Roger Stone’s sentence: How the judge will really decide to ‘lock him up’

Attorney General Bill Barr is undoubtedly right: The president’s ill-tempered tweets about pending criminal cases undermine the Justice Department’s mission. The rule of law depends not only on the reality but also the perception that prosecutorial decisions are driven by legal requirements and evidence, not political considerations.

For now, though, let’s table that and focus on what is actually at issue in the matter of Roger Stone’s sentencing.

The fact is, it was well within the legitimate power of the attorney general to countermand the Stone prosecutors’ submission to the court — i.e., to substitute a recommendation that the court impose a stiff but reasonable prison sentence on Stone, in place of the prosecutors’ suggestion of an excessive term.

More to the point, what we are witnessing in the media-Democrat commentariat is a manufactured controversy, reminiscent of their mau-mauing the president’s Ukraine indiscretion into an impeachable offense. Hence, the unhinged calls for Barr’s impeachment. The judge, not the Department of Justice (DOJ), will determine Stone’s sentence. The shrieking over DOJ’s Stone sentencing memos, topped by the theatrical resignation of the four prosecutors (who now want to be seen as stalwarts against politicized law enforcement after they conducted a patently politicized prosecution), is much ado about nothing.

Contrary to the misimpression so studiously peddled, Barr has not taken action that effectively slashes Stone’s potential sentence. Nothing could be further from the truth.

I have provided a broad overview of the controversy over the DOJ’s pre-sentencing submissions in the Stone case. Nevertheless, because the facts are a bit complicated and involve some legal esoterica, a simple point is being obscured: The only thing at issue in the two memoranda filed with the court by the DOJ is a non-binding recommendation about the sentence. It has no legal effect on the term that the judge will impose when Stone ultimately is sentenced, which currently is scheduled to happen on Feb. 20.

In federal law, the sentence imposed on a convicted defendant is determined solely by the court (with a couple of narrow exceptions that do not apply here). Justice Department prosecutors can do nothing to dictate the sentence. Nothing. The judge alone makes that call.

In every federal criminal case involving a defendant who has been convicted, the U.S. Sentencing Guidelines come into play. The guidelines are a regime enacted by Congress in the 1980s to bring more transparency and uniformity to sentencing.

Federal crimes are codified in statutes, which prescribe punishment in broad terms, say, zero-to-20 years for bank robbery. The guidelines provide a calculation of what the actual sentence should be within that statutory range of years. This calculation is a narrower range of months — e.g., 33 to 41 months — which is determined by analyzing the two main facets of any crime: 1) the offense conduct involved, and 2) the characteristics of the offender.

These are plotted on a grid, called the U.S. Sentencing Table. For offense conduct, a base numerical value is given to a particular crime, and it is then increased or reduced by various aggravating or mitigating factors (e.g., threatening violence during a crime, or accepting responsibility by pleading guilty). Offender characteristics are mainly driven by the defendant’s criminal history (how many prior convictions, crimes committed while on probation, etc.). 

The conduct, called Offense Level, is plotted on a vertical axis, and the offender characteristics — called Criminal History Category, numbered I through VI in ascending order of seriousness — are plotted on a horizontal axis. Where they meet generates the recommended sentence. 

Let’s take a simple example, robbery. It has a base offense level of 20. If the defendant brandished a firearm, there is a 5-level increase, what’s often called a sentencing “enhancement.” If the defendant pleads guilty and accepts responsibility for his crime, that’s a 2-level reduction. So, the total offense level would be 23. If it is a second offense, the defendant will have 3 criminal history points, placing him in Category II. On the table, Offense Level 23 at Criminal History Category II calls for a sentence of between 51 and 63 months. 

Now, with that brief explanation of how the guidelines operate, understand one crucial point: This is all advisory, not mandatory. The court does not have to follow it. 

The sentencing judge is limited only by the statute the defendant is convicted of violating. In our hypothetical robbery case, the judge can impose a sentence of up to 20 years. Most judges follow, or at least stay close to, the guidelines calculation in a case. But that is not because the prosecutor or anyone else advises or asks them to do so. It is because judges tend to respect the underlying purpose of the guidelines to ensure that similarly situated defendants are treated similarly — i.e., that the same crime committed by persons with analogous histories do not draw wildly different sentences.

Also understand: The judge does not rely on the DOJ alone for guidelines guidance. In every sentencing case, the court takes submissions not only from the prosecutor and defense counsel; the U.S. Probation Department, which is overseen by the judiciary, prepares a pre-sentence investigation report.

Moreover, judges are expert in sentencing. They get a steady diet of it, apply sentencing laws more often than individual prosecutors do, and are intimately familiar with the applicable law and the guidelines. By the time a sentencing hearing occurs, usually three or four months after a guilty plea or jury trial, there is virtually nothing a federal prosecutor can tell a judge about the relevant legal issues that the judge does not know. 

To summarize: The Roger Stone kerfuffle involves a non-binding recommendation by the DOJ to a sentencing judge, regarding a guidelines issue with which the judge is intimately familiar, under circumstances in which the judge is getting input from sources independent of the DOJ, and the judge is not required to follow the guidelines calculation, much less the Justice Department’s guidance — guidance, by the way, that explicitly states the sentence to be imposed is completely up to the judge. 

As unfair and inappropriate as President Trump believes the Mueller investigation and, specifically, the Stone prosecution were, as much as he obviously believes these cases never should have been brought and now should disappear, Attorney General Barr is not erasing them. Rather, in Stone’s case, the Justice Department is saying that the seven felony convictions should remain in place but the 67-year-old defendant — who is in failing health, and whose crimes did not meaningfully obstruct investigators — should be sentenced to around four years rather than the nine years initially recommended by prosecutors. And, again, all of this is occurring under circumstances in which the recommendation is certain to have no impact on a judge who knows both the case and the law at least as well as the DOJ does.

That is, this is a controversy over nothing.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.