Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
Sarbanes-Oxley Sentencing Guidelines
Last month, we discussed the Sentencing Table as of Nov. 1, 2003, which incorporates amendments resulting from the provisions of the Sarbanes-Oxley Act. We explained that the Act contains three overlapping provisions relating to sentencing guidelines premised on the notion that white-collar crime is not adequately punished, and that all three provisions require the U.S. Sentencing commission to “promulgate the guidelines or amendments provided for under this section as soon as practicable…” Our discussion, unless otherwise indicated, was and is based on the amended guidelines pertaining to “Theft, Embezzlement, Receipt of Stolen Property, Property Destruction, and Offenses Involving Fraud or Deceit,” and the related Sentencing Table. (Editor's Note: To see the Sentencing Table, go to Part One of this article, which appeared in the April, 2004 issue.) This month, we continue this discussion by providing more material in depth.
Plea Agreements and the Sentencing Guidelines
The defendant charged with securities fraud in a typical multiple-count indictment that adds up to an Offense Level of 37 and a minimum sentence of 17.5 years probably is going to think seriously of negotiating a plea agreement and entering a plea of guilty. There is nothing automatic about the process and it will require not only convincing the U.S. Attorney and the Department of Justice, but also the approval of the presiding judge. The sentencing guidelines continue to play a role, but there are a variety of ways to reach the agreed-upon sentence. First, the Department of Justice can agree to dismiss all but one or two of the counts of the indictment, preferably one, and select a count that has less than a 20-year maximum so that we start with an Offense Level of six. There may be some room for estimating a reasonable amount of loss figure, which in any event cannot be determined precisely. A reduction of two levels is virtually assured for acknowledging responsibility, which can be increased to three if the level before the reduction is 16 or greater provided the defendant pleads guilty early enough to avoid the necessity of government preparing for trial as confirmed by motion of the government. Guidelines Manual, ' 3E.1.1(a)-(b). If the defendant was not a principal actor in the scheme of things, another reduction of 4 levels as a minimal participant is possible. Guidelines Manual, ' 3B.1.2(a). Last, in addition to adjustments there are departures that instead of being framed in terms of additions to or deductions from the Offense Level allow the sentencing judge some discretion in departing from the guidelines. Departures are allowed with respect to an offense not involving child crimes or sexual offenses if the court finds “there exists an aggravating or mitigating circumstance” not adequately taken into account by the Sentencing Guidelines. Guidelines Manual, ' 5K2.0(a)(1). The inadequacy may either be because the Guidelines make no provision for such circumstances or the exceptional case in which the Guidelines do take them into account, but not adequately. Guidelines Manual, ' 5K2.0(a)(2)-(3). The most significant departure allowed from the Sentencing Table is labeled “Substantial Assistance to Authorities.” The guidelines provide in this respect: “Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.” Guidelines Manual, ' 5K1.1. This gives the court a substantial amount of discretion in accepting a plea agreement for a sentence significantly less than that provided by the Sentencing Table based on the Offense Level .
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.