Predicting Notthingham's Sentencing Decision

When Judge Nottingham sentences Joe Nacchio next week (July 27th), the judge will be consulting the federal sentencing guidleines that indicate a range of 70 to 87 months or 5 years/10 months to 7 years/3 months. Nacchio's defense counsel argues three reasons why the range should be less: (1) extraordinary family situation; (2) extraordinary charitable works; and (3) improper calculation of the aggravating circumstance of the insider stock sells. For this third reason, while the Government argues for approximately $44 million Nacchio made in net profit from those sales, Nacchio argues for $1.8 million based upon the amount of the profit actually attributable to material nonpublic information based upon an expert witness. Consequently, whether Judge Nottingham issues a sentence less than 70 months depends upon his legal determination of these issues on their merits.

However, I was also curious whether the past sentencing decision by Judge Nottingham or the past statistics from the US Sentencing Guidelines Commission on the percentage of cases judges departed from the range might aid in predicting the odds of Nottingham going under the range and imposing a sentence less than the prescribed range under the federal sentencing guidelines. Based upon the analysis below, I believe that there is a high probability that Nottingham will stay within the range of 70 to 87 months.

Using Lexis, I searched for court cases involving Judge Nottingham and the sentencing guidelines either where the 10^th Circuit reviewed Nottingham’s sentence (all cases upheld Nottingham’s sentencing decisions) and Nottingham’s opinions for the 10^th Circuit reviewing the sentencing decisions by district court judges. My review of these cases clearly shows a pattern of respectful and consistent adherence to the federal sentencing guidelines. It also shows that Nottingham has consistently applied the aggravating factors (as well as mitigating factors) under the guidelines to increase (or decrease) the sentence when warranted.

For 2006 (after the Booker decision making the guidelines advisory and non-mandatory for judges to follow), the following statistics from the US Sentencing Commission are telling (the source document from the USSG Commission can be found at http://www.ussc.gov/JUDPACK/2005/10c05.pdf Table 8):

Year: 2006                                             National                     Tenth Circuit

                                                            Number        %             Number     %
Total Cases                                             70,187       100             5,974       100

Cases Within Guidelines Range                 43,307     61.7             3,705         62
Government Sponsored Below Range         17,200     24.6                957       25.3

Total Cases Essentially within Range     60,551     86                4,662        87

Cases Above the Range                             1,129      1.6                   82        1.4
Nongovernment Sponsored below Range      8,507     12                   677      11.4

These statistics show the uniformity between the National and 10^th Circuit decisions regarding sentencing and are also consistent with past years. Also, they show the small chance Nottingham will go above the range (1.4%). It also shows how the sentencing decisions are mostly within the range--87%, a very high percentage. In 87% of the cases, the judge essentially decided that there was no “aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines …” (18 USC Section 3553).