I was at the beach – Mission Beach to be precise – and relaxing with my bride over the weekend. The sun was shining and the sea air cooling, but like all good things – that too came to an end on Monday. I am now in Nevada, taking depositions in a crop insurance fraud case. There is lots of sand, but no beach. Lots of hot air (in the depositions), and no ocean. With no surf and no run on the beach, today I am thinking about last week’s sentencing before US District Judge Winmill, in a case involving trafficking in counterfeit goods. My client went to trial last spring on one count of conspiracy to traffick in counterfeit goods (t-shirts bearing unlicensed marks, like Polo, Gap etc…) and six counts of trafficking. At issue – a couple thousand t-shirts that he purchased from Main Sportswear in Los Angeles. Client gave the Feds the address and phone number for Main Sportswear, and we sent an investigator to buy some more before trial. When the trial ended, my client’s wife was acquitted of all charges (he had consistently taken the blame), and he was not guilty of conspiracy. He was, however, guilty of trafficking. And that meant a chance to re-visit the federal sentencing guidelines. Now the law has changed markedly over the past few years, and perhaps the nail in the coffin of those dreaded, formerly mandatory guidelines, is the Supreme Court’s analysis in Gall v. United States, 128 S.Ct. 586 (2007). Gall had been a middleman in a drug trafficking conspiracy, and even with his plea of guilty, acceptance of responsibility, and substantial assistance, his guideline range was 30 – 37 months of incarceration. The district judge looked at the changes in Gall’s life – he was in college, had started a successful business, and had otherwise turned it completely around – and placed him on probation. As you may imagine, the US was not happy. They believed a sentence that imposed no incarceration and 36 months of PROBATION was an unacceptable departure. Justice Stephen’s majority decision adopts an abuse of discretion standard for appellate review. End result – we have a new methodology for district courts applying the guidelines in every case. We still start with the guidelines, taking into account specific offense characteristics and bases for departures, but then we look at the sentencing factors under 18 U.S.C. Section 3553(a). So judges may be judges again. They are instructed under the law to consider the person they are sentencing as well as the crime, the deterrent effect on the defendant and the community, and the circumstances surrounding the crime. Then, even without a departure, the court must fashion a sentence that is just – necessary, but not excessive. And this allows the court to make the punishment fit the crime and the defendant.
And that is what happened with my client. The Court did not bind itself to the guidelines, but rather took into account the specific conduct, its impact on the trademark owners, and my client’s otherwise law-abiding conduct. The US wanted 27 months of imprisonment for my client. That incarceration would have meant his certain deportation. The Court’s sentence included 9 months of home arrest and 1 month of actual incarceration. He will pay restitution and a fine, and hopefully, he will not be deported. You see his wife (acquitted) is a US Citizen, but he is not. While on home arrest, he can continue to do what he has for over twenty years – run his little alterations shop, pay his taxes, and continue to be part of the community. He may still face deportation, but those formerly mandatory guidelines did not result in the certainty of incarceration and deportation. His crime and his life are now placed in context – that is to say considered with the other factors surrounding the case. My hope is that the immigration consequences may also consider those factors. If you have a federal case and are facing the potential of federal sentencing under the existing law – there is good news in the Gall case and its progeny. Your life may mean something in determining your ultimate fate if you are convicted. Maybe you will see the beach again – and not just the sand.