It is extraordinary that longtime ally of President Trump was convicted of multiple counts of False Statements to Congress and other federal felonies in connection to actions on behalf of then candidate for President Donald Trump. Regardless of one’s political beliefs, this verdict is significant. However, the circumstances of this case have become more confounding since the conviction.
While the recent call by more than 1,100 DOJ officials for the resignation of Attorney General William Barr is amazing political theater, it is difficult to evaluate the significance of this outcry without an understanding of how this type of case would appear if the defendant involved wasn’t Roger Stone. Put simpler, what would a non-Presidential insider be looking at if facing 1 Count of Obstruction of Proceeding (18 USC 1505), 6 Counts of False Statement(18 USC 1001), and 1 Count of Witness Tampering (18 USC 1512). Roger Stone’s Indictment can be found at https://www.justice.gov/file/1124706/download.
Start by taking a look at the statutory boundaries under each of these crimes. Put simply, a statutory boundary is the minimum and maximum sentencing range provided by Congress for a particular crime.
Obstruction of Proceeding (18 USC 1505): “It is a crime to corruptly, or by threats of force, or by any threatening letter of communication to influence, obstruct, or imped any proper administration of the law before any department or agency of the United States. Commission of this type of offense carries a maximum sentence of 8 years.”
False Statement (18 USC 1001): “It is a crime to falsify, conceal, or cover up by “trick, scheme, or device a material fact” or to “make any materially false, fictitious, or fraudulent statement in a matter within the jurisdiction of the legislative branch. Commission of this type of offense carries a maximum sentence of 5 years unless it is related to terrorism or sex trafficking. Mr. Stone’s statements were not in that realm.”
Witness Tampering (18 USC 1512): “It is a crime to use physical force or threats of physical force against any person to influence, delay, or prevent the testimony of any person in an official proceeding. Commission of this type of offense carries a maximum sentence of 30 years.”
Thus, the allegations within the Indictment were serious enough to carry up to 30 years imprisonment. Mr. Stone went to trial and was found guilty of all 8 Counts. https://www.npr.org/2019/11/15/779353180/roger-stone-political-operative-and-trump-aide-guilty-in-false-statements-trial
On February 10, 2020, through a document called a sentencing memo, the prosecutors recommended a sentence of 9 years for Mr. Stone. As is well documented, higher ups within the Department of Justice ordered a new sentencing memo calling for a lower punishment. See this related CNN article. https://www.cnn.com/2020/02/11/politics/roger-stone-sentencing-memo-updated/index.html
This move spurred more than 1,100 former members of the DOJ to condemn Attorney General Barr for what was considered to be an “unprecedented overreach.” https://www.npr.org/2020/02/16/806525297/1-100-former-doj-employees-call-on-barr-to-resign-after-intervening-in-stone-cas
It is important to understand that federal judges, since a case called Booker v. Washington, have the power to use their discretion to apply any sentence within the statutory range, provided it is based upon factors articulated within 18 USC 3553(a). In other words, a sentence must be rationally related to the facts of a case and nature of the offender.
The beginning point in any federal sentence is the United States Sentencing Guidelines which provide a recommendation to federal judges when determining a criminal sentence in federal court. Looking at the Guidelines in a case such as Mr. Stone’s will perhaps shed light as to whether the decision to either recommend a nine-year sentence is light, normal, or excessive.
First, it is important to understand that the Guidelines work as a sort of mathematical approach to sentencing. It involves an offense severity score called an “offense level” and a criminal history value called a criminal history score. Then the level and score are put on an x-y access grid to give a recommended range of punishment to a judge.
Below is a sentencing table providing suggested sentences for offense levels 1 -32.
For example, if an offender were assigned an offense level of 21 and had a criminal history score of 3 then that person would be in bracket II and facing a recommended sentence range of 41 – 51 months.
It is important to recognize that many factors go into an offense level including what are called a base offense level and offense characteristics which act to add levels (or “enhance”) a recommended sentence. It is also important to understand that different types of past criminal sentences are scored differently. A trained attorney typically spends significant time evaluating such factors when making a Guideline prediction to a client.
Nonetheless, it is possible to look at the Mr. Stone’s offenses of conviction to try to get a sense whether 9-years is within the standard sentencing recommendation that the Judge will receive through the Guidelines.
[Remember, the Guideline recommendation is the beginning point for a Judge who may elect to show mercy or assess a sentence more severe than the Guidelines.]
All 8 Counts of Conviction refer to the same Sentencing Guideline, which is section 2J1.2. The beginning base offense level is 14. However, there are specific offense characteristics which can enhance the offense level. First, if the judge determines that a person was threatened, then the offense level is increased by 8. The Indictment alleged conduct where Stone told a person he was trying to dissuade from testifying “he would take that dog away from you” and “I am so ready. Let’s get it on. Prepare to die.” Whether this is genuine or exaggeration would be up to the judge. However, if the judge determines that to be a threat of physical force the offense level just went from 14 to 22. Further, if the judge finds that the offense resulted in “substantial interference with the administration of justice” then the offense level is increased 3-more levels. That would raise it to 25. Then it is possible for an enhancement based upon the complexity and scope of the criminal conduct which could add another 2-levels. This would raise it to 27.
Finally, there is an overall enhancement under section 3C1.1 for Obstructing or Impeding the Administration of Justice. This also involves a 2-level enhancement. If this were to be applied the overall offense level would be 29.
In fact, an offense level of 29 and a criminal history score of 1 was used to arrive at a range of 87-108 months. See the Sentencing Memo in this related CNN article. https://www.cnn.com/2020/02/10/politics/read-prosecutors-ask-for-7-to-9-years-in-prison-for-roger-stone/index.html
Thus, looking at the Guidelines and depending upon the aggression of the prosecutors and the inclination of the sentencing judge, a sentence of 9-years is within the typical parameters of the Sentencing Guidelines. Whether that is fair, or whether some of the more recent DOJ arguments makes sense, is in the eye of the beholder.
Nonetheless, it is important to understand that the Guidelines are static and involve multiple possible sentencing enhancements based upon related conduct. Anyone facing a federal prosecution needs the help of an attorney who understands federal law, federal procedure, and the Guidelines.