Comparing Federal and Texas Sentencing Using the Guyger Trial as a Backdrop

The recent trial of former Dallas Police Officer Amber Guyger carried with it many complex social, moral, and legal issues.  Further, her conviction for Murder in a Dallas state court brought with it strong feelings among people on both sides of many of these issues. In turn, her sentence of 10 years imprisonment is also put under the same scrutiny and judgment.

Interestingly, this case is not only significant as a social barometer, it also is very useful to distinguish many key differences in federal and state criminal case. The facts listed below illustrate some of the key differences.

1) Texas state sentences are typically the product of a specific plea bargain between attorneys which judges almost always follow where Federal sentences are almost exclusively controlled by the judge.

While the Guyger case did not involve a plea bargain, most cases are resolved by way of a plea of guilty by a criminal defendant. This is usually based upon the reality that defendants that plea guilty typically receive lighter sentences than those that go to trial. Of course, this fact assumes that the defendant who goes to trial in fact loses at trial. Clearly, defendants who are acquitted receive the lightest sentence of all… nothing.

However, in most instances prosecutors, whether federal or state prosecutors, have sufficient evidence to secure a conviction at trial. In such instances it makes sense to most defendants and their families to avoid the risk of losing at trial and receiving a higher sentence. In turn, it makes sense to prosecutors to offer a lighter sentence (or a lighter charge) to defendants who spare them the energy and effort of preparing for trial. This coalescence of incentives results in the most common phenomena in criminal courts, that is, the plea bargain.

One of the most pronounced differences between Texas state criminal courts and Federal courts is seen in plea bargaining practices. In Texas courts, which typically have massive caseloads, judges are dependent upon attorneys who reach specific plea bargains to avoid trial. For example, in Fiscal Year 2019 Tarrant County courts had more than 22,000 criminal felony cases.

Because the volume is so high it is impossible for state judges to give an individualized sentence tailored to each particular case. Instead, judges allow defense attorneys and prosecutors to reach plea bargains that involve a specific punishment in a particular case. For example, a person accused of Aggravated Assault would typically face a general punishment range of between 2-20 years imprisonment. The defense lawyer and prosecutor may take a look at the case and agree that 4 prison time makes sense as the criminal sentence in this case. If the defendant examines the risks associated with the particular facts of his or her case and then decides he or she would get a higher sentence if the case went to trial, then that defendant may choose to take the 4-year plea bargain. In this case it is almost certain that the judge would “follow” the plea bargain and assess a 4-year sentence. As a result of the power prosecutors and defense attorneys have to dictate Texas state sentences, they control the “sentencing market” for particular crimes. For example, one Texas County may systemically punish a crime, such as Possession of a Controlled Substance, more harshly than another. This would be the result of prosecution offices within a particular County that is stricter than others. [Also jurors in some counties may be harsher than other counties. A discussion of Texas’ allowance for jury punishment is included below.]

Federal courts are quite different. Typically, federal defendants who either plea guilty or are found guilty at trial do not have a specific plea bargain involving an agreed particularized punishment. Instead, the federal judge orders a presentence report (PSR) gathering many biographical facts about the defendant, the facts about the case, the criminal history of the defendant, and an examination of the applicable Guidelines. [See below for an explanation as to the Guidelines]

After receiving this report the judge will allow for attorneys to make objections to the report and then arguments for leniency at sentencing. Only after all of this work is complete will the judge announce a sentence.

To put it in perspective, most Texas state criminal sentences are announced within minutes of a plea of guilty whereas Federal sentences are not calculated or announced for several months after a plea of guilty.

The ramifications of this difference are enormous. First, Texas sentences are based upon faith in prosecutors who are beholden to bosses who are elected officials. Put a different way, in Texas prosecutors are to a much greater extent charged with ensuring public safety. In federal cases, the judges are the real decision makers. This makes prosecutors in a very sense “mini judges.” In Federal courts, prosecutors are merely a party in interest before the judge.

2) When attorneys cannot agree to a sentence or a when a defendant asks for a trial, Texas state courts allow either a judge or a jury to assess a sentence where Federal courts only allow for judge sentencing.

As stated above, it is important to keep in mind that less than 10% of cases are decided by a trial. Yet, trial sentencing practices also illustrate the differences between Texas sentencing and Federal sentencing.

In the Guyger trial, the jury that considered her guilt or innocence also assessed her punishment. This is a unique feature in Texas Courts. Most states do not allow for jury punishment. The Federal system does not allow for jury punishment except in death penalty cases and, to a limited extent, in criminal asset forfeiture proceedings.

After Ms. Guyger was found guilty of murder, the jury was given a possible punishment range of 5-99 years, or life, imprisonment. That jury gave her a sentence of 10 years. It did so after hearing from various witnesses who testified about various types of things. In Texas, under the Texas Code of Criminal Procedure, judges and jurors are allowed to consider any fact relevant at sentencing. This can include testimony and exhibits related to prior criminal history, or any other act that either side believes would help a judge or jury to assess a sentence. This often includes evidence relating to the victim wishes for a sentence, the defendant’s family’s wishes for sentencing, and any other bad or good acts in the defendant’s past. For example, certain text messages and Facebook posts relating to Ms. Guyger’s participation in an extramarital affair as well as her affinity for firearms were presented. After hearing this evidence the jury came up with its sentence.

In Federal court a jury would not have assessed Ms. Guyger’s sentence. Rather, the PSR and sentencing process described above would have been used by a judge to determine her sentence.

The ramification of this difference are also immense. Because jurors do not see cases in volume, for better or worse, they do not have the same perspective as judges. As human beings people tend to assess actions by comparing them to other events within their experience. That is, by nature people are often comparative and relative. Because judges see hundreds of cases each year their perspective is often quite different.

As stated before, some may feel that relative justice results in a dilution of the enormity of criminal acts and feel that jury punishment offers a superior approach where others may feel that jurors, without a judge’s experience, may be more prone to over react to a given crime. These conversations are normative, nonetheless, the difference between judge and jury sentencing are massive.

3) Texas state criminal sentences are not accompanied by Sentencing Guidelines where all Federal sentences consider very specific Sentencing Guidelines.

The Guyger sentence was not arrived at with any suggestion by the legislature, judge, or anything other than the opinions of the jurors. Put a different way, jurors were not given any guidance as to where within the 5-99 year range to put Ms. Guyger’s sentence.

This lack of mandated guidance is true in all criminal sentences whether they be the product of a trial or a plea bargain. This means that judges who technically pronounce a sentence in a plea bargain case are never given any suggestion as to what the appropriate sentence for a particular Texas state defendant should be. Instead, Texas simply gives the overall statutory range for a given offense and lets the lawyers or juries sort it out.

This is strikingly different from the Federal system. Federal judges are always given a suggested sentencing range through the United State Sentencing Guidelines. For example, a drug dealer in a federal court convicted of agreeing to deliver more than 50 grams of pure methamphetamine would face a statutory boundary of between 5-40 years imprisonment. In this aspect the federal system is similar to the Texas system.

However, the PSR would also include a Guideline calculation for a more narrow range within the outer statutory range. A Guideline calculation is an attempt to put a mathematical score for both a particular defendant’s criminal history and the severity of the case. These are known as the “criminal history score” and the “offense level.” These numbers are then applied to a chart to give a tailored suggestion to the Federal Judge. If the drug dealer described above were to be determined to have dealt in a particular amount of drugs and the drugs were imported than the Guidelines might give a score of 34. Further, if that defendant had a prior penitentiary sentence for robbery he or she might have a criminal history score of 3. The suggested range for this defendant would be 168-210 months.

It is important to remember that a federal judge is no longer bound by the Guideline recommendation under U.S. v. Booker. Having said that, more roughly 75% of sentences in the United States are within the suggested Guideline range.

4) Texas state courts generally only have authority to order restitution to victims in cases where defendants are sentenced to probation where Federal courts routinely order defendants to pay restitution.

While discussion of restitution is generally considered to be collateral and less important than imprisonment, its importance should not be overlooked. Texas courts often reserve restitution in cases where a particular defendant receives a probation term. This means that restitution is usually collected as a condition of a defendant’s probation. However, probation departments are also understaffed and primarily concerned with ensuring criminal defendants are monitored for location or addressing a mental health or drug problem a particular probationer may have. They certainly do not employ financial analysts and attorneys to initiate collection actions against defendants owing money. In fact, restitution collection actions are almost unheard of in Texas Courts.

On the other hand, the Federal system has an extensive set of laws to allow for the collection of restitution even for defendants who are ordered to serve a prison sentence. The Mandatory Victim Restitution Act under 18 USC 3663A (MVRA) and the Federal Debt Collection Procedures Act under 15 USC 1692 provide incredible and extensive powers for prosecutors to collect restitution long after the criminal case has concluded. It is surprising to most people to learn that state homestead and qualified retirement account protections (401ks, SEPS, pensions, IRAs) are not immune from federal collection. Also, each federal prosecution district employs multiple asset recovery (AR) professionals who do nothing but pursue assets using compelled process such as subpoenas and garnishments as well as court hearings to get their money. It is also significant that prosecutors generally have the right to go after property and wages for 20 years after a defendant has completed a supervised release term. Also, spouses of defendants are often subject to garnishment in community property states.

While the Guyger trial is a fascinating political and moral event in recent history, it also illustrates the vast differences between the Texas state and Federal criminal sentencing systems.

People facing a Texas or Federal prosecution need to ensure they hire professionals who understand the procedural systems applicable to their case and have experience defending, fighting, and negotiating criminal cases.

The Recent College Cheat Scandal

The recent college cheating scandal is a salacious topic that has become the subject of massive public scrutiny within popular culture.

Olivia Jade is ‘devastated’ by college cheating scandal
‘SNL’ spoofs Michael Avenatti and Lori Loughlin

And while it is easy to view this particular news story as yet another example of privilege and favoritism for the affluent and famous, it should not be ignored that it involves a legitimate federal prosecution involving some of the most powerful tools of the United States Attorneys’Offices. That is, they involve allegations of conspiracy to commit wire fraud and money laundering.
These terms are often used in various tv shows, movies, and news reports. However, they are not as often explained as they should be. Below is a description of these federal crimes and how they are usually applied in this criminal prosecution.

Conspiracy: The term conspiracy simply describes a scenario where two or more persons enter an agreement to violate the law. Sometimes the agreement itself is sufficient for a conviction and sometimes there must also be an “overt act” performed in furtherance of the conspiracy.
For example, imagine a person named John devises a plan to defraud people where he would sell a nonexistent sports car to unsuspecting customers. Then John reaches out to a person named Sam who joins the ruse by placing an ad online showing a picture of a Lamborghini with
banner stating “Car for Sale: $50,000!” At this point John and Sam have entered a conspiracy to commit fraud. This offense can be found in the United States Code under 18 USC 371 and 18 USC 1349.

Wire Fraud: This offense criminalizes devising “a scheme or artifice to defraud” using telephonic, radio, television, or internet devices. Taking the example of John and Sam above, this scheme constitutes wire fraud because the ad was posted online and customers were solicited “through the wires.” This offense can be found in the United States Code under 18 USCIt is worth noting that if the ad was placed through the postal system, then the offense would be mail fraud which is outlawed under 18 USC 1341. These offenses carry a possible term of imprisonment of up to 30 years and a fine of up to $1,000,000.

Deprivation of Honest Services: This describes a form of fraud whereby an organization or an employer is deprived of the honest services of one of its members or employees. The United States Code makes it clear that persons who devise a scheme to deprive honest services has also developed “a scheme or artifice to defraud” as that term is used under the wire fraud and mail fraud statutes. This clarification is described in 18 USC 1346.

Money Laundering: This offense criminalizes financial transactions which are designed to either conceal proceeds of crime or promote crime. For example, if John and Sam ensnare a customer who actually sends $50,000 for the nonexistence Lamborghini, then they will obviously want to
be able to use that money. If either John or Sam attempt to transfer or deposit this money, whether it be cash, wire, money order, or some other form of payment, into a back account they will engage in a financial transaction with proceeds of a crime (wire fraud). If they attempt to put the money into an account under someone else’s name whether it is a phantom company or the name of a loved one or simply a fake name, then the Government will interpret this transfer as an attempt to conceal the source of such criminal proceeds. This act would be
called “concealment money laundering.” It is also a violation of the “spending” statute of money laundering which criminalizes financial transactions of more than $10,000 in criminal proceeds. There is also a form of money laundering which prohibits financial transactions to further promote crime. For example, if Sam or John buy computers which will be used to post more fake ads, then criminal proceeds are being used to promote more fraud. This is called “promotion money laundering.” Concealment money laundering and promotion money laundering are outlawed under 18 USC 1956 which carries up to 20 years imprisonment. Spending statute violations are outlawed under 18 USC 1957 which carries up to 10 years
imprisonment.

It is also important to recognize that money laundering only occurs where proceeds of certain crimes are deposited, transferred, or spent. In other words, not all criminal proceeds can form the basis of a money laundering charge. To form such a basis, an offense must be labeled as a“specified unlawful activity (sua).” The list of offenses which qualify as an SUA is listed under 18USC 1956(c)(7).

So how do wire fraud, deprivation of honest services, and money laundering apply to the college cheating scandal? As one of the overt acts within the Indictment against Lori Loughlin and 15 others in the U.S. District Court in the District of Massachusetts the Government alleges that various participants within the conspiracy took steps to get test proctors to unfairly adjust test conditions to give an advantage to certain students. As another example, certain bribe payments were made to falsely classify students as athletic participants to allow admission. Either of these deceptions could be characterized as dishonest services by college employees
and thus a fraud against the college. With respect to money laundering, the Government alleges that certain bribe payments by parents were characterized as contributions to various charities. Because such a false characterization conceals the true nature of the payments, the Government alleges that such payments constitute illegal laundering transactions.


Ultimately, the Department of Justice through the United States Attorney’s Office in the District of Massachusetts, does not view these activities as the mere philanderings of the rich and famous. Instead, these are being treated as serious federal felonies that can potentially carry significant prison time.

For people or companies facing a critical federal prosecution or arrest it is important that they immediately seek the advice of an attorney experienced in federal criminal practice. Typically, by the time a particular person or company becomes aware that he is a target, the Government will have already done months of investigation. Time is of the essence.

Steve Jumes is a former federal prosecutor with experience handling complex white-collar cases as well as federal firearms and narcotics cases. If you or a loved one has been contacted by a federal agency or arrested, contact him.