Lindh's Sentence: 20 Years or Up to 20 Years?

As we said yesterday, the key to understanding how much time Lindh will serve under his plea agreement is in the U.S. Sentencing Guidelines, which are set by the U.S. Sentencing Commission. The applicable U.S.Sentencing Guidelines are here.

For those unfamiliar with guidelines, which is probably 99 percent of the world, here is an excellent free primer by the Federal Public and Community Defenders.

The major points as we see them:

First, which version of the guidelines apply since guideline amendments take effect every November 1? The version in effect at the time of the sentencing unless the guidelines in effect at the time of the crime were more favorable (USSG 1B1.11)

Sentencing in Lindh is set for October 2002. Lindh's crimes occurred from May 2001 through the end of November 2001. The November 2001 edition will be used. The 2002 amendments, including those related to Patriot Act offenses, do not take effect until November 2002.

Second: Where there is no guideline designated for a specific offense, the guideline for the most analogous offense is used. On the supplying services to the Taliban count, the parties agreed that USSG 2M5.2 (Exportation of Arms, Munitions or Military Equipment or Services Without Required Validated Export License) is the most analogous offense. Should the Judge disagree, the Judge is free to use another guideline. As a practical matter, the Probation Department does a guideline analysis and the Judge heavily relies on that. In a case this big, you can bet that Probation was already consulted and calculated the guidelines the same as the defense and prosecution.

Third: What happens if the Judge disagrees and finds another offense guideline is more analogous? Does Lindh get to withdraw from the deal? No, because the plea agreement is under Rule 11(e)(1)(B) instead of Rule (11)(e)(1)(C) which would so allow.

Fourth: The added felony count to which Lindh pleaded, carrying explosives in commission of a felony, is a sentencing enhancement crime. It is the equivalent of carrying a weapon in furtherance of a drug offense, although in that case the term would only be five years. Guidelines are not "calculated" for this offense but instead simply provide that the sentence imposed will be the term specified in the statute. Here that means a flat ten year sentence is added onto the sentence for the underlying crime of providing services to the Taliban.

Fifth: Because John Walker Lindh has no prior record, he would normally have a criminal history category of Level I. But another terrorism guideline, 3A1.4, says that if the offense involved or was intended to promote a federal crime of terrorism, the criminal history category is bumped to level VI, the highest level. In addition, the offense level gets bumped by twelve. So here, where Lindh would have been a level 26 and category I under the analogous guideline for providing his services, he is now a level 38 and category VI.

Sixth: Lindh does receive three points off for accepting responsibility, bringing him to a level 35 and a Category VI. Guideline range: 292-365 months. But, the maximum allowed by statute for the offense to which he plead is ten years. Thus, the ten year sentence on the count of providing services to the Taliban is a virtual certainty and is also the most he can receive on that count.

Seventh: The mandated consecutive ten year sentence for the enhancement crime of carrying an explosive is tacked onto the ten year sentence for the supplying services offense, bringing Lindh to a 20 year sentence.

Eighth: He has waived his right to appeal the sentence so long as it does not exceed 20 years which would be a legally impermissible sentence.

Other notes: He did not plead to supplying material aid to a terrorist organization. He pleaded guilty only to providing services to the Taliban. He did not plead to the count charging carrying a firearm or explosive during the commission of a violent crime. His guilty plea was to a lesser crime of carrying an explosive during the commission of any felony. He gets credit for time served from the day of his seizure by the military in Afganistan (Dec. 1, 2001). Neither side will argue for more or less than 20 years.

Our conclusion: Lindh gets 240 months or 20 years. (Federal sentences are imposed in months, not years). He does 85% or 204 months. His sentence will be reduced further by the time he has spent in confinement from December 1, 2001 until the sentencing date of Oct, 2002, approximately ten months.