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JOE GROMELSKI/STARS AND STRIPES

“To carry out these frauds, Shkreli was all things to all people.”  – Government’s Sentencing Memo to the Judge

Martin Shkreli’s sentence of 7 years (84 months) for federal securities fraud was much, much less than his federal sentencing guidelines range of about 27 years to 33 years.  The government attorneys argued that he should get at least 15 years, while his attorneys argued for 12 to 18 months. In the end, the judge split the baby and gave him 7 years.

So, although Shkreli’s sentence was well above the 12-18 months his defense team asked for, it was still far below the advisory sentencing guidelines range and less than half of the government’s request of 15 years.  

So, how did he do?  Was his sentence a fair one?

Being sentenced in federal court is one situation where you do not want to be above-average.  According to the U.S. Sentencing Commission, over the past four or five years the average sentence for convictions of securities fraud, like Shkreli’s, has gone from a little over 6 years down to about 4 years.  So, Shkreli got an above-average 7 years.

Despite the unique and colorful circumstances surrounding Shkreli (including his wacky pronouncements before and during trial), his attorney, Benjamin Brafman. was smart in his submissions and arguments to the judge, distinguishing his client from other defendants who are convicted of this type of offense.  Although not that many federal securities fraud cases are brought across the country, in 2016 alone 14 of those were sentenced in the Eastern District of New York, where Shkreli’s case was handled.

His attorney, Brafman had a lot to work with in arguing to the judge at sentencing, including that Shkreli was a first-time, non-violent offender, and most importantly, that there was no need for restitution to any victims as no one was out any money.  Of course, the forfeiture portion of Shkreli’s case got plenty of coverage, especially because an album by the Wu-Tang Clan worth a few million appeared in a federal court filing.

The takeaway is that while Shkreli may have been “all things to all people,” as the prosecutor suggested, while he was committing the acts that led him to being sentenced in federal court, and he may have said a number of outrageous things before and during trial, it appears that the judge in this case concluded he was simply another offender up for sentencing. The judge considered the arguments both for and against Shkreli, applied the law, and seemed to find a good middle ground at 7 years.  

As a federal criminal defense lawyer who has stood next to famous (or infamous) clients at sentencing, one thing I always ask for at sentencing is that the judge not single out my client for being in the public eye, or for choosing to take a shot at trial.  The judge seems to have appropriately done just that in Shkreli’s case, even though Shkreli and his legal team surely are disappointed in how much time he got.

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