In the Courts

Ohio Man Receives Downward Booker Variance

An Ohio man was sentenced to serve one year and one day in prison for insider trading despite an advisory guideline sentence of 30-to-37 months' imprisonment. See United States v. Cole, No. 08-CR-327, 2008 WL 5204441 (N.D. Ohio Dec. 11, 2008). Robert G. Cole pled guilty to securities fraud in violation of 15 U.S.C. ” 78(j)(b) and 78(ff). The basis for Cole's lenient sentence was discussed at length in the court's sentencing opinion. U.S. District Court Judge James S. Gwin cited several reasons for imposing the non-guideline sentence, including the defendant's age (66 years), his prior decorated service in the army in the Vietnam war, and his community service. The court also identified other mitigating circumstances. After considering all relevant sentencing factors set forth in 18 U.S.C. ' 3553(a), the court concluded that “imprisonment, combined with an $180,000 fine, acts as a greater deterrent to others similarly situated to Cole than a thirty-month prison term.” The court noted that the $180,000 fine it imposed on Cole constituted approximately 20% of Cole's net worth and was appropriate for Cole's crime, which the court found was committed out of greed.

D.C. Circuit Holds That Sentence Violates Ex Post Facto Clause

The D.C. Circuit held that the U.S Constitution's Ex Post Facto Clause was violated when a court imposed a sentence recommended by the U.S. Sentencing Guidelines that was harsher than the sentence recommended by the guideline manual in effect on the date of the crime. See United States v. Turner, 548 F.3d 1094 (D.C. Cir. 2008). The D.C. Circuit's opinion creates a circuit split with the Seventh Circuit Court of Appeals, which held that a similar sentence did not violate the Ex Post Facto Clause because the guidelines are no longer mandatory.

Jeff Skilling's Conviction Upheld; Will Be Resentenced

The Fifth Circuit Court of Appeals affirmed former Enron CEO Jeff Skilling's conviction on multiple counts related to the collapse of Enron, but the court vacated his 292-month sentence and remanded for resentencing. See United States v. Skilling, No. 06-20885, — F.3d —-, 2009 WL 22879 (5th Cir. Jan. 6, 2009). The court rejected Skilling's claim that he was prosecuted using an invalid legal theory, that the district court used erroneous jury instructions, that the jury was biased, and that the prosecutors engaged in unconstitutional misconduct. The court vacated Skilling's sentence, however, because the district court improperly imposed a four-level enhancement for jeopardizing the safety and soundness of a “financial institution” pursuant to Chapter 2F1.1(b)(8)(A) of the U.S. Sentencing Guidelines.

Ohio Man Receives Downward Booker Variance

An Ohio man was sentenced to serve one year and one day in prison for insider trading despite an advisory guideline sentence of 30-to-37 months' imprisonment. See United States v. Cole, No. 08-CR-327, 2008 WL 5204441 (N.D. Ohio Dec. 11, 2008). Robert G. Cole pled guilty to securities fraud in violation of 15 U.S.C. ” 78(j)(b) and 78(ff). The basis for Cole's lenient sentence was discussed at length in the court's sentencing opinion. U.S. District Court Judge James S. Gwin cited several reasons for imposing the non-guideline sentence, including the defendant's age (66 years), his prior decorated service in the army in the Vietnam war, and his community service. The court also identified other mitigating circumstances. After considering all relevant sentencing factors set forth in 18 U.S.C. ' 3553(a), the court concluded that “imprisonment, combined with an $180,000 fine, acts as a greater deterrent to others similarly situated to Cole than a thirty-month prison term.” The court noted that the $180,000 fine it imposed on Cole constituted approximately 20% of Cole's net worth and was appropriate for Cole's crime, which the court found was committed out of greed.

D.C. Circuit Holds That Sentence Violates Ex Post Facto Clause

The D.C. Circuit held that the U.S Constitution's Ex Post Facto Clause was violated when a court imposed a sentence recommended by the U.S. Sentencing Guidelines that was harsher than the sentence recommended by the guideline manual in effect on the date of the crime. See United States v. Turner , 548 F.3d 1094 (D.C. Cir. 2008). The D.C. Circuit's opinion creates a circuit split with the Seventh Circuit Court of Appeals, which held that a similar sentence did not violate the Ex Post Facto Clause because the guidelines are no longer mandatory.

Jeff Skilling's Conviction Upheld; Will Be Resentenced

The Fifth Circuit Court of Appeals affirmed former Enron CEO Jeff Skilling's conviction on multiple counts related to the collapse of Enron, but the court vacated his 292-month sentence and remanded for resentencing. See United States v. Skilling, No. 06-20885, — F.3d —-, 2009 WL 22879 (5th Cir. Jan. 6, 2009). The court rejected Skilling's claim that he was prosecuted using an invalid legal theory, that the district court used erroneous jury instructions, that the jury was biased, and that the prosecutors engaged in unconstitutional misconduct. The court vacated Skilling's sentence, however, because the district court improperly imposed a four-level enhancement for jeopardizing the safety and soundness of a “financial institution” pursuant to Chapter 2F1.1(b)(8)(A) of the U.S. Sentencing Guidelines.