Podcasts about Sentencing guidelines

​In her June 2022 sentencing memorandum, Ghislaine Maxwell requested a significant reduction from the advisory Sentencing Guidelines range of 292 to 365 months, as well as from the 240-month sentence recommended by the Probation Department. Her defense argued that her association with Jeffrey Epstein, which occurred decades prior, led to her current legal situation. They emphasized that Maxwell had not faced any accusations before her involvement with Epstein or in the 20 years following the conduct in question.Maxwell's attorneys also highlighted her challenging upbringing, particularly her relationship with her father, the late British publishing magnate Robert Maxwell, who they described as abusive. They suggested that this background made her susceptible to Epstein's influence. Additionally, the defense pointed to the harsh conditions of her pre-trial confinement, including being placed on suicide watch, as factors warranting a lighter sentence. They contended that these conditions were unusually severe and should be considered in mitigation.to contact me:bobbycapucci@protonmail.com

Welcome to the award-winning FCPA Compliance Report, the longest-running compliance podcast. In this episode, Tom welcomes Eric Morehead to discuss the role and function of the U.S. Sentencing Commission. Eric is the Director of Advisory Services Solutions at LRN and former Assistant General Counsel at the U.S. Sentencing Commission. He and Tom review the intricacies of the U.S. Sentencing Commission's role, structure, and impact. Eric walks through his professional journey and explains the Sentencing Commission's function in standardizing federal criminal sentences and promoting organizational compliance programs. He emphasizes the importance of the Sentencing Guidelines, the process for their amendment, and the challenges faced by the Commission, such as quorum issues. The discussion also touches on current topics, including the potential impact of executive orders on DEI policies and the FCPA pause, stressing the continued relevance of the Sentencing Guidelines in compliance program development. Key highlights: Eric Morehead's Background and Role at the U.S. Sentencing Commission Understanding the U.S. Sentencing Commission Process of Creating and Amending Sentencing Guidelines Impact of Sentencing Guidelines on Compliance Programs Current Issues in Compliance: DEI and FCPA Enforcement Resources: Eric Morehead on LinkedIn LRN US Sentencing Guidelines for Organizations Tom Fox Instagram Facebook YouTube Twitter LinkedIn Learn more about your ad choices. Visit megaphone.fm/adchoices

On today's #NCFNewspeak, the NCF team discuss: * Equality Before the Law is DEAD. Sentencing guidelines disadvantage white men. * A Royal Ramadan: Britain's elites prioritize Islam over Christianity * Trump's New World Order

Jonathan Byrne and Josh Carpenter of the Western District of North Carolina Federal Public Defender Office discuss recent Fourth Circuit and Sentencing Guidelines news.

On November 1, several amendments to the United States Sentencing Guidelines took effect. Some of these changes are significant, offering advantages to the defense, while others are less beneficial. However, ultimately, this process amounts to nothing more than "Kabuki Theatre," meaning the tortured guideline applications become merely performative, because 18 U.S.C. § 3553, enables discerning judges to overlook the sentencing recommendations provided by the guidelines. Thus, it is crucial to be informed about these amendments to argue effectively whether and how they should be considered in the final analysis.   IN THIS EPISODE:  Some eye-popping facts and stats after forty years of guideline sentencing; Relevant conduct amendment to now exclude acquitted conduct (but it comes with a big but…) Possibility that new litigation may void the Kisor fix because of commission overreach by overriding congress and/or resolving circuit splits;   The “Kisor” work-around to fix the intended loss issue under the fraud guideline; The implication and larger application of the Kisor workaround – i.e., support for the argument that for other guidelines, if it's in the commentary, it doesn't count; Clarification of the new Zero Point Offender provisions (ZPO) to deny eligibility for anyone who gets an upward role adjustment; And, perhaps the one bright spot, adding a potential downward departure for “youthful offenders” (mid-20's or less); Practice tips for navigating the  new guidelines provisions; Information on reaching out to the commission for future proposed guideline amendments.   LINKS:  United States Sentencing Guidelines online:  https://guidelines.ussc.gov/apex/r/ussc_apex/guidelinesapp/home   My new Album!  The guidelines are 40 years old, which is also when I picked up my first guitar.  So, yes, I had to give a shameless plug for my first rock record, "One Good Thing", which is available everywhere you stream your music!  Music is another creative outlet that keeps me sane and quiets my brain:   https://www.youtube.com/playlist?list=OLAK5uy_kyVV0Qs1xMGqXQYZlzHzBgUlA7A35aENI   FAREWELL 2024!!!! This will be the last new episode of 2024.  As always, I wanted to thank you for listening, constributing, liking, subscribing and spreading the word about Set for Sentencing.  We have been going strong for over two years now, and the show was recently ranked #7 among the 35 “must-follow” Criminal Defense podcasts in 2024, via Feedspot (35 Best Criminal Defense Podcasts You Must Follow in 2024).  So, per a tradition I started in 2023, I'll be taking the rest of the year off!  The remaining episodes of the year will be re-broadcasts of either other podcasts I have appeared on or some earlier episodes I adore and may have been overlooked when the audience was smaller.   2025 will be a wild ride, and we'll be right here with you, buckled up and ready to roll.   Until then, I'm grateful for all of it, and I hope you find some peace, light and love as the year winds down. 

We spend so much time and engergy trying to develop our knowledge and skill to better represent our clients.  And keeping abreast of all major developments in the law is paramount to a successful legal practice. But there's one thing every lawyer needs, and it does not exist – a crystal ball.  If we were clairvoyant we could anticipate favorable changes in the law that we could use to our advantage right now, even before the ruling happens. The bigger problem, especially in federal court, is that if we enter a plea agreement (which is almost every case), we almost always waive our right to challenge changes in the law that would even prove a client is innocent of the crime to which he pled! Therefore, in an effort to aid in your clairvoyant powers on the subject of federal FRAUD cases, we give you Thompson v. United States, a “sleeper case” headed for the Supreme Court. Reading the tea leaves of prior recent court decisions on fraud crimes, the muck at the bottom of the mug tells us that if the Court continues on their quest to narrow the scope of federal fraud prosecutions, could result in a seismic shift in many cases where the fraud is predicated on the accused making “false statements. “   IN THIS EPISODE: Summary of the Thompson case; The distinction between “false statements” versus “misleading statements”; The need to make a record before, during, and after a plea; Consider negotiating a conditional plea that preserves your right to appeal should the Thompson case go our way; How long it may take to get a ruling from the court on Thompson; Plea implications of Thompson; Sentencing implications of Thompson (relevant or acquitted conduct).   AFTERTHOUGHT:   It occurred to me when editing this podcast a very important practice tip now that there is this great body of S.Ct. law limiting fraud  and cert having been granted on Thompson:  We should strongly consider asking for a “Bill of Particulars” in every case, to make the government state, with specificity what the alleged fraudulent conduct was, as if it was an omission or a misleading statement, rather than an outright LIE, then you may have a fighting chance at defeating the charge, and/or mitigating your sentence.   LINKS: Mark Allenbaugh:   www.sentencingstats.com Check back here soon for an updated link to Mark's Law 360 article on this topic!

Summary of Chapter 8: Punishment and Sentencing. Chapter 8 delves into the theories, practices, and controversies surrounding punishment and sentencing in the criminal justice system. It explores various approaches to punishment, including retribution, deterrence, and rehabilitation, and examines how these theories influence sentencing decisions. Theories of Punishment: Retribution: This theory is based on the concept of just deserts, where offenders are punished because they deserve it for their wrongful acts. The punishment should be proportionate to the crime, reflecting society's need for moral balance. Deterrence: Deterrence aims to prevent future crime by making the consequences of criminal behavior clear and severe. It is divided into general deterrence, which targets society at large, and specific deterrence, which focuses on preventing the individual offender from reoffending. Rehabilitation: Rehabilitation seeks to reform offenders by addressing the underlying issues that contributed to their criminal behavior, with the goal of helping them reintegrate into society as law-abiding citizens. Sentencing Guidelines and Statutory Penalties: Sentencing Guidelines: These provide a structured approach to sentencing, aiming for consistency and fairness by outlining recommended penalties based on the severity of the offense and the defendant's criminal history. Statutory Penalties: These are the legally prescribed minimum and maximum punishments for specific crimes. Judges must impose sentences within these limits, although they may depart from the guidelines in certain circumstances, depending on aggravating or mitigating factors. Alternative Sentencing: Probation: A common form of alternative sentencing that allows offenders to remain in the community under supervision, subject to conditions such as regular check-ins with a probation officer, employment, and participation in treatment programs. Community Service: Offenders perform unpaid work for the benefit of the community as a form of restitution. This option allows offenders to contribute positively to society while avoiding incarceration. Severe Punishments: Death Penalty: Also known as capital punishment, the death penalty is reserved for the most heinous crimes. It is highly controversial and subject to strict legal standards and safeguards to ensure fairness and due process. Life Imprisonment: This involves incarcerating an offender for the rest of their life, either with or without the possibility of parole. Life imprisonment is often used as an alternative to the death penalty for serious crimes. Clemency and Commutation: Clemency: An act of mercy that can result in a pardon, reduction of the sentence, or commutation to a lesser penalty. Clemency provides a final check on the criminal justice system, allowing for mercy in exceptional cases. Commutation: A form of clemency that reduces the severity of a sentence without overturning the conviction. For example, a death sentence might be commuted to life imprisonment. This chapter provides a comprehensive overview of the philosophies and practices of punishment and sentencing, highlighting the complex considerations that underlie decisions in the criminal justice system. --- Support this podcast: https://podcasters.spotify.com/pod/show/law-school/support

Summary of Chapter 8: Punishment and Sentencing. Chapter 8 delves into the theories, practices, and controversies surrounding punishment and sentencing in the criminal justice system. It explores various approaches to punishment, including retribution, deterrence, and rehabilitation, and examines how these theories influence sentencing decisions. Theories of Punishment: Retribution: This theory is based on the concept of just deserts, where offenders are punished because they deserve it for their wrongful acts. The punishment should be proportionate to the crime, reflecting society's need for moral balance. Deterrence: Deterrence aims to prevent future crime by making the consequences of criminal behavior clear and severe. It is divided into general deterrence, which targets society at large, and specific deterrence, which focuses on preventing the individual offender from reoffending. Rehabilitation: Rehabilitation seeks to reform offenders by addressing the underlying issues that contributed to their criminal behavior, with the goal of helping them reintegrate into society as law-abiding citizens. Sentencing Guidelines and Statutory Penalties: Sentencing Guidelines: These provide a structured approach to sentencing, aiming for consistency and fairness by outlining recommended penalties based on the severity of the offense and the defendant's criminal history. Statutory Penalties: These are the legally prescribed minimum and maximum punishments for specific crimes. Judges must impose sentences within these limits, although they may depart from the guidelines in certain circumstances, depending on aggravating or mitigating factors. Alternative Sentencing: Probation: A common form of alternative sentencing that allows offenders to remain in the community under supervision, subject to conditions such as regular check-ins with a probation officer, employment, and participation in treatment programs. Community Service: Offenders perform unpaid work for the benefit of the community as a form of restitution. This option allows offenders to contribute positively to society while avoiding incarceration. Severe Punishments: Death Penalty: Also known as capital punishment, the death penalty is reserved for the most heinous crimes. It is highly controversial and subject to strict legal standards and safeguards to ensure fairness and due process. Life Imprisonment: This involves incarcerating an offender for the rest of their life, either with or without the possibility of parole. Life imprisonment is often used as an alternative to the death penalty for serious crimes. Clemency and Commutation: Clemency: An act of mercy that can result in a pardon, reduction of the sentence, or commutation to a lesser penalty. Clemency provides a final check on the criminal justice system, allowing for mercy in exceptional cases. Commutation: A form of clemency that reduces the severity of a sentence without overturning the conviction. For example, a death sentence might be commuted to life imprisonment. This chapter provides a comprehensive overview of the philosophies and practices of punishment and sentencing, highlighting the complex considerations that underlie decisions in the criminal justice system. --- Support this podcast: https://podcasters.spotify.com/pod/show/law-school/support

Summary of Chapter 8: Punishment and Sentencing. Chapter 8 delves into the theories, practices, and controversies surrounding punishment and sentencing in the criminal justice system. It explores various approaches to punishment, including retribution, deterrence, and rehabilitation, and examines how these theories influence sentencing decisions. Theories of Punishment: Retribution: This theory is based on the concept of just deserts, where offenders are punished because they deserve it for their wrongful acts. The punishment should be proportionate to the crime, reflecting society's need for moral balance. Deterrence: Deterrence aims to prevent future crime by making the consequences of criminal behavior clear and severe. It is divided into general deterrence, which targets society at large, and specific deterrence, which focuses on preventing the individual offender from reoffending. Rehabilitation: Rehabilitation seeks to reform offenders by addressing the underlying issues that contributed to their criminal behavior, with the goal of helping them reintegrate into society as law-abiding citizens. Sentencing Guidelines and Statutory Penalties: Sentencing Guidelines: These provide a structured approach to sentencing, aiming for consistency and fairness by outlining recommended penalties based on the severity of the offense and the defendant's criminal history. Statutory Penalties: These are the legally prescribed minimum and maximum punishments for specific crimes. Judges must impose sentences within these limits, although they may depart from the guidelines in certain circumstances, depending on aggravating or mitigating factors. Alternative Sentencing: Probation: A common form of alternative sentencing that allows offenders to remain in the community under supervision, subject to conditions such as regular check-ins with a probation officer, employment, and participation in treatment programs. Community Service: Offenders perform unpaid work for the benefit of the community as a form of restitution. This option allows offenders to contribute positively to society while avoiding incarceration. Severe Punishments: Death Penalty: Also known as capital punishment, the death penalty is reserved for the most heinous crimes. It is highly controversial and subject to strict legal standards and safeguards to ensure fairness and due process. Life Imprisonment: This involves incarcerating an offender for the rest of their life, either with or without the possibility of parole. Life imprisonment is often used as an alternative to the death penalty for serious crimes. Clemency and Commutation: Clemency: An act of mercy that can result in a pardon, reduction of the sentence, or commutation to a lesser penalty. Clemency provides a final check on the criminal justice system, allowing for mercy in exceptional cases. Commutation: A form of clemency that reduces the severity of a sentence without overturning the conviction. For example, a death sentence might be commuted to life imprisonment. This chapter provides a comprehensive overview of the philosophies and practices of punishment and sentencing, highlighting the complex considerations that underlie decisions in the criminal justice system. --- Support this podcast: https://podcasters.spotify.com/pod/show/law-school/support

The recent case of a senior citizen sentenced to imprisonment for petty theft has raised questions about sentencing practices in Malaysia. We discuss what judges take into account when deciding a sentence and the state of access to justice in our legal system with lawyer Edmund Bon.Image Credit: Shutterstock.com

Last Thursday, Judge Lewis Kaplan sentenced Sam Bankman-Fried to 25 years in prison.  Some think that's an appropriate result.  Some think it should have been more. But this sentence far more than necessary to meet the goals of sentencing.  The bigger problem is, there were likely missed opportunities to convince the Judge that justice demanded a lower sentence for Sam.  Therefore, here is the straight scoop on SBF's sentencing (we have the full transcript) and the larger problems it reveals about federal sentencing and beyond.   IN THIS EPISODE:   Judge Kaplan's “tip of the cap” to the insurrectionists; The missed opportunity to present powerful sentencing statistics, including average federal sentences for murder, kidnaping, sexual abuse, and child pornography; Judge Kaplan's explicit comments regarding broken guidelines; Autism Spectrum Disorder – the (largely ignored) elephant in the room; SBF's sentence compared to  (spoiler alert, his sentence is HIGHER than all of ‘em); The missed opportunity of highlighting a LIFE EXPECTANCY analysis at sentencing; The missed opportunity to tell the story of BOP classification issues;   LINKS:   Ep. 73: Sam Bankman-Fried: Is Autism the Missing Piece of Mitigation? https://youtu.be/jkh6eEkvBRg?si=qXJxNu4SBKCqTWEq    

What better way to start off the new year than to review some of the big guideline changes that took effect at the end of the year, and some forward looking sentencing commission proposals for changes that could be coming in 2024? We kick off this year with our friend and colleague, guidelines and sentencing stats guru, Mark Allenbaugh.  He's drinking coke, I'm sipping Don Rico tequila.   IN THIS EPISODE:   Some major changes we gave short-shrift to in previous episodes, including the 3rd point for acceptance of responsibility, and changes to status points related to criminal history, and changes to the “safety valve provision”; The need for aggressive pre-trial litigation, and now without fear of losing the 3rd point; Newly proposed amendment pertaining to “acquitted conduct”; Newly proposed amendment moving “intended loss” into text of guideline, thereby resolving the issue created by Kisor v. Wilkie; Newly proposed amendment related to “criterion 10” of the Zero Point Offender guideline (ZIPPO), and the need to reach out to the commission to oppose this; Doug's plans to publish his book on mitigation videos in 2024.   CONTACT THE SENTENCING COMMISSION (OR YOUR CONGRESSPEOPLE) ABOUT PROPOSED GUIDELINE AMENDMENTS: We spent a fair amount of time on the proposed changes to the new Zero Point Offender provision, in particular, the Commissions stated desire to amend the guideline to clarify the leader/organizer exclusion.  There is NO EMPIRACAL evidence to support the claim that those who participated in a conspiracy and had an enhanced role in the crime are prone to recidivism!  You can find all proposed amendments here: https://www.ussc.gov/guidelines/amendments/proposed-2024-amendments-federal-sentencing-guidelines For some proposed language to include in your correspondence, this is the gist of our argument: The proposed amendment to criterion 10 to place the “continuing criminal enterprise” language into a separate criterion is not a “technical” amendment.  It would presumably preclude any offender who received an upward adjustment under 3B1.1 from receiving the new downward adjustment under 4C1.1.  The commission prides itself on making data/empiracally based adjustments to the guidelines.  However, the Commission has cited no empirical evidence to support such a broad exclusionary criterion.  Moreover, given the significant litigation that already has ensured regarding both the prospective and retrospective application of 4C1.1, any amendments now will cause further confusion over application of USSG 4C1.1.  As the Commission itself has indicated, criterion 10 (in its current form) is taken from the fourth prong of the safety valve at 18 USC 3553(f)(4).  Courts have interpreted 18 USC 3553(f)(4) to exclude from the safety valve only management-level drug traffickers, i.e., only those engaged in a “continuing series” of drug offenses “from which such person obtains substantial income or resources.” 21 USC 848(c)(2).  Excluding such individuals from receiving the Zero Point Offender adjustment makes sense inasmuch as such offenders are, by definition, recidivists.  However, the Commission created 4C1.1 to address the fact that those with zero criminal history points have significantly lower rates of recidivism than those with even a single point.  As there is no evidence to suggest that an offender that otherwise meets all the 4C1.1 criteria presents a substantial risk of recidivism merely because the offender received an adjustment under 3B1.1, the Commission should decline to make further amendments to the criteria at 4C1.1 at this time. Readers may submit their comments to the Commission on or before February 22, 2024 here: https://comment.ussc.gov/apex/r/ussc_apex/publiccomment/home   LINKS TO OTHER RELEVANT SET FOR SENTENCING EPISODES: Ep. 36: Presumed Guilty: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences: https://youtu.be/93dOQ76t7tw?si=jx1_CFV2P8JnITt8 Ep. 65: Acquitted Conduct Revisited: Mmmmm... Flavors of Evil: https://youtu.be/iRG6cbZ_YCY?si=5tOVXg2QWKES--Js Ep. 72: Imperfect 10: Why thousands will be deemed ineligible for the ZPO and what to do about it: https://youtu.be/amEXfhgMpa8?si=jEJ_W9fiGvRCDKis   Last, but not least, the wonderful tequila I was sipping in this episode, is Don Rico (Don Rico Tequila | ¡Ay Qué Rico! | Austin, Texas (ayquerico.com))  I don't get compensated for these endorsements.  I just love talking about (and sipping) great tequila!  The cool thing about Don Rico, besides it being delicious and confirmed additive free on Tequila Matchmaker, is that the company was started by a fellow lawyer, Rick Olivo.  Rick represented a major brand, fell in love with tequila, and started his own brand.   It's not yet available in every state, but hopefully it will be soon.  

David DePape did something terrible, breaking into the San Franscisco home of Nancy and Paul Pelosi, attempting to Kidnap the former Speaker of the House, and savagely attacking her husband with a hammer.  He was just convicted in federal court for his crimes, with more to come in state court.   He is more than just his crimes.  But sadly, the likely truth of DePape's mitigation story has yet to be, and may never be fully told.  So let's get set for sentencing with Doug Passon and Mark Allenbaugh!   IN THIS EPISODE:    Sentencing guidelines discussion; Why DePape faces an almost certain life sentence; DePape's  potential incarceration location; The ongoing terrible dysfunction of the Federal Bureau of Prisons; Discussing DePape's possible mental health issues and why they have not yet come into play; The BOP's inadequacy providing mental health (or any health) treatment.   LINKS: We talked about data Mark obtain from the Judicial Sentencing INformation database, or "JSIN".  We did a podcast on this a while back: https://setforsentencing.com/podcast/jsin-will-judicial-sentencing-information-mutilate-the-stats-or-slash-sentences/   Doug mentioned that the crimes here were very similar to that of the plot to kidnap the govenerner of Michigan (Gretchen Whitmer) and livestream her "trial".  The difference here, at least as it comes to defendant Ty Garbin, was that Mr. Garbin came to understood how wrong his beliefs and conduct were, and went to great lengths to atone for his crimes.  As such, unlike his co-defendants who went to trial and fought to the bitter end, he received a very lenient sentence.  The same fate does not await Mr. DePape, who also is still unfortunately unyeildingly entrenched in his conspiracy theories. If you'd like to see the sentencing mitigation video Doug Passon produced for Mr. Garbin's case, his lawyers made it available here:  https://youtu.be/AOhOY3uuvRQ?si=AOxezRfKx-0bYkfX   Lastly, Doug mentioned a case involving a client with Delusional Disorder.  He litigated that case with an extraordinary attorney by the name of Donna Elm.  Donna and Doug did a podcast on this subject a while back.  Take a listen! https://setforsentencing.com/podcast/rotting-with-your-rights-on-indefinite-detention-for-incompetent-clients/

The day after Halloween, all of the proposed guideline changes went into effect!  We've talked about many of them in detail on previous podcasts, but here, we do a quick run-through of all eigiht categories of amendments.  So what's in our candy bags the day after?  Well, in truth, most of what we got were TREATS, but we have a few TRICKS as well.   There's plenty to love here, but there are also a few catagories of offenses that could result in increased guideline calculations.   Helping us get Set for Sentencing, our returning champion, guidelines guru Mark Allenbaugh to help run through all of it.    IN THIS EPISODE: The EIGHT categories of guidelines changes that went into effect on 11/1/23 Some practical tips and tricks for dealing with them:  Compassionate release (treat) Criminal History (treat) Acceptance of Responsibility (treat) New enhancement under the firearms guideline (trick) Career Offender guidelines (trick) Safety Valve (treat, but a lame circus peanut cleanup treat) Fentanyl enhancement (another weak treat) Sexual Abuse of a Ward Enhancement (it's a trick for the staff of the Federal Bureau of Prisons, who seem to have a sexual abuse problem in their facilities, and most definitely a treat for their many victims.) Why the commission is starting to move “commentary” into the guideline itself, in order to bypass new law (Kisor) that renders commentary non-binding on judges. If you have a case involving INTENDED LOSS under the fraud guidelines, be aware of the Kisor argument that gives you a solid argument (in some circuits) that there's no such thing as “intended loss”; The connection between the Sexual Abuse of a Ward enhancement and the new expanded grounds for Compassionate release, and some practical tips for inmates who are victims of abuse in prison.   OTHER PODCAST EPISODES WORTH CHECKING OUT:   IMPERFECT 10 - Beware criterion 10 of the Zero Point Offender provision that seems to preclude the 2-level reduction where a person previously received a "role enhancment".  Don't give up so easily on this issue! https://setforsentencing.com/podcast/imperfect10/   GOIN' RETRO:  RETROACTIVE APPLICATION OF ZERO POINT OFFENDER AMENDMENT: https://setforsentencing.com/podcast/goin-retro-retroactive-application-of-zpo-and-status-point-amendments/   The First ZERO POINT OFFENDER PODCAST:  THE ZIPPO IS ON FIRE! https://setforsentencing.com/podcast/zippo/

The "safety valve" provision of the federal sentencing statute requires a district court to ignore any statutory mandatory minimum and instead follow the Sentencing Guidelines if a defendant was convicted of certain nonviolent drug crimes and can meet five sets of criteria. See 18 U.S.C. § 3553(f)(1)-(5). Congress amended the first set of criteria, in§ 3553(f)(1), in the First Step Act of 2018, Pub. L. No. 115-391, § 402, 132 Stat. 5194, 5221, broad criminal justice and sentencing reform legislation designed to provide a second chance for nonviolent offenders. A defendant satisfies § 3553(f)(1), as amended, if he "does not have-(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines." 18 U.S.C. § 3553(f)(1) (emphasis added). The question presented is whether the "and" in 18 U.S.C. § 3553(f)(1) means "and," so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point offense (as the Ninth Circuit holds), or whether the "and" means "or," so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3- point offense, or (C) a 2-point violent offense (as the Seventh and Eighth Circuits hold). ORDER OF 10/2/2023: THE MOTION OF PETITIONER FOR LEAVE TO PROCEED FURTHER HEREIN IN FORMA PAUPERIS AND FOR APPOINTMENT OF COUNSEL IS GRANTED. J. ROBERT BLACK, OF OMAHA, NEBRASKA, IS APPOINTED TO SERVE AS COUNSEL FOR THE PETITIONER IN THIS CASE.

On this episode, Nina and Joe have a discussion with Jim Felman on the United States' sentencing guidelines. 

The Zero Point Offender and Status Point modifications to the Sentencing Guidelines go into effect on November 1.  They are RETROACTIVE.  But not everyone knows whether they may benefit from the changes or how to go about getting that benefit.  Therefore, helping us get Set for Sentencing, Mark Allenbaugh, and Keith Hilzendeger to tell us everything you everything you need to know.  This episode is for those who have resources to engage private counsel to fight this fight, or for those who may need help from the Federal Public Defender.  Either way, change is coming, and we must be ready.   IN THIS EPISODE: PART ONE:  MARK ALLENBAUGH Overview of the “ZIPPO”, or ZERO POINT OFFENDER guideline amendment; Overview of the “status points” adjustment changes; Retroactivity and the February 1, 2024 target date; DO NOT WAIT until 11/1 to ask for these 2 levels off or, consider asking for a continuance until the amendment goes into effect! Using compassionate release motions to effectuate the change on the grounds that if you are immediately eligible for release, you shouldn't have to wait until February 1, 2024; Covid is still a thing, and why it matters to Zippo motions; What to do if your sentencing is set before the changes take effect (11/1/23).   PART TWO:  KEITH HILZENDEGER, ASST. FEDERAL PUBLIC DEFENDER Advice for clients who cannot afford to hire counsel to deal with Zippo/Status Point changes.   LINKS:    For an overview of the Zero Point Offender (ZIPPO) amendment, check out episode, ___ where we go into all the basics. https://setforsentencing.com/podcast/zippo/      

Everyone is talking about the latest Trump indictment.  But nobody is talking about the possible sentence he might face if convicted.  That's what we do!  Spoiler alert -- it's a big deal.

It's time to clear the docket! This week, it's officially Summertime Funtime in the Court of Judge John Hodgman! Judge Hodgman is back in Maine at the solar-powered studios of WERU with Joel Mann. Summertime Funtime Guest Bailiff Monte Belmonte (New England Public Media) is sitting in for Jesse Thorn. And, we've got word and grammar disputes to discuss with Merriam-Webster's own Emily Brewster. Can you dance with the person what brought you? Is saying UPMOST the UTMOST in wrongness? And what sound do French dogs make? Listen for the answers to these questions and more! 

Happy Fourth of July Week! Josh and Sara and I will be back to breaking news next week. For now, enjoy this deep dive special episode about how to be a critical consumer of legal news, and hear a useful explainer of the U.S. Sentencing Guidelines — helpful for anyone who has ever read the words "they face a maximum of __ years in prison."Visit serioustrouble.show to see notes about this epsiode, including a transcript, and we welcome you to support our podcast for $6/month or $60/year there. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.serioustrouble.show/subscribe

We've talked at length about Trump's exposure in the documents/obstruction case now charged in Florida.  But, nobody has been talking much about the co-defendant; Trumps “body man”, Waltine Nauta.  What's his exposure?  What's his incentive to plead guilty or testify against Trump?  What is his mitigation story?  Therefore, in order to be fully Set For Sentencing on this case, we gotta talk about the other guy along for this ride.   IN THIS EPISODE:   Sentencing guidelines for Trump's Co-defendant; Why the talking heads are getting it wrong on Trump's guidelines; Analysis under 18 USC 3553 to begin to more accurately predict the outcome; The double edged sword of mitigation, in this case his history of military service; Predictions as to whether he will “flip” and cooperate against Trump; The low down on Judge Aileen Cannon; Whether judges really care about getting reversed on appeal; Thoughts about what the Department of Justice looks like if Trump gets re-elected; How all the undermining of trust in the FBI and DOJ will result in more acquittals.   RELATED LINKS:   Reality Check: Unpacking the Trump Indictment:  https://dougpassonlaw.com/podcast/realitycheck/   Mar-a-la-Going To Prison?  https://dougpassonlaw.com/podcast/mar-a-lago-ing-to-prison-worst-case-scenarios-if-djt-ends-up-in-the-bop/

Casanova 2x Sister Speaks on His Sentencing Guidelines and Casanova Wire Tap Being in Taxstone Case --- Support this podcast: https://podcasters.spotify.com/pod/show/dotcc/support

Sentencing guidelines help to ensure that judges and magistrates in courts across England and Wales take a consistent approach to sentencing and its severity depending on offences. James and Olivia discuss the general guidelines on this episode. The aim of the Criminal Maze Podcast is to unravel the maze that is the justice system. Join James Constable and Olivia Duncan as they explore the various parts of the criminal justice system, and as they get a chance to talk to various professionals that make up the system, speaking about their roles and the part they play within it.

Yes, we came up with a pithy name we are sure will catch on for the new and VERY consequential US sentencing guideline amendment which allows a 2-level reduction for those with zero criminal history points and who aren't excluded based on several listed criterion.   This amendment is a BIG DEAL, and will be retroactive, potentially impacting thousands of inmates in the BOP, and countless clients currently facting sentencing in federal court.  But, some of the language is ambiguious and you must arm yourself with the right legal ammunition and also remember to preserve the issue for appeal.  To that end, bear with as, as we go waaay into the legal weeds by engaging in a mind-numbing conversation about whether “and” really means “and” as it appears in criterion 10 (leader/organizer exclusion) of the new  “ZIPPO” guideline exclusion provisions.  Necessary as this is, it's exactly the kind of mental masturbation that gives me flashbacks to LSATs and law school final exams and makes me wanna throw up in my mouth.  So, to compensate, I barfed up a dumb song about the whole thing.  If you make it past the end credits, you'll hear my debut musical performance on this podcast.  As Maximus Decimus Meridius famously says, "ARE YOU NOT ENTERTAINED???!!!". Yes, this might be the moment where you say Set For Sentencing officially jumped the shark.  I can live with that.   IN THIS EPISODE:   Overview of the “ZIPPO”, or ZERO POINT OFFENDER guideline amendment; Retroactivity means over 7000 people in BOP will likely be given sentencing reductions; The sticky wicket that is Criterion 10 – does “and” mean “and” or does “and” mean “or”? How you can take advantage of this amendment before it inevitably passes on 11/1/23; The Pulsifer case pending at the supreme court may resolve the criterion 10 dilemma (whether and means or); Do not forget to preserve these issues at sentencing; Even if your court finds “and” means “or” – you can still argue for a variance; DO NOT WAIT until 11/1 to ask for these 2 levels off or, consider asking for a continuance until the amendment goes into effect; Doug's dumb ZIPPO song.   OTHER LINKS: We did a general podcast on all of the major new guideline amendments.  We zeroed in on the ZIPPO here b/c it's so important, but if you want a broader view, check out this ep: https://dougpassonlaw.com/podcast/big-guideline-changes-on-the-horizon-with-mark-allenbaugh/  

Welcome to the award-winning FCPA Compliance Report, the longest running podcast in compliance. In the latest episode of the FCPA Compliance Report, host Tom Fox welcomes Katherine Pappas, Lauren Briggerman and Ian Herbert, experts in government and internal investigations at the law firm of Miller & Chevalier. The group discusses changes to the Corporate Enforcement Policy and the challenges companies face with extraordinary cooperation and clawbacks. They also dive into the Biden administration's antitrust policies, particularly in the area of labor markets and the recent trend of the DOJ losing no poach cases to juries. The conversation then shifts to the FTC's proposed rule on non-compete agreements and recent FCPA individual prosecutions related to bribery allegations. Finally, the hosts discuss potential changes to duty of oversight requirements for company directors and officers and potential changes to US sentencing guidelines. Don't miss out on this informative and engaging episode!. Key Highlights ·      Updates on DOJ's Corporate Enforcement Policy ·      Challenges and Failures in Antitrust Prosecutions ·      No-poach and non-compete agreements in energy industry ·      FTC Rulemaking and Non-Compete Agreements ·      Cryptocurrency and High-Profile Nondisclosure Cases ·      Oversight and Sentencing Guidelines in Companies  Resources Miller & Chevalier Executives At Risk Winter: 2022/2023 Lauren Briggerman Katherine Pappas Ian Herbert Tom Fox Instagram Facebook YouTube Twitter LinkedIn Learn more about your ad choices. Visit megaphone.fm/adchoices

The Silicon Valley Bank Bailout On March 10, 2023, Silicon Valley Bank failed, being the second-largest bank failure in U.S. history. The U.S. government then took extraordinary steps to stop the potential banking crisis, assuring all depositors that they could access all their money quickly, even as another major bank was shut down. Vec and Mark discuss the bailout at Silicon Valley Bank. NCLA Comment Encourages Sentencing Commission to Alleviate Harms Inflicted by Judicial Deference NCLA has filed a Comment partially supporting the United States Sentencing Commission's proposed amendments to the U.S. Sentencing Guidelines. The amendments would address circuit conflicts that have emerged regarding two inchoate offenses. NCLA sees the amendments as a first step to alleviating harm that Stinson deference inflicts. Still, federal judges must stop deferring to Guidelines commentary, because unlike the Guidelines themselves, the Commission's commentary never receives an up-or-down vote from Congress. NCLA Litigation Counsel Kara Rollins joins to talk through NCLA's recent Comment filed with the U.S. Sentencing Commission.See omnystudio.com/listener for privacy information.

It was a long wacky December in the world of federal sentencing. I can't remember a month with more high profile proceedings, and Mark Allenbaugh (www.sentencingstats.com) and I covered all of it in a marathon, 4-hour session. Here is part 3, dissecting the sentencings of Julie and Todd Chrisley, the star of USA Network's reality shitshow, "Chrisley Knows Best." This husband and wife duo were convicted after trial of multiple fraud charges. After a lackluster performance from the defense, Todd received a 12-year sentence, his wife received 7.  So, what went wrong? IN THIS EPISODE: Gender disparity in federal sentencing; Yet another missed opportunity to argue life expectancy; Explaining the very basics of sentencing memos; Why the defense memos were among the worst we've seen; How and why the power of story lies in the details; Remembering Rodney King and Stacey Coon!? – if you are still talking about your case being outside of the “heartland”, you're 20 years behind schedule; The ongoing saga of the sentencing letter. LINKS: Last episode:  We started this conversation in EP. #31 (Sunny Balwani Sentencing Post Mortem) by doing comparative statistical analysis of Avenatti's sentencing with Holmes, Bulwani and the Chrisleys.  If you haven't heard the first 20 or so minutes of that episode, it's most certainly pertinent to today's discussion on Avenatti.   Check it out at: www.setforsentencing.com/balwani Patterson study: we can't stress this enough. Unless the crime is beyond atrocious, most judges will think long and hard before imposing a sentencing they believe will result in a defacto life sentence.  Therefore, life expectancy could make a huge impact at sententencing.  But do it right, using this study showing that life expectancy for incarcerated individuals is far different:  https://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2012.301148  We talk about the importance of telling a story with detail and making it relevant to punishment, using Mr. Chrisley's “fibromyalgia” as the prime example.  The defense informed the judge of his diagnosis yet said nothing of symptoms and how it would affect him in prison.  Another huge opportunity missed.  If you'd like to know more about Telling the story of prison, check out EP.  3, with prison expert and former warden, Maureen Baird.  https://youtu.be/fCls6d1pzuA  

Welcome to the award-winning FCPA Compliance Report, the longest running podcast in compliance. In this special episode, I visit with Eric Morehead, the Director of Advisory Services at LRN. We discuss the US Sentencing Guidelines on the 30th anniversary of their enactment and review the recent report on the history of the Sentencing Guidelines. Morehead, a former staff attorney at the US Sentencing Commissions takes a look at the numbers and considers the broader impact of the Sentencing Guidelines on compliance in the US and across the globe. Some of the highlights include: ·      What are  the US Sentencing Guidelines? ·      Why were the enacted? ·      How have they been supported by the DOJ and Courts? ·      What were the two amendments to the US Sentencing Guidelines? ·      What may be down the road for the US Sentencing Guidelines?  Resources LRN Eric Morehead on LinkedIn A Deep Dive Into Organizational Sentencing Data by Eric Morehead on Law360 Learn more about your ad choices. Visit megaphone.fm/adchoices

A suspended sentence is a sentence on conviction for a criminal offense, the serving of which the court orders to be deferred in order to allow the defendant to perform a period of probation. If the defendant does not break the law during that period and fulfills the particular conditions of the probation, the sentence is usually considered fulfilled. If the defendant commits another offense or breaks the terms of probation, the court can order the sentence to be served, in addition to any sentence for the new offense. United States. In the United States, it is common practice for judges to hand down suspended sentences to first-time offenders who have committed a minor crime, and for prosecutors to recommend suspended sentences as part of a plea bargain. They are often given to mitigate the effect of penalties. In some jurisdictions, the criminal record of the guilty party will still carry the offense, even after probation is adequately served. It is important to note about a suspended imposition of a sentence is that it does not completely remove the conviction from a person's record. While it may be hidden from the public, it is not hidden from law enforcement. In other cases, the process of deferred adjudication prevents the conviction from appearing on a person's criminal record, once probation has been completed. In the federal system, judges' authority to suspend sentences has been abolished by the Sentencing Reform Act of 1984, through the United States Sentencing Commission, and upheld by Mistretta v United States. United Kingdom. A custodial sentence may, at the discretion of the sentencing judge or magistrates, be suspended for up to two years if the term of imprisonment is under two years and the offender agrees to comply with court requirements, which may include a curfew, performing unpaid work, and or engaging in an appropriate rehabilitation programme. In 2017, 5% of convictions resulted in a suspended sentence, compared to 7% immediate custodial sentences. The sentencing guidelines indicate that it is appropriate for a sentence to be suspended if there is strong personal mitigation and or a realistic prospect of rehabilitation, but suspended sentences should not be used for offenders who pose a risk to the public or who have a history of poor compliance with court orders. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

Watch this episode on YOUTUBE, on APPLE PODCASTS, or wherever you get your podcasts! We like to say the United States has "the greatest system in the world."  But do we?  There's simply no way to answer that question until we learn how other countries adjudicate crime.  Helping us get Set for Sentencing is Prof. Julian Roberts, a British scholar, sentencing expert, and Executive Dir. of The Sentencing Academy, UK, dedicated to developing expert and public understanding of sentencing in England and Wales. IN THIS EPISODE: The UK's criminal process from charge to sentencing; Why plea bargaining is rare in the UK system; The prevalence of pre-trial detention in the UK; Why non-lawyer magistrates impose 95 percent of sentences in the UK; The length of sentences in the US vs. in the UK; Whether mandatory minimums are a thing in the UK; The history and structure of sentencing guidelines in the U.K.; Application of an case example to illustrate the UK guidelines; Use of sentencing letters, witnesses, victim impact statements and sentencing videos; The catch-22 of “Indeterminate sentences for public protection”; The prevalence of life without parole or “whole life orders” in the UK; Separate sentencing regimes for juveniles, young adults and adults; LINKS:  The Sentencing Academy, UK

This is not a conspiracy, but the truth. This is from the Federal Bureau of Investigation: SAN JOSE—Brian Andrew Dunning pleaded guilty in federal court in San Jose on April 15, 2013, to wire fraud, United States Attorney Melinda Haag announced. In pleading guilty, Dunning admitted that, between approximately May 2006 and June 2007, he engaged in a scheme to defraud eBay through so-called “cookie stuffing.” According to the plea agreement, commissions paid to Dunning's company, Kessler's Flying Circus (KFC), which Dunning owned jointly with his brother, totaled approximately $5.2 million during that period from eBay's domestic Affiliate Program. According to the plea agreement, in approximately April 2005, Dunning and his brother formed KFC, through which they participated in the eBay Affiliate Program. The Affiliate Program was a means by which eBay worked with KFC and other affiliates to drive Internet traffic to eBay's websites. Under the program, an affiliate was supposed to send visitors to eBay's website by displaying an eBay advertisement, or link, on the affiliate's website. If a visitor clicked on the eBay link or ad, he or she was redirected to eBay's website. If that user subsequently conducted a “revenue action” on eBay's website within a designated period of time, eBay paid the affiliate a commission for the referral. Dunning admitted that he carried out his scheme by providing free applications at two of his websites that users could download and use on their own websites: ProfileMaps.info, which showed the physical location of visitors to a MySpace profile, and WhoLinked.com, which showed who was linking to the user's website or blog. Both applications contained code Dunning had written that operated so that, when a user visited a website that had installed the application, the code would cause the user's browser to receive a cookie with KFC's ID number, even though the user did not click on an eBay ad or link, did not see any content from eBay's website, and did not realize that his or her browser had been re-directed to eBay's tracking server. As a result, KFC would be paid if that user subsequently conducted an eBay revenue action within a certain period of time. Dunning, 47, of Laguna Niguel, California, was indicted by a federal grand jury on June 24, 2010, and charged with five counts of wire fraud, in violation of Title 18, United States Code, Section 1343. Under the plea agreement, Dunning pleaded guilty to a superseding information, filed on April 15, 2013, that alleged a separate violation of the same statute. In his plea agreement, Dunning admitted that he received payments for revenue actions for which he was not entitled to be compensated but reserved the right to dispute how much of those payments were attributable to the cookie stuffing scheme. An evidentiary hearing to determine the loss amount will be held on August 8, 2013, before United States District Judge Edward J. Davila, in San Jose. The maximum statutory penalty for a violation of 18 U.S.C. § 1343 is 20 years' imprisonment and a fine of $250,000, or twice the gross gain or gross loss from the offense, whichever is greater, plus restitution. However, any sentence following conviction would be imposed by the court after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553. David R. Callaway and Kyle F. Waldinger are the Assistant U.S. Attorneys who are prosecuting the case with the assistance of Elise Etter, Rawaty Yim, and Elizabeth Garcia. The prosecution is the result of an investigation by the Federal Bureau of Investigation.******************************************************************To listen to all our XZBN shows, with our compliments go to: https://www.spreaker.com/user/xzoneradiotv*** AND NOW ***The ‘X' Zone TV Channel on SimulTV - www.simultv.comThe ‘X' Chronicles Newspaper - www.xchroniclesnewpaper.com

Amended Complaint Filed in NCLA Gov't Censorship Lawsuit NCLA, the Attorney General of Missouri, and the Attorney General of Louisiana, have filed a second amended complaint in the lawsuit that exposed scores of federal officials across at least eleven federal agencies secretly communicating with social-media platforms to censor and suppress private speech the government disfavors. 47 new defendants, including officials from the White House, Centers for Disease Control, the FBI and 11 other federal agencies have been added to a lawsuit. Plaintiffs are also seeking to depose many of these top-ranking officials. Vec discusses Missouri v. Biden and the recently filed amended complaint with NCLA Litigation Counsel Jenin Younes. NCLA Amicus Brief Encourages Fifth Cir. to Reject Judicial Deference to Sentencing Commission NCLA has filed an amicus brief in United States v. Vargas, urging the en banc U.S. Court of Appeals for the Fifth Circuit to decide that Stinson deference should not be applied when it results in a more severe criminal sentence. NCLA argues that existing Fifth Circuit precedent, which the panel was bound to apply in its vacated decision, follows flawed reasoning and causes courts to defer reflexively to United States Sentencing Commission commentary, even when Sentencing Guidelines are unambiguous. Vec discusses Stinson deference and NCLA's amicus brief in U.S. v. Vargas with NCLA Litigation Counsel Kara Rollins.See omnystudio.com/listener for privacy information.

For the first time in nearly four years, there is a fully staffed, fully functioning United States Sentencing Guidelines Commission.  They have published a list of priorities for the 2022-23 cycle and are soliciting public comments until Oct. 17, 2022.  But many may not realize just how consequentional some of the proposed changes could be.  Therefore, helping us get Set For Sentencing, in an unprecedented double header, our returning champion, Mark Allenbaugh of Sentencingstats.com! IN THIS EPISODE: federal sentencing guidelines overview; The inside scoop on the commission; The need to expand arguments for early release; Congress's role in directing or ratifying guideline amendments; How the guidelines account for past criminal history and proposed amendments to those provisions; Revisiting the Commission's original mandate to avoid custodial sentences when possible for all non-violent offenders; The one sentencing statute (besides 3553) that every federal defendant must invoke as often as possible, How guideline amendments can help fix overcrowding; It's time to stop courts from using acquitted conduct against a client at sentencing; Things not on the Commission's priority list that should be; Last but not least – what can YOU DO to make your voice heard (see link below). LINKS: FEDERAL REGISTER NOTICE OF PROPOSED 2022-2023 PRIORITIES SUMMARY: As part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, and in accordance with Rule 5.2 of its Rules of Practice and Procedure, the United States Sentencing Commission is seeking comment on possible policy priorities for the amendment cycle ending May 1, 2023. DATES: Public comment should be received by the Commission on or before October 17, 2022. ADDRESSES: Comments should be sent to the Commission by electronic mail or regular mail. The email address is pubaffairs@ussc.gov(link sends e-mail). The regular mail address is United States Sentencing Commission, One Columbus Circle, NE, Suite 2 500, South Lobby, Washington, DC 20002 8002, Attention: Public Affairs – Priorities Comment.

By Adam Turteltaub The Organizational Sentencing Guidelines have turned thirty, and what began as an experiment is now an established framework for compliance programs in the US and around the globe. To commemorate the milestone, the United States Sentencing Commission has published The Organizational Sentencing Guidelines: Thirty Years of Innovation and Influence, which takes a look at the impact of the guidelines and what we have learned about their impact on organizational behavior. In this podcast, the Commission's General Counsel Kathleen Grilli identifies the three largest innovations of the Guidelines: Incentivizing self-policing by organizations Providing guidance on effective ethics and compliance programs Holding organizations accountable based on specific culpability factors when they commit offenses The approach has worked more successfully than had been imagined. As she notes, it has expanded beyond the criminal environment to encompass civil settlements with government agencies as well. In addition, the approach to compliance in the Guidelines has been embraced globally, with their outlines clearly visible in the laws of many nations. Within the US, she shares, a strong difference has emerged between organizations with and without compliance programs. The overwhelming majority of organizations convicted had no compliance program at all. In fact, only 11 out of approximately 5,000 organizations had a program that a court found to be effective. This points out that there is still room for improvement, particularly among smaller organizations who lack awareness of the need for and benefits of compliance programs. Listen in to learn more about the remarkable effectiveness of the Organizational Sentencing Guidelines.

What you'll learn in this podcast episode A few weeks ago, the United States Sentencing Commission (USSC) issued a report titled The Organizational Sentencing Guidelines: Thirty Years of Innovation and Influence. The publication summarizes the history of Chapter Eight's development and discusses the two substantive changes made to the elements of an effective compliance and ethics program. So, what does this mean for compliance professionals? In this episode of the Principled Podcast, host Jen Uner, Strategic Communications Director at LRN, talks about the guidelines with Eric Morehead, Director of Advisory Services at LRN. Listen in as the two discuss how these updates—and the wider USSC—impact corporate governance. The purpose of the U.S. Sentencing Commission is to study and develop sentencing policies for the federal courts. The Commission serves as an information resource for Congress, the executive, the courts, and the public on matters relating to federal crime and sentencing. Our episode today focuses on Chapter 8, which addresses organizational sentencing guidelines, not individual sentencing guidelines which is also a significant focus for the USSC.     Principled Podcast Show Notes [1:24] – Explanation of the new publication from the U.S. Sentencing Commission and why it matters. [6:42] - How the original standards have held up over the last 30 years. [7:51] - Eric outlines some of the highlights of the most recent publication. [12:53] - The real repercussions for organizations. [14:58] - The relationship of the Sentencing Commission with the DOJ and SEC. [18:33] - Steps organizations should take when crafting their own E&C programs. [21:43] - The role of company culture in determining how effective the program will be.   Featured guest: Eric Morehead Eric Morehead is a member of LRN's Advisory Services team and has over 20 years of experience working with organizations seeking to address compliance issues and build effective compliance and ethics programs. Eric conducts program assessments and examines specific compliance risks, he drafts compliance policies and codes of conduct, works with organizations to build and improve their compliance processes and tools, and provides live training for Boards of Directors, executives, managers, and employees. Eric ran his own consultancy for six years where he advised clients on compliance program enhancements and assisted in creating effective compliance solutions. Eric was formally the Head of Advisory Services for NYSE Governance Services, a leading compliance training organization, where he was responsible for all aspects of NYSE Governance Services' compliance consulting arm. Prior to joining NYSE, Eric was an Assistant General Counsel of the United States Sentencing Commission in Washington, DC. Eric served as the chair of the policy team that amended the Organizational Sentencing Guidelines in 2010. Eric also spent nearly a decade as a litigation attorney in Houston, Texas where he focused on white-collar and regulatory cases and represented clients at trial and before various agencies including SEC, OSHA and CFTC.       Featured Host: Jen Üner Jen Üner is the Strategic Communications Director for LRN, where she captains programs for both internal and external audiences. She has an insatiable curiosity and an overdeveloped sense of right and wrong which she challenges each day through her study of ethics, compliance, and the value of values-based behavior in corporate governance. Prior to joining LRN, Jen led marketing communications for innovative technology companies operating in Europe and the US, and for media and marketplaces in California. She has won recognition for her work in brand development and experiential design, earned placements in leading news publications, and hosted a closing bell ceremony of the NASDAQ in honor of the California fashion industry as founder of the LA Fashion Awards. Jen holds a B.A. degree from Claremont McKenna College.        Principled Podcast Transcript Intro:   Welcome to the Principled Podcast brought to you by LRN. The Principled Podcast brings together the collective wisdom on ethics, business and compliance, transformative stories of leadership, and inspiring workplace culture. Listen in to discover valuable strategies from our community of business leaders and workplace change makers. Jen Uner: A few weeks ago, the United States Sentencing Commission issued a report titled The Organizational Sentencing Guidelines: 30 Years of Innovation and Influence. The publication summarizes the history of Chapter Eight's development and discusses the two substantive changes made to the elements of an effective compliance and ethics program. Hello, and welcome to another episode of LRN's Principled Podcast. I'm your host, Jen Uner, strategic communications director at LRN, and today, I'm joined by my colleague, Eric Morehead, director of advisory services solutions at LRN. We're going to be talking about the guidelines, and how it impacts corporate governance and what compliance professionals need to know. Eric Morehead is a real expert in the space as he once worked on these guidelines in a prior role at the US Sentencing Commission. He advises LRN clients now on these topics. Eric, thank you for coming on the Principled Podcast. Eric Morehead: Thanks, Jen. It's good to be here. Jen Uner: So hot off the press is this new publication from the US Sentencing Commission. Tell us about what it is, why it matters, and especially to owners of compliance programs at their organizations. Eric Morehead: Well, it's sort of a look back over the last 30 years. The Sentencing Guidelines for organizations were first promulgated and came into effect in 1991, so technically the 30th anniversary was last year, but the report has just come out now, and over those 30 years, there's been about 5,000 organizations that have been sentenced under the US Sentencing Guidelines. The Sentencing Commission and the Sentencing Guidelines have to do with federal sentencing, so either individuals or organizations who have been charged with a federal offense and find themselves in a federal district court, somewhere in the United States, and they either have pled guilty, or been found guilty by a jury, or found guilty by a judge after a bench trial, and now they're being sentenced. So when you sentence an individual, obviously, that can include a fine in restitution, but also time in a federal penitentiary. You can't jail an organization, but the Organizational Guidelines have put together over the last 30 years standards by which the judge can assess fines, restitution, and also order when necessary compliance reforms and implementation. Since you can't put the organization behind bars, you can however, put the organization on probation and require the organization to make some necessary reforms, if you will. So that's a kind of quick background of what the guidelines are for those of you who weren't sure, and why they matter to us, because the implementation of compliance standards is baked into any kind of probationary sentence or sentence that's handed down to an organization, or can be baked into, I should say. Jen Uner: And you have personal experience at the USSC. Eric Morehead: Yes, I worked at the Sentencing Commission from about 2007 to 2011, and during that period, there have been two amendments to the original guidelines that were first put out in 1991 for organizations. The first was in 2004, partly in response to Sarbanes-Oxley and the legislation that came out at that point around implementing reforms for organizations and their governance, but also there was back at the time in the early 2000s, a task force put together that the Sentencing Commission took some advice from. And so they made some amendments in 2004. The primary thing that happened in 2004 is that these compliance standards that are in the Sentencing Guidelines were put more front and center. They had been what are called application notes before, and they were actually promoted, if you will, to an actual textual listing in the guidelines. Just making them more prominent is really what it boiled down to. Also, putting a little further definition around the components of an effective program, training, governance and oversight, written standards, and procedures in place, reporting mechanisms, that we all know most organizations have an anonymous reporting mechanism, a hotline or helpline out there. That comes out of these standards that were first put together by the US Sentencing Commission. They were the first national standard in the United States anyway that suggested having a reporting mechanism, including with an anonymous option. Enforcement, discipline, and incentives often overlooked, but the Sentencing Guidelines have been talking about incentives for the past couple decades as well. And then in 2010 while I was there, the second amendment to the Organizational Sentencing Guidelines was undertaken, and that also strengthened that relationship between the governing authority of the organization, the board of directors, or whatever the oversight of a particular organization might be, because these guidelines affect not just public companies, but any kind of organization, so nonprofits, governmental agencies. Any kind of organizational structure is contemplated by the guidelines, and the 2010 amendments strengthened that relationship between the people actually responsible for the program and the governing authority of the organization, and also provided some incentives for organizations to come forward and to reform their programs. So those things have all happened over the years. Given the length of time that the Sentencing Guidelines have been in effect, now 30 years plus, to only have gone back and revisited them twice is not that significant. So they've been kind of bedrock standards that have existed and been well known. We often talk about them as the hallmarks of an effective program for this entire time, and the commission gathers data, and so the other big piece of this report that's very interesting is there's 30 years worth of data. And in fact, the majority of the report goes through in much detail about the demographic characteristics of organizations that have been sentenced over the years, how many organizations have received credit for having an effective program. Spoiler alert, not very many out of the 5,000, less than a dozen. So that's the other great thing about this report for those of us who are interested in compliance is you have a great wealth of data to see what the characteristics are, and how organizations have gotten into real serious trouble in the past. Jen Uner: So you were saying there have only been two amendments since inception? Eric Morehead: Yes. Jen Uner: That's pretty interesting, because it kind of speaks to how enduring. Eric Morehead: Yeah, they got it right, and the primary takeaway in this report in the executive summary in the beginning is that the biggest impact that the commission sees for its work is that these standards have become so universally accepted, and that's not just in the United States. That's across the world. These standards are seen to be when you're talking about effective compliance programs, they're seen to be sort of the bedrock, if you will. There are obviously other international standards out there in Europe, and Asia, and other places where government agencies and international agencies like the OECD Good Guidance that came out well over two decades ago itself. They all kind of trend and follow the same path, if you will, that the Sentencing Guidelines started 30 years ago. So it really has been the guiding light for not just individual organizations that want to build a better program, but also other regulators out there, whether that's the Department of Justice, or other agencies here in the United States, or international organizations that are adopting compliance standards. Jen Uner: So the most recent publication, it provides great historical context about the commission and its impact. Can you outline some of those highlights? I remember that the report is chock full of charts, data, as you were saying, which is great if you're needing to report about program effectiveness, for example. What do you think is most salient for leaders in that report? Eric Morehead: Yeah, as far as those particular pieces of data, nothing here if you've been paying attention to the sentencing guideline data over the years, and every year, I should mention that the Sentencing Commission puts out what they call the Sentencing Source Book, and that has a lot of data about not only individual's sentencing, which is the primary thing that the Sentencing Commission collects data on is the actual, real living human beings that are being sentenced year in, year out in federal courts around the nation, but it also includes data on the organizations that have been sentenced in that prior year. So if you've been paying attention over the years and looking at these source books, you will have noted that pretty much year in, year out, the vast majority of organizations that are sentenced, 70% of them have less than 50 employees, and 12.1% have 99 to 400 employees. And just a very small percentage, 8%, have more than 500 employees. So the vast majority of organizations that get sentenced are very small, but if you think about it, that makes logical sense, because smaller organizations tend to have less governance structure, probably have less resources, probably don't have a compliance program, and that's certainly the finding that courts when they review these cases 89.6% of the time, so almost 90% of the time organizations have been found not to have a program in place, or what was in place was not significant enough to be considered a compliance program. So those two figures seem to correlate well, right? The organizations that face the most serious repercussions are small and also don't have a program, so probably hadn't even contemplated having a program before misconduct occurred. The other real striking piece of information that comes out of this report and is also something that's been consistent through the years is the number of actual living human beings that are being sentenced along with the organizations in these cases. When we look at these cases, often we're talking about the demographics of the company, how many employees they have, what sort of crimes they have been found guilty of, how big the fines are, et cetera, but sometimes what gets lost in that discussion is the fact that if there's misconduct that's occurred, very often, there are individuals who are charged right along with the company for violations of the law. And in fact, over time, 53% of these cases include at least one other individual, and sometimes multiple individuals, who've also been charged with crime. The other really striking piece of data out of this that I think a lot of people don't realize is the vast majority of individuals who are charged are not considered "high level", so these are folks that have some authority to engage in whatever behavior underlies the conduct that led to a criminal offense. So they probably are not at the very lowest level of the organization most of the time, but they are not necessarily in the C-suite. Only 25.7% of the individuals charged with an offense along with an organization were considered high level. So almost three quarters of those individuals who find themselves facing criminal sanction, potentially going off to the federal penitentiary are folks that are not considered high level in their organization, and I think that is perhaps counterintuitive, because we oftentimes hear the headlines of executives and other senior folks in organizations getting in trouble and facing criminal sanction, but the reality is the opposite of that. Jen Uner: That's kind of scary, I got to say. I mean, it makes me as an individual in the company really want to pay attention to my compliance training. Eric Morehead: Certainly. Anytime an organization... And granted these cases are not as numerous as situations where organizations may have an investigation and might settle with either the Department of Justice or an agency, like have a civil settlement, something short of a criminal conviction, and there are a lot of situations where organizations might receive a subpoena or have some sort of investigation that occurs, that just ends without any kind of charges or settlements being attained. So there's a lot of data that we don't have, right? Where things may not go perfectly, but don't go quite as bad as ending up with a criminal conviction, but it is scary to consider that there are individuals that are being charged right along with these organizations for this misconduct. Jen Uner: It's really interesting, because so often inside organizations, you've got pressure on one side to perform or deliver in a certain way, and then you can find maybe shortcuts. I mean, I don't know how else to describe it, but a quicker way to get there that maybe is potentially outside the law. So it's true that there are real repercussions for taking those shortcuts, and also for not speaking up, if you see something. Eric Morehead: Yeah, and the real repercussions here for organizations, again, you can't jail a company. You can only fine them. You can order restitution. A federal judge can order them to implement compliance reforms, put together a program if they don't have a program. Those are all things they can do, but the other thing to consider here too is if you take a federal felony conviction, and you are an organization that does any amount of work with the federal government, you can be debarred from future federal contracting, so that can very often... Taking a federal conviction beyond the fines and the costs associated with having to defend the organization against those charges, if it actually ends up with a conviction, and your organization relies heavily or primarily on government contracting, that's the end of the organization. I mean that's the death penalty. The best example of that that we all can probably remember is Arthur Andersen. When they took the federal conviction in Houston for conduct involving Enron, that was the end of Arthur Andersen. They could no longer audit public companies, and they were debarred from government contracting, obviously, after that point too, and that was just the death sentence. Oftentimes when we're looking at these cases, when we look at the data, those are organizations that just had no options, because if there were any options before that to settle the case, to make reforms, to have some sort of civil settlement, those on-ramps just weren't available to them. Jen Uner: I do remember that whole upheaval. My father was in accounting at I think Ernst & Young at the time. I can't even remember, but I do remember that massive upheaval for Arthur Andersen, and how they had to completely pivot the entire business. Eric Morehead: Yeah. The consequences reputational and lost opportunity, real bottom line business costs involved in having misconduct, even if it doesn't rise to the level where we're talking about Sentencing Guidelines or having to implement Sentencing Guidelines for the organization, just an investigation can really derail an organization in a significant way. Jen Uner: I'm going to ask kind of a uninformed question now. It's because I'm not a lawyer. This is going to be maybe really obvious for others, but in case you're like me, can you describe what the Sentencing Commission's relationship is with the DOJ and the SEC, and how do these organizations sort of interrelate? We so often hear about DOJ guidance, for example. How is that different from Sentencing Commission? Eric Morehead: Over the years, we've seen more and more guidance both here in the United States and abroad from prosecuting entities like the DOJ, but also other regulatory agencies like SEC, and many of these regulatory organizations have compliance standards they put together. As far as I'm aware, they're pretty universally based on the same basic standards that we talk about in the Sentencing Guidelines. The DOJ guidance, and primarily we're talking about the memoranda that the criminal division has put out periodically since I think 2017 with the most recent iteration being the 2020 summer one, I believe, that guidance is based and explicitly cites the Sentencing Guidelines as its fundamental basis. Now, obviously there's a lot more detail and specificity within the DOJ guidance. The difference between guidance from the Department of Justice, other guidance that you might see in other agencies, but particularly the memoranda that we're talking about from the DOJ, is that can be withdrawn at any time, and as we've seen over the past few years, it can be amended at any time. It's only a few years old, and it's been amended twice. The DOJ, if there's a change of administration or a change within the hierarchy of the criminal division, those new officials that come in may want to make a change. The former deputy attorney general in the prior administration had talked about doing away with memoranda from the department altogether and codifying everything in as much as you can codify it in the US Attorney's Manual. So there are various things that could potentially happen at any time.           Because the US Sentencing Commission is a rule making organization, there's a whole process that the commission has to go through before there are changes made to the Sentencing Guidelines. That's one of the reasons why there have been very few amendments to the Organizational Sentencing Guidelines over the years is because there's a whole process involved. The commission first has to publicly publish its intention to make any changes. It'll often, if there are proposals to make changes, it will seek public comment, often have a public hearing, and then it votes. And once a commission votes, if a new amendment is promulgated, then it's sent to Congress to both the House and the Senate, and they have a period of time to either make changes or not allow those guideline amendments to come into effect, but if they don't do anything, they automatically come into effect and basically have the force of law as the Sentencing Guidelines. Now, granted the Sentencing Guidelines don't officially apply to your organization except when you're in front of a federal judge being sentenced, right? So if there's no sentence, there's no criminal offense where the sentence is being determined, the guidelines don't have any official capacity, but we've all taken them as the standards by which we measure the effectiveness of a program. So I guess what I'm saying here is I think any guidance is helpful guidance. Certainly the DOJ guidance has been very helpful and added more detail into what regulators are looking for when they peer into an organization, but just the sort of bread and butter basic pieces of a compliance program are always going to reflect back to those seven hallmarks of an effective program within the Sentencing Guidelines, because they're pretty immutable. Jen Uner: So if you're building an E&C program, what are the steps that organizations should be taking to lower their risk? Can you go into a little bit more detail on that? How do you unearth all the rules that apply, and how can you effectively transmit them to the people in your organization? Eric Morehead: Yeah. Whether you're using the Sentencing Guidelines, looking at the guidance from the Department of Justice, or guidance from international organizations like the OECD or others, I feel like, and this is backed up by the specific guidance that the department has given over the past few years of what they look for, every organization is unique. It's its own unique snowflake, right? And so you're going to have your own unique risk profile, and you're going to have to develop your own unique compliance program to be an effective control for those risks. So you evaluate all of these standards, but you put together a program, and you put together standards that really address what your program needs. One of the key provisions of the Sentencing Guidelines, by the way, is what I would call the not one size fits all provision. The guidelines from the very beginning stages of when they were developed had this notion that not every program is going to look the same, not every program is going to be as extensive as other programs. Smaller organizations that are purely domestic here in the United States, for example, and maybe are smaller probably don't have the same exposure to anti-corruption concerns, for example, foreign bribery anti-corruption concerns that international organizations might have for just as an example. So really the best advice is to make sure that your program meets your needs, and so the first step along that process is evaluating and figuring out what your needs are. What are compliance risks that your organization faces, and how are you addressing those risks, and do you need to reform those controls, put more resources behind training or monitoring and auditing, or whatever it might be to address those particular risks? So it's really an investigation of what you face as an organization, what are the risks you face, looking at all these standards, reading the guidance from the department, reading specific guidance that might apply to your organizations, for example, if there are particular compliance requirements. If you're a government contractor, you have to have a written code of conduct. You have to post certain reporting materials if you're a government contractor. So there are some particularized compliance requirements, depending on who you are, and how your business is operating, and you have to be aware of all those standards, but you develop a program that fits your organization, that is very specific and customized to the risks you face, the resources you have to use, because not everybody has the same resources. So you have to make some tough calls sometimes as a compliance officer or the person responsible for compliance at an organization, because you may not be able to do all the things you really want to do, but you have to figure out and prioritize the things you need to do. Jen Uner: Which makes me think about corporate culture, right? Because every company's culture is also unique and completely attuned to its own size and position of the marketplace, and where it trades, and who it does business with, and all of those pieces. Eric Morehead: Yeah, the ethics side of compliance and ethics is the determining factor very often, right? The culture of the organization really tell the tale as to how effective or ineffective ultimately you're going to be. You may need more controls. You may have some potential risks that need to be addressed. Even if you have a super strong culture, you can't just get by on culture alone, because organizations are made up of a lot of individuals, and some of those individuals may have bad intent, but it's hard to imagine how you could properly resource an organization that had a poisonous culture, right? If you don't have values, if you don't have an effective ethical framework that everybody is primarily operating under, you can pour money onto systems, controls, tools, and it may not make any difference whatsoever. You can have a compliance budget that is the top budget out there, but if the culture is ruined or ruinous, then it's going to be really hard to have an effective program. Jen Uner: Yeah. I think they famously have said, "Culture eats strategy for breakfast." Eric Morehead: Yeah, and that's really true. I've seen different ends of the spectrum, right? I've seen organizations where the culture was hard to know how you would start to climb back up that hill and reform the culture, and how you would be able to have an effective program without having a positive, ethical culture, but I've also seen the other end too, which is less frequent, but also potentially problematic, where organizations... And sometimes I see this, for example, a good example of this would be a nonprofit where mission is really important, and everybody has a very ethical outlook, and they wouldn't be working at a nonprofit and particularly in difficult circumstances unless they really were all about the mission and had a very positive, ethical attitude, but they don't have a lot of structure. They don't have a lot of resources. And so there's always the potential that there could be failures and misconduct, because for instance, they might be a good target for an outside data privacy issue, right? Because they don't have strong data security systems. Jen Uner: I was just going to say data privacy. Eric Morehead: So you can be at both ends of the spectrum as far as that culture piece goes, and still have some serious compliance risks. Jen Uner: So there's definitely always a need for E&C training for sure. Eric Morehead: Yeah, training in Sentencing Guidelines, and the guidance from the Department of Justice, both are really clear about we are not interested in one size fits all. We are not interested in how big your budget is. We just want to make sure your budget is right, that the governing authority and the organization has addressed this properly and is serious about compliance, but if you're a smaller organization or an organization where the risks are being properly addressed without spending a lot of money, that can be perfectly fine. Again, depends on the individual organization, and what is their risk profile, how are they addressing those risks, and are they meeting the other big picture criteria of having some standards that everybody knows about, training where appropriate, having proper governance and oversight, and monitoring and auditing, having a reporting process, where people can ask questions and report concerns, properly enforcing the rules, and disciplining people, and having incentives. And that's the one that often gets missed. That's been in the Sentencing Guidelines for years now, and has is mentioned in the guidance. How do you incentivize proper behavior at your organization? That's really important too. Jen Uner: There is so much that goes into building an effective E&C program. I'm sure we could be talking about this all day, but we are running out of time. I am so glad you could join me today to talk about this report and why it matters to every organization. I know we'll be including a link to that report in our show notes at LRN.com. My name is Jen Uner. I want to thank you, Eric, for joining me today. Eric Morehead: Thanks, Jen. It was my pleasure to be here. Jen Uner: And I want to thank everyone for listening to the Principled Podcast by LRN. Outro: We hope you enjoyed this episode. The Principled Podcast is brought to you by LRN. At LRN, our mission is to inspire principled performance in global organizations by helping them foster winning ethical cultures rooted in sustainable values. Please visit us at LRN.com to learn more, and if you enjoyed this episode, subscribe to our podcast on Apple Podcasts, Stitcher, Google Podcasts, or wherever you listen, and don't forget to leave us a review.  

We are all still reeling from the monumental events at Mar-a-Lago last week.  Everyone is presumed INNOCENT until proven guilty and there's still so much we don't know about what's going on. But the search and seizure of the former president's residence is unprecedented &  historic. Therefore, it's important to consider the potentially monumental sentencing possibilities if Trump is convicted of the crimes enumerated in the search warrant. Helping us get Set For Sentencing, a returning champion to the podcast, sentencing guidelines expert, Mark Allenbaugh.  In this episode, Mark and Doug discuss these fundamental questions:  How much prison time would Trump potentially face for the charges listed in the search warrant; Could he be held in custody while awaiting trial; What arguments might be made for and against him at sentencing; Where might he spend his time in custody should he be sentenced; What would the conditions of confinement be in prison (spoiler alert - if you think he's going to a "country club", think again). LINKS: As always, if you want to know more about Mark, go to www.sentencingstats.com  

Helping us get Set for Sentencing this week, an amazing human who happens to be not only a former client, but also the subject of the first full-on sentencing mitigation video ever produced in Federal Court, almost twenty years ago!  I am so grateful that Dustin Arnold agreed to share his incredible journey from gifted student to deep addiction, from arrest to sentencing, and from rehabilitation to true redemption.   His story continues to inspire and amaze.  Dustin tells us what it feels like to put his fate and future in the hands of a lawyer.  He also talks about what it was like to tell his story in front of a camera for a "sentencing mitigation video".   What's a sentencing mitigation video, you ask?  Well, take a listen! We didn't know it at the time, but we were setting the wheels in motion for a completely new and powerful way to advocate.  Flash forward twenty years and the process is gaining momentum in courts all over the country.  Sentencing videos were even the subject of the Simpsons (S. 30, ep. 15, “101 Mitigations”).  So buckle up, and let's get Set For Sentencing! IN THIS EPISODE: What it feels like to be a client in the hands of a lawyer who isn't doing their job (and one who is); How the system can actually do more good then harm when the right resources and the right decision-makers are in place; Explanation of sentencing mitigation videos and how they can make all the difference in a case; A case study in why having discretionary sentencing (and a thoughtful judge) is vital; Mitigation videos are not simply for “wealthy” clients who are trying to "buy a lower sentence." This technique was born and raised in the office of the Federal Public Defender; Sentencing videos on The Simpsons?!; The seed that grew into the mighty oak – the evolution of mitigation filmmaking; Dustin's best advice, heart to heart, from a client to a lawyer; Who doesn't love a happy ending???? LINKS: The Simpsons, "101 Mitigations" Snippit of Dustin Arnold Sentencing Video FREE RESOURCE:  Doug Passon's Article from The Champion on Sentencing Mitgation Videos:  Using Moving Pictures to Build the Bridge of Empathy at Sentencing.   Click here to Download

Justice Gordon Moore of the Minnesota State Supreme Court discusses the way sentencing guidelines are established in the state, the way the Sentencing Guideline Commission is set up, and what kind of leeway judges can have, if any, in certain cases.

Posted by Adam Turteltaub Being a compliance department of one can be a lonely job, but not for Susan Freccia, Director of Compliance at Oregon State University. Working in a small compliance department doesn't feel like a challenge. For one, she is not fully alone. There are compliance partners – professionals who have at least some compliance responsibilities – across the campus. More importantly, rather than focusing on her lack of a compliance team of her own she works at creating collaborative relationships far and wide. That includes the compliance partners, staff, HR, legal and audit. For others in solo situations she advises not falling into the temptation of thinking, “If only I had X or Y the compliance program could be better.” Instead, she recommends focusing on how to work effectively and continue to improve processes. She has also found success comes from the ability to help others get “unstuck” in their efforts.  She frequently meets with various individuals and teams to help figure out what the challenge is and to find a solution. She also may serve as a bridge between departments who may share responsibility in an area, helping them to collaborate more effectively. Susan also advises against seeking perfection. It's unattainable. Incidents will always occur. She notes that even the Sentencing Guidelines reflect that reality with several elements addressing how a program responds to the inevitable problems. In sum, to make a small program work, take a collaborative, problem-solving approach. It will be more effective and help people see compliance not as the cause of problems but the solutions to them.

Helping us get Set For Sentencing, Prof. Douglas Berman.  He is is the Newton D. Baker & Hostetler Chair in Law and Executive Director of the Drug Enforcement and Policy Center, housed in the Moritz College of Law of The Ohio State University. Professor Berman is the creator and author of the widely-read and widely-cited blog, Sentencing Law and Policy. The blog now receives nearly 100,000 page views per month. In this episode: What non-capital defenders can learn from looking at death penalty mitigation and trends; Making the case for jury sentencing in non-cap cases; How draconian sentencing laws and unfettered prosecutorial discretion corrupts justice and results in innocent people being compelled to plead guilty; The hope that the US Sentencing commission will institute meaningful changes to the federal sentencing guidelines; The future of compassionate release and First Step Act implementation; The debate over scrapping the guidelines vs. implementing incremental change; How to leveling the playing field by building more mitigators into the guidelines; The “one thing” that must animate all good sentencing advocacy LINKS:  Sentencing Law and Policy Blog Drug Enforcement and Policy Center 28 U.S.C. Sec. 994 (j), which essentially creates a presumption of non-incarceration for non-violent, "non-serious", first time offenders.  BUT, see these 2021 statistics from the US Sentencing Commission, showing that over NINETY PERCENT of defendants receive a PRISON sentence instead.

Get information on the Federal Sentencing Guidelines:   https://prisonprofessors.com/basics-on-us-sentencing-guidelines/

For those looking for information before sentencing, this three part series on understanding the federal sentencing guidelines may help: https://prisonprofessors.com/basics-on-us-sentencing-guidelines/    

This is not a conspiracy, but the truth. This is from the Federal Bureau of Investigation: SAN JOSE—Brian Andrew Dunning pleaded guilty in federal court in San Jose on April 15, 2013, to wire fraud, United States Attorney Melinda Haag announced. In pleading guilty, Dunning admitted that, between approximately May 2006 and June 2007, he engaged in a scheme to defraud eBay through so-called “cookie stuffing.” According to the plea agreement, commissions paid to Dunning's company, Kessler's Flying Circus (KFC), which Dunning owned jointly with his brother, totaled approximately $5.2 million during that period from eBay's domestic Affiliate Program. According to the plea agreement, in approximately April 2005, Dunning and his brother formed KFC, through which they participated in the eBay Affiliate Program. The Affiliate Program was a means by which eBay worked with KFC and other affiliates to drive Internet traffic to eBay's websites. Under the program, an affiliate was supposed to send visitors to eBay's website by displaying an eBay advertisement, or link, on the affiliate's website. If a visitor clicked on the eBay link or ad, he or she was redirected to eBay's website. If that user subsequently conducted a “revenue action” on eBay's website within a designated period of time, eBay paid the affiliate a commission for the referral. Dunning admitted that he carried out his scheme by providing free applications at two of his websites that users could download and use on their own websites: ProfileMaps.info, which showed the physical location of visitors to a MySpace profile, and WhoLinked.com, which showed who was linking to the user's website or blog. Both applications contained code Dunning had written that operated so that, when a user visited a website that had installed the application, the code would cause the user's browser to receive a cookie with KFC's ID number, even though the user did not click on an eBay ad or link, did not see any content from eBay's website, and did not realize that his or her browser had been re-directed to eBay's tracking server. As a result, KFC would be paid if that user subsequently conducted an eBay revenue action within a certain period of time. Dunning, 47, of Laguna Niguel, California, was indicted by a federal grand jury on June 24, 2010, and charged with five counts of wire fraud, in violation of Title 18, United States Code, Section 1343. Under the plea agreement, Dunning pleaded guilty to a superseding information, filed on April 15, 2013, that alleged a separate violation of the same statute. In his plea agreement, Dunning admitted that he received payments for revenue actions for which he was not entitled to be compensated but reserved the right to dispute how much of those payments were attributable to the cookie stuffing scheme. An evidentiary hearing to determine the loss amount will be held on August 8, 2013, before United States District Judge Edward J. Davila, in San Jose. The maximum statutory penalty for a violation of 18 U.S.C. § 1343 is 20 years' imprisonment and a fine of $250,000, or twice the gross gain or gross loss from the offense, whichever is greater, plus restitution. However, any sentence following conviction would be imposed by the court after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553. David R. Callaway and Kyle F. Waldinger are the Assistant U.S. Attorneys who are prosecuting the case with the assistance of Elise Etter, Rawaty Yim, and Elizabeth Garcia. The prosecution is the result of an investigation by the Federal Bureau of Investigation. ****************************************************************** To listen to all our XZBN shows, with our compliments go to: https://www.spreaker.com/user/xzoneradiotv *** AND NOW *** The ‘X' Zone TV Channel on SimulTV - www.simultv.com The ‘X' Chronicles Newspaper - www.xchroniclesnewpaper.com

This is not a conspiracy, but the truth. This is from the Federal Bureau of Investigation: SAN JOSE—Brian Andrew Dunning pleaded guilty in federal court in San Jose on April 15, 2013, to wire fraud, United States Attorney Melinda Haag announced. In pleading guilty, Dunning admitted that, between approximately May 2006 and June 2007, he engaged in a scheme to defraud eBay through so-called “cookie stuffing.” According to the plea agreement, commissions paid to Dunning's company, Kessler's Flying Circus (KFC), which Dunning owned jointly with his brother, totaled approximately $5.2 million during that period from eBay's domestic Affiliate Program. According to the plea agreement, in approximately April 2005, Dunning and his brother formed KFC, through which they participated in the eBay Affiliate Program. The Affiliate Program was a means by which eBay worked with KFC and other affiliates to drive Internet traffic to eBay's websites. Under the program, an affiliate was supposed to send visitors to eBay's website by displaying an eBay advertisement, or link, on the affiliate's website. If a visitor clicked on the eBay link or ad, he or she was redirected to eBay's website. If that user subsequently conducted a “revenue action” on eBay's website within a designated period of time, eBay paid the affiliate a commission for the referral. Dunning admitted that he carried out his scheme by providing free applications at two of his websites that users could download and use on their own websites: ProfileMaps.info, which showed the physical location of visitors to a MySpace profile, and WhoLinked.com, which showed who was linking to the user's website or blog. Both applications contained code Dunning had written that operated so that, when a user visited a website that had installed the application, the code would cause the user's browser to receive a cookie with KFC's ID number, even though the user did not click on an eBay ad or link, did not see any content from eBay's website, and did not realize that his or her browser had been re-directed to eBay's tracking server. As a result, KFC would be paid if that user subsequently conducted an eBay revenue action within a certain period of time. Dunning, 47, of Laguna Niguel, California, was indicted by a federal grand jury on June 24, 2010, and charged with five counts of wire fraud, in violation of Title 18, United States Code, Section 1343. Under the plea agreement, Dunning pleaded guilty to a superseding information, filed on April 15, 2013, that alleged a separate violation of the same statute. In his plea agreement, Dunning admitted that he received payments for revenue actions for which he was not entitled to be compensated but reserved the right to dispute how much of those payments were attributable to the cookie stuffing scheme. An evidentiary hearing to determine the loss amount will be held on August 8, 2013, before United States District Judge Edward J. Davila, in San Jose. The maximum statutory penalty for a violation of 18 U.S.C. § 1343 is 20 years' imprisonment and a fine of $250,000, or twice the gross gain or gross loss from the offense, whichever is greater, plus restitution. However, any sentence following conviction would be imposed by the court after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553. David R. Callaway and Kyle F. Waldinger are the Assistant U.S. Attorneys who are prosecuting the case with the assistance of Elise Etter, Rawaty Yim, and Elizabeth Garcia. The prosecution is the result of an investigation by the Federal Bureau of Investigation. ****************************************************************** To listen to all our XZBN shows, with our compliments go to: https://www.spreaker.com/user/xzoneradiotv *** AND NOW *** The ‘X' Zone TV Channel on SimulTV - www.simultv.com The ‘X' Chronicles Newspaper - www.xchroniclesnewpaper.com

This is not a conspiracy, but the truth. This is from the Federal Bureau of Investigation: SAN JOSE—Brian Andrew Dunning pleaded guilty in federal court in San Jose on April 15, 2013, to wire fraud, United States Attorney Melinda Haag announced. In pleading guilty, Dunning admitted that, between approximately May 2006 and June 2007, he engaged in a scheme to defraud eBay through so-called “cookie stuffing.” According to the plea agreement, commissions paid to Dunning's company, Kessler's Flying Circus (KFC), which Dunning owned jointly with his brother, totaled approximately $5.2 million during that period from eBay's domestic Affiliate Program. According to the plea agreement, in approximately April 2005, Dunning and his brother formed KFC, through which they participated in the eBay Affiliate Program. The Affiliate Program was a means by which eBay worked with KFC and other affiliates to drive Internet traffic to eBay's websites. Under the program, an affiliate was supposed to send visitors to eBay's website by displaying an eBay advertisement, or link, on the affiliate's website. If a visitor clicked on the eBay link or ad, he or she was redirected to eBay's website. If that user subsequently conducted a “revenue action” on eBay's website within a designated period of time, eBay paid the affiliate a commission for the referral. Dunning admitted that he carried out his scheme by providing free applications at two of his websites that users could download and use on their own websites: ProfileMaps.info, which showed the physical location of visitors to a MySpace profile, and WhoLinked.com, which showed who was linking to the user's website or blog. Both applications contained code Dunning had written that operated so that, when a user visited a website that had installed the application, the code would cause the user's browser to receive a cookie with KFC's ID number, even though the user did not click on an eBay ad or link, did not see any content from eBay's website, and did not realize that his or her browser had been re-directed to eBay's tracking server. As a result, KFC would be paid if that user subsequently conducted an eBay revenue action within a certain period of time. Dunning, 47, of Laguna Niguel, California, was indicted by a federal grand jury on June 24, 2010, and charged with five counts of wire fraud, in violation of Title 18, United States Code, Section 1343. Under the plea agreement, Dunning pleaded guilty to a superseding information, filed on April 15, 2013, that alleged a separate violation of the same statute. In his plea agreement, Dunning admitted that he received payments for revenue actions for which he was not entitled to be compensated but reserved the right to dispute how much of those payments were attributable to the cookie stuffing scheme. An evidentiary hearing to determine the loss amount will be held on August 8, 2013, before United States District Judge Edward J. Davila, in San Jose. The maximum statutory penalty for a violation of 18 U.S.C. § 1343 is 20 years' imprisonment and a fine of $250,000, or twice the gross gain or gross loss from the offense, whichever is greater, plus restitution. However, any sentence following conviction would be imposed by the court after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553. David R. Callaway and Kyle F. Waldinger are the Assistant U.S. Attorneys who are prosecuting the case with the assistance of Elise Etter, Rawaty Yim, and Elizabeth Garcia. The prosecution is the result of an investigation by the Federal Bureau of Investigation. ****************************************************************** To listen to all our XZBN shows, with our compliments go to: https://www.spreaker.com/user/xzoneradiotv *** AND NOW *** The ‘X' Zone TV Channel on SimulTV - www.simultv.com The ‘X' Chronicles Newspaper - www.xchroniclesnewpaper.com

Post By: Adam Turteltaub For most of us, it's hard to imagine a time before the US Federal sentencing Guidelines came into being and set the direction for compliance and ethics programs. Jeff Kaplan, partner at the law firm Kaplan & Walker and longtime compliance leader remembers those pre-Guidelines times and in this podcast we discuss the changes that have come, didn't happen and may yet occur with compliance programs. Even after thirty years he reports that, in many ways, we are still getting started. While many organizations have developed robust compliance programs, a large number are still at the starting gate. In addition, many business people, particularly in management, tend to think of compliance as something less than sales, marketing or other departments, and not worthy of the investment. A related challenge is what he called the “mission accomplished phenomenon”, which he defines as a tendency to see compliance as an event rather than an ongoing program. Still, he sees the glass as something more than half filled and creating new challenges. For more developed programs, he believes, now is the time to maintain a sense of urgency and improve performance. One approach he advocates for is a stronger embrace of the field of behavioral ethics. A part of social science, behavioral ethics illuminates what impacts our ethical decision-making and illuminates the biases which can lead to less than ethical decisions, even when there is intent to do the right thing. Looking to the future, he sees more work being done in the area of incentives, a struggle with Artificial Intelligence, and more nanocompliance. What is nanocompliance? Listen in to find out.

Post By: Adam Turteltaub For most of us, it's hard to imagine a time before the US Federal sentencing Guidelines came into being and set the direction for compliance and ethics programs. Jeff Kaplan, partner at the law firm Kaplan & Walker and longtime compliance leader remembers those pre-Guidelines times and in this podcast we discuss the changes that have come, didn't happen and may yet occur with compliance programs. Even after thirty years he reports that, in many ways, we are still getting started. While many organizations have developed robust compliance programs, a large number are still at the starting gate. In addition, many business people, particularly in management, tend to think of compliance as something less than sales, marketing or other departments, and not worthy of the investment. A related challenge is what he called the “mission accomplished phenomenon”, which he defines as a tendency to see compliance as an event rather than an ongoing program. Still, he sees the glass as something more than half filled and creating new challenges. For more developed programs, he believes, now is the time to maintain a sense of urgency and improve performance. One approach he advocates for is a stronger embrace of the field of behavioral ethics. A part of social science, behavioral ethics illuminates what impacts our ethical decision-making and illuminates the biases which can lead to less than ethical decisions, even when there is intent to do the right thing. Looking to the future, he sees more work being done in the area of incentives, a struggle with Artificial Intelligence, and more nanocompliance. What is nanocompliance? Listen in to find out.

The call, email or tip comes into your office; an employee reports suspicious activity somewhere across the globe. That activity might well turn into a FCPA issue for your company. As the CCO, it will be up to you to begin the process which will determine, in many instances, how the company will respond going forward. This is more than simply maintaining hotlines. Companies have to make real efforts to listen to employees. You need to have managers who are trained on how to handle employee concerns; they must be incentivized to take on this compliance responsibility and you must devote communications resources to reinforcing the company's culture and values to create an environment and expectation that managers will raise employee concerns. The reason is that a business's own employees are a company's best source of information about what is going on in the company. It is certainly a best practice for a company to listen to its own employees, particularly to help improve its processes and procedures. But more than listening to its employees, a company should provide a safe and secure route for employees to escalate their concerns. This is the underlying rationale behind an anonymous reporting system within any organization. Both the U.S. Sentencing Guidelines and the Organization of Economic Cooperation and Development (OECD) Good Practices list as one of their components an anonymous reporting mechanism by which employees can report compliance and ethics violations. Of course, the Dodd-Frank Whistleblower provisions also give heed to the implementation of a hotline. Given the number of ways that information about violations or potential violations can be communicated to the government regulators, having a robust triage system is an important way that a company can determine what resources to bring to bear on a compliance problem. Jonathan Marks has articulated a five-stage triage process which allows for not only an early assessment of any allegations but also a manner to think through your investigative approach. Marks cautions you must have an experienced investigator or other seasoned professional making these determinations, if not a more well-rounded group or committee. Next, consider what will be the types of evidence to review going forward. Finally, before selecting a triage solution, understand what tools are available, including both forensic and human, to complete the investigation.  Three key takeaways: 1. The DOJ and SEC put special emphasis on internal reporting lines. 2. Test your hotline on a regular basis to make sure it is working. 3. Every claim should be triaged before starting an investigation. Learn more about your ad choices. Visit megaphone.fm/adchoices

In this episode, host Bidemi Ologunde presents a case where conspiracy theories motivated an IT consultant to commit multiple cyber crimes in multiple states.Please send questions, comments, and suggestions to bidemi@thebidpicture.com. You can also get in touch on LinkedIn, Twitter, the Clubhouse app (@bid), and the Wisdom app (@bidemi).