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Monday, November 17, 2014
The Marshall Project gets AG Holder to talk about his criminal justice reform work
I am pleased to see that The Marshall Project is now running full steam and has now lots of notable new content on its slick website. Though I am concerned that this notable criminal justice media project, like some others, may end up focusing too much attention on the death penalty, it seems clear that The Marshall Project is going to have lots of material that sentencing fans will want to follow regularly.
Most notably today, The Marhsall Project has posted this exclusive interview with outgoing Attorney General Eric Holder. The piece is headlined "Eric Holder on His Legacy, His Regrets, and His Feelings About the Death Penalty," though I consider the discussion about drug sentencing reform to be most interesting. The piece is a must-read, and here is how it gets started:
The Marshall Project: You've been pretty outspoken on criminal justice issues across the board – more outspoken than your boss, actually. What would you single out as your proudest accomplishment in the area of the criminal justice system, and what would you single out as your biggest disappointment?
Holder: In January 2013 I told the people in the Justice Department after the re-election that I wanted to focus on reforming the federal criminal justice system. I made an announcement in August of that year in San Francisco, when we rolled out the Smart on Crime initiative. It was a way of breaking some really entrenched thinking and asking prosecutors, investigators, the bureaucracy – to think about how we do our jobs in a different way – to ask the question of whether excessively long prison sentences for nonviolent offenders really served any good purpose, how we used enhancement papers, moving discretion to prosecutors and asking them to make individualized determinations about what they should do in cases, as opposed to have some big policy sent to them from Washington.
And I think that by and large – not without opposition, to be totally honest – the federal system has embraced that vision. And I think that we have started to see the kind of changes that I hoped we would see.
[MP]: And the biggest disappointment?
Holder: I'm proud of the fact that – in 2010, I guess – we reduced that ratio, the crack-powder, from 100-to-1 to about 17- or 18-to-1. I'm still disappointed that, given the lack of a pharmacological distinction between crack and cocaine, the ratio is not 1-to-1. You know, it was the product of a lot of hard work that the president was intimately involved in. But I think he would agree with me that that number should be at 1-to-1.
[MP]: Before the second term is over, could there be a push for a 1-to-1 ratio?
Holder: That is something that I know the president believes in, that I believe in. One of the things that I'd like to see happen before the end of this administration is that there would be a drug court in every district in this country. As I speak to my successor, the 83rd Attorney General, and as I speak to the president, I'm going to push them to make that a goal for this administration, to have a drug court in every district by the end of Barack Obama's second term.
November 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack
Saturday, November 08, 2014
Prez Obama selects Loretta Lynch to replace Eric Holder as US Attorney General
This brief press release from the White House Friday afternoon made official that it was President Obama's "intent to nominate U.S. Attorney Loretta Lynch to be the Attorney General of the United States." This lengthy Politico article, headlined "Lame duck looms over Lynch confirmation," highlights some politics dynamics surrounding this decision, and closes with a substantive point I care most about:
President Barack Obama will nominate Loretta Lynch to be the new attorney general on Saturday, setting up what could prove the first major post-midterms Senate showdown.
Obama will call for Lynch to be confirmed as soon as possible, but White House aides say he'll defer to Senate leaders on whether to press ahead with a vote during the coming lame duck session, or to wait until next year, when the Republicans will officially be in the majority.
Senior Democratic aides, meanwhile, said no final decision on timing has been made, but they are strongly leaning towards moving in the lame duck. A confirmation vote could be used as leverage in other deals the White House and leaders are seeking in the lame duck.
Incoming Senate Majority Leader Mitch McConnell (R-Ky.), however, made clear that he's completely opposed, issuing a statement Friday evening promising "fair consideration," but that Lynch's "nomination should be considered in the new Congress through regular order."
The question is a significant one — there's precedent in President George W. Bush pushing through Michael Mukasey's nomination in a lame duck. But at the outset of what's supposed to be a new effort toward cooperation, Obama and Senate Democrats would be doing the exact opposite by moving confirming such a senior Cabinet official in between the midterms and the Republican takeover of the majority.
That could give Republicans an easy excuse to point to for blame on future gridlock. But by waiting until the new GOP members are sworn in, Obama would risk not getting his choice — or any choice — confirmed for the job.
Lynch, a United States attorney from New York, has kept a low profile, but has quietly been in top consideration for weeks at the White House. Lynch would be the second woman in the post, and the second African American, following Holder. That could make opposition from the Republican Senate more politically difficult, especially as she's been previously confirmed by acclimation twice previously.
A career prosecutor who's been confirmed twice by the Senate to one of the most prominent U.S. attorney positions, Lynch has experience with many of the major issues that a new attorney general would confront — including terrorism and financial crimes. She does not have a deep personal relationships with Obama or his close aides, or a resonance with the Democratic base eager to see the president pick fights more post-midterms.
Sen. Patrick Leahy (D-Vt.), the outgoing Judiciary Committee chairman, issued a statement praising Lynch's selection, but made no firm commitment on timing. "I have spoken with the President about the need to confirm our next attorney general in a reasonable time period, and I look forward to beginning that process," Leahy said.
Sen. Chuck Grassley (R-Iowa), who'll head the Judiciary Committee when Republicans take over, said he was generally supportive of Lynch's nomination but said he was looking forward to learning more about her. "As we move forward with the confirmation process, I have every confidence that Ms. Lynch will receive a very fair, but thorough, vetting by the Judiciary Committee. U.S. Attorneys are rarely elevated directly to this position, so I look forward to learning more about her, how she will interact with Congress, and how she proposes to lead the department," Grassley said. "I'm hopeful that her tenure, if confirmed, will restore confidence in the Attorney General as a politically independent voice for the American people."...
And timing isn't the only problem Lynch would face. Sen. Jeff Sessions' office sent out a reminder to reporters Friday of recent comments by Sens. Sessions, McConnell, Ted Cruz, Mike Lee and Rand Paul all saying that any nominee for attorney general would have to disavow Obama's plan to provide amnesty to certain illegal immigrants through executive action. Obama has said repeatedly, including at his post-election press conference Wednesday, that he will go forward with the immigration reform executive actions before the year, unless Congress passes an immigration reform bill....
Obama, White House aides have said, sees the next attorney general as being a key figure in helping him complete several issues he sees as fundamental to the legal legacy he wants, including sentencing reform and figuring out a solution to closing the detention center at Guantanamo Bay.
I am very pleased and excited by this news for many reasons, particularly because I think the selection of Lynch at least indirectly suggests that Prez Obama is more interested in moving forward with sentencing reform than in picking fights with the new Congress. Among the various names discussed as possible nominees, I view Lynch as probably the least controversial choice as well as the person most likely to be able, practically and politically, to keep up the sentencing reform momentum that outgoing AG Eric Holder made a signature concern of his final years in his position.
November 8, 2014 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (6) | TrackBack
Tuesday, November 04, 2014
US District Judge Kopf reports on retroactive implementation of new reduced federal drug guidelines in Nebraska
As noted in this post from last week, the start of November2014 marked the official start for the new reduced federal guidelines for drug offenses put in place by guideline Amendment 782. At his great blog, US District Judge Richard Kopf has this lengthy new post on the practicalities of implementing the Amendment's retroactivity in his district. I recommend the whole post, from which these excerpts are drawn:
I will take a moment to describe the implementation of Amendment 782 in the District of Nebraska. We are a small district with a large criminal case load, especially including drug cases. As of June 30, 2014, on a per-judge basis, we ranked seventh in the nation and first in the Eighth Circuit for criminal cases. Indeed, Amendment 782 may impact over 700 offenders previously sentenced in our court. Behind the scenes, the implementation of Amendment 782 has had a huge impact on us as we try to fully and fairly implement this important retroactive change to the Guidelines.
With 700 offenders potentially eligible for a sentencing reduction, our district decided that every potentially eligible offender would have his or her case individually scrutinized whether or not a motion had been filed and that every such offender would have a lawyer. After conferring with the United States Attorney, the Federal Public Defender and our probation office, we issued general (standing) orders....
Four people are responsible for superintending the implementation of Amendment 782: two very senior United States Probation officers who are experts in the Guidelines; the head of the drug prosecution unit of the US Attorney's office; and the Federal Public Defender. They have cooperated nicely, and have established internal operating protocols between them. After the Clerk's office tracked down the whereabouts of each of the 700 or so offenders through the Bureau of Prisons (a huge task), the group of four sensibly decided upon a "triage" plan. Offenders who are eligible for release on the earliest possible date (November 1, 2015), get attention first. Offenders who are eligible later receive attention later.
Ultimately, the Federal Public Defender, or one of his assistants or a Criminal Justice Act panel lawyer, will file a motion for relief when the group of four decide that the time is right. A probation officer will submit and file as a restricted document a worksheet that includes a calculation under Amendment 782 and the Guidelines. That worksheet will also include a report on the offender's institutional adjustment and the probation officer's recommendation about whether relief should be granted....
After the motion is filed, and the worksheet is submitted, the prosecutor and defense lawyer will confer and in most cases a stipulation will be reached. Assuming a stipulation is reached, it will be filed. After that, and without a hearing, relief will normally be granted. If no stipulation can be reached, then in my cases a hearing will be held.
It is possible that a judge might tentatively conclude not to follow a stipulation. While I cannot speak for the other judges, in my cases, I will hold a hearing to give the parties an opportunity to be heard. Whether or not the defendant will be present at such a hearing has yet to be determined by me. In the past, if a dispute of fact arose and the offender could be expected to have unique knowledge of the facts, I have not hesitated to give the offender an opportunity to appear and testify. It is probable that I will follow the same approach for Amendment 782 factual disputes where the testimony of the offender is critical to the fair resolution of the matter. However, in the huge majority of cases, this will not be necessary.
In summary, the equitable and effective implementation of Amendment 782 requires a lot of "behind the scenes" work. We are fortunate to have the cooperative, but always zealous, assistance of prosecutors and defense lawyers, aided by a probation office that is second to none.
November 4, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack
Friday, October 31, 2014
New reduced federal drug sentencing guidelines about to become official
Hard core federal sentencing nerds know that November 1 is a special day because it is the official date on which any proposed changes to the sentencing guidelines proposed by the US Sentencing Commission become official in the absence of congressional rejection thereof. Tomorrow, November 1, 2014, is especially notable because it will make official the most significant and consequential reduction in guideline sentencing ranges in history. This USSC press release, which includes a statement from the chair of the USSC, provides background context for why this is such a big deal:
[Background:] The United States Sentencing Commission, an independent agency in the judicial branch charged with setting federal sentencing guidelines, voted unanimously in April to reduce sentencing guidelines levels for most drug trafficking offenses and voted unanimously again in July to make that change retroactive. Because Congress has not acted to disapprove the Commission's actions, the amendment becomes effective tomorrow. Offenders sentenced after tomorrow will be sentenced under the new, reduced guidelines, and current prisoners may begin petitioning courts for sentence reductions based on retroactive application of the reduced guidelines. Prisoners can have their sentences reduced if courts determine that they are eligible and a reduction is appropriate, and they may not be released pursuant to such reductions before November 1, 2015.
[Comment by USSC Chair Patti Saris:] "The reduction in drug guidelines that becomes effective tomorrow represents a significant step toward the goal the Commission has prioritized of reducing federal prison costs and overcrowding without endangering public safety. Commissioners worked together to develop an approach that advances the causes of fairness, justice, fiscal responsibility, and public safety, and I am very pleased that we were able to agree unanimously on this reasonable solution. I am also gratified that Congress permitted this important reform to go forward.
This amendment is an important start toward addressing the problem of over-incarceration at the federal level. Commission researchers estimate that applying the amendment going forward may reduce the prison population by 6,500 in five years and far more over time, while more than 46,000 current prisoners could be eligible to have their sentences reduced by retroactive application of the amendment. Still, only Congress can act to fully solve the crisis in federal prison budgets and populations and address the many systemic problems the Commission has found resulting from mandatory minimum penalties. I hope that Congress will act promptly to pass comprehensive sentencing reform legislation."
October 31, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Monday, October 20, 2014
"Why Did the Supreme Court Sidestep Sentencing Dispute?"
The title of this post is not merely the question I had for a few Justices after the denial of cert last week in Jones v. US (lamented here and here), it is also the headline of this new National Law Journal article about this decision authored by Tony Mauro. Here are excerpts:
The U.S. Supreme Court's refusal to add a Washington drug case to its docket would not ordinarily get much notice. But when the court did just that on Oct. 14, it drew wide criticism for missing an opportunity to resolve a long-running dispute over judicial discretion in sentencing.
The court denied certiorari in Jones v. United States, which asked the court to rule that in deciding on a sentence, federal judges should not be able to take into consideration conduct for which the defendant was acquitted. In the Jones case, the trial judge significantly increased the sentences of three defendants by factoring in drug conspiracy charges that the jury had rejected.
"It is really hard to understand why the court ruled as it did," said University of Illinois College of Law professor Margareth Etienne, a sentencing expert. "It goes against everything the Supreme Court has said for the last 15 years."
Cato Institute senior fellow Ilya Shapiro said, "It's not just high-profile culture-war issues like same-sex marriage and the right to bear arms that the Supreme Court is avoiding like the plague." Shapiro said the court's action was "another opportunity lost by the Court, another responsibility shirked. "The issue has been raised in numerous lower court decisions, and in a 2007 Supreme Court case, several justices said it should be taken up if the right case came along. As recently as Oct. 1, the U.S. Court of Appeals for the First Circuit mentioned the Jones case in a ruling that criticized the "questionable practice" of basing sentences on uncharged or unproven offenses.
An unusual lineup of three justices — Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg — took the rare step of dissenting from the denial of review. "This has gone on long enough," Scalia wrote. "The present petition presents the non-hypothetical case the court claimed to have been waiting for."
In the case the court denied, a District of Columbia jury found Antwuan Ball, Desmond Thurston and Joseph Jones guilty in 2007 of selling between two and 11 grams of cocaine, relatively small amounts. They were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy. Yet, when U.S. District Judge Richard Roberts sentenced the three, he said he "saw clear evidence of a drug conspiracy," and sentenced Ball, Thurston and Jones to 18, 16 and 15 years in prison, respectively — four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to filings with the Supreme Court....
Stephen Leckar, of counsel to Kalbian Hagerty in Washington, who represented the defendants in the petition denied last week, said he was disappointed that the petition fell "one vote short" of being granted certiorari. The fact that conservatives Scalia and Thomas dissented — along with liberal Ginsburg — "ought to be a fire bell in the night" signaling that the issue should be resolved, Leckar said....
The University of Illinois' Etienne speculated that some justices may have felt the facts of the Jones case were "too good" to be a vehicle for making a broad pronouncement on the issue. She explained that Jones involved a judge ignoring an actual acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of a plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved. "It is going to take a while" for the court to revisit the issue, Etienne added. "Until it does, the old adage that one is 'innocent until proven guilty' will continue to have little meaning."
Previous related posts on the Jones case:
- Extended examination of ugliness of acquitted conduct enhancement
- Latest chapter in notable federal acquitted conduct case from DC
- "When Acquitted Doesn't Mean Acquitted"
- DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
- Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
- Rooting for acquitted conduct petition grant from SCOTUS long conference
- Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case
- Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case
- Refusing to take up acquitted punishment, passive virtues, SCOTUS reputation, and cert-denial-deal speculation
October 20, 2014 in Blakely in the Supreme Court, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack
Sunday, October 12, 2014
"Confronting Cognitive 'Anchoring Effect' and 'Blind Spot' Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw"
The title of this post is the title of this intriguing new paper by U.S. District Judge Mark Bennett. Here is the abstract:
Cognitive "anchoring effect" bias, especially related to numbers, like sentencing guidelines ranges, is widely recognized in cognitive psychology as an extremely robust and powerful heuristic. It is a cognitive shortcut that has a strong tendency to undermine judgments by "anchoring" a judgment to an earlier disclosed number, the anchor. Numerous studies prove anchoring bias produces systematic errors in judgment in wide-ranging circumstances, including judgments by experts — doctors, lawyers, real estate agents, psychologists, and auditors — as well as a variety of decisions by foreign and American federal and state judges. The anchoring effect occurs even when the anchor is incomplete, inaccurate, irrelevant, implausible, or even random.
Roughly corresponding in time with the developing understanding of the anchoring effect, federal sentencing has undergone a revolution from judges having virtually unlimited discretion, to virtually no discretion, and back to considerable discretion, as the Federal Sentencing Guidelines went from mandatory to advisory in a single monumental U.S. Supreme Court decision, United States v. Booker, 543 U.S. 220 (2005). Surprisingly, since judges were granted much greater discretion in Booker, the length and severity of federal sentences, for the most part, has not changed. This remains true despite long-standing, persistent, and widespread dissatisfaction among federal district court judges with the Guidelines and the length of sentences. This Article argues that this is because judges' sentences are subconsciously anchored by the calculated Guidelines range.
This Article offers a simple, modest, and practical solution that requires no change in existing law by the Supreme Court or Congress. It simply requires rearranging the numerical anchoring information in the presentence report and adding additional relevant numerical information to counteract the anchoring effect of the Guidelines. If federal district court judges are educated about the effect of cognitive anchoring and their own bias-based blind spots to it — their improved awareness can only enhance the fairness of sentencing.
October 12, 2014 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
Wednesday, October 08, 2014
Ninth Circuit panel chastises prosecutors for breaching "fast-track" plea agreement
A Ninth Circuit panel has handed down a lengthy, must-read opinion today in US v. Morales Heredia, No. 12-50331 (9th Cir. Oct. 8, 2014) (available here). The start of the opinion should make clear to federal practitioners, especially in border districts, why this case is notable:
Every day along the southwest border, previously deported aliens lacking entry documents are arrested, detained, and charged with illegal reentry. Once convicted, they serve a term of imprisonment, and then are again deported. The numbers are so great that federal prosecutors in these border states began to resort to an efficient means of securing a conviction: a "fast-track" plea agreement that binds the government and the defendant, but not the district judge.
The government secures the benefit of a streamlined process that minimizes the burden on its prosecutorial resources. It need not go before a grand jury to secure an indictment; battle motions, including collateral attacks on the underlying deportation; prosecute a jury trial; or oppose an appeal. The defendant, in turn, waives constitutional and other rights and agrees to a term of incarceration and, often,a term of supervised release ordinarily discouraged by the U.S. Sentencing Guidelines. What is the incentive for the defendant to take this deal? The prosecutor binds his office to recommend a four-level downward departure in the offense level now advised by the Guidelines, and to present a "united front" in favor of a reduced sentence to the district judge. If the judge does not accept this sentence, the defendant may walk away from his guilty plea, and proceedings will begin anew.
Paul Gabriel Morales Heredia (Morales) was one such defendant. But in Morales's case, the orderly and efficient plea-bargaining process did not play out as intended. The government extended the promise of a reduced prison term with one hand and took it away with the other. The prosecutor's recommendation of a six-month prison term rang hollow as he repeatedly and unnecessarily emphasized Morales's criminal history, adding for good measure his personal opinion that "defendant's history communicates a consistent disregard for both the criminal and immigration laws of the United States." Morales's counsel timely objected and sought specific performance of the plea agreement. The district judge denied this relief on the irrelevant ground that the prosecutor's statements did not influence him. We conclude that Morales is entitled to relief, and we vacate his sentence and remand for further proceedings before a different judge.
October 8, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Monday, October 06, 2014
Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case
Regular readers likely recall a number of posts about the notable federal drug sentencing case from DC involving Antwan Ball and his co-defendants concerning judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal. As I noted in this post last week, this case, Jones v. US, No. 13-10026, was consider by the Justices at their "long conference." When there was subsequently no announcement of cert being granted last week, I assumed today's SCOTUS order list (noted here) would include Jones v. US, No. 13-10026, on the long list of cases for which certiorari was denied.
But, while the Justices surprised many court-watchers today by denying cert on all the same-sex marriage cases, they surprised me by "relisting" Jones v. US, as noted in this official docket report, for consideration again at the Court's conference this coming Friday. This is relatively big news — to the extent that not making a cert decision is big news — because a relist is usually a strong signal that one or more Justices are strongly interested in the case and want some more time to mull over the possibility of a grant of cert or some other significant action.
Still, as the title of this post is intended to connote, I am trying real hard to resist getting excited by the prospect of cert being granted in Jones (and/or in another acquitted conduct case) real soon. It is quite possible — dare I say perhaps even likely — that this relist is just a sign that a Justice or two is working on a dissent from the denial of cert review and need another few days to put the finishing touches on that dissent. Indeed, given how crisply the acquitted conduct issue is presented in Jones and how many prior petitions have failed to garner the votes need for a cert grant in recent years, it is hard to imagine that the Justices want or need more time to mull this over. But, while the Dougie Downer voice in my head will keep telling me not to get too excited by all this, the optimist voice in my head keeps imaginging that the big baseball and Sixth Amendment fans on the Supreme Court, namely Justices Scalia and Sotomayor, are going to convince enough of their colleague to finally be willing to "play Ball" and take up the acquitted conduct issue in Jones v. US.
Previous related posts on this case and acquitted conduct sentencing enhancements:
- Rooting for acquitted conduct petition grant from SCOTUS long conference
- Extended examination of ugliness of acquitted conduct enhancement
- Latest chapter in notable federal acquitted conduct case from DC
- "When Acquitted Doesn't Mean Acquitted"
- DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
- Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
- Strong commentary on acquitted conduct sentencing
- Sincere questions about acquitted conduct sentencing
- Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues
October 6, 2014 in Blakely in the Supreme Court, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
Sunday, October 05, 2014
Concurrence laments "trend" of federal prosecutors seeking "significantly enhanced terms of imprisonment under the guise of 'relevant conduct'"
An otherwise unremarkable federal drug sentence appeal in the US v. St. Hill, No. 13-2097 (1st Cir. Oct. 1, 2014) (available here) took on some blogworthy character because of a lengthy concurrence by Judge Torruella. Here is the start, heart and close of Judge Torruella's opinion in St. Hill:
I join the court's opinion but write separately to note a disturbing trend in criminal prosecutions. All too often, prosecutors charge individuals with relatively minor crimes, carrying correspondingly short sentences, but then use section 1B1.3(a) of the Sentencing Guidelines ("Guidelines") to argue for significantly enhanced terms of imprisonment under the guise of "relevant conduct" — other crimes that have not been charged (or, if charged, have led to an acquittal) and have not been proven beyond a reasonable doubt....
St. Hill was subject to an additional six to eight years in prison due to isolated drug sales not directly related to the twenty oxycodone pills which led to his conviction, all of which he was never arrested for, never charged with, never pleaded guilty to, and never convicted of by a jury beyond a reasonable doubt. This is a prime example of the tail wagging the dog. Even more disturbing: the government could, if it so chooses, still charge St. Hill for these uncharged crimes in a separate proceeding, and he could be convicted and sentenced again without protection from the Double Jeopardy Clause. See Witte v. United States, 515 U.S. 389, 406 (1995)....
[I]f the government intends to seek an increase in a criminal defendant's sentence for conduct that independently may be subject to criminal liability, the government should charge that conduct in the indictment. The Fifth Amendment requires that "[n]o person shall be . . . deprived of life, liberty, or property, without due process of law," U.S. Const. amend. V, while the Sixth Amendment provides an accused with the right to a trial "by an impartial jury," id. amend. VI. The practice of arguing for higher sentences based on uncharged and untried "relevant conduct" for, at best, tangentially related narcotics transactions seems like an end-run around these basic constitutional guarantees afforded to all criminal defendants. Cf. Alleyne, 133 S. Ct. at 2162 ("When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury."). The government's role is to ensure justice, both to the accused and to the public at large; it is not to maximize conviction rates and argue for the greatest possible sentence. And, while it is unclear to me whether this trend is due to shaky police work resulting in cases that cannot be proven beyond a reasonable doubt, prosecutorial laziness, or other less nefarious factors, it remains troubling regardless....
Nevertheless, as a judge, it is my responsibility to faithfully apply the law as articulated by both the Supreme Court and this court, and I do not dispute that both the Guidelines and our interpretation of them currently condone this questionable process. See Witte, 515 U.S. at 396, 406 (finding no constitutional violation where the sentence was based in part on a cocaine offense that defendant "clearly was neither prosecuted for nor convicted of"); United States v. Lombard, 102 F.3d 1, 4 (1st Cir. 1996) (finding no constitutional violation where the district court "choose[s] to give weight to the uncharged offenses in fixing the sentence within the statutory range if it finds by a preponderance of evidence that they occurred"). I nonetheless question whether this interpretation should be revisited — either by the courts or by revisions to the Guidelines.
October 5, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (5) | TrackBack
Thursday, October 02, 2014
Notable new empirical research on citizenship's impact on federal sentencing
I just came across this notable new empirical article on federal sentencing patterns published in American Sociological Review and authored by Michael Light, Michael Massoglia, and Ryan King. The piece is titled "Citizenship and Punishment: The Salience of National Membership in U.S. Criminal Courts," and here is the abstract:
When compared to research on the association between immigration and crime, far less attention has been given to the relationship between immigration, citizenship, and criminal punishment. As such, several fundamental questions about how noncitizens are sanctioned and whether citizenship is a marker of stratification in U.S. courts remain unanswered. Are citizens treated differently than noncitizens — both legal and undocumented — in U.S. federal criminal courts? Is the well-documented Hispanic-white sentencing disparity confounded by citizenship status? Has the association between citizenship and sentencing remained stable over time? And are punishment disparities contingent on the demographic context of the court?
Analysis of several years of data from U.S. federal courts indicates that citizenship status is a salient predictor of sentencing outcomes — more powerful than race or ethnicity. Other notable findings include the following: accounting for citizenship substantially attenuates disparities between whites and Hispanics; the citizenship effect on sentencing has grown stronger over time; and the effect is most pronounced in districts with growing noncitizen populations. These findings suggest that as international migration increases, citizenship may be an emerging and powerful axis of sociolegal inequality.
October 2, 2014 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (0) | TrackBack
Wednesday, October 01, 2014
This is your federal sentencing data on drugs (after the minus-2 amendment)
I could not help but think about the famous 1980s "This Is Your Brain on Drugs" campaign from Partnership for a Drug-Free America once I took a close look at the US Sentencing Commission's latest greatest data on federal sentencing appearing now in this Third Quarter FY 2014 Sentencing Update. The famous "egg" ad make clear that drugs could scramble your brain, and a "Note to Readers" appearing early in the latest USSC data report makes clear that a recent amendment to the drug sentencing guidelines has started to scrambling cumulative federal sentencing data.
Here is the USSC's "Note to Readers," which highlights why it will prove especially challenging to fully assess and analyze federal sentencing practices in FY14 because of mid-year drug sentencing reforms:
On April 30, 2014, the Commission submitted to Congress a proposed amendment to the sentencing guidelines that would revise the guidelines applicable to drug trafficking offenses. That amendment will become effective on November 1, 2014 and will be designated as Amendment 782 in the 2014 edition of Appendix C to the Guidelines Manual. Amendment 782 changes the manner in which the statutory mandatory minimum penalties for drug trafficking offenses are incorporated into the base offense levels in the drug quantity table in section 2D1.1 of the Guidelines Manual. Specifically, the amendment generally reduces by two levels the offense levels assigned to the quantities described in section 2D1.1 and makes corresponding changes to section 2D1.11. On July 18, the Commission voted to give retroactive effect to Amendment 782, beginning on November 1, 2014.
On March 12, 2014, the Department of Justice issued guidance to all United States Attorneys regarding the sentencing of drug trafficking offenders in anticipation of an amendment to the guidelines lowering the base offense levels for drug trafficking cases. In that guidance, the Attorney General authorized prosecutors to not object to a defense request for a two-level variance from the sentencing range calculated under the current version of the Guidelines Manual in drug trafficking offenses, provided that several other conditions were met. Judges and probation offices have informed the Commission that in some districts the prosecutors themselves are requesting that the court depart from the sentencing range calculated under the Guidelines Manual and impose a sentence that is two levels below that range.
The data the Commission is reporting in this Preliminary Quarterly Data Report appears to reflect those practices. On Table 1 of this report, the Commission reports the rate at which the sentence imposed in individual cases was within the applicable guideline range. The rate through the third quarter of fiscal year 2014 was 47.2 percent. This compares with 51.2 percent in fiscal year 2013. However, as can be seen from Tables 1-A and 1-B, most of this decrease is attributable to sentences imposed in drug offenses. As shown on Table 1-A, the within range rate in cases not involving a drug offense was 53.3 percent through the third quarter of fiscal year 2014, compared with 54.8 percent in fiscal year 2013.
Table 1-B presents data for drug cases only. As shown on that table, the within range rate for sentences imposed in drug cases through the third quarter of fiscal year 2014 was 30.0 percent, a decrease of more than eight percentage points from the rate of 38.8 percent at the end of fiscal year 2014. This decrease in the within range rate resulted from an increase in the rate at which the government requested a below range sentence, from 39.4 percent in fiscal year 2013 to 45.7 percent through the third quarter of fiscal year 2014, as well as an increase in the rate of non-government sponsored below range sentences, from 20.8 percent in fiscal year 2013 to 23.5 percent through the third quarter of fiscal year 2014.
Because this change in sentencing practices did not occur until more than five months into the fiscal year, the impact of this change is not fully reflected in the average data presented in this cumulative quarterly report. The Commission expects a further reduction in the within range rate for drug offenses to be reflected in the data for the completed fiscal year 2014.
October 1, 2014 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (1) | TrackBack
Tuesday, September 23, 2014
High-profile commentator Dinesh D'Souza gets below-guideline probation sentence for violating federal campaign finance laws
As reported in this New York Times piece, headlined "D'Souza Is Spared Prison Time for Campaign Finance Violations," another notable white-collar defendant got a below-guideline federal sentence today thanks to judges now having broader post-Booker sentencing discretion. Here are the details:
The conservative author and documentary filmmaker Dinesh D'Souza was spared prison time on Tuesday after pleading guilty earlier this year to violating federal campaign finance laws.
Judge Richard M. Berman of Federal District Court in Manhattan handed down a probationary sentence — including eight months in a so-called community confinement center — and a $30,000 fine, bringing to a close a high-profile legal battle that started with Mr. D'Souza's indictment in January for illegally using straw donors to contribute to a Republican Senate candidate in New York in 2012.
Mr. D'Souza, who has accused President Obama of carrying out the "anticolonial" agenda of his father, initially argued that he had been singled out for prosecution because of his politics. In April, his lawyer, Benjamin Brafman, filed court papers contending that Mr. D'Souza's "consistently caustic and highly publicized criticism" of Mr. Obama had made him a government target.
A month later, however, on the morning he was scheduled to go on trial, Mr. D'Souza pleaded guilty. "I deeply regret my conduct," he told the court. Even with his fate hanging in the balance, Mr. D'Souza plowed ahead with his thriving career as a right-wing provocateur. Over the summer, while awaiting his sentencing, he published the book "America: Imagine a World Without Her," which reached No. 1 on The New York Times's nonfiction hardcover best-seller list, and a companion documentary film that has made $14.4 million at the box office.
The government charged Mr. D'Souza, 53, with illegally arranging to have two people — an employee and a woman with whom he was romantically involved — donate $10,000 each to the campaign of an old friend from Dartmouth College, Wendy E. Long, with the understanding that he would reimburse them in cash for their contributions. Ms. Long was challenging Senator Kirsten E. Gillibrand, a Democrat.
According to prosecutors, Mr. D'Souza lied to Ms. Long about the donations, reassuring her that "they both had sufficient funds to make the contributions." Ms. Long pressed Mr. D'Souza on the issue after the election, and he acknowledged that he had reimbursed the two people, the government said, but told Ms. Long not to worry because she had not known about it.
When Mr. D'Souza entered his guilty plea, Judge Berman said he could face up to two years in prison. The federal sentencing guidelines call for 10 to 16 months, but the final decision is up to the judge's discretion. "Judges are all over the map on these reimbursement cases," said Robert Kelner, a campaign-finance lawyer at Covington & Burling.
Mr. D'Souza's lawyers asked for leniency, arguing in a court filing that their client had "unequivocally accepted responsibility" for his crime. "We are seeking a sentence that balances the crime he has regrettably committed with the extraordinary good Mr. D'Souza has accomplished as a scholar, as a community member and as a family member," they wrote, requesting that he be sentenced to probation and community service at the Boys and Girls Clubs of Greater San Diego.
The government rebutted Mr. D'Souza's claims, highlighting both the seriousness of his offense and what it called "the defendant's post-plea failure to accept responsibility for his criminal conduct." According to the government, Mr. D'Souza assumed a different posture with respect to his case when he was not before the court. It cited a television interview he gave two days after his plea in which he "repeatedly asserted that this case was about whether he was selectively prosecuted."
This story reminds me why I am so sad Bill Otis no longer comments on this blog; I am so eager to hear from him directly whether he thinks this case is yet another example of, in his words, allowing "naïve and ideologically driven judges" to make sentencing determinations and therefore further justifies embracing mandatory sentencing schemes that would always require judges to impose prison terms on these sorts of non-violent offenders because these sorts of offenses do great harm even if they do not involve violence.
Based on my limited understanding of the crime and criminal here, I feel fairly confident asserting that a prison term for Mr. D'Souza would have achieved little more than spending extra federal taxpayer dollars without any real public safety return on that investment. But Bill and I rarely see eye-to-eye on these matters, and thus I am eager for a distinct perspective in this notable white-collar case.
September 23, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (7) | TrackBack
Monday, September 22, 2014
Sixth Circuit reverses Ponzi scheme sentence because loss calculation failed to credit monies paid out
This morning a Sixth Circuit panel has handed down a notable ruling about loss calculations in the federal sentencing of a Ponzi schemer. Here is how the panel opinion in US v. Snelling, No. 12-4288 (6th Cir. Sept. 22, 2014) (available here) starts and concludes:
Defendant-Appellant Jasen Snelling appeals a 131-month prison sentence imposed pursuant to a plea agreement. In the agreement, Snelling admitted to charges of conspiracy to commit mail and wire fraud, obstruction of justice, and tax evasion for his part in an investment scheme that defrauded investors of nearly $9 million. Snelling challenges the sentence based on an allegedly faulty Guidelines-range calculation that employed a loss figure that did not take into account the sums paid back to his Ponzi scheme's investors in the course of the fraud.
For the reasons below, we vacate the sentence of the district court and remand the case for resentencing.....
Admittedly, there is intuitive appeal to the government's argument that Snelling should not be allowed to benefit from the payments he made "not to mitigate the losses suffered . . . but to create the means to convince new victim-investors to pay him even more money." We need not reflect, however, on whether it is unseemly for Snelling to benefit from the money he paid out to investors in an effort to perpetuate his Ponzi scheme. Undoubtedly, it is. The only question we must consider is whether the district court correctly applied the Guidelines and whether it used a correct Guidelines range.
An accurately calculated Guidelines range is necessary for a procedurally reasonable sentence — any error in calculating the Guidelines range cannot survive review. See Gall v. United States, 552 U.S. 38, 49 (2007); see also United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007) ("[W]e must ensure that the district court correctly calculated the applicable Guidelines range which are the starting point and initial benchmark of its sentencing analysis.") (internal alterations and quotation marks omitted). As appealing as the government's argument may be, it does not comport with the text of the Guidelines. Accordingly, the district court was in error when it declined to reduce the loss figure by the value of the payments made by Snelling to his investor victims in perpetuating his Ponzi scheme.
September 22, 2014 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (1) | TrackBack
Wednesday, September 17, 2014
Woman who bought guns for killer gets (way-above-guideline) eight-year federal prison sentence
As reported in this post last month, a high-profile federal gun case in upstate New York involved federal prosecutors seeking a statutory maximum sentencing term of 10 years in prison when the applicable guideline recommend only 18 to 24 months for the offense. This new local article, headlined "Woman tied to firefighter ambush sentenced to 8 years," details that the feds today were successful in securing a way-above-guideline federal gun sentence in the case:
The woman convicted of buying guns for a man that were used to kill two firefighters on Christmas Eve 2012 was sentenced to eight years in prison on federal charges Wednesday. The sentence, imposed by U.S. District Judge David Larimer, will run concurrent with a state sentence Dawn Nguyen is now serving of 16 months to four years.
On June 6, 2010, Nguyen bought the semiautomatic rifle and shotgun that William Spengler Jr. used when he fatally shot two volunteer firefighters Dec. 24, 2012. She claimed on a federal firearms transaction form that the guns were for her, when she was purchasing them for Spengler.
"I'm sure Miss Nguyen wishes she could take back that decision she made on that June day, but life is not like that," Larimer said in federal court Wednesday morning. Assistant U.S. Attorney Jennifer Noto in court Wednesday had argued that Nguyen's actions directly led to the Christmas Eve killings. "She should have foreseen the possibility of serious harm," said Noto....
Spengler had previously served 17 years in prison for fatally beating his grandmother with a hammer in 1980.
Larimer on Wednesday said he believed Nguyen knew of Spengler's dangerousness, and that she likely knew the facts behind Spengler's killing of his grandmother. Speaking of Spengler's past crime, Larimer said, "that should raise not one but hundreds of red flags that maybe this is not the kind of person who you want to be giving guns to."
Nguyen's lawyer Matthew Parrinello maintained that Nguyen did not know the specifics of Spengler's earlier crime. "This was a quirky, weird, crazy neighbor that she knew," said Parrinello. "But he was very nice, very kind and he did things for her family."
Dawn Nguyen on Wednesday faced the court room — which was packed with police officers, West Webster, N.Y., volunteer firefighters and her relatives — and told the crowd that she was sorry for her actions.
Related prior posts:
- Fascinating federal "gun control" criminal charges in wake of NY ambush murder-suicide
- Though guidelines recommend two years or less, feds request 10-year max for woman who bought guns for killer
September 17, 2014 in Federal Sentencing Guidelines, Gun policy and sentencing, Offense Characteristics | Permalink | Comments (3) | TrackBack
Tuesday, September 16, 2014
Terrific collection of materials on-line as USSC's "Annual National Seminar Goes Paperless"
Though not nearly as historic or controversial as Bob Dylan going electric, I was still excited and intrigued to see a new item on the US Sentencing Commission's website announcing that this week's upcoming USSC Annual National Seminar "is going paperless." What this means, as the notice explains, is that all of the USSC's Seminar materials are now available online at this link.
I recommend that everyone interested in federal sentencing data and developments take the time to click through and scroll down through the USSC's Seminar agenda. One can find lots of interesting articles, data runs and presentation materials that provide information and insights about modern federal sentencing that would be hard to find anywhere else. Kudos to the Commission for going paperless and for enabling folks like me who cannot make it to this year's event to still access a lot of the materials that are to be presented.
September 16, 2014 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, September 08, 2014
Intriguing concurring sentiments about federal child porn downloading cases from Judges Noonan and Reinhardt
Late last week, two judges on the Ninth Circuit made noteworthy an otherwise forgettable decision in US v. Hardrick, No. 13-50195 (9th CIr. Sept. 4, 2014) (available here), through their concurring opinions in a run-of-the-mill affirmance of federal conviction of a child pornography downloader. Here is the text of Judge Noonan's Hardrick concurring addition:
I write to underline the need for further action to discourage a crime whose actual extent is unknown but whose commission is increasingly prosecuted as a serious federal offense. As pointed out in a thoughtful communication by Alexandra Gelber, Assistant Deputy Chief, Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice: Those convicted of the crimes of possessing, receiving, or distributing child pornography typically have no criminal record but "include professors, teachers, coaches, fathers, lawyers, doctors, foster parents, adoption agency owners, and more." See Alexandra Gelber, Response to "A Reluctant Rebellion" 7 (July 1, 2009), http://www.justice.gov/criminal/ceos/downloads/ReluctantRebellionResponse.pdf. Obviously, lack of criminal history is not a defense. It is equally obvious that this kind of defendant is normally law-abiding and, unless suffering from some psychological impairment — the probability Judge Reinhardt effectively develops — could be expected to obey the law in this area if aware of its provisions and especially if aware of its sanctions. Why should the government not advertise the law and its penalty? Better to stop a crime's commission than mop the consequences.
Judge Reinhardt's comment are a bit more extended, and here are excerpts:
Like Judge Noonan, I concur in the unanimous opinion of the court. Also, like Judge Noonan, I am disturbed about the practical impact of the child pornography laws upon otherwise law-abiding individuals. I do not agree, however, that advertising the legal consequences is a solution to the problem. Rather, it is my view that "psychological impairment" is in most, if not all, cases the cause of the criminal conduct. Whether psychiatric treatment rather than incarceration would be the proper response by state authorities is a matter that I would hope would be given more serious consideration than it has until now. Surely sentences of five to twenty years for a first offense of viewing child pornography are not the solution. See 18 U.S.C. § 2252(b)(1). Nor are mandatory sentences of fifteen to forty years for a second. See id.....
I do not profess to know the solution to the problem of how to cure the illness that causes otherwise law-abiding people to engage in the viewing of child pornography. I know only that lengthy sentences such as the one in this case, ten years (and below the guidelines at that) for a first offense, cannot be the answer.
There is nothing new in what I say here, but it is a problem that I believe deserves more attention than we have given it thus far. Many lives of otherwise decent people have been ruined by psychological problems they are not presently capable of controlling. Incarcerating them will not end the horror of child pornography or the injury it inflicts on innocent children. All it accomplishes is to create another class of people with ruined lives — victims of serious mental illness who society should instead attempt to treat in a constructive and humane manner.
September 8, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack
Thursday, September 04, 2014
Former Virginia Gov McDonnell (and wife) now facing high-profile federal sentencing after jury convictions on multiple charges
As detailed in this FoxNews report, headlined "Ex-Virginia governor, wife found guilty on corruption charges," a high-profile federal criminal trial is now over and a high-profile federal sentencing process is about to begin. Here are the basics:
Former Virginia Gov. Bob McDonnell and his wife Maureen were convicted Thursday on a range of corruption charges in connection with gifts and loans they accepted from a wealthy businessman, marking a stunning fall for the onetime rising Republican star.
A federal jury in Richmond convicted Bob McDonnell, 60, of 11 of the 13 counts he faced; Maureen McDonnell was convicted of nine of the 13 counts she had faced. Both bowed their heads and wept as a stream of "guiltys" kept coming from the court clerk. The verdict followed three days of deliberations, after a five-week trial.
Sentencing was scheduled for Jan. 6. Each faces up to 30 years in prison. After the verdict was read, FBI agent-in-charge Adam Lee said the bureau will "engage and engage vigorously in any allegation of corruption." Assistant Attorney General Leslie Caldwell, head of the Justice Department's criminal division, said the state's former first couple "turned public service into a money-making enterprise."
The former governor, up until his federal corruption case, was a major figure in national politics and had been considered a possible running mate for presidential candidate Mitt Romney in 2012. The couple, though, was charged with doing favors for a wealthy vitamin executive in exchange for more than $165,000 in gifts and loans. They also were charged with submitting fraudulent bank loan applications, and Maureen McDonnell was charged with one count of obstruction.
The former governor testified in his own defense, insisting that he provided nothing more than routine political courtesies to former Star Scientific CEO Jonnie Williams. Maureen McDonnell did not testify. His testimony and that of others exposed embarrassing details about Maureen McDonnell's erratic behavior and the couple's marital woes as the defense suggested they could not have conspired because they were barely speaking....
Prosecutors claimed that the McDonnells turned to Williams because they were grappling with credit card debt that once topped $90,000 and annual operating shortfalls of $40,000 to $60,000 on family-owned vacation rental properties. Two of the loans totaling $70,000 were intended for the two Virginia Beach rent houses. Williams said he wrote the first $50,000 check to Maureen McDonnell after she complained about their money troubles and said she could help his company because of her background selling nutritional supplements.
My (way-too-quick) rough review of likely applicable sentencing guidelines suggests that the McDonnells are likely facing guideline sentencing ranges of 10 years or even longer based on the offense facts described here. I presume they should be able to get some top-flight attorneys to make some top-flight arguments for below-guideline sentences. But, at least for now, I am inclined to urge former Gov McDonnell to expect to be celebrating his 65th (and maybe also his 70th) birthday in the graybar hotel.
September 4, 2014 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (13) | TrackBack
Tuesday, September 02, 2014
"A 'Holocaust in Slow Motion?' America's Mass Incarceration and the Role of Discretion"
The provocative title of this post is the title of this provocative new article available via SSRN and authored by (former federal prosecutor) Mark W. Osler and (current federal judge) Mark W. Bennett. Here is the abstract:
Numbers don't lie: America has suffered an explosion in imprisonment that has been fundamentally unrelated to actual crime levels. In this article, a federal District Court Judge and a former federal prosecutor examine the roots of this explosion with a focus on the discretion of Congress, the United States Sentencing Commission, federal prosecutors, and judges. This dark period may be in its twilight, though, and the authors conclude by describing specific actions each of these four groups could take to dismantle the cruel machinery of mass incarceration.
September 2, 2014 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack
Thursday, August 28, 2014
At third federal sentencing, elderly child porn defendant gets one year in prison and lawyer pledges SCOTUS appeal
Regular readers and hard-core federal sentencing fans are familiar with the long-running dispute over the sentencing of child porn downloader Richard Bistline. The latest chapter of this saga, but apparently not the last, unfolded in federal district court yesterday as reported in this Columbus Dispatch article, headlined "Child-porn possessor finally gets harsher sentence: 1 year in prison." Here are excerpts:
A Knox County man at the center of a fight about prison sentences for people convicted of possessing child pornography won't be out of the spotlight anytime soon. Richard Bistline, 71, was sentenced yesterday to a year and a day in federal prison by U.S. District Judge George C. Smith, who also ordered 10 years of supervised release. Bistline also must register as a sex offender.
Bistline's attorney, Jonathan T. Tyack, immediately said he will appeal the case in the hope that it eventually will be considered by the U.S. Supreme Court....
It was the third time that Bistline, of Mount Vernon, had been sentenced for his 2009 conviction on one count of possession of child pornography. Sentencing guidelines set Bistline's prison term at five to six years, although judges have discretion.
His case pingponged from district court to the 6th U.S. Circuit Court of Appeals twice after federal Judge James Graham refused to sentence Bistline to lengthy prison time. Instead, he sentenced him in 2010 to one day in prison, 30 days of home confinement and 10 years of supervised probation.
Assistant U.S. Attorney Deborah Solove appealed, arguing that prison time was needed, and the 6th Circuit ordered Graham to resentence Bistline. In 2013, Graham ordered the same sentence with three years of home confinement. Solove appealed again, and the 6th Circuit ruled that the sentence still was not adequate.
Graham was removed from the case, paving the way for Smith's sentence yesterday. "The 6th Circuit has clearly spoken and is requiring me to impose a custodial sentence," Smith said. "I hope my colleagues and the sentencing commission continue to shed light on these very important policies." Smith then stayed the sentence and said Bistline could remain out on bond until his appeal is decided.
Tyack had asked Smith to sentence his client to one day in prison and 10 years of supervised probation. "At the end of the day, the Court of Appeals is attempting to dictate to this court what sentence it should impose," Tyack said. "It's inappropriate."
Tyack said he hopes the Supreme Court will arrive at that conclusion in Bistline's case. "He's caught up in a legal fight that will ultimately define the boundaries between the court of appeals and district court," Tyack said.
Bistline, a former Michigan schoolteacher with no criminal record, was arrested after a task force investigating online crimes against children downloaded images of child pornography that had come from Bistline's home computer. A search of the computer revealed 305 images and 56 videos of children posing naked or involved in sex acts with adults. Solove said Bistline sought out child pornography for more than a year for sexual gratification. She asked for a five-year prison sentence.
Tyack said in court documents in May that "a 71-year-old inmate with Mr. Bistline's health problems is likely to suffer greater punishment than the average inmate because the Bureau of Prisons often fails to provide adequate or even necessary medical treatment." Bistline has a pacemaker, high blood pressure and hearing loss, among other medical problems.
Graham has been outspoken about Bistline's case and about the federal sentencing guidelines for defendants who have been charged with possession of child pornography. He wrote a lengthy law-review article about the case that was published in December, and he has spoken about the guidelines at court hearings for other defendants charged with child-porn possession.
August 28, 2014 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack
Wednesday, August 27, 2014
"Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash"
The title of this post is the title of this notable new essay about federal sentencing and appellate practices by Alison Siegler available via SSRN. Here is the abstract:
For over twenty-five years, federal courts of appeals have rebelled against every Supreme Court mandate that weakens the United States Sentencing Guidelines. Since the Court made the Guidelines advisory in United States v Booker, the rebellion has intensified, with the appellate courts consistently ensuring adherence to the Guidelines by over-policing sentences that fall outside the Guidelines and under-policing within-Guidelines sentences. The courts of appeals are now staging a new revolt, creating appellate rules — carve-outs — that enable them to reject meritorious challenges to within-Guidelines sentences.
Part I describes the previous rebellions. Part II introduces the current rebellion. Part II.A discusses what I term the "stock carve-out," an appellate rule that violates the sentencing statute and the Sixth Amendment by allowing sentencing judges to ignore mitigating arguments regarding defendants' personal characteristics. Part II.B discusses the "§ 3553(a)(6) carve-out," a rule that similarly violates the statute and precedent by allowing sentencing judges to ignore disparity arguments. Part III concludes.
August 27, 2014 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack


text:
Before the Washington Capitals' second-round collapse last season against Tampa Bay, before another premature offseason guessing game of who's leaving and who's staying, and before coach Bruce Boudreau was assured of returning for yet another go, GM George McPhee re-signed Mike Knuble to a one-year extension.
The right winger couldn't ask for anything more. Really. Multiyear deals simply aren't prevalent for NHL players who were born in 1972. Besides, there was a point last season when another contract — at least with Washington — might have been iffy.
But Knuble's conditioning and moxie down the stretch spoke louder than his age.
"He really turned it on late in the season, when it's arguably the toughest time in the season," McPhee said Thursday after practice at Kettler Capitals Iceplex. "He ended up with 24 goals and he had a lot [11] in the last 25 games. It was remarkable. We thought we'd try it again for another season. At this point, we'll do one-year deals and hope there are at least a couple more one-year deals."
Knuble said some players in his position are a little bit fearful, not knowing if they'll stick from year to year with each passing birthday. They worry about what they'll do when it's over, with the rest of their lives staring them in the face. But he takes a different approach with his 1,000th career NHL game looming (in December if he stays healthy).
"I look at this as an exciting time," said Knuble, 39, entering his 15th season overall and third with the Caps. "It's coming down to the end, and I'm still enjoying it. I'm thankful for it. I'm going to try to work hard this year to get another year. It's a great time."
He's having the time of his life playing with the Caps' vaunted "Young Guns" — Alexander Semin (27), Alex Ovechkin (26), Mike Green (25) and Nicklas Backstrom (23) — who actually are getting up in age themselves. That core has been together for four seasons now and doesn't require the same sort of hand-holding that might've been necessary in the past.
The younger players are beginning to see what Knuble has known for awhile: Time waits for no one, and it's running out on the Caps.
The days of imagining how good they'll be in the future while they learn and err in the present are over, extinguished by four consecutive flameouts in the playoffs.
"This group isn't that young anymore," Knuble said. "Hopefully a lot of them are maturing and starting to realize. Some of their buddies back home are winning Stanley Cups and [the Caps' players] are standing here empty-handed saying 'I want one of those.'
"Time is moving on and time moves on with your team, too. The salary cap and contracts affect player movement. Our superstars are in the prime of their careers. What happens if one of them gets hurt? That huge window starts to close."
Knuble's window seemed closed before it fully opened, as he spent the first half of his career fighting for ice time.
Drafted by the Red Wings in 1991, he was a third/fourth-liner with Detroit, the New York Rangers and Boston before enjoying extensive playing time during a breakout season with the Bruins in 2002-03. He had 59 points in 75 games, after failing to top 35 points in any previous season. That was Knuble's first campaign with at least 20 goals (30) and he has scored 20-plus in every season since.
"He got put in a situation and things started to happen for him," McPhee said. "I think he realized he's never going be a playmaker or skill guy, but his forte would be getting to the front of the net and banging in ugly goals.
"He's become really good at it, so good that we have other players watching him and trying to figure out how he does it," McPhee said. "He's made a good living out of learning how to do something like that, but he has to play with the top players to do it."
There's certainly no shortage of them on the Caps' roster, whether Knuble is on the first line with Ovechkin and Backstrom, or spends time playing with Marcus Johansson, newcomer Troy Brouwer and others. No matter the combinations, Knuble is determined to enjoy the experience and the expectations as the Caps try to fulfill their promise and he tries to keep up. For at least another season.
"We're all just cheating time," he said.
© Copyright 2015 The Washington Times, LLC. Click here for reprint permission.

subset: commoncrawl


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Choosing the right CNC machine
With the number of options increasing and so many details to be considered, choosing the right CNC machine for your shop can be challenge. Here are some things to keep in mind:
Hobbyist-level CNC machines are all-in-one carving units that won't take up a huge amount of space in your shop. They feature a built-in motor/spindle into which the cutting bits are mounted, and they offer plug-and-play convenience. Just load the included software onto your computer, connect the CNC machine with the included USB cable, follow the instructions and start carving. Because of the smaller footprint of these machines, they work well for smaller-scale work.
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News £30 million Rembrandt painting proved genuine by scientists is revealed to public at abbeyDesigners who watched scientists investigate a Rembrandt portrait while creating a gallery for the £30 million work say their detective story reflects an "amazing" discovery.02 February 2015
Historic house or home County: Devon A la Ronde Exmouth
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News Archaeologists find 15 skeletons at "absolutely amazing" roadside site of Devon's largest Roman cemeteryThe Portable Antiquities Scheme and experts from the University of Exeter say a huge Roman settlement at Ipplepen could transform their understanding of life in the south-west 2,000 years ago.10 February 2015
News Archaeologists search for prehistoric settlements in fields where Bronze Age remains were revealed by Google EarthExtensive investigations are about to begin at South Hams, where archaeologists say a "huge" variety of material from the prehistoric and medieval periods has already been found.02 February 2015
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Museum: Historic house or home, Transport heritage site County: Devon Arlington Court and the National Trust Carriage Museum - National Trust Barnstaple
Event: Exhibition (temporary) County: Devon Art & Soul: Victorians and the GothicSome of the most memorable Victorian works of art and architecture were inspired by the middle ages. This major exhibition explores an era when, as the most powerful nation in the modern world, Britain looked back to a...Royal Albert Memorial Museum and Art Gallery | Exeter | 22 November 2014 — 12 April 2015
Event: Exhibition (temporary) County: devon Art2day 7This annual celebration of work, now in its 7th year, never fails to impress. It showcases the talent and diversity of work from the city's budding young artists in secondary schools across Plymouth. All the work on...CUBE3 GALLERY, PORTLAND SQUARE BUILDING | Plymouth | 7 February — 31 March 2015
Event: Exhibition (temporary) County: Devon Artist Reflections: Polly MorganThe first of four artists' responses to RAMM's collections, Polly Morgan's You Are Here is on display. Polly studied with Scottish taxidermist George Jamieson, and over the past ten years she has played with...Royal Albert Memorial Museum and Art Gallery | Exeter | 31 August 2014 — 31 March 2015
Museum County: Devon Ashburton Museum Ashburton
Association or society County: Devon Aune Head Arts Totnes
Museum County: Devon Axe Valley Heritage Museum Seaton
Museum County: Devon Axminster Museum Axminster
Heritage site County: Devon Bampton Heritage and Visitor Centre Tiverton
Event: Workshop, club or activity County: Devon Barney's Bunch AprilBarney's Bunch 2-5's group is meeting on Wednesday 15th April with a Tivvy Bumper theme.Tiverton Museum of Mid Devon Life | 15 April 2015
Event: Workshop, club or activity County: Devon Barney's Bunch MayBarney's Bunch 2-5's group is meeting on Wednesday 13th May with a Farm Animals theme.Tiverton Museum of Mid Devon Life | 13 May 2015
Museum County: Devon Barometer World Museum Merton


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Hang tight!
Recipe by Old El Paso®
"Mouthwatering Mexican dinner ready in just 20 minutes. Serve these turkey tacos made using Old El Paso® taco seasoning mix and shells."
Watch video tips and tricks
1 tablespoon
vegetable oil
1 pound
lean (at least 93%) ground turkey
1 (1 ounce) package
Old El Paso® taco seasoning mix
2/3 cup
1 (4.6 ounce) package
Old El Paso® taco shells
2 medium
avocados, pitted, peeled and sliced
1 cup
sliced pineapple (fresh or canned)
* Percent Daily Values are based on a 2,000 calorie diet.
Ground Turkey Tacos
Serving Size: 1/4 of a recipe
Servings Per Recipe: 4
Amount Per Serving
Calories: 549
Calories from Fat: 305
Celebrate Passover with Jewish main dishes, desserts, and traditional holiday foods.
Choose your Easter dinner main dish from hams, savory lamb, and over 150 more recipes.
Delicious recipes, party ideas, and cooking tips! Get a year of Allrecipes magazine for $7.99!
See how to make spicy turkey and yam filling for tacos.
See how to make authentic taqueria-style beef tacos.
Watch how to make this versatile recipe.


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Rockwell's masterpiece The Song of Bernadette, one of the most reproduced works of his career, may earn $600K in Heritage Auctions' Illustration Art Signature® auction. Read More +
Tag Archives: Heritage Auctions
Behind the Gavel: Has eBay lost its "auction edge"?
Things have changed since eBay first came on the scene, and in recent years many have questioned if there is a place for small sellers at eBay anymore. Behind the Gavel columnist Wayne Jordan discusses this hot topic… Read More +
Official Antique Trader 2013 Favorite Finds Contest Rules
The "Antique Trader Favorite Find" Contest, sponsored by Heritage Auctions, the world's largest antiques and collectibles auctioneer, runs from July 1, 2013 until 11:59 PM ET on Sept. 30, 2013. Read More +
Favorite Finds 2013 – Treasures in a dusty $2 garage sale box
The Favorite Finds Contest is here! This marks the fifth year for this contest in which readers from across the nation share their best collecting stories Read More +
Jesse James' gun belt among 'outlaw' artifacts to headline Wild West Auction
The Wild West rides again, at least it will June 22 at Heritage Auctions, when 140 lots of items owned by the Jesse James gang, George Amstrong Custer, Annie Oakley and others, are offered. Read More +
Universal Appeal: Movie poster magic and investment appeal
From Mickey Mouse to John Wayne, vintage movie posters are an entertaining investment, and in this excerpt from 'Warman's Antiques & Collectibles 2014, written by editor Noah Fleisher, you'll learn just how good of an investment and why. Read More +
Movies by Moonlight: Celebrating 80 years of the Drive-in Cinema
Long past its prime, but not yet faded into the mists of history, the drive-in movie theater marks its 80th anniversary June 6, 2013 – as Antique Trader contributor Jamie Brotherton casts the spotlight on this true American icon. Read More +
Sale of 1929 Texas 'sawbuck' to benefit victims of plant exposion
Proceeds from the May 21 sale of a 1929 West, Texas $10 bill, and a special collectible poster, shown here, will benefit the victims of the April 17 fertilizer plant explosion. Read More +
'Devil is in the details' when it comes to Lalique art glass
They say, the 'devil is in the details,' and with Lalique, that is the case. Because while many pieces appear to be similar, that doesn't always mean they are. Read More +
10 Things You Didn't Know About Gone With the Wind
It is a Pulitzer Prize winning book and an iconic film, but did you know there are at least two museums dedicated to Gone With the Wind? That's not all… Read More +


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Toronto budget: Police chief warns of layoffs if budget is frozen
Budget chief Mike Del Grande is unbowed, pressing force to accept a zero increase next year
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Toronto Police Chief Bill Blair has warned there could be layoffs if city hall insists on a flatlined police budget in 2013.
The police have projected a net budget requirement next year of $976.6 million, but Councillor Mike Del Grande, Toronto's budget chief, is pushing the cops to make do with the $933.8 million provided this year.
"If you commit to these targets, you commit to layoffs," Blair warned the Toronto Police Services Board after Del Grande made a special budget plea Wednesday at police headquarters.
Del Grande was unbowed by the threat, repeatedly emphasizing that he has never seen an independent study justifying the current Toronto police uniform complement of about 5,600.
"One of the fundamental questions I ask is: How many police do we need in the city of Toronto?" Del Grande told the board in a 20-minute pitch for budget austerity.
"What's the right number? No one has been able to tell us definitively how many police officers does it take to police the city of Toronto."
In his desire for a budget freeze, which was underlined in a letter to the board from city manager Joe Pennachetti, Del Grande offered several suggestions to consider:
• Control paid duty, the program whereby police are paid $65 an hour to guard construction sites and patrol special events. In 2009, the city shelled out $7.8 million for paid-duty officers on city construction sites and other city purposes.
On paid duty, Blair said, "really it's the decision of council and the city manager, but if they want me to refuse to authorize paid duties for the city of Toronto, I'll be happy to do that."
• Limit the $7.2 million charged in overtime for police attending minor traffic cases in court. Blair said the city wanted officers to be off-duty for court appearances, which results in overtime.
• Start working now on changes to the next collective agreement with police officers, including cost-saving moves such as going to one-person patrol cars during daytime hours.
• Implement savings from efficiency reviews, shared service reviews and user fee reviews; refrain from making new budget requests; and continue cost control efforts.
Paid duty is one expense the general public would like to seen reined in, Del Grande told reporters after his address to the board.
While Blair offered to scrap paid duty if that was desired, the board made no directive to that effect and Del Grande suggested the chief's response was extreme.
Del Grande said he's looking for tighter guidelines on when paid-duty officers should be employed, such as when there are legitimate safety reasons.
"It shouldn't be automatic," he said. "I hear, time and time again, people are not only disturbed about the fact there are paid-duty police for construction sites, but they're basically just standing there. They're not even directing traffic, and that gets people upset."
Del Grande said his overall message to the police board is that the current administration is not as willing to automatically accede to police funding requests.
"The mood has changed," he told the board. "The pendulum has swung. We will say no."
Board members didn't challenge Del Grande but instead indicated a willingness to work with city hall toward achieving a flatlined budget.
"The message has been received very clearly," said board chair Alok Mukherjee. "I don't think I'd be wrong to say that we are on the same page."
With files from Patty Winsa
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$2 Million NASA Power Beaming Challenge Heating Up 98
from the when-moving-target-is-not-figurative dept.
We've improved Slashdot's video section; now you can view our video interviews, product close-ups and site visits with all the usual Slashdot options to comment, share, etc. No more walled garden! It's a work in progress -- we hope you'll check it out (Learn more about the recent updates).
That's why I like the idea of a Launch Loop better (not that it doesn't have its issues too). It uses kinetic energy to maintain the structure rather than tension so it could in theory be built with modern materials. It also launches in minutes rather than the days, weeks, or even months that some space elevator designs call for. It would have a much higher launch capacity and is built on the ground rather than having to boost a cable into orbit. It doesn't require an anchor weight in high orbit and since the energy for launch is also transfered mechanically you don't have to worry about beaming power anywhere. Finally, it would act as a huge and efficient energy store, meaning we could, in theory, use 100% solar/wind power and use a launch loop as the worlds biggest battery for night time and cloudy days.
http://en.wikipedia.org/wiki/Launch_loop [wikipedia.org]
Well, you know, in a way, the huge distance by itself isn't that big a problem.
The big problem is the material science, creating macro-scale nanotubes long enough to be woven into a cable or ribbon, and strong enough to support the ribbon itself plus whatever we want to lift. Last I heard (and I'm admittedly not following it closely at all) they could manufacture single nanotubes a meter long, and had nanotubes less than an order of magnitude from the desired tensile strength. But not at the same time. Still, it's promising, but there's a long way to go.
Once you've solved the material science problem, and hopefully made large-scale manufacturing feasible if not cheap, then it's mostly a matter of motivation. Laying down and occasionally carving paths through the mountains for 75,000km of interstate probably sounded daunting, but it got done because there was a perceived need. Between the military uses and commercial uses, I think it would exist for the space elevator too. But it would probably be the DoD who would have the money to do it. With low cost to orbit, Project Thor would be an economical reality. That's my pitch. I'm sure we could add more. Of course we have time, though, because for now, large-scale manufacturing of carbon nanotube cables is still a dream, and thus so is the elevator.
"Hovering at 20 to 50 feet puts you in the "deadman's curve" - it's a combination or airspeed (0 knots) and altitude (20 to 50 feet) at which a safe autorotation is not possible. So if the engine quits, you're dead."
The meat is rotten, but the booze is holding out. Computer translation of "The spirit is willing, but the flesh is weak."


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George Blueford, Jr. (right), custodian III with the Texas Department of Public Safety was presented on July 17, with a certificate of appreciation for 30 years of dedicated and loyal service. The presentation was made by Highway Patrol Sgt. James Arnwine (left).


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After my success with using the Project Life app for my December Daily I decided that it would be the perfect way to document my entire 2015. Especially since I had so much trouble keeping up with traditional Project Life in 2014. And I am LOVING it! My plan is to work on this as […]
Category Archives: Project Life
February 25, 2015
Document with the Project Life App: January 2015
February 19, 2015
Project Life Ideas: Scrap 10 Months Quickly
I love Project Life. I love sharing Project Life ideas…except when I can't get myself motivated to actually do my Project Life scrapping. In 2012 and 2013 I managed to keep up with Project Life as the year went along. But in 2014 I…didn't. In fact I didn't even start until late February. I got […]
Posted in Project Life Tagged project life, project life ideas, project life inspiration, Slate Edition Leave a comment
July 3, 2014
Project Life Ideas: Fill with Photos
Looking for Project Life ideas? Today I'm talking about saving time on your Project Life by filling your spread with photos! When I'm trying to get caught up with Project Life I often save time by just filling my spread with photos. This particular spread covered our spring break so I had plenty of photos […]
Posted in Project Life Tagged inspiration, project life, Project Life 2014, project life ideas, scrapbooking, Slate Edition 3 Responses


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Archive for Tuesday, August 24, 2010
Jarbalo jotting
August 24, 2010
Frances Jeannin visited Lloyd and Marian Schubert and Lorrie Friday in Bonner Springs.
Bid Sheppard enjoyed a visit from Phil Jeannin one day last week. She said she enjoyed discussing the Kansas City Royals with him.
Terry Drennon of Emporia and Kathy Stimac visited Thamar Barnett Sunday afternoon. They also visited David and Jane Turner.
David and Jane Turner were guests of Tim and Kelly Kouns on Saturday evening.
Jarbalo United Methodist Church will have its annual BBQ at 5 p.m. Saturday, Sept. 11. It is a community get-together. The church will furnish meat, buns and drinks. Those attending are asked to bring a side dish or dessert. There will be entertainment by the Glory Generation. The event will take place in the basement.
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The Pope's Plot against Secularism
Magazine article
By Poirier, Agnes
New Statesman (1996) , Vol. 137, No. 4915 , September 22, 2008
Benedict XVI, Pope--Beliefs, opinions and attitudes
Benedict XVI, Pope--Political activity
Benedict XVI, Pope--Travel
Catholic Church--Officials and employees
Catholic Church--Political activity
France--Religious aspects
France--Political aspects
Church and State--Laws, Regulations and Rules
Popes--Beliefs, Opinions and Attitudes
Popes--Political Activity
Presidents (Government)--Social Policy
Religion and Politics--Laws, Regulations and Rules
Article excerpt
The Pope has been in France, being given the red-carpet treatment during a three-day state visit that took him from Paris to Lourdes. The Pope was visiting "the eldest daughter of the Catholic Church", as France is known to the Vatican. It is quite an event when a pope so attached to the traditionalist wing of the Church meets a French president so little attached to the principle of secularism.
In December last year, when Nicolas Sarkozy visited the Pope at the Vatican (flanked by Carla Bruni's mother, his putative future mother-in-law, and Jean-Marie Bigard, a stand-up comedian better known in France for his salacious jokes and his denial of the 9/11 bombings than for his piety), the president seized the opportunity to develop a new idea that he called "positive secularism".
This past week, in Paris, Sarkozy did it again: advocating, in front of the evidently delighted Pope, the benefits of a secularism "more open to religions". In his speech, Benedict XVI blessed Sarkozy's idea, making himself an actor in the current French debate. Concerning the relations between the French state and the Church, he declared: "I pay tribute to your expression of positive secularism. Indeed, there still remain many open areas of discussion which we must deal with and resolve with determination and patience. I'm convinced that we need to reflect on the true meaning and importance of secularism anew."
Last year, while the French were still getting to grips with their new president, his first call for positive secularism was cautiously welcomed by the majority. With the second, many are wondering aloud: "Since when was the secularism born of the Revolution negative?"
To speak of positive secularism is to imply that there are two kinds of secularism, one good, the other bad. The supposedly good one, put forward by the Pope and his acolyte Nicolas Sarkozy, is a secularism that would allow politics to mingle with religions. One which would, for instance, turn a blind eye to sects and their actions, one which would accept that people be treated differently according to their faiths, one which would blur the frontiers between the public and private spheres. Sarkozy certainly knows a great deal about the blurring of the two distinct worlds whose separation has been France's trademark for at least two centuries.
Positive secularism would thus emerge to correct secularism as France has always known it, which the French must apparently now think of as negative: too rigorous, too restrictive, too extreme, a secularism that forces assimilation of a heterogeneous population rather than trying to create a tapestry rich with difference. …


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Cj's Auto Sales
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Lefty can leapfrog Tiger into No. 1
Updated: May 3, 2010, 3:55 PM ETAssociated Press
PONTE VEDRA BEACH, Fla. -- That 15-foot birdie putt Phil Mickelson made on the final hole at Quail Hollow meant more than an extra $130,000 for finishing in second place alone.
It put him in position to become No. 1 in the world.
Mickelson could reach the top spot in the world ranking for the first time in his career by winning The Players Championship, provided Tiger Woods finishes out of the top five.
Of the players considered to be the "Big Four" of this generation ...
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Javascript expert to solve a logic with a simple number guessing game
Closed - This job posting has been filled.
Job Description
I have a small script that is a javascript number guessing game. The script is 90% complete except for a small logic problem with the while loop that starts the guessing count at 3 and after 3 guesses it should tell the user game over.
I need help with that part.