[U] Is It Fair? Is It Constitutional? Maybe Not. But Might It Happen? Yes.

UPDATED, in the luminous but clear dawn of Saturday: I started this blog to (among other things) teach my own lil’ self more… about the ways in which the criminal law (about which I admittedly knew, and still know, very little) intersected with civil securities law (about which, frankly, I am deeply experienced), and civil frauds committed by mentally ill (or, if one prefers, “bad”) actors — like Martin Shkreli — another subject I know quite a fair bit about….

Have I made mistakes, as I have gone along?

Of course. Do I care? No.

That’s how we learn. So as to the fine point of what the base will be, for one count (of eight) — do I really care? No.

I fact, do I really care whether Mr. Shkreli serves 20 months or 72 months or 120 months? No.

He is now a convicted felon — likely barred from the securities industry for life. His shares in, and agreements with Turing (a private company) remain open questions. If Altd440 thinks less of me, or thinks me in any way impolite, for any of this — do I care? Again… the answer is no.

As to my regular readers (here, on this project — chiefly Billy, PathoPhilia, FTD, R West and John Galt), along with lots of other commenters, across several other life science and tech focused blogs now — I do deeply care… what they think. And I thank them for enlightening me, and helping me find my many, many mistakes. [Especially on the quiz, Billy — I had some really bone-headed ones!]

But they also know — when I am done with a project, I am done with it (ref. KaloBios). I think I have reached that point here. I am no longer fascinated by Mr. Shkreli — I just don’t care (that much). I’ll likely post a few more on sentencing, and such. But since I’ve stopped caring about the felon — I think this is essentially… a wrap. [End, update.]

As many know, I am no fan of Martin Shkreli. Today he became a thrice-convicted felon. And I did smile — but only for a few hours.

I do think he may get almost a ten year sentence. I am decidedly in the minority.

I am cool with that.

Because, as has been true for decades,  entirely uncharged conduct may be a factor in one’s sentence. Even (and especially) crimes one is acquitted of, may well be required to be factored in.

Consider this, from the ABA Journal:

…No fact about federal criminal practice so consistently astounds and frequently disgusts the uninitiated, lawyers and non-lawyers alike, as the fact that you can be imprisoned for decades based on conduct that a jury finds you not guilty of committing. Such a seemingly unfair and incongruous outcome is possible and not uncommon thanks to the concept of acquitted conduct sentencing, which is codified in and, to a certain extent, required by the United States Sentencing Guidelines. While the Supreme Court has so far declined to directly address the constitutionality of acquitted conduct sentencing, courts of appeals have taken the Court’s silence as approval and uniformly affirmed the constitutionality of sentences based largely on acquitted conduct since the Supreme Court’s decision in United States v. Watts, 519 U.S. 148 (1997), which approved acquitted conduct sentencing but failed to adequately address the constitutional concerns….

In sum, while I do think there are clear fifth and sixth amendment problems with the above, it is still quite possible (likely even) that — based on his pre-sentence report — Mr. Shkreli will see a sentence of ten years.

[Confidential to Altd440 — would you like to make an actual, real-world, money bet? Five dollars — for every month that the loser is more distant from the actual sentence (in months of difference). Or multiply it by ten or by one hundred. I don’t care. But you are at under one year, right? What say you?] UPDATE: AltD440 has declined the wager. Okay.

And he will see it, because he created an abysmal and shockingly varied record of misanthropic behavior — in addition to the uncharged conduct that is still under investigation, and the conduct that was presented in the court room these last few weeks — even insofar as he was acquitted of the specific charges — on some parts of it.

I am simply saying it is so. And though I detest Mr. Shkreli, personally — I think he, along with perhaps tens of thousands of presently incarcerated felons — have seen their constitutional rights violated — by the federal sentencing guidelines. Additionally consider:

…Based on the counts of conviction alone, Mr. Jones and his co-defendants would have faced advisory guidelines sentences ranging from 27 to 71 months. However, pursuant to United States Sentencing Guidelines Manual section 1B1.3-4, the district judge found that Mr. Jones and his codefendants had engaged in a much larger drug distribution conspiracy involving many kilograms of drugs, despite the fact that the jury had acquitted them of the exact same charges. Although the guidelines have been advisory and nonbinding since United States v. Booker, 543 U.S. 220 (2005), section 1B1.3 requires that courts take relevant conduct, and thus acquitted conduct, into account when calculating the guidelines. The Supreme Court has repeatedly held that an accurate guidelines calculation must be the starting point for a procedurally reasonable federal sentencing. So, while district courts are not required to sentence on acquitted conduct, they are required to consider it when determining the starting point for sentencing….

In Jones, the acquitted conduct found by the judge increased the defendants’ guidelines ranges dramatically. Based on these inflated guidelines ranges driven up by the acquitted conduct, the court sentenced the defendants to terms of 180, 194, and 225 months in prison….

That is why no one really knows what his sentence will be. And to say otherwise is… (what’s the word I’m looking for here, AltD440?)… silly.

We will wait and see what the able Judge Matsumoto does with the pre sentencing report. But if he gets a long, ten year or more sentence — he will have SOLELY himself to blame. His tweets and live streams will have become his chief tormentors.

Namaste, one and all.