Our criminal defense law firm represents individuals charged with a variety of offenses in Pennsylvania and New Jersey. These crime and offenses range from the illegal possession of narcotics, firearms, and drunk driving to white collar offenses such as insurance and identity fraud. Recently, 15 NFL players pled guilty to insurance fraud (Title 18, Section 4117, PA; 2C: 21-4.6, NJ) involving a fund which repays retired players for out-of-pocket medical care expenses. Among those former players charged and who later pled guilty included Clinton Portis, Tamaric Vanover, and Robert McCune. All these players pled guilty to taking part in a scheme to defraud the NFL Player Health Reimbursement Account Plan which repays former players for out-of-pocket medical expenses up to $350,000.
According to court documents, Portis submitted fraudulent claims for nearly $100,000 in medical equipment that was never delivered while Vanover assisted 3 NFL players in filing false claims which totaled approximately $160,000. In total, the justice department alleged that the players submitted approximately 2.9 million dollars in false claims for which the plan paid out approximately 2.5 million dollars.
What type of prison sentences could these players receive?
The players face up to 10 years in federal prison, but it is highly unlikely that they will serve an extensive prison term and possibly no prison at all. It is important to understand that federal judges aren’t bound by federal sentencing guidelines and may consider without any limitation, information concerning background, character, and conduct of the defendant. A federal court my impose a sentence outside the properly calculated guidelines through either a departure or a variance.
What is a Sentencing Departure?
A departure is a deviation from the final sentencing range which is triggered by either the prosecution’s request to reward a defendant for either his or her cooperation or by other factors which considers a defendant’s circumstances. While sentencing departure are usually downward, the prosecution may request an upward departure from the sentencing judge.
Departures and variances are 2 different concepts. A departure is an authorized adjustment to a standard sentencing range within the guidelines system. They provide federal courts with a way to impose an appropriate sentence in an exceptional circumstance and permit a judge to impose an individualized sentence by considering mitigating and aggravating factors. The most common departure is substantial assistance offered to governmental authorities under 5K 1.1. Section 5K 1.1 provides a downward departure from guidelines if the government files a motion stating that the defendant has provided “substantial assistance in the investigation or prosecution of another person who has committed an offense”. In the NFL situation, these former players may have provided information which could have been helpful to federal authorities. Based on this cooperation they could receive a substantial departure from federal sentencing guidelines and not serve any time in jail.
What is a Sentencing Variance?
A variance is an upward or downward change based on applicable guidelines which a judge may impose based on the application of other statutory factors.
Unlike a departure, a federal court is not bound by a specific set of considerations when it considers a variance. Variances aren’t subject to guideline analysis unlike departures. A court will consider the following for upward and downward variances:
- The nature and circumstances of the offense and history and characteristics of the defendant
- The defendant’s health issues
- Family circumstances
- The nature of the offense
- Cooperation with the government
What is the Federal Sentencing Process?
Federal sentencing is a 3-step process which occurs as follows:
- A court must properly determine the guideline range
- A court must determine whether to apply any guideline departure policy statements to adjust the guideline range up or down
- The court must consider all factors set forth in 18 USC 3553(a), including whether a variance is warranted
Federal sentencing procedure require a firm understanding of the federal statutes and case law. Prior to the Supreme Court’s decision in U.S. v. Booker, federal judges were required to follow the sentencing guidelines and only permitted to depart from the guidelines in extreme situations. See 18 U.S.C.§3553(b)(1).
The judge was only permitted to depart from guidelines in cases where he/she found “an aggravating or mitigating circumstance…not adequately taken into consideration by the federal sentencing commission when it formulated the guidelines.”
The United States Supreme Court’s decision in United States v. Booker, however, specifically stated that federal sentencing guidelines are only advisory and that a court does not need to follow them. The Booker decision went on to say that a federal court is only required to impose a sentence which does the following:
- Reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
- To afford adequate deterrents to criminal conduct;
- To protect the public from further crimes of the defendant; and
- To provide the defendant needed education or vocational training, medical care, or other correctional treatment in the most effective manner.
If a federal court chooses not to follow the guidelines specifically and imposes less of a sentence, an appellate court (a higher court) is only permitted to review the decision for “unreasonableness”. See United States v. Booker, 543 U.S.220(2005). It is very important to understand, however, that while the Booker decision permits federal courts to impose a sentence below the standard guidelines it does not change or alter federal law which requires a judge to impose mandatory minimum sentence for specific crimes for certain offenses.
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