Crime: Whale Sushi. Sentence: ELEVENTY MILLION YEARS.

Law, Law Practice

A recent news story allows me to vent about another item on my increasingly prolix and impossible-to-catalogue list of pet peeves: confusion about federal sentences.

People reporting on federal criminal justice — whether journalists or bloggers — routinely report on the statutory maximum sentence that a defendant could hypothetically get, an oft-ridiculous figure calculated by taking all the charged crimes and adding up the maximum punishment for each. This is usually followed by some sort of pronouncement that THIS PERSON CHARGED OF MINOR CRIMES FACES MORE JAIL TIME THAN YOU'D GET IF YOU BEAT A TODDLER TO DEATH WITH AN UNCONSCIOUS NUN WHILE RAPING A BLIND LIBRARIAN, or words to that effect.

The problem is this number — the sum of the maximum sentence for all the crimes charged in a federal case — usually bears almost no relation to the sentence the defendant actually faces.

Responsibility is not a zero-sum game. The Department of Justice, and its constituent U.S. Attorney's Offices, bear responsibility for repeating statutory maximums in their press releases bragging of indictments. Journalists and bloggers bear responsibility for repeating those numbers uncritically, especially if they repeat the "THAT'S MORE THAN YOU'D GET FOR DOUBLE-MURDER" meme.

So: let's look at the disconnect between the trumpeted numbers and the realistic numbers. Let's do so in the context of whale sushi.

Recently Typhoon Restaurant Inc., chef Kiyoshiro Yamamoto, and chef Susumu Ueda were indicted for various federal crimes relating to importing and serving whale, which is apparently totes not cool. The indictment, available through PACER, is here. The LA Times reported in a fairly low-key way that Yamamoto faces 67 years, Huffington Post went for "combined 77 years" in the eye-catching headline, and BoingBoing went with "life in prison".

Those numbers bear no relation to reality.

Federal sentences are calculated using the United States Sentencing Guidelines. (The usually very user-friendly United States Sentencing Commission site is under construction at the time of this writing; usually I'd link you there.) The guidelines are a very complex set of rules used to calculate a federal sentence based upon the crime charged, the circumstances of the case, and the criminal record of the defendant. Calculating a very simple sentence is like completing a very simple tax return under, say, 1040-EZ; a complex sentence is like completing a tax return for a troubled entity engaged in questionable tax practices. Or, for you old-school geeks, like creating a Runequest character for a friend who is an argumentative rules-lawyer. From the enactment of the guidelines in the 1980s until United States v. Booker in 2005, the guidelines were binding upon federal judges — they had to follow the guidelines unless there were grounds for a "departure," meaning the rare circumstance not contemplated by the guidelines. Guidelines-application litigation was time-consuming, tedious, and generally despised by trial and appellate judges. In 2005, the Supreme Court decided to construe the guidelines as mere recommendations which federal judges must consider, thus avoiding the Constitutional dilemma of the sentencing judge making findings of fact driving the sentence without a jury's input. Now, federal judges calculate and consider guidelines sentences, but make their own determination, taking into account the factors required by federal statute. Appellate courts review trial judges' sentences for "reasonableness," in which adherence to the guidelines is one factor. Sentences within the guidelines are presumed reasonable. Most federal judges tend to issue sentences close to the guidelines; some impose sentences below, but it's rarer to see one impose a sentence above.

With few exceptions — usually relating to murder, or terrorism, or huge drug cases — guideline sentences are far less than statutory maximums.

Let's look at the whale sushi case as an example.

The indictment charges Yamamoto with conspiracy to commit a federal crime (18 USC section 371), false statements to the government (18 U.S.C. section 1001), smuggling (18 U.S.C. section 545), obstruction (18 U.S.C. section 1512(c)(2), and selling a marine mammal product (16 U.S.C. section 1372(a)(4)(B) and 1375(b)), plus "aiding and abetting" in violation of 18 U.S.C. section 2, which means "even if he didn't do it hisself, he done tole someone else to do it, or leant them his ride." Yes, each of those crimes has a statutory maximum, and yes, if you added them all up, you'd get lots of years.

But a guideline sentence is different.

The guidelines work by figuring out two numbers — one representing the seriousness of the crime, and the other representing the defendant's criminal history — and then cross-referencing them on a chart, yielding a recommended number of months in jail:

USSGTableHint: you want lower numbers.

Figuring criminal history is relatively straightforward; let's assume our man Yamamoto has no prior record, leaving him in Category I, the left-most column. The real complexity comes in calculating "offense level," the number representing the severity of the offense. There are many factors: the seriousness of each charged crime, the amount of "loss" (whether the amount of money robbed from a bank, the amount defrauded from investors, or here the amount of whale meat imported), and factors related to the entire crime (whether the defendant was a low-level mope or a kingpin, and whether the victim was particularly vulnerable, whether the defendant pleaded guilty, etc.). The most complicated calculations arise when there are disputes over amount of loss, or when there are multiple crimes that must, under the arcane guideline rules, be calculated separately.

I could go into groin-kicking detail about the application of the guidelines to this case, but let me cut to the chase: I think the offenses charged probably "group" (meaning I think they would be considered as one lump), and I think they'd be sentenced under 2Q2.1, applicable to offenses involving fish and wildlife. Under that guideline we start with a base offense level of 6. We add 2 if the offense was for monetary gain, which it was, for a total of 8. We would add 2 more if the meat required quarantine; it didn't, so we don't. We add the greater of 4 (because whales are protected marine mammals) or the number corresponding to the market value of the whale meat under guideline 2B1.1. We don't know what the government will say is the value of the whale meat; this is a place where the government can try to drive up the sentence. However, we know that the government claimed in the complaint that the defendants paid about $17,000 for one shipment of whale meat. Let's pull a number out of our ass and call it $100,000. Under the 2B1.1 loss table, more than $70,000 but less than $120,000 yields 8 levels. That's more than 4, so we add 8, making our running total 16.

Next, we look at offense characteristics. Let go tough for the government here and assume they can show that the defendant supervised others in the crime, netting 2 more levels under 3B1.1. That gets him 2 more levels, for 18. Let's also assume that because the government charged obstruction of a proceeding, they can also nail him with a two-level enhancement under 3C1.1, totalling 20 points.

I could be off here. The government might claim the counts don't "group," so you'd have to add a few points to add them together under the rules for multiple counts. Or they may claim the value of the whale was higher. But I'm not going to be much off.

Assume this defendant pleads guilty. He gets 3 levels off for that. He's left with a final offense level of 17, Criminal History Category I, for a recommended sentencing range of 24-30 months. That's before his lawyers — with whom I have worked, who are very good at their job — start to fiddle with these numbers and argue for leniency.

Now, 24 months in federal prison — even the low-security camp to which whale-sushi-chefs would be sent — is nasty. But it has no relation to the 67 years, or life sentence, bandied about in the press or on the blogs. Plus, betcha he gets less — if he's convicted at all. I could get him less.

Lessons:

1. Maximum sentences have very little relation to actual sentences in federal law. When the government quotes the maximum sentence, they are trying to scare you. When the press quotes it, they are uninformed or lazy. Exercise skepticism. Resist emotional appeals to "how is this sentence reasonable when murderers get less?"

2. If you are a federal defendant, you need someone who knows the federal sentencing guidelines. If you hire a state practitioner, it doesn't matter how great a trial lawyer he or she is. If they don't know the guidelines inside and out, you're cooked.

3. Note that in the indictment they charge two of the guys with lying to investigators. I guarantee those lies, if they happened, didn't deter or slow down the investigation a milisecond, but they piled on more charges for the lies anyway. SHUT UP AND DON'T TALK TO THE GOVERNMENT. They are not your friend. They are looking to run up the charges against you. SHUT UP.

4. Note that the feds filed the complaint in 2010, dismissed, and indicted in 2013. That's (1) typical of Los Angeles' environmental and animal cases, which take years, and (2) probably a sign that there were unsuccessful attempts to negotiate a resolution. That's speculation, but based on experience. But federal investigations can go on for years and years.

Edited to add: Xeni Jardin links to this post as a critique of hers, which I appreciate.

Last 5 posts by Ken White

37 Comments

34 Comments

  1. Dan Weber  •  Feb 5, 2013 @5:34 pm

    Thanks for this. I think we all know the case you're talking about, and things that move us away from sweeping emotional appeals are very helpful.

  2. Robert  •  Feb 5, 2013 @5:48 pm

    But the problem is that they shouldn't be facing any jail time AT ALL (for the original crime). This should strictly be a matter of a fine and that's it.

  3. Sabeletodo  •  Feb 5, 2013 @6:10 pm

    IANAL (I took the LSAT and creamed it, and my sister is a public defender), but I got into a slap fight with one over at Boing-Boing over this very issue. All he could say was AARON SWARTZ!!! OVERCHARGING!!! I said it was not about the whale meat as much it was about lying to the Feds and that with a plea down, the chef wouldn't be in a Club Fed for even a whole year. It sorta got lost in the "It's just a whale! No human harmed! Rapists get less time!!" background noise and anarcho-libertarian posturing. Glad to see somebody with credentials says approximately the same thing.

  4. Patrick  •  Feb 5, 2013 @6:14 pm

    Since Ken's busy, I'm just writing to thank Instapundit, Boing Boing, Volokh, Will Wheaton, John Scalzi, Something Awful, Mark Cuban, Radley Balko, Gawker, Deadspin, Ars Technica, Hot Air, Zero Hedge, and James Taranto at the Wall Street Journal's Best of the Web Today for all the links to this post. We hope your readers will stick around.

    Special thanks to Paul at the New York Times (you know who you are) and all the guys at Reddit who pushed this post to the front page. Keep rockin'.

  5. Ken  •  Feb 5, 2013 @6:15 pm

    It's cold and hurty when you make fun of me.

  6. David  •  Feb 5, 2013 @6:18 pm

    While the proper site is under (re)construction, you can have a look at the 2009-2010 guidelines manual here (via the wayback machine). (supplements here).

  7. Josh C  •  Feb 5, 2013 @6:24 pm

    What Robert said.

    Plus, as a restauranteer, this will be a death sentance. As a felon (assumption, because I really don't want to look up how crazy CA's whale laws are) you can't get a liquor license. Without a liquor license, you can't run a successful restaurant. This is a career-ender, even if being sent to jail and shaken down for legal fees were surmountable. (That's not a crack at defense lawyers, it's a crack at Feds taking 3 years to assemble a case. 'Speedy,' my ass.)

  8. Josh C  •  Feb 5, 2013 @6:28 pm

    Also, thank you for the education on sentencing guidelines.

    Sometimes, having someone explain complex matters so their easy to follow trivializes them; sometimes it just drives home how pro that someone is. This is definitely the latter.

  9. CourtneyLee  •  Feb 5, 2013 @6:46 pm

    This is why I read this blog: rationality. Also, if I'm ever in the position of getting questioned by police, I am going to shut my yap and ask to call my lawyer. That is a departure from how I thought before I started reading legal blogs, which was "I don't have anything to hide so I'll just answer their questions."

  10. Rich Rostrom  •  Feb 5, 2013 @6:49 pm

    What are the Zones, anyway? They appear to be ranges of sentence severity, but they overlap.

    "A" is 0-6 months. "B" is some mandatory minimum time up to a year.

    I note that if a first-timer incurs mandatory minimum time, it's four months – but for a repeat offender, it's one or two months (at lower offense levels, to be sure).

    I wonder – why do the rules exclude a 1- or 2- month mandatory minimum for Category I?

  11. Ken  •  Feb 5, 2013 @6:52 pm

    Rich: the Zones correspond to certain sentencing options. In Zone A the court can give straight probation. In Zone B the court can give probation so long as one month is imprisonment. IN Zone C the court can give a split sentence, where half is imprisonment and half is home detention. Zone D is all time.

  12. Ken  •  Feb 5, 2013 @6:52 pm

    Also, "mandatory minimum" refers to something else — a mandatory statutory minimum, imposed by a particular statute, like the federal drug laws.

  13. delurking  •  Feb 5, 2013 @7:45 pm

    Interesting position, Robert. Do you have some principle by which you judge whether certain crimes should be punishable by jail, or is it an "I know it when I see it" type of thing.
    I wonder what level you think the fine should be set at to sufficiently deter whaling? A bit of googling lists whale prices at $10k to $40k on the black market. Given the low odds of getting caught, $500K to $1M seems reasonable. Does it seem reasonable to you?

  14. ShelbyC  •  Feb 5, 2013 @7:48 pm

    What's the likelihood that they'll get a plea deal for quite a bit less? I see the guy who sold them the meat pled to a misdemeanor?

  15. David Josselyn  •  Feb 5, 2013 @8:11 pm

    This is intentional. Reports are after the worst-case scenario, as well as the simplest possible way to indicate the seriousness of the charge. Looking at the more complex actual sentencing guidelines doesn't address either of those requirements. The only way around that would be to publish some kind of average and strongly urge the media to use that.

  16. James Pollock  •  Feb 5, 2013 @10:53 pm

    Publicizing the max also puts pressure on the defendant to take that plea bargain, as all the defendants' friends and family start worrying about the 67-year sentence, and calling to sympathize.

  17. nathan  •  Feb 6, 2013 @12:34 am

    How can whale meat have a market value in the USA? IIUC it's a crime to have it in the first place — that being the central point of the charges — , so there can't be a market in it.

  18. Shkspr  •  Feb 6, 2013 @12:44 am

    Markets come in all sorts of colors.

  19. flip  •  Feb 6, 2013 @5:36 am

    Thank you Ken for posting this. I never really thought about the claims of maximum sentencing in the media and this really opened my eyes.

  20. Mike  •  Feb 6, 2013 @7:03 am

    I'm forced to wonder, if these folks were not pleading guilty, would the prosecutor's office be settling for these charges? I mean, if anyone else associated with the business was involved in some tangentially related crime, they could tack on a RICO charge which is enough to make almost anyone plead out.

  21. Another Woman  •  Feb 6, 2013 @7:26 am

    Thank you. Another piece of the world makes (a bit) more sense now. I will remember to refer future mouth-frothers to this.

  22. Jross  •  Feb 6, 2013 @9:06 am

    I'm totally guilty of this and thanks for the corrective. But, like they said over at BoingBoing, I wonder if reporting maximum sentences still has some value if that's what prosecutors are threatening during plea negotiations.

  23. Jo  •  Feb 6, 2013 @9:20 am

    @Nathan: How can heroin have a market value in the USA? IIUC it's a crime to have it in the first place — that being the central point of the charges — , so there can't be a market in it.

    Try that one in court. Tell the judge I said it was alright.

  24. Dan Weber  •  Feb 6, 2013 @9:23 am

    I wonder if reporting maximum sentences still has some value if that's what prosecutors are threatening during plea negotiations.

    Your lawyer (assuming you have a decent one, as Ken describes) will tell you what you are actually facing.

    Reporting the maximum does serve some useful societal function, in that in scares other people from doing the same crime. Whether this benefit is worth the various trade-offs is probably something that would take several books to fully discuss.

  25. En Passant  •  Feb 6, 2013 @10:13 am

    Dan Weber wrote Feb 6, 2013 @9:23 am:

    Reporting the maximum does serve some useful societal function, in that in scares other people from doing the same crime. Whether this benefit is worth the various trade-offs is probably something that would take several books to fully discuss.

    I would add another potential benefit.

    Reporting the maximum sentence possible can cause public outrage, or at least a moment of tongue clucking, at today's legislative and prosecutorial tendencies to make every possible human act a criminal offense at the discretion of some ambitious prosecutor.

    I make no judgment on this particular case. But there are too damned many laws making too damned many crimes out of acts that most sane people would consider innocuous or even virtuous.

    Pick up a random bird feather you found on your own property and you might just be in felonious possession of a migratory bird part in violation of the Migratory Bird Act, 16 USC 703 et seq. If some federal prosecutor pandering for brownie points among "environmentalists" finds out about it, your life as you knew it is over.

    Publishing maximum sentences possible for charges can inform the public of how unjust many of our laws actually are.

  26. W. Ian Blanton  •  Feb 6, 2013 @11:06 am

    I'm sorry, you had me with the RuneQuest reference. :)

  27. AC  •  Feb 6, 2013 @1:00 pm

    I hear those media outlets are facing 50 years hard labor over their misreporting.

  28. Roscoe  •  Feb 6, 2013 @1:03 pm

    Ken, a post about the sentencing guidelines? Really?

    Picasso was reported to have said he could spit on a canvas and people would think it was great art. Is the point of this post that you can write about anything and we would still read it?

  29. nathan  •  Feb 6, 2013 @2:43 pm

    @jo, heroin is a controlled drug, isn't it? I presume there is therefore a market in it. Are you claiming whale meat is a controlled foodstuff?

  30. shg  •  Feb 6, 2013 @3:15 pm

    I just read Xeni Jardin's update. I do not think she gets it, even though she says she does. At least she's trying, which is more than most reporters who misinform can say.

  31. Jo  •  Feb 6, 2013 @4:31 pm

    @Nathan, it would seem to be a controlled foodstuff, given that people eat it and it's illegal to possess it. The chef didn't catch the whale himself, so he must have bought the meat from someone. A buyer and a seller make a market, n'est c'est pas?

  32. James Pollock  •  Feb 7, 2013 @2:58 pm

    "How can whale meat have a market value in the USA? IIUC it's a crime to have it in the first place — that being the central point of the charges — , so there can't be a market in it."

    It's more interesting than that. Congress' authority to make law on the subject at all probably rests on the interstate commerce clause of the Constitution. That is, Congress acts to foreclose any legal commerce in (commodity) on it's authority to regulate interstate commerce.
    One of the "be careful what you wish for" warnings is often appropriate when small-government types start agitating for sharp restrictions on commerce-clause authority… the controlled substances act rests not-so-firmly on a tortured reading of the commerce clause.

  33. MattS  •  Feb 8, 2013 @1:08 pm

    James Pollock ,

    "One of the "be careful what you wish for" warnings is often appropriate when small-government types start agitating for sharp restrictions on commerce-clause authority… the controlled substances act rests not-so-firmly on a tortured reading of the commerce clause."

    To us small-government types killing the controlled substances act as a consequence for agitating for more restrictive reading of the commerce clause is a feature not a bug.

    Prohibition was an absolute unmitigated failure with alcohol. 90 % of the violence of the gangster era can be directly laid at the feet of the supporters of prohibition. What makes you think drug prohibition has even an infinitesimal chance of being more successful.

  34. Kratoklastes  •  Feb 10, 2013 @3:53 pm

    @CourtneyLee – it's terrific that you've sloughed off the whole "if you've done nothing wrong, you have nothing to fear" trope: would that more people did so.

    My favourite riposte to that trope is a quote from Cardinal Richelieu: "Qu’on me donne six lignes de la main du plus honnête homme, j’y trouverai de quoi le faire pendre."

    If one were to give me six lines from the hand of the most honest man, I will find in it something to hang him.

    THAT should be the operative principle in all interactions with cops and prosecutors (that, and a firm understanding that the fuzz especially are permitted to lie to a suspect, and that prosecutors have almost unlimited indemnity for any misconduct… case in point: Harry Connick Sr).

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