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Flashback: “Any error in the Guidelines calculation went in Blagojevich’s favor”

Tuesday, Feb 18, 2020

* From 2015, after Rod Blagojevich appealed his conviction

Bottom line: Several counts were tossed, but the judges decreed that Blagojevich’s sentence was more than fair and still justifiable even with fewer counts against him.

As Steve Rhodes wrote at the time, several news outlets got that simple fact wrong.

* From the opinion

Blagojevich then turned to supporters of Rep. Jesse Jackson, Jr., offering the appointment in exchange for a $1.5 million “campaign contribution.” (We put “campaign contribution” in quotation marks because Blagojevich was serving his second term as Governor and had decided not to run for a third. A jury was entitled to conclude that the money was for his personal benefit rather than a campaign.) Blagojevich broke off negotiations after learning about the wiretaps, and he was arrested before he could negotiate with anyone else.

The indictment charged these negotiations as attempted extortion, in violation of 18 U.S.C. §§ 2 and 1951, plus corrupt solicitation of funds (18 U.S.C. §§ 371 and 666(a)(1)(B)) and wire fraud (18 U.S.C. §§ 1343 and 1346). The indictment also charged Blagojevich with other attempts to raise money in exchange for the performance of official acts, even though federal law forbids any payment (or agreement to pay), including a campaign contribution, in exchange for the performance of an official act. See McCormick v. United States, 500 U.S. 257 (1991). We give just two examples.

First, when lobbyists for Children’s Memorial Hospital sought an increase in reimbursement rates for Medicaid patients, Blagojevich (through intermediaries) replied that he would approve an extra $8 to $10 million of reimbursement in exchange for a “campaign contribution” of $50,000. Blagojevich initially approved a rate increase but delayed and then rescinded it when waiting for a contribution; he was arrested before any money changed hands.

Second, after the state legislature had approved an extension of a program that taxed casinos for the benefit of racetracks—see Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651 F.3d 722 (7th Cir. 2011) (en banc); Empress Casino Joliet Corp. v. Johnston, 763 F.3d 723 (7th Cir. 2014)—but before Blagojevich signed the bill, he attempted to ensure that John Johnston, who owned interests in two of the racetracks, fulfilled a $100,000 “campaign” pledge. Blagojevich had intermediaries inform Johnston that the bill would not be signed until the money arrived. Blagojevich was arrested before he signed the bill (and before Johnston signed a check). […]

Blagojevich now asks us to hold that the evidence is insufficient to convict him on any count. The argument is frivolous. The evidence, much of it from Blagojevich’s own mouth, is overwhelming. […]

The district judge concluded that the Sentencing Guidelines recommend a range of 360 months to life imprisonment for Blagojevich’s offenses, and the actual sentence is 168 months. Instead of expressing relief, Blagojevich maintains that the sentence is too high because the range was too high. […]

Any error in the Guidelines calculation went in Blagojevich’s favor. After calculating the 360-­to-­life range, the judge concluded that it is too high and began making reductions, producing a range of 151 to 188 months. […]

The prosecutor has not filed a cross-­appeal in quest of a higher sentence but is entitled to defend the actual sentence of 168 months (and to ask for its re-­imposition on remand) without needing to file an appeal. Removing the convictions on the Cabinet counts does not affect the range calculated under the Guidelines. It is not possible to call 168 months unlawfully high for Blagojevich’s crimes, but the district judge should consider on remand whether it is the most appropriate sentence. […]

If the prosecutor elects to drop these charges, then the district court should proceed directly to resentencing. Because we have affirmed the convictions on most counts and concluded that the advisory sentencing range lies above 168 months, Blagojevich is not entitled to be released pending these further proceedings.

- Posted by Rich Miller        

  1. - Truth in Sentencing - Tuesday, Feb 18, 20 @ 2:11 pm:

    It is worth noting that Senator Durbin has recently argued that Blagojevich’s sentence was excessive, including in conversations with Trump.

    Not great, Senator, at all.

  2. - Flyer - Tuesday, Feb 18, 20 @ 2:15 pm:

    Blagojevich was a victim of his own arrogance and I bet it will again be on display once again sooner than you think

  3. - Precinct Captain - Tuesday, Feb 18, 20 @ 2:21 pm:

    How crazy would Trump’s pro-corruption frothing be if Blagojevich had gotten life?

  4. - anon2 - Tuesday, Feb 18, 20 @ 2:22 pm:

    This is how Trump is draining the swamp.

  5. - Exiled from IL - Tuesday, Feb 18, 20 @ 2:34 pm:

    Trump’s pardons of Rod Blagojevich and many other criminals is the equivalent of the Mariel Boat-Lift for corruption.

  6. - zatoichi - Tuesday, Feb 18, 20 @ 2:37 pm:

    Blago made choices he could have easily avoided, but his ego got in the way. Whose fault was that? Judge already cut the months. Do the time.

  7. - don the legend - Tuesday, Feb 18, 20 @ 2:41 pm:

    What’s Trump thinking? He just blew any chance of winning Illinois. :)

  8. - Loop Lady - Tuesday, Feb 18, 20 @ 2:44 pm:

    I will never forget the DNC in Boston when Rod had to listen to Obama rise to the national stage…priceless…

  9. - LaborGuy - Tuesday, Feb 18, 20 @ 2:57 pm:

    Senator Durbin is correct. Blago’s sentence was excessive. Murderers serve less time, on a regular basis, than Blago’s sentence.

  10. - anonamoose - Tuesday, Feb 18, 20 @ 3:00 pm:

    Again, Trump *commuted* Blago’s sentence. He did not pardon him. Big difference.

  11. - Pundent - Tuesday, Feb 18, 20 @ 3:04 pm:

    =Murderers serve less time, on a regular basis, than Blago’s sentence.=

    Well first off murder is a state crime not federal so the comparison is more than a bit off. Setting that aside, do you care to provide any data to support your assertion that murderers are serving less time on a “regular” basis?

  12. - lost in the weeds - Tuesday, Feb 18, 20 @ 3:08 pm:

    The former gov’s defense was a speech. No evidence, witnesses or lawyers were provided or used in his defense.

  13. - lost in the weeds - Tuesday, Feb 18, 20 @ 3:09 pm:

    In the former gov’s impeachment trial.

  14. - Boog Alou - Tuesday, Feb 18, 20 @ 3:12 pm:

    ==Murderers serve less time, on a regular basis, than Blago’s sentence. ==

    What follows to me is that they should serve more, not that Blago should serve less.

  15. - Anon - Tuesday, Feb 18, 20 @ 3:12 pm:

    I am glad to see trump providing mercy. The sentence was too long. Even during his time as Governor, Blagojevich was not nearly the most corrupt official in Springfield.

  16. - JoanP - Tuesday, Feb 18, 20 @ 3:17 pm:

    = Murderers serve less time, on a regular basis, than Blago’s sentence. =

    Not in Illinois, they don’t.

    The minimum sentence in Illinois for murder is 20 years, served in its entirety.

  17. - 47th Ward - Tuesday, Feb 18, 20 @ 3:18 pm:

    ===I am glad to see trump providing mercy===

    Yeah, that’s what he’s doing. Providing mercy. Yep, go with that.

  18. - Chicagonk - Tuesday, Feb 18, 20 @ 3:28 pm:

    Federal sentencing guidelines have been too harsh ever since the tough on crime 1980s and 1990s. I don’t have a problem with the commutation for Blago, but know that there are hundreds of federal prisoners that will have their commutation requests ignored because they didn’t appear on a certain reality tv show.

  19. - Southern Illinois Mayor - Tuesday, Feb 18, 20 @ 3:30 pm:

    Late breaking news: Blago welcomed with outstretched arms by Eastern Bloc after receiving Trump blessing.

  20. - Precinct Captain - Tuesday, Feb 18, 20 @ 3:30 pm:

    ==- LaborGuy - Tuesday, Feb 18, 20 @ 2:57 pm:==

    The median time served for murder is 13.4 years. Half of people serve more, half of people serve less.

  21. - GV - Tuesday, Feb 18, 20 @ 3:36 pm:

    That isn’t what median means, and the numbers that are used for the bjs site include sentences that are ended by death, e.g. if you’re serving a life sentence for murder and you die after 10 years, you served 10 years for murder.

  22. - lakeside - Tuesday, Feb 18, 20 @ 3:38 pm:

    == Exiled from IL - “criminals is the equivalent of the Mariel Boat-Lift for corruption”==

    I really cannot tell you how perpetually excited I am to fight about the Marielitos.

    Only a little over 2 percent of them were found to be serious/dangerous criminals by the US (and were denied citizenship); the vast, vast majority of the folks involved in the boatlift were regular Cubans. They were, on average however, poorer and browner than the previous rounds of Cubans that sought exodus to the United States. Stereotypes, Casto’s rhetoric to mitigate the embarrassment, and the unexpected number of immigrants in a short period of time created the situation where all the Marielitos were deemed to be “criminals.”

    So the only real comparison is that today’s action involved more people than expected.

    I want you to know this is the only thing that has lifted my mood today, as the corrupt president pardons and commutes the sentences of his kin.

  23. - DIstant watcher - Tuesday, Feb 18, 20 @ 3:40 pm:

    @Anon 3:12: if Rod wasn’t the most corrupt guy in Springfield it wasn’t for lack of trying. Have you forgotten the $25,000 Club? “You should make some money”? Rod saw George Ryan get arrested and said, hold my beer.

  24. - Lincoln Lad - Tuesday, Feb 18, 20 @ 3:41 pm:

    8 years is enough… his life effectively destroyed. Let him go home and salvage what family life he can. He’s not a threat to anyone at this point.

  25. - chuddery - Tuesday, Feb 18, 20 @ 3:42 pm:

    ==the numbers that are used for the bjs site include sentences that are ended by death==

    GV, The average time served actually goes down if you exclude deaths. “Excluding deaths, the average time served for murder or non-negligent manslaughter would be 11.2 years”

  26. - RNUG - Tuesday, Feb 18, 20 @ 3:43 pm:

    == He just blew any chance of winning Illinois. ==

    Trump was never going to win Illinois; metro Chicago and St Louis is heavily D and normally buries downstate R districts in statewide and national races.

  27. - Illinoisan - Tuesday, Feb 18, 20 @ 4:00 pm:

    Good for former Governor Blagojevich. The time did not serve the crime. Sadly, we will hear from sanctimonious politicians, now, all hoping to be quoted. My guess is that many of these people should consider themselves lucky that they have not been taped.

  28. - don the legend - Tuesday, Feb 18, 20 @ 4:09 pm:

    RNUG, I did put a sideways smiley face :)

    Perhaps I should have used /s

    In any event it’s all good.

  29. - Stumpy's bunker - Tuesday, Feb 18, 20 @ 4:18 pm:

    I hope we weary Illinoisans can withstand the specter of a possible finger-pointing, speech and rewrite-history book tour. I certainly hope Rod taps into whatever network he has left and gets a quiet job to sustain his family.

  30. - cynically anonymous - Tuesday, Feb 18, 20 @ 4:48 pm:

    Lincoln Lad - the damage Rod and his cronies inflicted on the state will continue to live on long past his original release date of 2024.

  31. - Jocko - Tuesday, Feb 18, 20 @ 5:05 pm:

    ==The time did not serve the crime==

    LL is channeling Baretta who, coincidentally, also spent time in prison. I guess federal judges are supposed to operate on the “Hey, no fair” principle used in grade school.

  32. - Lincoln Lad - Tuesday, Feb 18, 20 @ 5:11 pm:

    -cynically anonymous
    In my view - the damage you reference is far less than the damage done by others who’ve never gone to jail. That’s included members of both parties. Rauner’s destruction of the social support network… the Speaker’s willingness to shut the State down to oppose him… That harm left lasting damage to millions. Not Blago’s effort to stay in office.

  33. - Froganon - Tuesday, Feb 18, 20 @ 5:24 pm:

    What are the chances Trump will commute the sentences of the 70,000 small children locked in cages on the border? They committed no crimes. Their sentences are beyond excessive and their families desperately want them back. Don’t hold your breath for their release.

  34. - 37B - Tuesday, Feb 18, 20 @ 5:53 pm:

    I thought and still think that Blago’s sentence was fair (extorting a children’s hospital? Hello?)and consistent with other sentences (taking Ryan’s more advanced age into account). But “the quality of mercy is not strained” and so I don’t begrudge him and his family an earlier release so he can set about healing his injured daughters.

    I only wish Trump had conditioned the release on Blago keeping his mouth shut, in a media sense, for the remainder of his sentence, or my life, whichever is longer.

  35. - James - Tuesday, Feb 18, 20 @ 6:26 pm:

    Blagojevich had tried to help the racetracks supporting a bill that would require casinos to pay into a fund to boost racing purses, common in other jurisdictions with both casinos and racing. Then Blago refused to sign the bill unless Balmoral Park track owner and Maywood Park lessee John Johnston paid a promised $100,000 contribution. The casinos sued Johnston civilly describing the contribution, never paid, as a quid pro quo and alleging RICO activity, winning a $78 million civil judgment against Johnston, later reduced to $25 million. Johnston avoided criminal charges by being cooperative in the criminal case against Blago, but had to file bankruptcy because he couldn’t afford the judgment. Balmoral Park was sold to pay Johnston creditors including the judgment won by the casinos and the Maywood Park lease was terminated. Although harness race dates were picked up by Hawthorne owners, the year round Illinois harness racing season in now about 4 months, causing many harness horsemen with farms to leave Illinois for other states.

    So the bill Blago originally designed to help racetracks compete against casinos ended up not being passed, and Blago’s corruption enabled the casinos to further enrich themselves against track owners while driving much of the racing industry out of Illinois.

  36. - mana - Tuesday, Feb 18, 20 @ 7:59 pm:

    I bet Rod will get a job at the White House with Trump. They are made for each other.

Sorry, comments for this post are now closed.

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