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Michael Vick's Sentencing Gamble: How Much Time Can He Expect?


Monday, Aug. 20, 2007

Michael Vick's lucrative endorsement contracts and career as the Atlanta Falcons' star quarterback are already all but history, due to his involvement with dog-fighting. In addition, a very vocal public campaign against dog-fighting has been launched by the animal-rights organization PETA, in conjunction with the Rev. Al Sharpton and Russell Simmons.

With public opinion harshly against him, and his life in disarray, Michael Vick will need all the skill and luck his defense team can muster--and quick--in order to avoid prison time and salvage whatever might be left of his image as a gifted athlete. In this column, we consider what sentence Vick is likely to receive.

The Charges Against Vick, and Why He'll Be Wise to Plead Guilty

Thus far, Vick has been charged by federal prosecutors with a single count of conspiracy to engage in racketeering and dog-fighting. The statutory maximum for this offense is five years. However, if Vick does not act quickly, and the government issues a superseding indictment that goes beyond the conspiracy charges, to charge Vick with racketeering outright, his statutory maximum penalty could quadruple, to twenty years.

Vick's three co-defendants have agreed to plead guilty and cooperate with the government. With these three witnesses ready to inculpate Vick, if he were to gamble on obtaining an acquittal at trial, it would be a long-shot at best. His best bet is to plead out quickly (before a superseding indictment is filed), and then to convince the government and the Court that a reasonable sentence on the conspiracy charges does not include time in prison.

How the Federal Sentencing Guidelines, Applicable Here, Are Typically Applied

Should Vick either plead guilty or be convicted of conspiracy, he will be sentenced under the Federal Sentencing Guidelines. In place for twenty years now, the Guidelines were created by Congress to provide more certainty in sentencing, and to ensure defendants are treated both justly, in the sense that the punishment fits the crime, and fairly, in that similarly-situated offenders receive similar sentences.

The Guidelines require a judge to consider a plethora of factors related to the offender and the offense, assigning weights to each. Once the judge has determined what factors apply, the Guidelines provide a method for calculating the relevant offense level--which is assigned a number between 1 and 43. They also direct the Court how to ascertain the offender's criminal history -- categorized from I through VI, with I including offenders with no prior criminal history. Once the judge has set both the offense level and criminal history category, consulting a two-dimensional grid yields a relatively narrow range of months for the sentence, and the judge chooses a number of months within the range.

How the Federal Sentencing Guidelines' Uncertain Status May Affect Vick's Sentencing

This process may seem simple, but the current legal landscape of the Federal Sentencing Guidelines turns out to be quite complex:

Two years ago, the Supreme Court held in United States v. Booker that the Guidelines - which, when mandatory, had violated defendants' Sixth Amendment right to a jury trial by allowing sentences to be determined based on judge-found, not jury-found, facts - were now simply advisory. More recently, in Rita v. United States, the Court held that sentences imposed within the Guidelines are to be presumed reasonable for purposes of appellate review.

In sum, judges have the option of doing what they always did, and following the Guidelines, and if they do so, they will be rewarded with a presumption by the appeals court that the sentences they mete out are reasonable. But judges, it seems, may also have the option of junking the Guidelines and simply choosing a sentence between the statutory minimum (if any) and maximum. That freedom, in turn, could lead judges to impose sentences either lower or higher than the Guidelines would suggest.

Despite Booker and Rita, important uncertainties remain. How should defense counsel, prosecutors, and probation officers, and federal judges view the Guidelines now? Are the Guidelines purely advisory, or do they have some greater weight? Are sentences outside the advisory range presumably unreasonable? Finally, and most fundamentally, what facts are appropriate for a judge (as opposed to a jury) to find for purposes of sentencing? And does it make a difference, for Sixth Amendment purposes, if a judge simply privately weighs such facts, or makes a record as to how he or she is weighting them?

Will Vick be able to use this legal limbo to his advantage? It's unclear. Granted, there's a chance that his sentencing judge might ignore the Guidelines, but that could cut either way. On one hand, the judge could simply give Vick probation. On the other, a harsh sentence could have him serving the full five-year statutory maximum.

What is certain, however, is that both Vick and prosecutors should try to nail down the answers to some of the questions about how his sentencing will proceed before entering into any plea agreement.

More Uncertainty: What Should Vick's Offense Level Be?

Judges' Guidelines calculations begin with the underlying facts of the charges as set forth in the indictment; the offense level is based in part on these facts. But these facts are not the end of the story.

The judge can also base the offense level upon potential enhancements, mitigating factors, and "relevant conduct"--a catchall phrase that encompasses facts beyond those in the indictment, including even facts relating to alleged conduct with which the defendant was never charged, or of which he was acquitted. (Constitutional challenges to such use of uncharged conduct or conduct of which the defendant was acquitted have been raised, but have failed.)

As noted above, Vick is currently charged with conspiracy - which falls under Guideline 2X1.1 (Conspiracies, Attempts, Solicitations). However, this Guideline refers the Court, in turn, to the Guideline for the substantive offense underlying the conspiracy charge. (In other words, it asks the court to take into account what, precisely, the defendant was charged with conspiring to do.)

In Vick's case, the underlying offense was racketeering, meaning Guideline 2E1.2 (Offenses Involving Criminal Enterprises and Racketeering) is likely to apply. This guideline yields a base offense level of 6 or, if greater, the offense level applicable to the underlying crime of violence or other unlawful activity in respect to which the relevant travel or transportation was undertaken. The Court could also find that Guidelines 2E1.3 (Violent Crimes in Aid of Racketeering Activity) and 2E3.1 (Gambling Offenses) are applicable, which could result in a base offense level as high as 12.

This leads to an interpretive issue: Does the maiming or killing of a dog(s) constitute a "crime of violence" for these purposes? Plainly, the same heinous acts against a human being would be crimes of violence. But animals are deemed property under the law, so the question may be more difficult. There is no question terrible violence occurred, but was it the kind of violence the relevant statutes, or the Guidelines, meant to especially target?

These last two guidelines - 2E1.3 and 2E3.1 - are rarely used, so there is little precedent regarding their application. In 2006, U.S. Sentencing Commission statistics show, out of a total of 73,212 federal sentences, fewer than 267 (0.36%) were imposed under these two guidelines. Moreover, statistics do not reflect whether any of these involved dog-fighting.

Possible Mitigating and Aggravating Factors That Could Affect Vick's Offense Level

Vick's base offense level, then, could be 6 but could also be as high as 12. And that is not the end of the offense-level calculation.

Under the Guidelines, for example, up to four offense levels may be added if the court determines that the defendant had an aggravating role in the offense - for instance, as an organizer or leader of the criminal activity, or a manager or supervisor. Vick has tried to claim he had little involvement in the dog-fighting ring, but his co-defendants are likely to testify otherwise. Likewise, the offense level can be reduced by up to four levels if the defendant had a mitigating role in the criminal activity - for example, if Vick can convince the Court that he had second thoughts and acted upon them with respect to the dog-fighting.

Ironically, the offense level can be lowered not only by proof that the defendant had a mitigating role, but also by proof that he accepts and admits to the full participation the government alleges. This is called "acceptance of responsibility," and Vick may be able to reduce his offense level by two or possibly three if he accepts responsibility by conceding in court that he committed the crimes charged and pleading guilty to them. However, if Vick goes to trial, for all practical purposes he will forfeit any argument that he accepted responsibility for his conduct.

Finally, the Guidelines provide the Court with the option of departing above the established sentencing guideline range in certain circumstances. In general, "upward departures" are permitted if the Court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines. The Court may decide, for example, that an upward departure is appropriate if the defendant's conduct was unusually heinous, cruel, or brutal. Given the brutality allegedly inflicted upon the dogs, an upward departure in this case is a distinct possibility.

On the other hand, the Court might be moved to downwardly depart from the Guidelines--that is, impose a sentence below the recommended range--if it finds that a mitigating factor exists that was not adequately considered by the Sentencing Commission. For example, a potential argument could be made that the statutory and guidelines penalty enhancements such as "crime of violence" and victimization were intended to apply to people, not dogs, and therefore, application of the guidelines would be inherently harsh.

Separate Punishment for Dog Fighting and Gambling?

Another wrinkle arises from the fact that, from the Guidelines' perspective, Vick is charged with involvement in two offenses: gambling and dog-fighting. Vick is charged in a single-count indictment with the count being conspiracy, but the alleged conspiracy has two objects. Thus, the Guidelines' "grouping" rules could potentially result in additional punishment.

The grouping rules specify that a conviction on a count that - like the single count in Vick's indictment - charges the defendant with conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each underlying offense. In other words, Vick could be treated as if he had been separately convicted of a count of gambling conspiracy and a count of dog-fighting conspiracy.

How does a court decide whether to group offenses? It looks to harm, and arguably, the harms of dog-fighting and gambling are separate. After all, dog-fighting kills dogs whether or not it is accompanied by gambling, and gambling's ill-effects are largely independent of the subject of the wager.

Will Vick's Celebrity Status Make a Difference?

Of course, celebrity status is not formally a factor in sentencing considerations. But it may nevertheless play a role.

If the Guidelines yield a final offense level that allows for alternative sentences such as probation, house arrest, community confinement, intermittent confinement, or community service, Vick's situation may be unusual. For instance, house arrest can be luxurious for a celebrity defendant, whereas a celebrity's community service - for instance, a PETA ad by Vick expressing remorse and publicizing the harms of dogfighting - could be more effective than that of an ordinary defendant.

Vick's celebrity status also means that his formal sentence will only be part of his punishment: He may lose his career, or at least valuable years of it, as well. Will the Court take that into account? It's unlikely. While the Guidelines generally strive for justice and fairness, they don't take into account collateral consequences particular defendants suffer in their lives due to pleading guilty or being convicted, or due to imprisonment.

As noted above, the Supreme Court's recent cases make clear that the Guidelines are only advisory, but that a judge's sentence, if within the Guidelines, will be entitled to a presumption of reasonableness on appeal. Thus, it's likely the judge will probably opt to choose a sentence within the Guidelines range.

What strategies should Vick and his attorneys use before and after sentencing? In order to maximize his chances, Vick may want to extract pre-plea promises from the government about the arguments it will and will not make within the areas of sentencing uncertainty outlined above. Before the sentencing judge, Vick's best hope is probably to convince the Court--and the court of public opinion--that justice will be better served with him on the outside performing community service and expressing remorse, than as yet another inmate in a penal system that is among the world's largest and most over-crowded.

Mark H. Allenbaugh is a partner with the law firm of Allenbaugh Samini LLP with offices in Newport Beach, California, and Guangzhou, China. He is Director of the firm's Federal Criminal Defense Division, and is a former Staff Attorney for the U.S. Sentencing Commission.

Frank J. Larry is Senior Sentencing Consultant to the law firm of Allenbaugh Samini LLP. He is the former Deputy Director of the U.S. Sentencing Commission's Office of Education and Sentencing Practice where he was responsible for the training and education of federal judges, defense attorneys, prosecutors, and probation officers on the application of the Sentencing Guidelines. Mr. Larry is also a former United States Probation Officer for the District of Delaware, where he prepared presentence investigation reports and provided community supervision for persons on probation, parole, and supervised release. The views expressed herein are the authors' own and do not necessarily reflect the views of any of the named organizations.

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