An independent judiciary is the cornerstone of a healthy democracy.

But judges are under attack.

Therefore, we must stand the post and protect judges from intimidation, unlawful prosecution, incredulous calls to impeach, or worse.

And, when it comes to federal criminal sentencing, judicial independence is also crucial to the fair administration of justice.

But judicial independence has been undermined for decades by adherence to the stringent, dehumanizing, US sentencing guidelines. Since 2005, these guidelines have been discretionary, yet many judges and lawyers continue to use them rigidly, leading to undesirable outcomes for clients.

Therefore, attorneys need to be more creative and comprehensive in their sentencing approach, and help the judges understand that the guidelines are not a useful tool to determine a human being's ultimate fate.

This discussion features Nancy Gertner, former US District Court Judge and current Harvard Law Professor, who provides valuable insights on these topics.

The first half of our discussion addresses the actions of the Trump administration and its efforts to influence the judiciary.

For those interested solely in sentencing advocacy without political context, please proceed to the second half of the podcast, approximately at the 38:00 mark, for a master-class in sentencing advocacy from a former federal judge. This segment offers essential information for every defense lawyer and client facing sentencing.

#JudicialIndependence, #SentencingJustice, or #DignityOverData

IN THIS EPISODE:

• Milwaukee Judge Hannah Dugan's arrest and prosecution for allegedly obstructing ICE;
• Assessing the merits of the charge against Judge Dugan;
• How ICE's conduct presents its own form of obstruction of justice because it denies people their day in court and increases the chances of bringing harm and violence to innocents;
• The adminstration's effort to target judges for arrest, impeachment, or worse;
• Whether the administration can defy a judge's orders without consequence;
• A word on the plight of Kilmar Abrego-Garcia;
• The new pardon paradigm and how it may impact sentencing;
• Judge Gertner's incredible sentencing advocacy advice, which includes the power of narrative, her take on sentencing mitigation films, irrational adherence to guidelines, lackluster attorney performance, the importance of allocution, telling the story of prison, and more!
• Judge Gertner's take on using A/I in court (in the context of an A/I generated video of the deceased victim giving his sentencing statement from beyond the grave);
• The legacy of Justice Souter, who passed away the morning we recorded this podcast.

Commentary: A former judge's call to eliminate mandatory-minimum sentencing laws

150 Former Judges Tell Pam Bondi They're Not 'Deranged'

AI used to make video of deceased victim deliver impact statement in court : NPR

The Trump administration stated that Kilmar Abrego-Garcia would never return to US soil. But they just back-tracked and brought him back. Unfortunately he now faces federal prosecution under a new indictment for conspiracy and alien smuggling. The bigger problem is the govt. has gone to great lengths to wage an extra-judicial smear campaign against him, with a variety of other horrendous allegations. It remains to be seen whether this indictment represents a genuine pursuit of justice or is influenced by political motives.

IN THIS EPISODE:

• The many red flags in the Indictment and Bail Motion;
• Whether there is substance, on the face of the pleadings to these allegations;
• The average process and sentences for cases of this kind (alien smuggling);
• The worst case sentencing scenario if convicted;
• The resignation of the criminal chief of the Middle District of Tennesse in the wake of this indictment and what that means;
• What a bail hearing can, and likely should, look like.

In understanding the current administration's draconian deportation policies, nothing makes sense except in the light of white supremacy.

The underlying animating force of these policies, openly stated by Tom Homan during a white house press conference, is "the great replacement theory". Propagated by white nationalist, white supremacist fascists, operating in and out of government, it's a lie that has resulted in depraved acts of racist and antisemitic violence (See Southern Poverty Law Center link below).

Sadly, the DHS, ICE, and other federal agencies have become something resembling the American gestapo, attempting to reduce the number of non-whites in this country, to retain power in perpetuity.

In furtherance of these policies, they are arresting judges, conducting warrantless searches of homes and businesses, and even raiding US congressional offices and detaining staffers, again without warrants. They are threatening prison for even speaking out against these actions.

In Part 2 of our collaboration with the Truth Be Found Podcast, we talk about the terrifying erosion of our civil rights and the racist rhetoric underpinning the worst actions of our government.

IN THIS EPISODE:

• Justin Yentes describes the prison where Mr. Abrego-Garcia is held;
• The history of El Salvador President Nayib Bukele's total erosion of Due Process in his own country;
• The real risk of harm and even death Mr. Abrego-Garcia faces in this facility;
• Expert consultant, former gang member describes the BOP's approach to "gang management";
• Practical tips for defense lawyers dealing with gang designation in a Pre-Sentence report;
• Tom Homan espouses racist, white-nationalist, "great replacement theory" to justify his draconian immigration policies.

LINKS:

Check out the incredible Truth be Found Podcast wtih Justin Yentes!

Southern Poverty Law Center: The Racist 'Great Replacement' Conspiracy Theory Explained

America might have moved on from Kilmar Abrego-Garcia, but we have not.

So, ask yourself: What happens when the U.S. government indefinitely sentences someone to a foreign prison without any due process and no one stops them?

In this episode (part 1 of 2), I appear on Justin Yentes's podcast "Truth Be Found" to discuss the implications of this case. Justin is an amazing criminal investigator, whom I've worked with in the past, especially on capital matters. We were also joined by former gang member, now consultant, Angel Garcia, to pull back the curtain and talk about about aspects of the case never before discussed.

Please watch, share, and keep speaking truth to power. This is not right. It won't stop with him. The adminstration is testing us to see how much the American people will tolerate. Make your voice heard. This is not who we are.

IN THIS EPISODE:

• What due process really means and who it protects;
• The role of the courts in checking executive power;
• How cases like this create dangerous legal precedents for U.S. citizens;
• Sentencing implications for a gang designation, and how to fight it;

Since this is a "cross-promotion" the only links here are for Justin, his podcast, and the incredible services he offers.

Truth Be Found on Instagram: / truthbefoundpodcast

Connect with Truth Be Found on Facebook: https://www.facebook.com/share/1A4b7P...|fr

Connect with Truth Be Found on TikTok: / truthbefoundpodcast

Justin's Website: https://azprivateinvestigator.com/

On Friday, April 25, George Santos learned his fate, at his fraud sentencing in federal court. He had two years since his indictment to walk the walk, demonstrate extreme remorse and acceptance, and take meaningful steps to address the problems that got him here and convince a judge he wouldn't make the same mistakes again.

But the government painted him as an unrepentant fraudster who was bound to reoffend, and the judge agreed, giving him a sentence at the very high-end of the guidelines.

Therefore, Mark Allenbaugh and I went live on YouTube to conduct one of our world-famous "sentencing post-mortems" to break down the good, the bad and the ugly of the George Santos sentencing.

IN THIS EPISODE:

• A "cameo" introduction, and ringing endorsement from George Santos himself;
• A word about the FBI's arrest of Milwaukee Judge Hanna Dugan;
• The perfect tequila pairing for this podcast: Santo Tequila;
• The accuracy of our predictions from our first Santos Podcast two years ago;
• What we can learn as defense lawyers (and clients) about the George Santos sentencing.

LINKS:

Our first take on George Santos indictment from two years ago: https://setforsentencing.com/podcast/george-santos/

Hannah Dugan Federal Criminal Complaint: The arrest of a judge is yet another signal of our rapid decent into fascism. Attacking the judiciary is a standard play in the authoritarian handbook. Pay attention.

https://storage.courtlistener.com/recap/gov.uscourts.wied.111629/gov.uscourts.wied.111629.1.0.pdf

Although we often complain about the sentencing guidelines, this week, I find myself thankful that we still live in a country that has courts and due process, in the federal criminal courts. At least for now.

So today, we celebrate the death of guideline departures, lament the death of due process in immigration, and worry for the future of this democracy.

That's why we start off talking about the plight of Kilmar Garcia-Abrego, a person lawfully in this country who was abducted by brownshirt immigration thugs and stolen away in the night to a concentration camp in El Salvador. No notice. No hearing. No due process. No contact with a lawyer or loved ones. No prospect for release – ever.

That's why we start off talking about the plight of Kilmar Garcia-Abrego, a person lawfulfully in this country who was abucted by brownshirt immigration thugs and stolen away in the night to a concentration camp in El Salvador. No notice. No hearing. No due process. No contact with a lawyer or loved ones. No prospect for release – ever.

This is who we are now. Pay attention.

IN THIS EPISODE:

• Kilmar Garcia Abrego: authoritarianism is here, and we are in a full constitutional crisis. If they can do this to him, they can do it to ANYBODY… and they will.
• Lost Lore tequila!
• New changes to the Supervised Release guideline;
• A warning – if you are successful in arguing against supervised release, you could impact your client's ability to earn early release from prison;
• The goal of S/R, in no incertain terms, is REHABILITATION! But courts are using it as punishment, and routinely imposing prison terms for said violations. Therefore, the new guideline amendments make clear that this is not, by default, the appropriate result!
• The death of "upward departures" and simplification of the "three step process";
• The difference between guideline "departures" and "adjustments";
• The vindication of the need to telling our clients' life stories;
• Things in the "goddamn Sentencing Reform Act that were directed to the Commission 40 years ago to take into consideration when it promulgated the fucking guidelines, that it still has not done." (Mark's colorful language), the biggest one being the sad state of affairs at the Federal Bureau of Prisons.
• Talk of moving BOP to DHS and the future banishment to concentration camps of US Citizens.

LINKS:

"Reader-friendly" guidelines amendments from Sentencing Commission: https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/202504_prelim-rf.pdf

Timothy Synder's On Tyranny: 20 lessons from the 20th century: Last episode we talked about the lesson of language (domestic terrorism). Today we talk about not "obeying in advance" when an authoritarian begins to test the limits of his power. If we let what is happening to Mr. Abrego Garcia and those like him, we are lost. Here's a great video of John Lithgow reciting all 20 lessons. Learn them. Take action. https://youtu.be/cXR5HLodsT8?si=KfukKSdAPEfytSLE

There's a new "open letter" circulating on Facebook and beyond, purportedly written by Liz Cheney. She's not the author. But the letter is right on. It's a blueprint for resistance. Take a look.

https://www.facebook.com/lisa.mcmanus.77736/posts/10231541262169329?ref=embed_post

Mark Allenbaugh Law Review Article: Sentencing in Chaos: How Statistics Can Harmonize the "Discordant Symphony". To Download a Copy of Mark's article, please visit the Set For Sentencing main page for this episode: https://www.setforsentencing.com/seismic

I'm back. I've been in hibernation for the last couple of months, basically paralyzed by what can only be described as a rapid descent into authoritarian hell. In his seminal work, "On Tyranny", Timothy Snyder warns: "Listen for dangerous words. Be alert to the use of the words extremism and terrorism. Be alive to the fatal notions of emergency and exception. Be angry about the treacherous use of patriotic vocabulary." So, today's podcast is brought to you by the letter "T" for "terrorism".

The government is going to great lengths to brand anyone who dares question the authority of the POWERS THAT BE, a domestic terrorist.

Today we talk about three cases where the terror label is applied and the potential or actual consequences, with the incomparable Mark Allenbaugh.

IN THIS EPISODE:

-Breaking down the "Tesla" indictment against Frederick Cooper and the government's toothless threat of "20 years, no negotations";

-Delving into the terror element of the Luigi Mangione case, where AG Bondi just announced the govt. is seeking death because the crime was "politically motivated";

-A massive injustice in North Dakota where the government and judge abused a domestic terrorism provision in the guidelines as a show of cruelty against a 50 year old autistic man, sentencing him to 25 years in prison;

CAMERON SMITH - A CRUEL & VENGEFUL OUTCOME IN NORTH DAKOTA:

If you want to know more about Cameron Smith's Case, here is an article in the New York Times. If you'd like to support his defense in any way, reach out to me ([email protected]). His appeal is pending, and we will not abandon this fight.

https://www.nytimes.com/2025/03/11/us/north-south-dakota-energy-facility-attacks.html?unlocked_article_code=1.3U4.1nqZ.WXyt8a1LAAns&smid=url-share

ON TYRANNY:

Do yourself a favor and grab this book. If you want the summary of all of his lessons, here you go: https://www.carnegie.org/our-work/article/twenty-lessons-fighting-tyranny/

ON A LIGHTER NOTE:

I'm back on the tequila train. If you've listened to previous episodes, many involve a tequila tie-in and recommendation for a great sip. It helps the medicine (of authoritarianism) go down.

Today I had my choice of two: Tequila Chamucos (i.e. "Diablo Blanco") and Mijenta Blanco Maestra Secltion No. 1 Tequila. Mijenta was the clear winner both in flavor and in theme. Mijenta, in Spanish is derived from "Mi Gente" which means "My People." This particular expression was made from agave grown from seeds, not clones. Mijenta Tequila

https://mijenta-tequila.com/ And if you take away nothing from the events of the day is that this great American experiment of ours is meant to be "by the people and for the people" and at the end of the day, the people have the power. It's time to fight, by all peaceful means necessary, the rapid slide into authoritarian rule. We have to plant the seeds of resistance and let them grow, unafraid, and undaunted.

I call this episode "Anchor's Aweigh" for two reasons. First, there is a potential seismic shift in federal sentencing coming, which would go far to eliminate what we call the dreaded "anchoring effect" of the draconian and deeply dysfunctional sentencing guidelines. If this passes, it will likely be the biggest change in guideline sentencing since Booker was decided twenty years ago.

The other reason for the title is because the achor's up on the new ship of state, and anyone paying attention should feel deeply unmoored. The vessel is powering through dark and dangerous waters, with seemingly nothing other than doom on the horizon, particularly when it comes to our criminal system.

If you are not a guidelines nerd, and you'd like to hear our take on recent pardons and relevant executive orders from the new administration, then fast forward to 24:30.

Lastly, please excuse the bad quality of the recording. I had the pleasure of being in the same physical space ("IRL" as the kids call it) with Mark Allenbaugh, which is a very rare occurrence. So we hunkered down in a booth at Jack's Steakhouse and Seafood in Bismark, North Dakota (https://jackssteakhouse.net), and recorded this episode. The "live" element without my good sound stuff explains why the recording is a little wonky.

IN THIS EPISODE:

• Proposed guideline amendments eliminating departures and limiting supervised release;
• Thoughts on the sweeping pardons issued by both the Biden and Trump administration;
• Thoughts on some of the new executive orders that will significantly impact federal criminal law.

LINKS:

Link to public comment on guideline page:

https://comment.ussc.gov/apex/r/ussc_apex/publiccomment/home

Link to proposed amendments:

https://www.ussc.gov/policymaking/federal-register-notices/federal-register-notice-proposed-2024-2025-amendments-published-december-2024

Past Set For Sentencing Episode on Pardons – This episode (105) dropped at the beginning of January, before Pres. Biden cleared federal death row and issued sweeping "pre-emptive" pardons for his family and others:

https://youtu.be/cuQrGO8HNlw?si=uIBxTauumZAqg5TU

Restitution is often imposed to compensate crime victims for their losses. Done correctly, it can help victims recover and allow offenders to move on after serving their sentence.

However, defense attorneys sometimes overlook restitution issues, resulting in burdensome payment orders. These can extend prison time and hinder reintegration after release, making restitution effectively a lifelong punishment.

So, in Episode 106 of Set for Sentencing, we welcome back Ashley Adams, a former united states attorney and incredible white collar criminal defense attorney in Phoenix, AZ. Together, we take a deep dive into the wonderful world of restitution.

IN THIS EPISODE:

• Exemptions under state law don't necessarily apply with the feds;
• The "20 year rule" for restitution orders;
• Negotiating restitution issues in the plea negotiations;
• Whether and how a payment schedule can be modified;
• What happens when you catch the "FLU", or rather the "FLU" catches you (i.e. what does debt collection look like with the Financial Litigation Unit of the DOJ;
• The ins and outs of the "Inmate Financial Responsibility Program"
• Navigating probation or supervised release with a restitution order;
• Vulnerability of a spouse's assets in a "community property" state;
• Charging orders in partnerships;
• The government going after kids' college funds;
• Whether and how the government can go after foreign assets.

LINKS:

https://www.azwhitecollarcrime.com/ashley-adams/

Ashley's first appearance on Set for Sentencing: Episode 7: Stories from the Frontlines of Justice -- From Prosecution to Defense:

https://youtu.be/z9NmDSInn6s?si=4A1DMpO4jNsTu861

My MUSIC! Ashley and I had a little chat about music at the end, and so I couldn't resist the opportunity to plug my new album, ONE GOOD THING. It's available on all streaming services, including Youtube. I also just released the record on vinyl. Hit me up if you want a copy. Otherwise, here's the YouTube page for the record:

https://www.youtube.com/playlist?list=OLAK5uy_kyVV0Qs1xMGqXQYZlzHzBgUlA7A35aENI

It's January 2025, and we're in the final days of the Biden administration. He has had a busy last month or so issuing pardons and commutations.

This unfettered power is rightly scrutinized but often misunderstood. The bigger problem is, the whole damn process appears to be broken. And although Pres. Biden has done some good things with his power, it still represents a small fraction of those languishing in prison who deserve action.

Margeret Love was the head of the US Pardon office from 1990-97, she had a front row seat to the pardon process, and continues to represent clients seeking pardons. Mark Allenbaugh needs no introduction. His stats help us put many of these decisions into the proper perspective. Both of them join us on the first episode of the new year to lend their unique perspective to this very timely issue!

IN THIS EPISODE

• The Hunter Biden Pardon
• The 1500 commutations of those who BOP had released to home confinement during Covid;
• The difference between pardons and clemency;
• When did things really start to go off the rails in the US Pardon office? (spoiler alert, it was the Clinton years);
• Is it true that when you accept a pardon it is an admission of guilt?
• Trumps promise to pardon the January 6th defendants;
• Can a president pardon himself?
• Why the pardon essentially makes the president the "DOJ's Janitor";
• How the pardon power should be managed going forward;
• Michael Conahan commutation (the judge embroiled in "cash for kids" scandal);
• Rita Crundwell (Dixon, IL Comptroller fraud) commutation.

LINKS:

For more info on the Rita Crundwell Case, there's a great documentary produced by Prof. Kelly Richmond Pope called "All the Queens Horses" currently available on Amazon Prime (https://www.amazon.com/All-Queens-Horses-Gene-Biggerstaff/dp/B07BPNGP85). She also writes about it in her book, "Fool Me Once" https://a.co/d/hQzJFUY

I had Dr. Pope on the podcast to talk about this case a while back

As for the "Kids for Cash" judge who just had his sentence commuted, here's his wiki page: https://en.wikipedia.org/wiki/Michael_Conahan

Here's our two previous episodes on Hunter Biden. The first talks in detail about the political nature of his prosecution and his original plea bargain falling apart and the next happened live after he pled guilty in California:

Ep. 64: Too Cute by Half: Why Hunter's Plea Went South: https://youtu.be/sWEzwKLQCoo?si=rK3qRURAJVQtXXk5

Ep. 92: Livestream Bonus: Hunter Biden Edition: https://www.youtube.com/live/B3VL-cJlXSo?si=r1zAdBS6C2s_STTO(make sure you forward through the first two minutes of tech disaster) And we talk in depth about the concept of "lawfare".