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".

On November 1, several amendments to the United States Sentencing Guidelines took effect. Some of these changes are significant, offering advantages to the defense, while others are less beneficial.

However, ultimately, this process amounts to nothing more than "Kabuki Theatre," meaning the tortured guideline applications become merely performative, because 18 U.S.C. § 3553, enables discerning judges to overlook the sentencing recommendations provided by the guidelines.

Thus, it is crucial to be informed about these amendments to argue effectively whether and how they should be considered in the final analysis.

IN THIS EPISODE:

• Some eye-popping facts and stats after forty years of guideline sentencing;
• Relevant conduct amendment to now exclude acquitted conduct (but it comes with a big but…)
• Possibility that new litigation may void the Kisor fix because of commission overreach by overriding congress and/or resolving circuit splits;
• The “Kisor” work-around to fix the intended loss issue under the fraud guideline;
• The implication and larger application of the Kisor workaround – i.e., support for the argument that for other guidelines, if it’s in the commentary, it doesn’t count;
• Clarification of the new Zero Point Offender provisions (ZPO) to deny eligibility for anyone who gets an upward role adjustment;
• And, perhaps the one bright spot, adding a potential downward departure for “youthful offenders” (mid-20’s or less);
• Practice tips for navigating the new guidelines provisions;
• Information on reaching out to the commission for future proposed guideline amendments.

LINKS:

United States Sentencing Guidelines online: https://guidelines.ussc.gov/apex/r/ussc_apex/guidelinesapp/home

My new Album! The guidelines are 40 years old, which is also when I picked up my first guitar. So, yes, I had to give a shameless plug for my first rock record, "One Good Thing", which is available everywhere you stream your music! Music is another creative outlet that keeps me sane and quiets my brain: https://www.youtube.com/playlist?list=OLAK5uy_kyVV0Qs1xMGqXQYZlzHzBgUlA7A35aENI

FAREWELL 2024!!!!

This will be the last new episode of 2024. As always, I wanted to thank you for listening, constributing, liking, subscribing and spreading the word about Set for Sentencing. We have been going strong for over two years now, and the show was recently ranked #7 among the 35 “must-follow” Criminal Defense podcasts in 2024, via Feedspot (35 Best Criminal Defense Podcasts You Must Follow in 2024).

So, per a tradition I started in 2023, I’ll be taking the rest of the year off! The remaining episodes of the year will be re-broadcasts of either other podcasts I have appeared on or some earlier episodes I adore and may have been overlooked when the audience was smaller.

2025 will be a wild ride, and we’ll be right here with you, buckled up and ready to roll. Until then, I’m grateful for all of it, and I hope you find some peace, light and love as the year winds down.

We’ve spent a lot of time running down the BOP, and not without good cause, BUT we don’t give as much attention as we should to the positive things happening inside those walls. Lawyers need to learn about and advocate for beneficial programming placements for clients, especially those with special needs. Therefore, helping us get set for sentencing is Dr. Alix McLearen, former acting director of the BOP and psychologist who is responsible for the creation of some really important programs, including the Skills program for clients on the Autism spectrum,

IN THIS EPISODE:

• The Skills Program (for those on Autism Spectrum or have other special needs);
• The F.I.T. program (Female Integrated Treatment);
• Directory of First Step Act approved programs;
• Advice for lawyers to improve their advocacy at sentencing when it comes to prison;
• Dr. Mclearan's services

LINKS:

Contact Dr. Alix McLearen at: alixmclearen@gmail.com

OTHER BOP PODCAST EPISODES:

Please visit www.setforsentencing.com or YouTube (https://www.youtube.com/@setforsentencing/videos) for several other episodes on the functioning (or more likely dysfunctioning) of the federal prison system, including, Ep. 99 (BOP Horror Stories); Ep. 83 (BOP Stands for Back Off Punishment!); Ep. 70 (BOP Stands for Backwards on Purpose); Ep. 67 (BOP Stands for Big Ol' Problems); Ep. 44 (3 Years of Hell: Covid & the BOP); Ep. 3 (Telling the Story of Prison at Sentencing).

Directory of Programming at BOP: fsa-approved-program-guides-en.pdf

Federal Prison Guidebook (Alan Ellis): https://alanellis.com/federal-prison-guidebook/

We spend so much time and engergy trying to develop our knowledge and skill to better represent our clients. And keeping abreast of all major developments in the law is paramount to a successful legal practice.

But there’s one thing every lawyer needs, and it does not exist – a crystal ball. If we were clairvoyant we could anticipate favorable changes in the law that we could use to our advantage right now, even before the ruling happens.

The bigger problem, especially in federal court, is that if we enter a plea agreement (which is almost every case), we almost always waive our right to challenge changes in the law that would even prove a client is innocent of the crime to which he pled!

Therefore, in an effort to aid in your clairvoyant powers on the subject of federal FRAUD cases, we give you Thompson v. United States, a “sleeper case” headed for the Supreme Court.

Reading the tea leaves of prior recent court decisions on fraud crimes, the muck at the bottom of the mug tells us that if the Court continues on their quest to narrow the scope of federal fraud prosecutions, could result in a seismic shift in many cases where the fraud is predicated on the accused making “false statements. “

IN THIS EPISODE:

• Summary of the Thompson case;
• The distinction between “false statements” versus “misleading statements”;
• The need to make a record before, during, and after a plea;
• Consider negotiating a conditional plea that preserves your right to appeal should the Thompson case go our way;
• How long it may take to get a ruling from the court on Thompson;
• Plea implications of Thompson;
• Sentencing implications of Thompson (relevant or acquitted conduct).

FREE DOWNLOAD:

Visit the shownotes (link below) for this episode for a free download of the article we discussed in this episode laying out the Thompson case and its potential impact on the future of federal fraud!

https://setforsentencing.com/podcast/future-of-fraud/

AFTERTHOUGHT:

It occurred to me when editing this podcast a very important practice tip now that there is this great body of S.Ct. law limiting fraud and cert having been granted on Thompson: We should strongly consider asking for a “Bill of Particulars” in every case, to make the government state, with specificity what the alleged fraudulent conduct was, as if it was an omission or a misleading statement, rather than an outright LIE, then you may have a fighting chance at defeating the charge, and/or mitigating your sentence.

LINKS:

Mark Allenbaugh: www.sentencingstats.com

Check back here soon for an updated link to Mark's Law 360 article on this topic!

Where we are born, how many times we were forced to relocate, and the kinds of things happening, or not happening, in our communities, our schools and other institutions in those locations are all important to give context to a client's life and choices.

But how do we tell those stories at sentencing?

Thankfully, there's an amazing expert that can do it with compassion, grace and an unparralled skill set: Social Geogrpaher, Dr. Julie Urbanik!

Her outside the box approach to mitigation is something that should be on every defense attorney's radar.

IN THIS EPISODE:

• The connection between geography and criminal defense;
• Explanation of “mitigation geonarratives”;
• Explanation of “body maps”;
• Explanation of “memory walks”;
• Other uses of video to tell the mitigation story;

LINKS:

Julie’s website is www.julieurbanik.com

Email contact: julie.urbanik@gmail.com

Here is the link to Dr. Urbanik's peer-reviewed publication on the topics we discussed, including several examples of her work: https://www.sciencedirect.com/science/article/pii/S2590291121000553

Lastly, we mentioned a couple of other podcasts with incredible legal professionals that can attest to Dr. Urbanik's great work:

Episode 58 - Life in the Shadow of Death with Atty Cyndy Short:

https://youtu.be/-0Dsy8pTt_Q?si=g_al0g4FO5k7nZaO

Episode 28: The Heart & the Head: Holistic Sentencing with Mitigaiton Specialist Victoria Rusk

https://youtu.be/7vtaFT9TKl4?si=vqnrwEQDMz32ipHg

I can’t think of a better topic for our 100th episode of Set For Sentencing – the topic that is so near and dear to my heart – MITIGATION FILMMAKING!

Mitigation films are arguably the most powerful and persuasive weapon in our advocacy arsenal. They offer an unparalleled way to humanize a client and show the truth of their journey, rather than simply telling it.

However, there’s currently a significant gap in learning and leadership within the world of mitigation filmmaking. With no established standards and a lack of a supportive community, many well-intentioned individuals—whether new to the legal field or even the supervising lawyers—often lack the comprehensive skill set needed to produce these films effectively. This gap can be detrimental to both the client and the broader cause.

That’s why a group of dedicated, highly experienced professionals is coming together to form REEL DEFENSE: A MITIGATION FILM COLLECTIVE! This non-profit entity is committed to educating, building community, and producing these essential films for those who might not have the resources to do so themselves.

Visit www.reeldefense.org and consider making a tax-deductible donation to support this worthy endeavor!

IN THIS EPISODE:

• What is a mitigation film and why is it such a powerful persuasive tool of advocacy?
• Announcing a new, non-profit endeavor – the mitigation film collective!
• Examples of great results gained through use of video advocacy
• Why your judges will love these (even the ones that say they hate ‘em);
• Why the claim that these are just for “rich people” is a false narrative;
• How you can support the newly formed, non-profit mitigation film collective!
• Mitigation movies and the Simpsons!?
• Bad Actors in the Mitigation film arena
• Upcoming training opportunities with the collective

LINKS:

To make a tax-deductible donation or learn more about the Collective, please visit: www.reeldefense.org

Sample sentencing videos: If you've never seen one, here is a sample. This was done for the first defendant to plead guilty and be sentenced in the plot to kidnap the Gov. of Michigan. He received, by far, the most favorable sentence of any of the individuals charged, and the video played a big part in that: https://youtu.be/AOhOY3uuvRQ?si=7UO2LO1EPzDDF8SW

New Book on Holistic Defense: Early in the episode, I told you about Katie Carter's new book, Holistic Defense: a Practice. It's a must read for anyone doing criminal defense work. You can buy it here: https://www.carterinvestigations.com/shop/product/

EXTRA: The Saga of Lance Oppenheim:

One reason for the colletive is to guard against “bad actors” who either enter the space without the proper perspective to do the work, or who simply seek to exploit the medium for their own gain. We talked specifically, in this context, about a filmmaker named Lance Oppenheim. While we spared the audience much of the gory details, suffice it to say, Lance manipulated his way into the defense community and behaved badly in order to further his own ambition. And, while we're here to uplift and inspire, sometimes people just need a reality check.

Back around 2014, Lance was a Harvard undergrad with big ambition. He took advantage of legal professionals (myself included) that thought they were helping him with a school project, and then preyed on our vulnerable clients by using portions of their mitigation films without permission. He neglected to mention that the little supposed “student film” he was making was actually going to be submitted to the New York Times for the world to see. The story of Lance and his careless attitude about what we do and who we do it for, is a cautionary tale of why only those who are trustworthy and hold the mission of providing quality, holistic, representation sacred can be allowed into the inner circle of mitigation filmmakers.