Convicted felon Dinesh D’Souza pled guilty to count one – making or causing to be made contributions of more than $10,000 in contravention of 2 USC Secs. 441f and 437g(d)(1)(D) and 18 USC Sec. 2 in an indictment handed down earlier this year by a federal grand jury in the Southern District of New York.
Like most criminal defendants, Mr. D’Souza engaged in charge bargaining, in which the government dismissed one of the felony counts and perhaps stipulated to a total dollar amount in exchange for his guilty plea. The plea was entered at a Rule 11 hearing in May in New York.
In many Districts (including the Eastern District of North Carolina, where I practice), it’s the policy of the United States Attorney not to stipulate to a specific sentence, but to leave sentencing entirely up to the discretion of the presiding federal judge.
441f and 437g make it illegal to make contributions in the name of others and make such conduct punishable by up to 2 years if the amount contributed is less than $25,000 (which it was, according to the indictment, in this case.) 18 USC Sec. 2 makes the act punishable as a principal if the person, in this case D’Souza, induced another to commit the act.
I have not seen the plea agreement or know his prior record level. I don’t believe he was a felon prior to May 2014. Let’s assume he had no criminal history. In that case, he’d be a criminal history category I.
The base offense level for D’Souza is 8 under United States Sentencing Guidelines Sec. 2C1.8. The indictment alleges more than $10,000 was made in illegal contributions during the 2012 – a total of $20,000 – which, under Sec. 2B1.1 (which is cross-referenced from 2C1.8) means that we add 4 levels. That brings his offense level with specific offense characteristics to a 12.
The government doesn’t appear to be alleging any other specific offense characteristics, although those need not necessarily be alleged in the indictment. They can be included in the Pre-Sentence Investigative Report prepared by probation, and need only be proved by the Government by a preponderance of evidence at the sentencing hearing.
As a Category I, Level 12 offender, D’Souza faces an advisory range of 10-16 months in prison. Because he falls into Zone C, prison is not mandatory. D’Souza’s punishment can be satisfied by a sentence of imprisonment or “a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention, provided that at least one-half of the minimum term is satisfied by imprisonment.”
But, because, consistent with U.S. v. Booker, the guidelines are merely advisory, the sentencing judge, while considering the guidelines, is merely required to impose a sentence that is “reasonable” and that is within the statutory limits of the underlying criminal conviction.
Given that there is no statutory mandatory minimum, D’Souza could be sentenced to court costs, fines, probation, or some other community punishment, even though the guidelines advise at least some prison sentence.
If D’Souza is given a prison sentence of 12 months or less, he can ironically end up serving more actual time than if he were to be given a prison sentence of 12 months and 1 day or more. That’s because under 18 USC Sec. 3624(b), only people who are sentenced to more than one year (12 months and 1 day) and less than life are eligible for the maximum 85 percent cut for good behavior.
So, if sentenced to prison for a year and a day, D’Souza would have 47 days removed from his sentence and only serve about 10 and a half months. In addition, it’s likely that the last 5 or 6 months would be served in a half-way house.