Scooter Libby: Gov't Seeks 30 to 37 Month Sentence
The Government filed an 18 page sentencing memorandum for I. Lewis "Scooter" Libby today. You can read it here. In the memorandum, the Government says Libby's guidelines are 30 to 37 months and asks the Court to follow the guidelines. The Government said it will follow-up with a filing explaining how it arrived at the guideline range later today. As of now, it has not been filed.
My initial calculation of the guidelines, with links to the specific provisions, is here. Christy at Firedoglake provides her take and Josh Gerstein of the New York Sun reported today. (Both were written before the Government's memorandum was filed.)
Points of interest. The Government did not say it agreed with the Probation Department's calculations of the Guidelines, it said it believed the guideline range to be 30 to 37 months. It may be that the Probation Department calculated the guidelines to be lower than that.
Also, Libby has not filed a Sentencing Memorandum, at least as yet. There are a few explanations for this.
The way it works is that the Probation Department submits its report to the parties, who then have 14 days to file objections. The objections go to the Probation Department, they are not filed with the court and thus don't appear on the court's docket or on Pacer. The Probation Department attaches the Objections to a Addendum to Sentencing Report.
Whether Libby agreed with the Probation Department's calculations, or thought they were erroneous, he might have submitted his position through his Objections to the Presentence Report, rather than in a separately filed Sentencing Statement.
Particularly if he agreed with the Probation Department's calculations, and is just asking the Court to sentence below the guidelines pursuant to the factors in 18 U.S.C. 3553(a), rather than for a downward departure from the guidleines, there would be no need to file a separate statement.
Libby could also be waiting to review the Government's statement, which was filed today, before responding.
There's no question in my mind that Libby will not receive a point reduction for acceptance of responsibility.
So, what are Libby's arguments for a non-guideline sentence? By reading Fitzgerald's sentencing memorandum, it appears to be that the Court should take into account Mr. Libby's extensive public service. But, as Gerstein notes in his article, this is a double-edged sword because it could also supply the reason for the Judge to agree with the abuse of public trust enhancement.
According to Fitzgerald, Libby's supporters also made these arguments to the Probation Department.
- This was a politically motivated prosecution and the investigation should have been terminated at an earlier stage
- The Court should consider that Libby was prosecuted for obstruction of justice and perjury while no one was charged for the underlying crime of disclosure of classified information.
Neither one has a snowball's chance of acceptance.
I expect Libby's lawyers will file something in response to Fitzgerald's soon-to-be-filed sentencing calculations, from which we can glean what the Probation Department calculated the final guideline range to be. Courts give great weight to the Probation Department's calculations.
I'll update this post with the Government's sentencing calculations and any response by Libby after they have been filed.
Update: The Government's calculations were just filed. They are not (as I thought, therefore I deleted a paragraph above so speculating) asking for an enhancement for abuse of special trust. Surprisingly, to me, over the contrary finding of the Probation Department, they are asking the Court to apply the guideline for the IIPA and Espionage Act, under the theory that cross-referencing guidelines is permitted because the investigation in which Libby lied and obstructed justice pertained to those offenses, even though no one was charged. I totally disagree with that.
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