Former Virginia Governor McDonnell’s sentencing guidelines: 10 years at least

Former Virginia Governor McDonnell’s sentencing guidelines: 10 years at least

By Matt Zapotosky December 12 at 10:08 AM

http://www.washingtonpost.com/local/virginia-politics/former-virginia-governor-mcdonnells-sentencing-guidelines-10-years-at-least/2014/12/12/6ba6db6e-816e-11e4-8882-03cf08410beb_story.html?wpisrc=al_comboPN

The federal agency that will play a pivotal role in guiding the sentence of former Virginia governor Robert F. McDonnell has recommended that the onetime Republican rising star spend at least 10 years and a month in prison and 12 years and 7 months at most, according to several people familiar with the matter.

The guidelines recommended by the U.S. probation office are preliminary ones, and even if finalized, U.S. District Judge James R. Spencer is not required to follow them. But experts said Spencer typically heeds the probation office’s advice, and judges in his district have imposed sentences within the recommended range more than 70 percent of the time in recent years.

“It’s of critical importance,” said white collar criminal defense attorney Scott Fredericksen. “The fact is, the vast majority of times, courts follow those recommendations closely.”

To be sure, the matter is far from settled. Calculating an appropriate range of sentences in the federal system is a complicated, mathematical process that takes into account a variety of factors, including the type of crime that was committed, the defendant’s role in that crime and the amount of the loss. A probation officer is tasked with analyzing each factor objectively, then using the federal sentencing guidelines to calculate an appropriate range of penalties.

McDonnell and his wife, Maureen, were convicted in September of lending the prestige of his office to Richmond businessman Jonnie R. Williams Sr. in exchange for $177,000 in loans, vacations and luxury goods.

McDonnell is scheduled to be sentenced Jan. 6. His wife is scheduled to be sentenced Feb. 20, and her guideline range — on which the probation office has not yet filed a report — is expected to be lower than her husband’s.

It is unclear how the probation office determined that those crimes necessitate a minimum decade-long sentence. The initial report on the matter is sealed, and people familiar with its contents revealed only the recommended range to the Washington Post.

The range is particularly notable because last December, prosecutors offered to let McDonnell plead guilty to just one count of lying to a bank as part of an agreement that would have meant he could be sentenced to three years in prison at the most, and probation at the least. Importantly, though, McDonnell would have been required to sign a statement acknowledging that he helped Williams’s company at the same time the businessman was giving him loot, fully shouldering blame for a relationship he has insisted was not criminal and was driven largely by his wife.

A federal probation official in Richmond, U.S. Attorney Dana Boente and a McDonnell defense attorney all declined to comment for this story.

White collar criminal defense attorney Matthew Kaiser said McDonnell’s range was likely increased because he was a high-ranking public official, because he took more than one payment from Williams and because the total value of the gifts he received was so high. Kaiser said the probation officer also likely faulted McDonnell because his testimony stood counter to the jury’s verdict.

Prosecutors and defense attorneys will still have an opportunity to argue to the probation officer about whether the range was correctly calculated — though Kaiser said the probation office often “sticks to its guns.” After that, both sides can try to convince Spencer himself to modify the recommended range.

Even after that, Spencer is not bound by the guideline; he must only consider it. And defense attorneys have already begun working vigorously in their bid to sway him toward leniency. This week, they won a legal skirmish with prosecutors so they can file additional pages in their sentencing memorandum — a key document that outlines what sentence they believe McDonnell should receive and why.

It is unclear, though, if their efforts will be fruitful in moving Spencer away from the probation office’s recommended range.

In the Eastern District of Virginia, where McDonnell is being sentenced, judges imposed sentences within the guideline range more than 70 percent of the time last fiscal year, according to data from the U.S. Sentencing Commission. They imposed sentences below the guideline range without a request from prosecutors to do so in about 21 percent of cases.

Nationally, judges imposed sentences within the guideline range about 51 percent of the time last fiscal year, and deviated downward without a request from prosecutors to do so in about 19 percent of cases.

In the McDonnell case, prosecutors are not expected to ask for a sentence below the guideline range.

White collar criminal defense attorney Jacob Frenkel said Spencer might vary from the guidelines in McDonnell’s case — taking into account particularly the good he has done for Virginians — but he is unlikely to apply “the extent of the discretion the defendants would hope for.”

Defense attorney Brian Whisler, who used to work as a federal prosecutor in Richmond, said Spencer is known to be “largely deferential to the probation office and its sentencing calculations.” Whisler — whose firm, Baker & McKenzie LLP represented state employees in the McDonnell case — said the judge will likely draw on other cases in the district to inform his conclusion.

The outcome of those might not be to McDonnell’s liking. In 2011, another federal judge in Richmond sentenced former Virginia delegate Phillip A. Hamilton to 9 and 1/2 years in prison in a bribery and extortion case. In 2009, a federal judge in Alexandria sentenced former congressmen William Jefferson to 13 years in prison for accepting hundreds of thousands of dollars in bribes — though, notably, that fell well short of the recommended range of 27 to 33 years.

Jonnie R. Williams

Jonnie R. Williams is the CEO for Star Scientific, and Robert F. McDonnell paid for the catering at daughter's wedding.

Note: Kenneth T. Cuccinelli II was an investor in Star Scientific, and the attorney general for the

Virginia state government.

Robert F. McDonnell was the Virginia state government governor, Frederic V. Malek was a co-chair for his 2009 inauguration, and is married to Maureen McDonnell.

Frederic V. Malek was a co-chair for Robert F. McDonnell’s 2009 inauguration, is the founder & board member for the American Action Network, a member of the Alfalfa Club, and a trustee at the Aspen Institute (think tank).

Hispanic Leadership Network is an offshoot of the American Action Network.

Jeb Bush is an advisory committee member for the Hispanic Leadership Network, a member of the Alfalfa Club, George W. Bush’s brother, and George H.W. Bush’s son.

George W. Bush is Jeb Bush’s brother, George H.W. Bush’s son, a member of the Alfalfa Club, and Michael Vick had an applicant for his presidential pardon.

Michael Vick had an applicant for George W. Bush’s presidential pardon, and was Judy Smith’s client.

Judy Smith’s clients were Michael Vick & William J. Jefferson, and was George H.W. Bush’s deputy press secretary.

George H.W. Bush’s deputy press secretary was Judy Smith, is a member of the Alfalfa Club, Jeb Bush & George W. Bush’s father, a member of the Burning Tree Club, and a member of the Bohemian Club.

John A. Boehner is a member of the Burning Tree Club, and the house leader for the Republican establishment. 

Jack Valenti was a member of the Burning Tree Club, and a trustee at the Aspen Institute (think tank).

Tom C. Korologos is a member of the Burning Tree Club, and married to Ann McLaughlin Korologos.      

Ann McLaughlin Korologos is married to Tom C. Korologos, and was the chair emeritus for the Aspen Institute (think tank).

Henry A. Kissinger is a member of the Bohemian Club, a director at the American Friends of Bilderberg (think tank), was a lifetime trustee at the Aspen Institute (think tank), and a 2008 Bilderberg conference participant (think tank).

Foundation to Promote Open Society was a funder for the Aspen Institute (think tank).

George Soros was the chairman for the Foundation to Promote Open Society, married in 2013, and is a member of the Bretton Woods Committee.

Christine Lagarde attended George Soros’s 2013 wedding reception, the finance minister for France, and the chairman for Baker & McKenzie.

John J. Conroy Jr. is the head of global strategic initiatives for Baker & McKenzie, a member of the Bretton Woods Committee, and a director at the Foreign Policy Association.

Patrick W. Gross is a director at the Foreign Policy Association, and a trustee at the Aspen Institute (think tank).

Frederic V. Malek is a trustee at the Aspen Institute (think tank), the founder & board member for the American Action Network, a member of the Alfalfa Club, and was a co-chair for Robert F. McDonnell’s 2009 inauguration.