Relevant Conduct and Scooter’s sentence

Sentencing in Federal Courts is guided by the Federal Sentencing Guidelines, which Congress enacted, inter alia to promote uniformity in Sentencing.

One of the problems associated with achieving uniformity in sentencing is that prosecutors have wide discretion to charge or not charge an offense. Imagine that every armed robbery resulted in a seven-year sentence. A serial offender, who is believed by the prosecutor to have committed 5 crimes could get a sentence between 7 and 35 years depending on which crimes the U.S. Attorney chose to prosecute.

Police officers have awesome influence, too. Suppose a undercover cop establishes a relationship with a drug dealer. He can buy an ounce or two. He will usually keep at it until he makes a big enough purchase to hammer the defendant.

To address these problems and others, the Federal Sentencing Commission proposed, and Congress agreed that sentencing would be based upon “relevant conduct,” defined as

(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and

(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense

Once the relevant conduct is determined by the court, the sentence is determined by looking on a matrix on which one axis is the offense and the other is the offender characteristics.

What is the relevant conduct for Scooter’s obstruction of justice? May I suggests that it is Disclosure of Information Identifying a Covert Agent.

§2M3.9. Disclosure of Information Identifying a Covert Agent

(a) Base Offense Level:

(1) 30, if the information was disclosed by a person with, or who had authorized access to classified information identifying a covert agent; or

(2) 25, if the information was disclosed by a person with authorized access only to other classified information.

Obviously, Libby had authorized access to classified information identifying a covert agent. Thus, he starts off with a base level of 30. If the court finds that this is the relevant conduct, and assuming that Scooter was as clean as a whistle before this episode, then he is looking at a sentence of 97-121 months, or roughly 8-10 years. About 15% of that comes off for good behavior, but, even still, Libby is looking at real time.

Additionally, the guideline for Obstruction of Justice assigns an offense level of 14 (or 17, if the offense “resulted in substantial interference with the administration of justice) and also provides that

if the offense involved obstructing the investigation or prosecution of a criminal offense, apply §2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above.

Let’s look at the Accessory After the Fact calculation.

The accessory after the fact guideline provides that the Base Offense Level is 6 levels lower than the underlying offense. If the base level for the underlying offense, Disclosing Information Identifying a Covert Agent, is 30, as seen above, then Scooter starts off with a Base Offense Level of 24.

Again, reference to the matrix shows that he’s looking at 51-63 months.

There are serious reasons for concluding that Libby’s conduct was at the upper range of the guideline, since, after all, we are talking about silencing a critic of the Administration who busted Cheney for misleading the country into war, with the result that an undercover counter-proliferation program was terminated.

The bottom line here is that Libby is facing a tough choice. He can play ball with Fitzgerald, and substantially reduce his sentence. Or he can prepare to take a 5-10 year trip to the pokey. He can hope for a pardon but if he puts his eggs in that basket, he is risking being an absent father during the next decade of his children’s life.

Lots of folk are figuring that Bush’s loyalty to friends will result in a pardon. Big Mitch doesn’t believe that it is wise to rely on the loyalty of a narcissistic sociopath like Bush. Even if I am wrong, a pardon probably wouldn’t come until the end of Dubya’s term of office, nearly two years off. There’s a better than average chance that Libby will have to do a year and a half before that happens.

Keep this in mind when you hear talking heads saying that Libby is realistically facing a sentence of a year or so.

“… and tell ’em Big Mitch sent ya!”