In this courtroom sketch at the federal corruption trial of former Virginia governor Robert F. McDonnell, center, and his wife, former first lady Maureen McDonnell, second from right, Judge James R. Spencer, left, presides. (AP Photo/Dana Verkouteren)
McDonnell was dealt a serious blow last month when the U.S. probation office determined that federal sentencing guidelines called for him to spend between 10 years and a month and 12 years and seven months in prison. Federal judges in the Eastern District of Virginia have handed down sentences within the so-called guideline range more than 70 percent of the time in recent years, and U.S. District Judge James R. Spencer is known particularly to heed the probation office’s advice.
But the guidelines are not set in stone.
Defense attorneys say the probation office misstated some facts of the case and miscalculated what the penalty should be; a more appropriate range, they say, would be two years and nine months to three years and five months in prison.
Their arguments are very technical ones. These are the major areas of debate that will likely be discussed at the sentencing today.
1) How much was everything worth that McDonnell received from Jonnie R. Williams Sr.?
In the estimation of the probation office, the former governor received more than $120,000 in bribes — a figure that triggers a sentencing enhancement under the federal guidelines. Prosecutors agree with that assessment. Defense attorneys, though, believe that even giving credit to the jury’s verdict, McDonnell received only between $10,000 and $30,000 from Williams, figures that would lower the recommended range of sentences.
There are a few gifts in dispute, but the disparity largely lies in the fact that the probation office is faulting McDonnell for the full face value of $120,000 in loans his wife and real estate company received from Williams — and ultimately paid back.
2) Did McDonnell take more than one bribe?
In the estimation of the probation office, McDonnell got more than one bribe from Williams, a fact that increases his sentencing range. Prosecutors say the jury actually convicted him “of six separate counts of extorting six different things of value,” and that did not include things that were not explicitly charged.
But by the defense’s account, all the gifts and payments were part of a series, stemming from a “single incident of bribery.”
3) Did McDonnell obstruct justice when he testified at trial?
The probation office determined that when McDonnell took the stand at his trial, he essentially lied, and that is reason to enhance his sentence under federal guidelines. Prosecutors claim there were at least eight separate ways that McDonnell “committed perjury,” including denying that he did anything for items of value and claiming that a $15,000 check from Williams was meant for his daughter, not him.
They argue, essentially, that the jury decided the facts of the case, and those facts stand counter to McDonnell’s testimony in a number of specific ways.
Defense attorneys, though, argue that McDonnell should not be faulted for obstructing justice simply because he testified in his own defense and was later found guilty. They argue that McDonnell acknowledged almost all of the facts or actions that formed the basis of his conviction; he simply disputes that what he did was illegal.
4) Should McDonnell be credited for accepting responsibility?
The probation office did not credit McDonnell for having accepted responsibility in the case, something that could have pushed his sentencing range downward. Defense attorneys say they should have.
Their argument here is a little murky because McDonnell and his defense team continue to assert that his corruption case was one-of-a-kind, and he still believes he did not commit a crime. But they argue that McDonnell nonetheless had “consistently and emphatically accepted responsibility for his actions and poor judgment that led to this situation,” and should be credited for doing so.
Prosecutors, obviously, disagree, and say McDonnell’s request to be credited for accepting responsibility is “another reminder of the defendant’s hubris and sense of entitlement.”