Set For Sentencing

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".

On November 1, several amendments to the United States Sentencing Guidelines took effect. Some of these changes are significant, offering advantages to the defense, while others are less beneficial.

However, ultimately, this process amounts to nothing more than "Kabuki Theatre," meaning the tortured guideline applications become merely performative, because 18 U.S.C. § 3553, enables discerning judges to overlook the sentencing recommendations provided by the guidelines.

Thus, it is crucial to be informed about these amendments to argue effectively whether and how they should be considered in the final analysis.

IN THIS EPISODE:

• Some eye-popping facts and stats after forty years of guideline sentencing;
• Relevant conduct amendment to now exclude acquitted conduct (but it comes with a big but…)
• Possibility that new litigation may void the Kisor fix because of commission overreach by overriding congress and/or resolving circuit splits;
• The "Kisor" work-around to fix the intended loss issue under the fraud guideline;
• The implication and larger application of the Kisor workaround – i.e., support for the argument that for other guidelines, if it's in the commentary, it doesn't count;
• Clarification of the new Zero Point Offender provisions (ZPO) to deny eligibility for anyone who gets an upward role adjustment;
• And, perhaps the one bright spot, adding a potential downward departure for "youthful offenders" (mid-20's or less);
• Practice tips for navigating the new guidelines provisions;
• Information on reaching out to the commission for future proposed guideline amendments.

LINKS:

United States Sentencing Guidelines online: https://guidelines.ussc.gov/apex/r/ussc_apex/guidelinesapp/home

My new Album! The guidelines are 40 years old, which is also when I picked up my first guitar. So, yes, I had to give a shameless plug for my first rock record, "One Good Thing", which is available everywhere you stream your music! Music is another creative outlet that keeps me sane and quiets my brain: https://www.youtube.com/playlist?list=OLAK5uy_kyVV0Qs1xMGqXQYZlzHzBgUlA7A35aENI

FAREWELL 2024!!!!

This will be the last new episode of 2024. As always, I wanted to thank you for listening, constributing, liking, subscribing and spreading the word about Set for Sentencing. We have been going strong for over two years now, and the show was recently ranked #7 among the 35 "must-follow" Criminal Defense podcasts in 2024, via Feedspot (35 Best Criminal Defense Podcasts You Must Follow in 2024).

So, per a tradition I started in 2023, I'll be taking the rest of the year off! The remaining episodes of the year will be re-broadcasts of either other podcasts I have appeared on or some earlier episodes I adore and may have been overlooked when the audience was smaller.

2025 will be a wild ride, and we'll be right here with you, buckled up and ready to roll. Until then, I'm grateful for all of it, and I hope you find some peace, light and love as the year winds down.

We've spent a lot of time running down the BOP, and not without good cause, BUT we don't give as much attention as we should to the positive things happening inside those walls. Lawyers need to learn about and advocate for beneficial programming placements for clients, especially those with special needs. Therefore, helping us get set for sentencing is Dr. Alix McLearen, former acting director of the BOP and psychologist who is responsible for the creation of some really important programs, including the Skills program for clients on the Autism spectrum,

IN THIS EPISODE:

• The Skills Program (for those on Autism Spectrum or have other special needs);
• The F.I.T. program (Female Integrated Treatment);
• Directory of First Step Act approved programs;
• Advice for lawyers to improve their advocacy at sentencing when it comes to prison;
• Dr. Mclearan's services

LINKS:

Contact Dr. Alix McLearen at: [email protected]

OTHER BOP PODCAST EPISODES:

Please visit www.setforsentencing.com or YouTube (https://www.youtube.com/@setforsentencing/videos) for several other episodes on the functioning (or more likely dysfunctioning) of the federal prison system, including, Ep. 99 (BOP Horror Stories); Ep. 83 (BOP Stands for Back Off Punishment!); Ep. 70 (BOP Stands for Backwards on Purpose); Ep. 67 (BOP Stands for Big Ol' Problems); Ep. 44 (3 Years of Hell: Covid & the BOP); Ep. 3 (Telling the Story of Prison at Sentencing).

Directory of Programming at BOP: fsa-approved-program-guides-en.pdf

Federal Prison Guidebook (Alan Ellis): https://alanellis.com/federal-prison-guidebook/

We spend so much time and engergy trying to develop our knowledge and skill to better represent our clients. And keeping abreast of all major developments in the law is paramount to a successful legal practice.

But there's one thing every lawyer needs, and it does not exist – a crystal ball. If we were clairvoyant we could anticipate favorable changes in the law that we could use to our advantage right now, even before the ruling happens.

The bigger problem, especially in federal court, is that if we enter a plea agreement (which is almost every case), we almost always waive our right to challenge changes in the law that would even prove a client is innocent of the crime to which he pled!

Therefore, in an effort to aid in your clairvoyant powers on the subject of federal FRAUD cases, we give you Thompson v. United States, a "sleeper case" headed for the Supreme Court.

Reading the tea leaves of prior recent court decisions on fraud crimes, the muck at the bottom of the mug tells us that if the Court continues on their quest to narrow the scope of federal fraud prosecutions, could result in a seismic shift in many cases where the fraud is predicated on the accused making "false statements. "

IN THIS EPISODE:

• Summary of the Thompson case;
• The distinction between "false statements" versus "misleading statements";
• The need to make a record before, during, and after a plea;
• Consider negotiating a conditional plea that preserves your right to appeal should the Thompson case go our way;
• How long it may take to get a ruling from the court on Thompson;
• Plea implications of Thompson;
• Sentencing implications of Thompson (relevant or acquitted conduct).

FREE DOWNLOAD:

Visit the shownotes (link below) for this episode for a free download of the article we discussed in this episode laying out the Thompson case and its potential impact on the future of federal fraud!

https://setforsentencing.com/podcast/future-of-fraud/

AFTERTHOUGHT:

It occurred to me when editing this podcast a very important practice tip now that there is this great body of S.Ct. law limiting fraud and cert having been granted on Thompson: We should strongly consider asking for a "Bill of Particulars" in every case, to make the government state, with specificity what the alleged fraudulent conduct was, as if it was an omission or a misleading statement, rather than an outright LIE, then you may have a fighting chance at defeating the charge, and/or mitigating your sentence.

LINKS:

Mark Allenbaugh: www.sentencingstats.com

Check back here soon for an updated link to Mark's Law 360 article on this topic!