Sentencing Joe Nacchio: Top of the Guidelines or Downward Departure

As the sentencing date approaches (July 27), a flurry of filings have taken place, two relating to sentencing and one addressing the government's motion for forfeiture. 

With respect to sentencing, the government has filed a sentencing statement requesting a sentence at the top of the range suggested by the guidelines.  As the statement notes:    

• "The United States requests that the Court impose a sentence at the top of the guideline range.5 Should the Court agree with the United States’ calculation of the applicable guideline range, the United States requests that the Court sentence the defendant to 87 months incarceration followed by three years of supervised release, and the maximum fine of $19 million."

The defense, in contrast, filed a motion seeking a downward adjustment.  As the motion provides:  

• "Mr. Nacchio submits that departure is warranted because of extraordinary circumstances concerning the effect that a lengthy period of incarceration will have on the health and potentially even the life expectancy of two of his immediate family members, and because of Mr. Nacchio’s prior good works."

The motion did not explain the basis for the request but referred to a sealed presentencing report submitted by the US Department of Probation. 

The basis for the argument can, however, be gleaned from the government's sentencing statement.  Apparently the health claims were based upon his wife and son.  The government disagreed that this should be a basis for a downward evaluation.  "Here, the defendant fails to meet his burden as the defendant’s wife has the time and the resources to take care of other family members. While Dr. Hammer certainly paints an unfortunate picture of David Nacchio’s prognosis, it simply does not justify absolving the defendant from his crimes and allowing him to avoid his just punishment."   As for Nacchio's record of charitable works, the government described them as " not 'extraordinary,' but rather are 'entirely consistent' with Qwest’s business development goals."

These filings will be posted on the DU Corporate Governance web site on Monday.  So will commentary by Kevin O'Brien from the University of Denver Daniels School of Business.