Calculating Martha Stewart's Sentence

Findlaw columnist Mark Allenbaugh calculates Martha's federal sentencing guidelines at 30 to 37 months, and predicts she will serve 32 months. We disagree. Our calculations are here. Note: If you're not a lawyer, your eyes may glaze over at this.

We predict her guidelines will come out at either 10 to 16 months or 18 to 24 months--depending on whether the Judge enhances her guidelines based on a finding that her obstruction significantly interfered with the administration of justice.

Substantial interference with the administration of justice" includes a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based upon perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources.

Also, the obstruction enhancement generally doesn't apply to convictions for obstruction. While it might apply to the false statements charge, the grouping rules provide for use of the obstruction guideline so we don't think that will come into play.

2. Nonapplicability of Chapter Three, Part C.—For offenses covered under this section, Chapter Three, Part C (Obstruction) does not apply, unless the defendant obstructed the investigation, prosecution, or sentencing of the obstruction of justice count.

The base guideline for obstruction is now 14, but we believe it was 12 at the time of the crime. The guideline to be used is that in effect at the time of sentencing, unless it was less at the time of the crime. [fn1]

We'd like to see appellate lawyer Peter Goldberger (and any other federal sentencing guideline pros) weigh in on this.

[fn1] Under subsection (b)(1), the last date of the offense of conviction is the controlling date for ex post facto purposes. For example, if the offense of conviction (i.e., the conduct charged in the count of the indictment or information of which the defendant was convicted) was determined by the court to have been committed between October 15, 1991 and October 28, 1991, the date of October 28, 1991 is the controlling date for ex post facto purposes. This is true even if the defendant’s conduct relevant to the determination of the guideline range under §1B1.3 (Relevant Conduct) included an act that occurred on November 2, 1991 (after a revised Guideline Manual took effect).

Background: Subsections (a) and (b)(1) provide that the court should apply the Guidelines Manual in effect on the date the defendant is sentenced unless the court determines that doing so would violate the ex post facto clause in Article I, § 9 of the United States Constitution. Under 18 U.S.C. § 3553, the court is to apply the guidelines and policy statements in effect at the time of sentencing. Although aware of possible ex post facto clause challenges to application of the guidelines in effect at the time of sentencing, Congress did not believe that the ex post facto clause would apply to amended sentencing guidelines. S. Rep. No. 225, 98th Cong., 1st Sess. 77-78 (1983). While the Commission concurs in the policy expressed by Congress, courts to date generally have held that the ex post facto clause does apply to sentencing guideline amendments that subject the defendant to increased punishment.

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