Guideline, Schmideline!

The battleground in the government’s ongoing war against financial criminals shifted to a Brooklyn courthouse last month, as another UBS defendant was sentenced after he pleaded guilty to concealing a foreign bank account. Prosecutors alleged that 73-year-old Gabriel Gabella, an Italian citizen, failed to file a Report of Foreign Bank and Financial Accounts (FBAR) to disclose his ownership of a Swiss bank account held at Union Bank of Switzerland in tax years 2006 and 2007.

Mr. Gabella faced a maximum 60 months in prison, and a guideline range of 24 to 30 months. However, U.S. District Judge Jack Weinstein sentenced him to three years’ probation and a $50,000 fine. In addition, Mr. Gabella paid a civil penalty of $3.1 million, which was about half the value of his account in 2007, and $239,000 in back taxes.

In handing down the sentence, Judge Weinstein noted that the federal guidelines encourage “parsimonious” sentences, in light of “excessive incarceration rates in the recent past and their unnecessary, deleterious effects on individuals sentenced, society and our economy.”

The Judge

President Lyndon Johnson appointed the former U.S. Navy lieutenant, Columbia Law School professor, and Nassau County Attorney to the federal bench in 1967. Despite his age (93) and status (Senior Judge), he maintains a full docket.
Judge Weinstein has been accused of favoring plaintiffs in negligence suits against big tobacco and big firearms manufacturers. A few years ago, a Georgia gun dealer claimed that Weinstein “had already made up his mind in the case” and the trial was “a mere formality.”

Such concerns may or may not be valid. The point here is that Judge Weinstein was straight down the middle in this decision. However, up until a few years ago, Mr. Gabella and similarly situated defendants would not pass “Go” and would not collect $200 on their way directly to jail.

Background to the Sentencing Guidelines: The 1970s

To truly understand the federal sentencing guidelines, we need to step into our “time machine” and take a trip back to the 1970s. Back then, there was a general feeling that street crime and drug crime were spiraling out of control. Popular movies of the era, such as Death Wish, Taxi Driver, Straw Dogs and Scarface, added fuel to the fire.

Emotions reached a tipping point in 1981, when John Hinckley shot President Ronald Reagan. Mr. Hinckley was a deeply disturbed man, and that may be putting it midly. Testimony at his trial revealed that he was obsessed with Jodie Foster, who had portrayed a child prostitute in the aforementioned Taxi Driver, and the Reagan shooting was the culmination of his theretofore fruitless efforts to impress her. He was found not guilty by reason of insanity, and although he is still confined to a secure mental institution, there was a perception that Mr. Hinckley had “got off light.”
In the immediate aftermath, Congress and a number of states changed their criminal insanity laws, making it harder to plead and/or prove such a defense. But these changes were just the tip of the iceberg.

The 1980s and 1990s

The judicial climate changed markedly thereafter, partially in response to the Hinckley case and partially in response to the perceived judicial activism of the Warren Court. Some felt that judges had too much discretion in sentencing, and bleeding-heart liberals allowed killers to roam the streets after these evildoers were freed on “technicalities.” Subsequently, in many confirmation hearings, the only real issue was whether the would-be judge was “tough on crime” or “soft on crime.”
In this polarized climate, Congress passed the Federal Sentencing Act (FSA) in 1987. The Act effectively handed the jail cell keys to prosecutors and probation officers. Under the mandatory guidelines, the judge used a protractor instead of the law to determine a sentence.

The FSA was essentially an X-Y graph, with “x” being the offense and “y” being the defendant’s criminal history. The point of intersection was the defendant’s sentence. End of story. Judges had some discretion to consider “substantial cooperation with authorities,” but that was about it. The Federal Sentencing Act was amended in 1997, but remained largely intact.


After 9/11, the public’s attention largely shifted from enemies at home to potential enemies abroad. The Supreme Court of the United States restored some measure of judicial discretion in the 2005 landmark case of United States v. Booker. Booker overturned nearly twenty years of sentencing law by giving sentencing judges more discretion in their sentencing decisions. Although the sentencing guidelines are now advisory, they retain a critical role. When deviating from the guidelines, a judge must provide a written explanation.

The FSA also gives two guiding principles for sentencing: “general deterrence” and “specific deterrence.” General deterrence is the idea that other would-be offenders will think twice about whatever nefarious deed they were considering when they read about the “heavy-handed” sentence handed down by a judge in the New York Times. Specific deterrence – will this person reoffend? – is also a consideration.

A Rendez-Vous With The Federal Sentencing Guidelines: How Do They Work?

This is a perfect Segway into a discussion of the Federal Sentencing Guidelines and how they work. The importance of the Federal Sentencing Guidelines cannot be overstated, especially since the first question a client typically asks his attorney is, “Can I go to jail for this?”

Let’s begin with the sentencing table, which is the cornerstone of the guidelines. The table is essentially a grid consisting of 43 levels organized into four zones on the vertical axis, and six criminal history categories based on criminal history points on the horizontal axis.

The first step in calculating a sentence is to determine the “offense level.” The offense level is nothing more than a numerical score, which translates into a range of months of imprisonment. The higher the offense level, the longer the defendant’s sentence. For example, an offense level of 10 results in a sentence between six and twelve months, while an offense level of 13 results in a sentence twice that long. It should come as no surprise that the goal of a defendant in plea negotiations is to obtain the lowest offense level possible.

Calculating the offense level is no easy feat. To use a cliché, it is “easier said than done.” If only it was as simple as recording the offense level that corresponds to a specific crime from a grid within the chart. As is the case with anything involving the law, it is never that easy. Instead, several intervening steps must be taken – a veritable labyrinth that resembles the tri-wizard tournament in “Harry Potter.” Unlike the tri-wizard tournament, however, it does not take the most famous teenage wizard of all time to solve this riddle.

So where does a judge begin in calculating the offense level? Taking it one step at a time, it is first necessary to calculate the “base offense level.” Once we have our base offense level, we have a reference point. From there, points are added or subtracted from the base offense level – in much the same way as judges add or subtract points during a gymnastics competition – in order to arrive at a sentence or sentence range.

The Guidelines require that four determinations be made, which can be reduced to four steps. First, as discussed above, the “base offense level” must be calculated. Second, any and all “specific offense characteristics” which relate to the facts of the case – and which are contained within that particular guidelines section – must be applied. Third, any necessary “adjustments” or “enhancements” must be made. And fourth, any necessary “departures” must be made.

The following is a step-by-step illustration. Begin by selecting the offense guideline section that corresponds to the crime committed. The offense guideline section is found in Chapter 2. Chapter 2 is organized by crime-type, with specific subchapters dedicated to broad classes of crimes. For example, drug offenses are found in subchapter 2D and firearm offenses are found in subchapter 2K. Once the applicable Guidelines provision is selected, the “base offense level” can be calculated.
Second, any appropriate “specific offense characteristics” must be applied. Each Guidelines provision lists certain conduct that the Sentencing Commission deems to be so morally reprehensible as to exacerbate the usual crime. If the defendant’s conduct falls within one or more of these offense characteristics, the base offense level must be increased by the number of points corresponding to that particular characteristic.

Third, other adjustments applicable to all offenses – that are found in Chapter 3 of the Guidelines – must be applied. Not all adjustments are meant to “punish.” Some are meant to “reward.” Those that are meant to punish are referred to as “enhancements” or “upward adjustments” while those that are meant to “reward” are referred to as “downward adjustments.”

Examples of an enhancement include a two-level enhancement for obstruction of justice (if the obstruction occurred during the investigation, prosecution, or sentencing) and a four-level enhancement “if the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a).

With respect to downward adjustments, the most important by far is “acceptance of responsibility.” Ask any defendant who has pleaded guilty in federal court, and the answer you will get is that “acceptance of responsibility” was “hands-down” the most decisive factor in their decision to plead guilty. Acceptance of responsibility results in either a two or three-level downward adjustment. U.S.S.G. § 3E1.1. This is one of the paramount reasons why the overwhelming majority of criminal defendants who are indicted in federal court wind up pleading guilty rather than going to trial.

Fourth, the court must make determinations as to upward or downward departures. Until the Booker decision, the Guidelines were binding on the sentencing court, and the court was extremely limited in its ability to impose a sentence outside of the applicable Guidelines range. But that has now changed. The discretion to deviate from the Guidelines is known as a departure, the rules for which are contained in subparagraph 5K.

Judges may depart either “upward” from the Guidelines’ range or “downward.” Upward departures can only be made if certain aggravating factors are present. Conversely, downward departures can only be made if certain mitigating factors are present. An example of a downward departure is one in which the defendant, for lack of a better expression, “eats cheese” or more colloquially, becomes a “snitch.” Indeed, “substantial assistance” in the investigation or prosecution of another person who has committed an offense is a well-recognized downward departure. U.S.S.G. § 5K1.1.

Here, it is important to distinguish between an adjustment for “acceptance of responsibility,” on the one hand, and a departure for “substantial assistance” on the other. Unlike the adjustment for acceptance of responsibility, the substantial assistance departure is for helping the government convict someone else. Very simply, a defendant is not required to assist the government in order to qualify for the acceptance of responsibility adjustment. The substantial assistance departure, on the other hand, is specifically designed to give the defendant a “nudge,” by incentivizing him to cooperate.

Not only do the Guidelines enumerate what grounds provide an adequate basis for a departure, but they explicitly state what factors cannot be used as justification for a departure. For example, Section 5K2.0 bars the sentencing judge from basing a departure on matters such as race, sex, national origin, creed, religion, and socioeconomic status; any circumstance that is specifically prohibited as a ground for departure, such as drug or alcohol dependence; or any ground that has already been considered under another portion of the Guidelines (i.e., acceptance of responsibility).

If you have made it to this point without your eyes glazing over, then you have reached a milestone. You have calculated the appropriate offense level! But before cutting the cork off of your champagne bottle, it is important to recognize that this s only one-half of the equation. As can be seen by viewing the sentencing grid, the length of a defendant’s sentence depends not only on the offense level (i.e., the vertical axis) but also the defendant’s criminal history (i.e., the horizontal axis).

What does this mean? Very simply, that to the extent that the defendant has a criminal history, it is relevant to calculating his overall sentence. Where does the sentencing judge begin? By referring to Chapter Four of the Guidelines to determine the defendant’s criminal history category. Generally speaking, the more prior convictions a defendant has, the higher his or her criminal history category.
Now for the moment that you have been waiting for. After the final offense level and the criminal history categories have been calculated, the actual sentence can finally be determined. The guideline calculation will result in a range of months of imprisonment. The Sentencing Table is divided into four zones: Zone A through Zone D.

If the applicable guideline range is in Zone A, a term of imprisonment is not mandatory. In other words, the entire sentence – or any part of it – can be served on supervised release or some form of alternative confinement. See U.S.S.G. § 5C1.1. It goes without saying that “bootstrapping” a client into Zone A – even if the client might not otherwise “fit” – is the most “high-stakes” part of plea negotiations. Sometimes it’s the equivalent of trying to fit a square peg in a round hole. Indeed, this is where the “rubber meets the road” – or in an economic sense, where the defense attorney truly earns his money. Ask any criminal defense attorney and he or she will be quick to acknowledge how negotiations on this term alone can be as delicate as negotiating a Mideast Peace Treaty.

What if the applicable guideline range is in Zone B? Does this mean that a prison sentence is all but certain? At the risk of engaging in “double-speak,” the answer is “yes” and “no.” When a defendant falls within Zone B, the sentence may be a term of imprisonment or alternative confinement, as long as at least one month of the sentence is satisfied by imprisonment. Of course, the sentencing judge can impose a custodial sentence for the entire guideline range.

How about Zone C? Unfortunately, that spells disaster. A defendant who falls within Zone C must serve at least one-half of the minimum term in prison. See U.S.S.G. § 5C1.1. And if a defendant falls within Zone D, all hope is lost since all of the sentence must be satisfied by imprisonment. Id.

Gabella: A Breath of Fresh Air

Returning to the Gabella case, of particular significance to Judge Weinstein was the fact that Mr. Gabella was a retired civil servant who had cooperated with authorities and who had no prior criminal record. Of course, not every defendant indicted on a federal crime has the same pedigree. But fortunately for Mr. Gabella, he did.

Essentially, Judge Weinstein rightly concluded that placing a near-octogenarian in federal prison at the taxpayer’s expense would have accomplished very little. If you had to write a check to Uncle Sam for three and a half million dollars, would that not be a sufficient punishment?

The punishment should fit the crime and not the Pythagorean Theorem. In this case, justice was served.

Original Post By:  Michael DeBlis


As a former public defender, Michael has defended the poor, the forgotten, and the damned against a gov. that has seemingly unlimited resources to investigate and prosecute crimes. He has spent the last six years cutting his teeth on some of the most serious felony cases, obtaining favorable results for his clients. He knows what it’s like to go toe to toe with the government. In an adversarial environment that is akin to trench warfare, Michael has developed a reputation as a fearless litigator.

Michael graduated from the Thomas M. Cooley Law School. He then earned his LLM in International Tax. Michael’s unique background in tax law puts him into an elite category of criminal defense attorneys who specialize in criminal tax defense. His extensive trial experience and solid grounding in all major areas of taxation make him uniquely qualified to handle any white-collar case.