DC Circuit: To measure a crime’s “seriousness,” use Sentencing Guidelines

An opinion issued today by the U.S. Court of Appeals for the D.C. Circuit begins by saying that the defendant “is innocent of the crime for which he was charged and convicted. The government does not dispute that point.” But the government still insisted that the conviction should stand, because they argued that the defendant could have instead been convicted of a different, equally serious crime. Judge Garland, writing for the court, held that this was not so.

The defendant’s actual innocence claim arose out of a recent Supreme Court decision which narrowed the scope of “honest services fraud” to cases of bribes and kickbacks — which is most definitely not what happened in the defendant’s case. The government did not dispute his claim of innocence under this new understanding of the law, but instead argued that the evidence showed that he made a false statement. According to the government, this crime is equally serious.

This matters because, in order to win an innocence claim after you’ve been convicted, you must show that you are also innocent of more serious charges that the government could have pursued. (Some courts have interpreted this to include equally serious charges also.) So the question in this case became, is making a false statement just as serious as honest services fraud?

The government argued yes, because the maximum sentences of these crimes are the same. But the defendant pointed out that the U.S. Sentencing Guidelines indicate that honest services fraud is the more serious crime: it has a guideline base offense level of 14, compared to the false statement’s base level of 6. (For someone with no criminal history, this makes a difference of about 15 months in prison.)

The court agreed with the defendant, ruling that the Sentencing Guidelines are a better indicator of the seriousness of a crime than the statutory maximum sentence. As a result, the defendant’s conviction should be thrown out.

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