DOJ Recommends a Below-Guidelines Sentence for President’s Advisor, Citing Its Duty That “Justice Be Done”


At the direction of Attorney General William Barr, the Department of Justice (DOJ) submitted a revised sentencing memorandum to the District of Columbia Federal Court which will be sentencing former Presidential advisor and friend Roger Stone for obstruction of justice. The revised memo contradicts the memorandum submitted by the trial team prosecutors just the day before and reduces the Government’s recommended sentence by more than half, from a range of 87­–108 months imprisonment to a range of 37–46 months. The DOJ’s revised memo reminds the Court – and, given the context of the submission, all federal prosecutors – that the Government’s obligation and interest in prosecuting criminal cases “is not that it shall win a case, but that justice shall be done,” which includes recommending a sentence below the applicable Sentencing Guidelines when appropriate.

Roger Stone was convicted at trial of obstructing a congressional investigation, making false statements to government agents, and witness tampering. Under Federal Sentencing Guidelines, his base offense level of 14 resulted in an advisory range of 15–21 months imprisonment. The original sentencing memo submitted by the Government’s trial team argued that the Court should apply several enhancements under the Guidelines which would increase his sentence to a range of 87–108 months. The DOJ’s revised sentencing memo states, “the Sentencing Guidelines enhancements in this case—while perhaps technically applicable— more than double the defendant’s total offense level and, as a result, disproportionately escalate the defendant’s sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases.” The revised memo argues against two of the previously advocated enhancements and in favor of further variances below the Guidelines based on statutory factors listed in 18 U.S.C. §3553(a), citing the Supreme Court’ statement that “a sentencing court may not presume that the Guidelines range is reasonable but must make an individualized assessment based on the facts presented.”

First, the DOJ’s revised memo argues that an 8-level enhancement for “threatening to cause physical injury,” for which the trial team advocated based on Stone’s texts to a potential witness that Stone would “f[]ing kill you” and “take away your dog,” was unwarranted because the recipient of the texts “asserts that he did not perceive a genuine threat from the defendant but rather stated that ‘I never in any way felt that Stone himself posed a direct physical threat to me or my dog.’” The DOJ concedes that the witness’s statement is not dispositive but also suggests that the Court should not apply the enhancement given its significant effect on the Guidelines range. That enhancement alone would account for the difference between the trial team’s recommendation of 87–108 months and the DOJ’s revised recommendation of 37–46 months.

Second, the DOJ’s revised memo argues that the 2-level enhancement for obstruction of justice with respect to the instant offense should not apply because “it overlaps to a degree with the offense conduct in this case.” That is, the DOJ says that to rely on the same conduct both to establish the elements of the offense and to apply a sentencing enhancement would unfairly penalize the defendant twice. Further, the DOJ questions whether the effect of Stone’s obstructive conduct actually prejudiced the government at trial.

Third, the DOJ’s revised memo argues the statutory factor that the Court should avoid unwarranted sentencing disparities with similar cases. Citing several obstruction cases which resulted in sentences between 6 and 35 months, the DOJ argues that strict application of the Sentencing Guidelines in Stone’s case would defeat one of the basic intentions of Congress in commissioning the Guidelines – the principle that similar conduct deserves similar sentences.

Fourth, the DOJ’s revised memo cites Stone’s personal background and characteristics, including his “advanced age, health, personal circumstances, and lack of criminal history,” as well as the fact that Stone’s conduct was not in support of a “violent criminal organization,” to suggest that the Court should grant a variance below the Guidelines to impose a sentence more in keeping with similar cases and in contrast to cases involving gang violence.

The DOJ’s revised memo concludes by deferring to the Court’s discretion to impose a sentence, with the caveat that a sentence within the range of 87–107 months as originally requested “could be considered excessive and unwarranted under the circumstances.” The DOJ thus sends a signal to the Court and Stone’s attorneys that, if the Court does impose a harsh sentence and Stone appeals it to a higher Court, the DOJ may not oppose his appeal strongly if at all.

Although the DOJ’s memo, produced at the direction of Attorney General William Barr and with the public approval of the President of the United States, is also a powerful reminder to all federal prosecutors that the Government’s proper role in prosecuting criminal offenses is not to “win” but to do justice, including recommending below-Guidelines sentences if and when appropriate. It also provides a valuable touchstone for defense attorneys whose clients face similar sentencing arguments.

If you have been charged with a criminal offense or are even under investigation, it is vital that you be represented by attorneys who are familiar with the latest developments in criminal law, the federal Sentencing Guidelines, and the policies and practices of the Department of Justice.

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