about the judge who departed WAY down with Paul Manafort. But he was about to retire. Cannon lover her Trumpy Bear to be sure. (Maybe she’s angling for VP?) However she’s still young. If, with at least two convictions on his ugly head she does a downward departure from the recommendations in a NATIONAL SECURITY case Cannon will throw away a cushy lifetime gig. Making history by being the first federal judge to be impeached and removed from office isn’t something I think she’s willing to gamble on. Not even for Trump, and especially since if things get to that point it will be because he LOST in November.
At the very least she’s liable to face sanctions that will both cripple her career and make her a laughingstock. Not to mention the impact it could have with defense attorneys having solid means to challenge ruling after ruling by her. At some point the 11th Circuit will initiate action against her simply because they are tired of all the extra workload she’s dumped on them. If THEY make a recommendation to the Bar she’s in deep trouble.
So in the end while stuff like Federal Sentencing Guidelines is a mind-numbing subject for those who aren’t legal nerds it’s something to keep in the back of your mind. For the moment though it should be up in the front as you watch things unfold up in Manhattan. If Bragg wins a conviction it’s going to matter a great deal if Jack Smith’s prosecution in DC is allowed to go forward. Trump might in the current version of the GOP be their candidate come November but what might have been a notable sentence from the DC trial is going to be a lot larger/longer one thanks to that state court conviction in New York. It won’t matter to MAGAs, but to Independents and Republicans who are just afraid of MAGAs it will matter a great deal.
Once again, Trump being himself could turn out to be the worst thing he could have done to himself. Have fun considering that one!
“Making history by being the first federal judge to be impeached and removed from office isn’t something I think she’s willing to gamble on.”
Um, Denis? That ship set sail a looooooong time ago.
Judge John Pickering of the District of New Hampshire was convicted (on four counts) and removed all the way back in 1804. Also, in 1912, Judge Robert Archbald of the Third Circuit, Commerce Court was convicted on five counts and removed from office. In 1986, Judge Harry Claiborne of the District of Nevada was convicted on three counts and removed from office. In 1989, Judge Walter Nixon of the Southern District of Mississippi was convicted on two counts and removed (he had the audacity to try to get the conviction overturned through the courts but, ultimately, the Supreme Court ruled the Senate had sole authority and upheld the initial conviction). In 2010, Judge Thomas Porteous was convicted on four counts and removed (and an additional vote was held to forever disqualify him from holding any federal office).
There was also a case in 1862 involving a Judge in Tennessee over a number of pro-Confederate issues (the judge had not resigned after the State voted to secede but he publicly called for secession and giving aid to an armed rebellion and conspiring with Jefferson Davis–among other counts). I didn’t include it with the above cases since it was a special case involving the Civil War.
Not to rain on your parade, but everything hinges on him being convicted. Given how lying is fundamental to the Trump cult, it only requires one Trojan horse to hang the whole trial. Then we’re back to delay delay delay. Although the NC state motto is about being real vs fake, I like the Missouri one…The Show Me State! Until the reality is he’s a convicted felon anyphuckingwhere, I’ll not be popping any corks.
You make a good point. Thing is, the D.C. trial is a fairly good place to get a jury lacking a magat trojan horse. In NY he got nailed in the E. Carroll trials which had juries. I’m not sure that D.C. is considerably more hostile to trump than NYC but I don’t think they’re one heck of a lot friendlier. Still, until there’s a conviction we are only speculating-perhaps foolishly.
Point taken. However in both Manhattan and DC it will be awfully tough for Trump to sneak a MAGA goober onto a jury so if the evidence supports conviction then he will be. I’m more worried about Georgia and Florida where there are MAGAs aplenty. And in FL there’s also judge Cannon who will be Trump’s best defense lawyer presiding so there’s that as well. And, as you say it only takes one to hang a jury. Then the question becomes whether to re-try the case. Where things could get interesting I think is if either GA or FL the jury hangs on convicting Trump but convicts one or more co-defendants. Facing prison they might decide to flip to reduce their sentences and they will have to do so pretty quickly as sentencing would take place within a couple of months. No pardons at all in GA, and in FL since Cannon won’t allow a trial before the election (and even if she gets replace, which now seems possible if she doesn’t back off some it’s unlikely a trial can happen before November remember this: If Trump wins in November his federal cases at least go away. He’ll order his new AG to shut them down. But if he loses the election that means those co-defendants can’t count on any pardon. If co-defendants turn on Trump then prosecutors would have good reason to give it another shot. They might be better prepared to figure out how some MAGA slipped through jury selection undetected.
So…it’s up to us voters to make sure he goes to jail! Let’s all join in and vote!
Shout it from the rooftops brother. So what if you were a squid? That’s more than good enough for me because when it comes to Semper Fidelis you embody it in your devotion to the Constitution and efforts to make this country move closer to the ideals expressed in our founding documents. Lack of a working vehicle (can’t afford to get it fixed) keeps me from getting out and about the way I used to. But in addition to stuff like blogging, making calls & sending out postcards (and once upon a time when I could walk around neighborhoods canvassing) I chat up people to try and secure a promise they will vote. That’s what we all need to do. Convince at least one person each week (day if possible) not only to vote (for Democrats of course!) but to themselves convince one other and get THEM to do the same. That’s how we grow the number of voters, and the votes we need to overwhelm the fascist asshats.
I talk to everyone everywhere. I get some angry looks from evesdroppers, but they are gutless wonders since no one ever confronts me. We’ve become a nation of cowards, easily offended, but too scared to stand up for anything. As Dylan said: their minds are filled with big ideas, images, and distorted facts.
A man who stands for nothing will fall for anything. Malcolm X
This is an idea/values war fought in the trenches.
why not begin a New Jersey case on disseminating classified documents? that’s where he was waving around war plans.
It is all.about peeling off votes in swing states. His True Believers need to be deprogrammed, but they would still be racist @$$holes. So we settle for sending them back into their holes with the rest of the vermin. I imagine them a lot like the bloody gopher Bill Murray finally blows up.