Today, a federal jury in Virginia found President Trump’s former campaign manager, Paul Manafort, guilty of eight of the eighteen crimes contained in an indictment filed against him. Specifically, Manafort was found guilty of five tax fraud charges, one charge of hiding foreign bank accounts and two counts of bank fraud. The question now is how much jail time he will receive from the sentencing judge.
As a preliminary matter, for the purposes of this analysis, we assume that Mr. Manafort will not be pardoned by the President. Also, we assume that Mr. Manafort will not be convicted of any other charges. The judge in this trial declared a mistrial as to ten of the eighteen counts in the indictment on account of the jury’s inability to decide guilt or innocence on those charges, but that does not mean that Manafort is clear of those charges. Indeed, prosecutors could attempt to convict him again with a new jury. However, I expect that will not happen, as the prosecutors are likely satisfied by the result, and convicting Manafort on the remaining charges would not really change things very much.
Federal sentencing can be extraordinarily complex and is often very uncertain. By statute, a sentencing court must impose a sentence “sufficient, but not greater than necessary,” to serve the ends of justice. 18 U.S.C. § 3553(a). A sentencing judge is obviously constrained by the statutory maximums and minimums for the crimes of conviction, but oftentimes, the crimes have enormously wide sentencing possibilities (for example, the bank fraud charge for which Manafort was convicted has a potential statutory sentence of between zero and thirty years in prison, 18 U.S.C. 1344). So, federal judges look to the U.S. Sentencing Guidelines, promulgated by the federal government.
The Sentencing Guidelines are not mandatory, in that a judge must consider them, but need not follow them. Most defendants can reasonably expect to get sentenced within the Guidelines; although statistics vary widely from jurisdiction to jurisdiction and from crime to crime, over half of federal defendants, generally, get sentenced within the ranges proscribed by the Guidelines. Most of the rest get sentenced close to the Guidelines range.
The ranges increase across the X-axis in relation to the defendant’s criminal record. The first thing one must do in estimating or calculating a potential federal sentence is to consider a defendant’s “Criminal History Category.” In this case, Paul Manafort has no criminal record, and will be sentenced in the first column as a Criminal History Category I. Those with serious criminal records accumulate “points” for convictions and prison sentences that are tallied up to place them in higher criminal history categories, where the sentences are more severe.
Next, along the vertical Y-axis, one must calculate the defendant’s offense level. The lower down on the chart (or, the higher the offense level), the more serious the crime and the more serious the punishments. To figure out one’s sentencing level, one must first determine the Base Offense Level for the crime that was committed. That Base Offense Level is listed in the Federal Sentencing Guidelines Manual.
Base Offense Levels are different for each crime, and can depend on the quantity of drugs, the amount of tax loss, or other factors like that. There are also “aggravating factors” that can increase offense levels, like having numerous crime victims or playing a managerial role in a criminal conspiracy. On the flip side, guilty pleas tend to earn defendants between 2 or 3 level reductions in their offense levels, per U.S.S.G. 3E1.1, which partially explains why about 95% or more of federal defendants ultimately plead guilty.
In Manafort’s case, the Base Offense Level is determined by the amount of the Tax Loss (see U.S.S.G. 2T1.1 and 2T4.1). Tax Loss is generally calculated to be 28% (or 34% for a corporation) of the unreported taxable income. It is unclear at the moment how much taxable income the government has proven to have been unreported (or that they will be able to prove at a sentencing hearing), but the indictment suggests that it was well over ten million dollars. That would suggest that Manafort’s Base Offense Level would be 24, although this is a hazy estimate. (Note to serious Guidelines experts: I am grouping his five tax fraud counts together and calculating aggregate loss, though they could arguably be grouped differently).
Manafort also will probably suffer some aggravating factors, however. First, failing to report over $10,000 in income can earn someone an additional 2 levels (U.S.S.G. 2T1.1(b)(1)), and evading tax reporting requirements using sophisticated means – such as the numerous shell corporations he employed – should get him another 2 levels (U.S.S.G. 2T1.1(b)(2)). That bumps him up to sentencing at Level 28.
But that’s not the end of the analysis. Manafort has been convicted of more than just tax fraud. There are also two convictions for bank fraud and one for hiding foreign bank accounts. When there are multiple convictions, the numbers are not simply stacked on top of each other; the Sentencing Guidelines will basically add another point for each additional crime of similar magnitude. U.S.S.G. 3D1.4. Here, Manafort is probably looking at an additional 1-2 level increase for these other convictions, making his final sentencing level at 29 or 30. (Another note to serious Guidelines experts: I am assuming that the other convictions constitute one or two additional groups that would be added to the tax fraud group of convictions under 3D1.2 and 3D1.4, though this too could also be debated).
So, at Level 29, Manafort’s sentencing range would be between 87 and 108 months, or about 7 to 9 years. At Level 30, Manafort’s sentencing range would be between 97-121 months, or about 8 to 10 years. Surely, Manafort’s lawyers will seek to persuade the judge to sentence him below this Sentencing Guidelines recommendation. They will cite his work on behalf of the public, present evidence of his good deeds, submit character letters from friends and family, and make any other arguments they can to plead for mercy. Of course, the prosecution will probably ask for maximum punishment, or something even more harsh than called for by the Guidelines. Ultimately, it will be up to the judge to decide. However, the Guidelines will certainly play a significant factor as they always do, and they strongly suggest that Mr. Manafort will receive close to ten years in prison. (Final note to Guidelines experts: there could be an argument about additional “relevant conduct” in light of the mistrial on the remaining counts, but I will leave that alone).
The author of this article is a federal criminal defense attorney and former prosecutor. If you or a loved one have been arrested for a federal white collar offense, you should strongly consider contacting him to discuss your case and his possible representation.