The Paul Manafort sentence and the notorious and diabolical federal sentencing guidelines

By Robert Willmann

Crime is a legal definition. This means that to commit big crime you make it legal.  Or, you can try to enhance your commercial business or money making organization by getting conduct made into a crime that is competition to your activity, like is found in copyright law, and is done by state governments that make gambling illegal but have state-run lotteries in which the odds of winning are so remote they make the negative percentage in Las Vegas casino games look like a paragon of virtue.   This also means that the concept of a crime is created by a government, even though it is commonly thought to be bad behavior (or a failure to act), as described by social relations, culture, religion, and human biology (with murder opposed by the instinctive act of self defense).  Conduct that is said to be bad enough is defined as a crime and involves the government using force directly against the actor at least in the form initially of an arrest, possible imprisonment, or later if an order from a criminal court case is not followed.

The ongoing jabbering in the mass media — starting in November 2016 when Donald Trump was elected president — declared that all sorts of conduct was illegal, as a civil or criminal case, or should be the subject of charges for impeachment.  A lot of that talk can be described as horse manure, but it has had a real effect on the public, which effect has been and is the intent.  It reached a fever pitch last week when Judge T.S. Ellis III, an American hero, in a federal court in the Eastern District of Virginia, sentenced Paul Manafort in one of his two criminal cases to 47 months in prison, which was noticeably below the "sentencing guidelines range" of 235 to 293 months–

Television talkers expressed shock and dismay that Manafort received such a "low" sentence below the guidelines and they look forward with glee to his second sentencing on 13 March, beginning at 9:30 a.m., eastern time, in federal court in Washington DC, with Judge Amy Berman Jackson presiding.  Her rulings can be described as statistically matching to a degree those requested by government prosecutors in cases brought by "special counsel" Robert Mueller, who was tasked to investigate "interference" in the 2016 presidential election by the Russian government, with attention to "collusion" by the Trump campaign, but mysteriously not involving possible collusion with Russia by the Hillary Clinton campaign.

Just as important as the definition of a crime are the rules of procedure and evidence that govern a criminal justice system from start to finish, such as:  detaining and arresting a person, questioning a suspect, confinement or release before a trial (if any), pretrial court hearings, a trial itself by a jury or otherwise, any appeal of a trial's verdict, ordering a sentence of punishment or a consequence to the finding of guilt, suspending a sentence through probation, operating a prison, the power of a president or governor to pardon a person's conviction or commute the sentence, and so forth.  

This brings us to the Federal Sentencing Guidelines, a deceptive name if there ever was one.  They are part of the Comprehensive Crime Control Act of 1984 (CCCA), disguised inside House Joint Resolution 648, "A joint resolution making continuing appropriations for the fiscal year 1985, and for other purposes", which became Public Law 98-473 and which president Ronald Reagan signed on 12 October 1984.  That legislation shifted the existing federal criminal law so extensively that it can accurately be described as a radical change.  Whether becoming a law in 1984 was a coincidence or an arrogant expression by implementing some of the meaning in George Orwell's novel "Nineteen Eighty-four" (published in 1949) is not known.

The so-called guidelines came from the Sentencing Reform Act of 1984, introduced by Senator Edward Kennedy (Dem. Massachusetts), and they became part of the Comprehensive Crime Control Act of 1984, which in turn was Title 2 of the continuing appropriations bill, Public Law 98-473.  In the legislation, Congress created the United States Sentencing Commission, and it would write the new sentencing rules, and federal judges would have to sentence someone within the "guideline range" set by the commission.  This smaller "guideline range" was within the regular "range of punishment" set by Congress as a possible minimum to maximum sentence for each particular crime Congress defined.  Before the CCCA, if a defendant was found guilty, the federal judge had the power and discretion to sentence the person to anything within the regular range of punishment established by Congress, and order probation if allowed in that instance.  But the sentencing guidelines took that discretion away from the federal judge, and required the sentence to be within the guideline range.  The self-righteous language that supposedly allowed a judge to "depart" from the guideline range in a certain way was laughable as a practical matter.

When the sentencing guidelines became law, the sentencing commission magically was said to become part of the judicial branch of government, where it resides today [1].  

When the sentencing guidelines kicked in and became operational, a court challenge followed.  The case made it to the U.S. Supreme Court, as United States v. Mistretta, 488 U.S. 361 (1989), and even though at that time "liberals" such as Judges William Brennan, Thurgood Marshall, and John Paul Stevens were on the court, the decision was 8 to 1 that the guidelines were constitutional, with the lone dissenter being none other than Antonin Scalia [2].  Sometimes Judge Scalia would pull back covering language about an issue and shine a light on what was really going on.  He did so at the start of his dissent–

"While the products of the Sentencing Commission's labors have been given the modest name 'Guidelines,' see 28 U.S.C. 994(a)(1) (1982 ed., Supp. IV); United States Sentencing Commission Guidelines Manual (June 15, 1988), they have the force and effect of laws, prescribing the sentences criminal defendants are to receive. A judge who disregards them will be reversed, 18 U.S.C. 3742 (1982 ed., Supp. IV). I dissent from today's decision because I can find no place within our constitutional system for an agency created by Congress to exercise no governmental power other than the making of laws."

As some sort of smiling rationale is always given for a new law or governmental action, the sentencing guidelines were promoted as providing certainty and fairness in sentencing and avoiding unwarranted disparities among defendants with similar records found guilty of similar offenses.  Never mind that the differences between individual human beings, their backgrounds, and behavior are basically unlimited and disparate in reality.  The existence of reality was not part of the new game, and "disparity" was claimed to be a bad thing.  Asserted to be just as bad was the difference between federal judges and the sentences they imposed.  Surprisingly, one of the original members of the sentencing commission, Paul Robinson, objected to what was created as a final product, and Judge Scalia quoted him–

" 'Under the guidelines, the judge could give the same sentence for abusive sexual contact that puts the child in fear as for unlawfully entering or remaining in the United States. Similarly, the guidelines permit equivalent sentences for the following pairs of offenses: drug trafficking and a violation of the Wild Free-Roaming Horses and Burros Act; arson with a destructive device and failure to surrender a cancelled naturalization certificate; operation of a common carrier under the influence of drugs that causes injury and alteration of one motor vehicle identification number; illegal trafficking in explosives and trespass; interference with a flight attendant and unlawful conduct relating to contraband cigarettes; aggravated assault and smuggling $11,000 worth of fish.'  Dissenting View of Commissioner Paul H. Robinson on the Promulgation of the Sentencing Guidelines by the United States Sentencing Commission 6-7 (May 1, 1987) (citations omitted)".

The point was and is that laws are to be made by Congress, and not from scratch by delegating the power to a type of commission, which Judge Scalia called "a sort of junior-varsity Congress".  This context also raises thoughts about the separation of powers in the structure of the federal government.

Sentencing in federal court became a process of assigning a certain number of points to certain factors, and adding them up and subtracting some to reach a numerical score, and after that looking at a grid and finding the pigeon hole telling you, and the handcuffed judge, what the sentence within the new, smaller range of punishment could be.  If you think that such a process is surreal, it is.  The sentencing scheme with its new commission became a sprawling monster, not only in its text and procedures, but also in its expenditure of time and money and court litigation, which continues to this day.  Here is the current version of the sentencing guidelines manual, in excess of 500 pages, which you can read if your stomach can stand it–

After the guidelines became effective in 1987 and the Mistretta opinion was handed down in 1989, the problems generated by the new system became more and more obvious and acute.  Despite dissatisfaction expressed in the legal community, Congress did nothing, and it took 15 years until 2004 for another case with some substance to be accepted by the Supreme Court for review, called United States vs. Booker, 543 U.S. 220 (2005).   It produced an unusual decision consisting of two separate majority opinions, with each one made up of a different group of five judges, and several dissenting opinions [3].  

One opinion ruled that two sections of the Sentencing Reform Act that made the guidelines mandatory had to be severed and excised from that law because a conflict existed between facts that might be found by a jury through a defendant's Sixth Amendment right to a jury trial, and what could be done under the mandatory aspects of the sentencing guidelines.  Invalidating the two sections made the guidelines effectively advisory, but the "[federal] district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing", and the "courts of appeals review sentencing decisions for unreasonableness" (see pages 246-267, pdf pages 448-469).   The supreme court did not have the intestinal fortitude to strike down the entire sentencing guidelines regime, and instead wrote around the problems, split hairs, and kept the system mostly in place, requiring the trial judge to still consider the "numerous factors that guide sentencing", and a court of appeals can review the judge's sentence and decide whether it is "unreasonable".

Judge Stephen Breyer is the author of that particular majority opinion in the Booker case that kept the guidelines mostly in place; Supreme Court Judge John Paul Stevens wrote the other majority opinion.  One of the original members of the U.S. Sentencing Commission from 1985-1989 was a judge on the federal First Circuit Court of Appeals named Stephen Breyer, who was on that court from 1980-1994.  He was nominated to the U.S. Supreme Court by president Bill Clinton and took his seat on 3 August 1994.

The world is indeed small, for in the Booker case before the supreme court in 2004, two lawyers involved in writing the brief (the written argument) for the Justice Department to support the guidelines were Christopher Wray, now the FBI Director, and Michael Drebeen, who has been in the Solicitor General's office in the Justice Department and who has been working at least part time since 2017 for — you guessed it — special counsel Robert Mueller [4].  In this New York Times newspaper story from 6 June 2017 about Christopher Wray being nominated to be FBI Director, at the beginning of the story is a photograph from February 2004 of three men standing together — James Comey (the Deputy Attorney General), Robert Mueller (FBI Director), and Christopher Wray (Chief of the Criminal Division in the Justice Department) [5].  To slightly modify the immortal words of comedian George Carlin, "It's a small club, and you're not in it".

The growing mutation of the sentencing system continues, with endless quibbling among lawyers in court, judges, and the sentencing commission through litigation over detailed bureaucratic parts of the guidelines attempting to identify and pull under control every conceivable variation of a person, the person's conduct, and different factors that might be considered in a sentence, and assign a number to it, ultimately producing your guideline and criminal history levels.  The sentencing commission has published a selected annotation of 85 supreme court cases from the Mistretta decision in 1989 to one from 2018, with a brief discussion of each opinion [6].

You can now see and understand the real reason for the U.S. Sentencing Commission and the carefully crafted system of assigning numbers to points and designing strict categories to include and control every possible factor about ordering a sentence for a crime.

This system removes the sentencing power and discretion from the courts and judges in the judicial branch and gives them to the prosecuting attorneys in the executive branch, through the Department of Justice and the offices of U.S. Attorneys.  It has been and is a clever and diabolical transfer to the prosecuting authority of one of the most important functions in a criminal justice system:  the sentencing punishment or consequence given to a defendant.

I, the federal prosecutor, will decide what your sentence will be by the offenses I decide to charge you with.  All I have to do is get a guilty verdict from a jury trial or from a trial to the judge if you agree to have a judge alone hear and decide the trial.  Or obtain a guilty plea from you to a charge and on terms that I agree to, whether that guilty plea results from your objective decision about your conduct, or whether you are coerced into pleading guilty by the sheer number of charges with possible sentences I have filed against you, or you plead guilty because you have run out of money and cannot afford  a trial, or I threaten to charge your wife or family members also if you do not plead guilty to what I agree you can plead to.  The judge is so constrained and limited by the sentencing guideline scheme that I am not worried at all about the sentence you will get; I have no downside risk there.

The presentence investigation report (PSI) about Paul Manafort from the federal probation office was filed on 6 March and is not publicly available, as is standard practice.  Manafort's sentencing hearing on 13 March is taking on the aura of a spectacle, boosted by the government's allegation that he violated the terms of his plea agreement, and after the courageous departure downward from the sentencing guidelines by Judge T.S. Ellis III last week.  Whether Judge Ellis's sentence may be the subject of  review by appeal is another dense issue.

Meanwhile, in the pending case of Gen. Michael Flynn (ret.), a status report by the lawyers was filed on 12 March.  It requested that his sentencing hearing be rescheduled–

Politicians, the press, and candidates announcing a year before the presidential primaries begin are blathering on clownlike about who has verbally offended whom, which newly invented group should have new "rights", whether someone is cis-gender, whether the president had sexual contact with a floozy pornographic movie performer and whether a legal payment to her to keep it confidential violated campaign finance laws (it did not), and on and on. 

All the while, they are blithely unaware that playing out right in front of their faces is a radical transformation of federal criminal law, consolidating the ultimate governmental power in the branch that executes the police power, while federal judges with a lifetime appointment and all office facilities and perks paid for by taxpayers, dither and refuse to honestly describe and resist what has been happening.  All federal judges except for two.  One, Antonin Scalia, left this world in 2016, but was the only one on the supreme court standing against the slick usurpation of the democratic process and sentencing discretion.  The other one, T.S. Ellis III, is still with us, and he not only understands what the sentencing guidelines really are, but he also assessed a sentence as it used to be done, without the double meaning of 1984.


[1]  The United States Sentencing Commission–

[2]  The official version of a Supreme Court opinion is in a book called the United States Reports.  The Supreme Court has a digital version of its opinions in the pdf computer format going back only to volume 509, and the Mistretta opinion is in volume 488.  Other internet websites have reproduced the opinion.

[3]  The supreme court opinion is in a bound volume on the court's website, but I do not have the software at hand to pull it out as a separate document.  The full volume of 1,259 pages in the pdf computer format is 3.9 megabytes in size and can be viewed or downloaded.  The Booker opinion is on pdf pages 422 to 536, and on book pages 220 to 334.

[4]   Justice Department lawyers for the government in the Booker appeal–

Michael Drebeen in the Booker appeal is hired by Mueller in the Russia investigation–




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