Criminal Justice Insider

Last week, Lori Loughlin, the actress made famous for playing wholesome “Aunt Becky” on the sitcom “Full House” was sentenced to two months in prison for her role in the “Varsity Blues” college admission scandal. Her husband, Massimo Giannulli, received over double that period of incarceration when he was sentenced, that same day, by that same judge, to five months in prison. Both Loughlin and Giannulli’s conduct related to an identical scheme to pay money and make false representations in order to get their two children into elite universities outside of the normal admissions process. The high-profile sentencing of Giannulli and Loughlin puts a spotlight on the federal sentencing process. How can a judge can arrive at two different sentences for two different defendants for substantially similar conduct? Let’s find out.

Sentencing in a federal criminal case occurs several months after a guilty plea or verdict. This is to allow for a cooling-off period so that the emotions that follow a trial do not unduly influence the sentencing and to allow time for the parties to partake in pre-sentencing procedure.

The federal sentencing process starts with an analysis of the offense under the Federal Sentencing Guidelines, which are set of non-binding rules which endeavor to establish a fair and uniform sentencing process for all criminal defendants. Each criminal offense is contained in the guidelines and is assigned a base level offense number. For example, Loughlin was charged with conspiracy to commit mail and wire fraud pursuant to 18 U.S.C. Sec. 1349. This carries a base offense number of 14.

The base level offense number can increase or reduce based on the defendant’s role in the offense or their personal characteristics. For example, if the defendant used a special skill or professional license to commit the offense, the base level offense number is increased by 2 points. If the defendant pled guilty and accepted responsibility at an early stage, the base level offense can be reduced by 2 points. There are many such enhancements contained in the guidelines.

When a final number is reached, that number is applied to a matrix which contains the base level offense along the y-axis and criminal history category along the x-axis. A criminal history category is assigned based on any prior offenses for which the defendant has been convicted. The application of the matrix will result in a sentencing range in the number of months.

Procedurally, the sentencing guideline is first calculated by the federal probation office which is supervising the defendant before sentencing. That department will conduct an interview and review the defendant’s personal, health, professional and financial history. That interview, and that of friends and family, as well as a financial investigation will result in a pre-sentence report. This report will contain the Federal Sentencing Guidelines calculation as well as any pertinent background information the Court may find useful in sentencing. Both the prosecution and defense counsel have an opportunity to review the report and object to the manner in which the guidelines are calculated as well as correct any misinformation.

Thereafter, both the prosecution and defendant submit their own pre-sentencing memoranda which explain their respective positions as to sentencing. The prosecution’s memorandum tends to focus on any unique aspects of the offense and harm caused thereby. By contrast, a defendant’s pre-sentence memorandum generally tends to humanize the defendant, highlighting family and personal relationships that will be disrupted by a lengthy term of incarceration. The memorandum often contains letters of support from friends and family. A judge will consider the probation report, the objections, as well as the memoranda submitted by both parties, in fashioning a sentence.

As a matter of law, Federal Sentencing Guidelines are not mandatory. United States v. Booker, 543 U.S. 20 (2005). A judge, in large part, has complete discretion over sentencing. However, a judge must consider the guidelines and perform a guidelines calculation on the record at sentencing. However, a judge must also consider the “3553(a) factors” when imposing a sentence. These factors, set out in 18 U.S.C. Sec. 3553(a), require a judge to consider the history and characteristics of each defendant and the need for the sentences imposed to constitute just punishment and provide for adequate deterrence. These are, in essence, the ephemeral and discretionary factors that create variability in sentencing.

Both the guidelines and “3553(a) factors” explain why Giannulli and Loughlin received differing sentences for their role in the same scheme. First, Giannulli engaged in additional criminal conduct insofar as he paid a $500,000 bribe to the college athletic staff. Under the guidelines, the higher the dollar amount involved in a fraud, the higher the base offense level. Further, applying the “3553(a) factors”, Giannulli was in greater need of punishment. He was more involved in the scheme and actively deceived others from discovering his deceptions. Such additional conduct by Giannulli explains the sentencing disparity as viewed through the lens of the Federal Sentencing Guidelines and the “3553(a) factors.”

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533