Libby Lawyers Ask Court for Probation
Forget the sentencing letter issue. There's a bigger one.
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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