Libby Lawyers Ask Court for Probation

Forget the sentencing letter issue. There's a bigger one.

Team Libby filed its two sentencing memoranda today (here and here.)

Turns out, the Probation Department calculated Libby's guidelines at 15 to 21 months, before applying any departures. And, it found at least three grounds for departure from the guidelines:

In this case, the PSR identifies at least three mitigating factors that are present to such a significant degree to warrant downward departure: (1) Mr. Libby’s outstanding record of public service and prior good works; (2) collateral employment consequences for Mr. Libby, including the expected loss of his license to practice law; and (3) the improbability of any future criminal conduct by Mr. Libby.

The Probation Department also found that the aberrant behavior departure warrants consideration:


The Probation Office also noted in the PSR that the Guidelines provision pertaining to aberrant behavior (U.S.S.G. § 5K2.20) is applicable here. A defendant is eligible for such a downward departure when the crimes for which he was convicted represent a single criminal transaction that (1) was committed without significant planning; (2) was of limited duration; and (3) represents a marked deviation from an otherwise law-abiding life.

Libby's lawyers conclude:

There is no denying the seriousness of the crimes of which Mr. Libby was convicted. At the same time, there is no denying the kind of person Mr. Libby is and the contributions he has made to his country. In light of these factors and the goals of § 3553(a), a prison sentence for Mr. Libby would be “greater than necessary” punishment in this case. A sentence of probation, perhaps combined with community service alternatives, would allow Mr. Libby to continue serving the public interest, and would still promote respect for the law.

If the Court agrees with the Probation Department and Team Libby that the base offense level is 14 and no enhancements apply, all Libby needs is a 2 point departure to reach a level 12 and a split sentence range of five months in prison and five months on home detention (think, Martha Stewart.)

If the court agrees more than one departure ground is warranted, Libby's guidelines would likely be in the probationary range and it's unlikely Libby will be sentenced to any time.

The guidelines, of course, are no longer mandatory and the Court must also consider the factors in 18 U.S.C. 3553(a.) It's a tough call between those favoring Libby and those favoring the seriousness of the crime.

I'm wondering if Judge Walton will have the wherewithal to sentence Libby to probation given the high profile nature of the case. But, in an ordinary case, given a pre-sentence report as favorably described as this one, I think that would be the outcome. Because this case is being watched by so many, I suspect Walton will decide Libby needs some time.

My prediction at this juncture: The Government loses on its sentencing arguments for heavier guideline calculations, the Court finds at least one departure ground and Libby gets a split sentence of 10 months, with 5 spent in prison and 5 on home detention.

No wonder Fitzgerald was seeing red over the probation report.

Update: Law Prof and Sentencing Guideline Guru Doug Berman predicts a sentence between one and two years.

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  • Display: Sort:
    Ummm ... (5.00 / 2) (#3)
    by Sailor on Thu May 31, 2007 at 10:25:56 PM EST
    ... how about 'shows no remorse?'

    More Ummm... (none / 0) (#4)
    by magster on Thu May 31, 2007 at 11:38:14 PM EST
    How about abuse of public trust?

    How about compromising national security?


    The Probation Department on this score (4.00 / 1) (#1)
    by Big Tent Democrat on Thu May 31, 2007 at 08:32:27 PM EST
    The Probation Office also noted in the PSR that the Guidelines provision pertaining to aberrant behavior (U.S.S.G. § 5K2.20) is applicable here. A defendant is eligible for such a downward departure when the crimes for which he was convicted represent a single criminal transaction that (1) was committed without significant planning; (2) was of limited duration; and (3) represents a marked deviation from an otherwise law-abiding life.

    I and 2 simply seem not to apply at all.

    How can you square that with what was proved in court Jeralyn? In additon, this seems VERY unconvincing:

    collateral employment consequences for Mr. Libby, including the expected loss of his license to practice law.

    Libby was not a practicing lawyer at the time and unlikely to be a practicing lawyer in the future it seems to me. He became a policy guy and was going a different route.

    I have no knowledge on the points and what is the correct calculation.

    Finally, probation for perjury and obstruction of justice IN THIS CASE would simply be outrageous. Heck, in any case it seems to me it would be outrageous.

    Committing deliberate prjury REPEATEDLY gets you probation? There is something REALLY wrong with that. Incredibly wrong. That this is a possibility, forget the Libby case, seems outrageous to me.

    My gawd, why not commit perjury when you get a slap on the wrist?

    This seems so against public policy as to be laughable.

    PSR lists grounds for departure? (4.00 / 1) (#7)
    by womanwarrior on Fri Jun 01, 2007 at 12:31:41 AM EST
    I have never had the PSR suggest grounds for departure for any of my clients.  Does this happen often in DC or only for big politicos?  

    It's (5.00 / 1) (#10)
    by Deconstructionist on Fri Jun 01, 2007 at 08:14:18 AM EST
    happened in a very few of my cases over the years but that is the first thing that struck me too.

      In the vast majority of my cases, I have the probation officer tersely state: the probation officer is unware of any factors, either aggravating or mitigating, which would warrant consideration of a departure...

      In a limited number of cases, I have had probation officers list factors relevant to departure  "which warrant consideration" by the Court but not take a  position in the PSR as far as a recommendation to the court that a departure is warranted.

       The only times I can recall that a probation officer in one of my cases actually recommended that the court depart under Chapter 5 have been when the government has agreed that a departure is warranted. I can't recall a single instance where a USPO recommended a downward departure when the government was not also taking the position it was warranted.

      I strongly question whether the probation officer was influenced by who Mr. Linny is.

       As an aside, I will note that in my experience probation officers are often more unfavorable at sentencing  to defendants than is the United States Attorney's office, and it is not uncommon for the government to choose not to present evidence at sentencing to support a guideline application recommended by a USPO or sometimes even to file objections helpful to a defendant.



    okay -- i don't do criminal law -- by trade. . . (none / 0) (#2)
    by the rainnn on Thu May 31, 2007 at 09:32:13 PM EST
    but i'll take the other side of
    this bet -- i do read quite a few
    orders, and listen to quite a few
    exchanges with federal judges, and
    i am willing to wager, based on judge
    walton's body-language (as opposed to
    the actual arguments, mind you!) that
    he's leaning toward team fitz and the
    30 to 37 months, with immediate in-
    carceration upon sentencing.

    why?  just read the way he wrote the
    order disclosing the letters -- very
    pragmatic. very. and he seems to be
    saying, in each action, that he is
    not going to be any part of any
    suggestion that he "went easy" on
    scooter, at anyone's behest -- least
    of all, ted's (or shooter's). . .

    he may even have his suspicions about
    the independence of those preparing
    scooter's pre-sentence-report. . .

    we'll see, but i think it will be
    well-north of a year, in actual time
    to be served. . .

    just a w.a.g., here. . .

    in passing, i do love that scooter
    was once a pro bono lawyer for a white
    house staffer accused of leaking classified
    information to a national newspaper
    . . .

    and, now he is that client. . . sorta.

    "the truth will always be far stranger. . ."

    He needs to do real prison time (none / 0) (#5)
    by profmarcus on Thu May 31, 2007 at 11:47:19 PM EST
    if libby doesn't serve actual prison time, the message will be loud and clear... obstruction of justice and perjury at the highest levels of government is no more serious than shoplifting... our judicial system needs to rebuild a little credibility here, particularly after the revelations coming from the doj... da judge had better consider just how serious libby's crimes really are...

    And, yes, I DO take it personally

    He needs to do real prison time (none / 0) (#6)
    by FaulknA on Fri Jun 01, 2007 at 12:27:43 AM EST
    and that says it all.

    desertwind (none / 0) (#8)
    by desertwind on Fri Jun 01, 2007 at 03:31:31 AM EST
    Can someone explain the basics of how the Probation Dept and the PSRs work? A judge no longer has to adhere strictly to the sentencing guideline?

    Does the Probation Dept have permanent staff in each district who write the PSRs. Or are the PSRs written by a sort of grand jury type of temporary affair?

    Is this system only in place for federal or is it also in City/County/State? Is there a PSR for every conviction?

    As you can see -- IANAL!

    PSRs (none / 0) (#11)
    by Deconstructionist on Fri Jun 01, 2007 at 08:44:45 AM EST
      Yes, each probation office has permanent staff. Probation officers supervise people on bond, probation or supervised release and  also do presentence investigations and write reports (often different USPOs perform different tasks but in some smaller offices the same probation officer might both supervise and write reports( Of course some manage and supervise offices.)

      The PSR describes the procedural history of the case, the "facts"-- including offense conduct, relevant conduct, any asserted specific offense characteristics or guidelines adjustments and then "calculates" the offense level with reference to the specific guideline provisions applciable.

      The criminal history of the defendant is also set forth and the criminal history category is claculated. The sentencing range is then determined by reference to the sentencing table which has the offense level running on the vertical axis and the criminal history category on the horizontal axis.

       The report also includes a rather thorough description of the offender's characteristics including family history, education, employment history, military history, substance abuse, physical and mental health, etc.

       The PSR then describes the sentencing options available to the court under the guidelines and applicable statutes.

       Generally the last section deals with potential grounds for departure and as I stated above, it is uncommon in my experience for the probation officer to recommend departures and not even that common for the USPO to state grounds for departure should be considered.

      The first draft of the PSR is then disclosed to the parties and either party may file objectins with the USPO. Sometimes the report is revised to account for the objections and other times the USPO declines to revise the report  and it is left for the court at sentencing to resolve the contested issues which are set forth in an addendum to the PSR.

       Up until Booker, the guidelines (including departures) were mandatory. Now, the guidelines are "advisory" ---but a guideline range sentence is considered "presumptively reasonable" in most jurisdictions so they are still by far the most important factor at sentencing. This issue is now before the supreme court in Rita and (maybe-- see thread today about him dying and likely mootness of his case) Clairborne.

       Similar to the reluctance of USPOs to recommend departures i have found that USPOs are not generally making any recommendations that the factors found at 18 USC § 3553(a) other than the guideline range provided basis for courts to impose sentences that "vary" from the guideline range. the reports are generally the same as they were before Booker, but sentencing memoranda and the hearings themselves have changed in light of Booker.


    So he went to trial to avoid probation? (none / 0) (#9)
    by ding7777 on Fri Jun 01, 2007 at 06:21:29 AM EST
    I don't see how Libby can opt for a trial, refuse to take the stand, then when he's convicted, say he deserves only probation.

    Probation Dept (none / 0) (#12)
    by AlanDownunder on Fri Jun 01, 2007 at 08:57:11 AM EST
    Is it part of DoJ? Did Monica appoint the author of its sentencing recommendation?

    Isn't serial perjury pretty much an oxymoron? So what's with this 'first offender' nonsense?

    I can't think of a more serious case of perjury, so why not hit him with the maximum? Don't Republicans believe in 'truth in sentencing'?

    No, Probation Dept. is Not Part of DOJ (none / 0) (#13)
    by Jeralyn on Fri Jun 01, 2007 at 09:06:40 AM EST
    Probation officers are independent.  They are not part of D.O.J. They work for the Court, not the prosecution or the defense.

    I agree it's unusual for a probation officer to recommend a departure. In my experience (and maybe it's my District) they identify areas of potential departure but leave it to the Court to make the decision as to whether the departure should be granted in the case.

    In other cases, they make a recommendation in an Addendum to the report (written after the defendant files objections to the report).  Although we get a copy of the Addendum, we don't always (if ever)get to see their final recommendation as to a sentence.

    I think the procedure varies from District to District and Judge to Judge which is why many of us are hesitant to make definitive statements about this.  Remember, we haven't seen the Pre-Sentence report, we are only going by what Fitzgerald and Team Libby have written about it in their pleadings in response to it.  


    the way it goes (none / 0) (#14)
    by desertwind on Fri Jun 01, 2007 at 01:11:28 PM EST
    Dear Jeralyn and Deconstructionist!

    Fascinating. I've never really thought about this part of a case. Although I've heard of sentencing-guidelines & Booker, etc, over the years, I'd never considered the mechanics of the process.

    Thanks very much!