I call this episode “Anchor’s Aweigh” for two reasons. First, there is a potential seismic shift in federal sentencing coming, which would go far to eliminate what we call the dreaded “anchoring effect” of the draconian and deeply dysfunctional sentencing guidelines. If this passes, it will likely be the biggest change in guideline sentencing since Booker was decided twenty years ago.

The other reason for the title is because the achor’s up on the new ship of state, and anyone paying attention should feel deeply unmoored. The vessel is powering through dark and dangerous waters, with seemingly nothing other than doom on the horizon, particularly when it comes to our criminal system.

If you are not a guidelines nerd, and you’d like to hear our take on recent pardons and relevant executive orders from the new administration, then fast forward to 24:30.

Lastly, please excuse the bad quality of the recording. I had the pleasure of being in the same physical space ("IRL" as the kids call it) with Mark Allenbaugh, which is a very rare occurrence. So we hunkered down in a booth at Jack’s Steakhouse and Seafood in Bismark, North Dakota (https://jackssteakhouse.net), and recorded this episode. The "live" element without my good sound stuff explains why the recording is a little wonky.

IN THIS EPISODE:

• Proposed guideline amendments eliminating departures and limiting supervised release;
• Thoughts on the sweeping pardons issued by both the Biden and Trump administration;
• Thoughts on some of the new executive orders that will significantly impact federal criminal law.

LINKS:

Link to public comment on guideline page:

https://comment.ussc.gov/apex/r/ussc_apex/publiccomment/home

Link to proposed amendments:

https://www.ussc.gov/policymaking/federal-register-notices/federal-register-notice-proposed-2024-2025-amendments-published-december-2024

Past Set For Sentencing Episode on Pardons – This episode (105) dropped at the beginning of January, before Pres. Biden cleared federal death row and issued sweeping “pre-emptive” pardons for his family and others:

https://youtu.be/cuQrGO8HNlw?si=uIBxTauumZAqg5TU

Restitution is often imposed to compensate crime victims for their losses. Done correctly, it can help victims recover and allow offenders to move on after serving their sentence.

However, defense attorneys sometimes overlook restitution issues, resulting in burdensome payment orders. These can extend prison time and hinder reintegration after release, making restitution effectively a lifelong punishment.

So, in Episode 106 of Set for Sentencing, we welcome back Ashley Adams, a former united states attorney and incredible white collar criminal defense attorney in Phoenix, AZ. Together, we take a deep dive into the wonderful world of restitution.

IN THIS EPISODE:

• Exemptions under state law don’t necessarily apply with the feds;
• The “20 year rule” for restitution orders;
• Negotiating restitution issues in the plea negotiations;
• Whether and how a payment schedule can be modified;
• What happens when you catch the “FLU”, or rather the “FLU” catches you (i.e. what does debt collection look like with the Financial Litigation Unit of the DOJ;
• The ins and outs of the “Inmate Financial Responsibility Program”
• Navigating probation or supervised release with a restitution order;
• Vulnerability of a spouse’s assets in a “community property” state;
• Charging orders in partnerships;
• The government going after kids’ college funds;
• Whether and how the government can go after foreign assets.

LINKS:

https://www.azwhitecollarcrime.com/ashley-adams/

Ashley's first appearance on Set for Sentencing: Episode 7: Stories from the Frontlines of Justice -- From Prosecution to Defense:

https://youtu.be/z9NmDSInn6s?si=4A1DMpO4jNsTu861

My MUSIC! Ashley and I had a little chat about music at the end, and so I couldn't resist the opportunity to plug my new album, ONE GOOD THING. It's available on all streaming services, including Youtube. I also just released the record on vinyl. Hit me up if you want a copy. Otherwise, here's the YouTube page for the record:

https://www.youtube.com/playlist?list=OLAK5uy_kyVV0Qs1xMGqXQYZlzHzBgUlA7A35aENI

It’s January 2025, and we’re in the final days of the Biden administration. He has had a busy last month or so issuing pardons and commutations.

This unfettered power is rightly scrutinized but often misunderstood. The bigger problem is, the whole damn process appears to be broken. And although Pres. Biden has done some good things with his power, it still represents a small fraction of those languishing in prison who deserve action.

Margeret Love was the head of the US Pardon office from 1990-97, she had a front row seat to the pardon process, and continues to represent clients seeking pardons. Mark Allenbaugh needs no introduction. His stats help us put many of these decisions into the proper perspective. Both of them join us on the first episode of the new year to lend their unique perspective to this very timely issue!

IN THIS EPISODE

• The Hunter Biden Pardon
• The 1500 commutations of those who BOP had released to home confinement during Covid;
• The difference between pardons and clemency;
• When did things really start to go off the rails in the US Pardon office? (spoiler alert, it was the Clinton years);
• Is it true that when you accept a pardon it is an admission of guilt?
• Trumps promise to pardon the January 6th defendants;
• Can a president pardon himself?
• Why the pardon essentially makes the president the "DOJ’s Janitor";
• How the pardon power should be managed going forward;
• Michael Conahan commutation (the judge embroiled in “cash for kids” scandal);
• Rita Crundwell (Dixon, IL Comptroller fraud) commutation.

LINKS:

For more info on the Rita Crundwell Case, there's a great documentary produced by Prof. Kelly Richmond Pope called "All the Queens Horses" currently available on Amazon Prime (https://www.amazon.com/All-Queens-Horses-Gene-Biggerstaff/dp/B07BPNGP85). She also writes about it in her book, "Fool Me Once" https://a.co/d/hQzJFUY

I had Dr. Pope on the podcast to talk about this case a while back

As for the "Kids for Cash" judge who just had his sentence commuted, here's his wiki page: https://en.wikipedia.org/wiki/Michael_Conahan

Here's our two previous episodes on Hunter Biden. The first talks in detail about the political nature of his prosecution and his original plea bargain falling apart and the next happened live after he pled guilty in California:

Ep. 64: Too Cute by Half: Why Hunter's Plea Went South: https://youtu.be/sWEzwKLQCoo?si=rK3qRURAJVQtXXk5

Ep. 92: Livestream Bonus: Hunter Biden Edition: https://www.youtube.com/live/B3VL-cJlXSo?si=r1zAdBS6C2s_STTO(make sure you forward through the first two minutes of tech disaster) And we talk in depth about the concept of "lawfare".