ALI-ABA Federal Sentencing Update After Kimbrough vs. The U. S. Presented in cooperation with CLE Options June 13, 2008 Live Video Webcast

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1 ALI-ABA Federal Sentencing Update After Kimbrough vs. The U. S. Presented in cooperation with CLE Options June 13, 2008 Live Video Webcast FACULTY PARTICIPANTS TABLE OF CONTENTS Page ix STUDY MATERIALS 1. Section 1: Case Law and Guidelines Update: Recent Events in Sentencing Law By Phillip C. Umphres 2. Section 2: Calculating Loss in Monetary Crimes By Robert J. Sussman and Gregory S. Saikin 3. Section 3: Begay and Beyond: Chipping Away at Crimes of Violence 21 Submitted by Henry Bemporad Appendix Section 4-1: Legal Resource Guide to the Bureau of Prisons Submitted by Jason A. Sickler 5. Section 4-2: Interaction of Federal and State Sentences When the Federal Defendant is Under Primary State Jurisdiction Submitted by Jason A. Sickler 6. Section 5-1: Defendant s Sentencing Memorandum (Sample) By Richard A. Anderson 7. Section 5-2: Defendant s Request for a Sentencing Variance (Sample) By Richard A. Anderson 8. Section 6: An Introduction to Federal Sentencing By Henry Bemporad 9. Section 7: The Sentencing Process in Federal Criminal Cases By Phillip C. Umphres vii

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3 Federal Sentencing Update After Kimbrough vs. The U. S. Faculty Information Paul E. Coggins, JD, has been a Principal of Fish & Richardson P.C, in Dallas, Texas, since March He is the former United States Attorney for the Northern District of Texas and, before that, Assistant United States Attorney in that office. He is a former member, as well as Vice-Chair of Attorney General Janet Reno's Advisory Committee. He was also a former Texas Special Assistant Attorney General from In his practice, he concentrates in Complex Litigation, Business Litigation, and White Collar Criminal Defense His professional career also includes practice as a Partner with Meadows, Owens, Collier, Reed & Coggins in Dallas, and with Johnson & Gibbs and with Hewett, Johnson, Swanson & Barbee also in Dallas. He is an active member of the American, Texas and Dallas Bar Associations. He is a prolific author of various professional books and articles and is a frequent presenter for various professional organizations, as well as previous CLE Options courses. Charles M. Meadows, Jr. is a founding partner of Meadows, Collier, Reed, Cousins & Blau, L.L.P. His areas of practice include Federal Income Tax Litigation and White Collar Legal Defense Tax, Environment, Health Care, Insurance, Government Contract Fraud, Computer and Copyright Fraud and Complex Business Litigation. He has over 35 years of experience representing public/private corporations and individuals in litigation matters. He is Board Certified in Tax Law by the Texas Board of Legal Specialization and is a Certified Public Accountant. He is a member of the American College of Trial Lawyers. Mr. Meadows is a frequent speaker at national and state legal and accounting conferences on various litigation matters. He has been recognized by D Magazine as one of the City's best White Collar Defense Attorneys six consecutive times and was recognized in the August 2006 issue highlighting lawyers in the, "Best of Big D" Special Advertising Section. Texas Lawyer recognized Mr. Meadows as one of the Top Five Tax Attorney's in Texas (2002) and he was also selected to be included in The Best Lawyers in America ( ). He was voted by his peers as one of Texas' Top 100 "Super Lawyers" for the last five years by Texas Monthly and Law & Politics Magazine. For the last three years, he has been recognized by Corporate Counsel in the Best Lawyers-Criminal Defense Special Advertising Section. Phillip C. Umphres, JD, is engaged in private practice as a criminal defense attorney in Dallas, Texas. Currently Of Counsel to the highly respected Dallas law firm Burleson, Pate & Gibson, he was an Assistant United States Attorney for over 16 years prior to entering into private practice in He is a native of Amarillo, Texas, a 1977 ix

4 graduate of the University of Texas at Austin (B.B.A., majoring in Accounting) and a 1980 graduate of Harvard Law School. During his time with the U.S. Attorney s Office in Dallas, Mr. Umphres represented the United States in both civil and criminal litigation, with an emphasis on the investigation and prosecution of white collar frauds and public corruption offenses. He served in the office at various times as the office coordinator for Environmental Crimes, for Criminal Health Care Fraud and as a member of the Department of Justice evaluation team responsible for inspecting and evaluating U.S. Attorney s offices nationwide. Mr. Umphres is a frequent lecturer and speaker on panels and continuing legal education programs addressing accounting and other white collar frauds. He is also an Instructor in the Trial Advocacy Program at the Southern Methodist University School of Law. Gail Winkler is a Supervising United States Probation Officer. She has worked in the criminal justice field as a probation and/or parole officer for the past 23 years, the past 15 years with United States Probation office in Houston, Texas. Prior to her current position, in 1996, she began writing pre-sentence reports for the federal courts. In 1999, she became a Senior United States Probation Officer/Sentencing Guideline Specialist, responsible for providing training and research on restitution and sentencing guideline issues. Her specialty is white collar fraud, which includes many of Houston s recent high profile corporate fraud cases. Gail was recently selected to be the Fifth Circuit representative to the Probation Officer s Advisory Group (POAG) to the Sentencing Commission. Since June 1999, she has been a periodic presenter at the Federal Bureau of Investigation s Certified Public Accountant In-service Program, in Quantico, Virginia, lecturing on the Principles of Federal Sentencing Guidelines, and subsequent Amendment Changes to the Federal Sentencing Guidelines with respect to the Fraud and Money Laundering Guidelines. Most recently, in July 2005, she addressed the CPA In-Service Program in Las Vegas, Nevada, on Sentencing Issues- Post Booker. Richard A. Anderson, JD, is the Federal Public Defender for the Northern District of Texas, an office he has held since November His office is in Dallas, Texas. Richard was licensed to practice law in 1973 in Texas and 1985 in Colorado. He is a Past-President of Dallas Criminal Defense Lawyers Association. He is also a Past Chairman of the Criminal Law Section of the State Bar of Texas. He served as President of the Texas Criminal Defense Lawyers Association. Mr. Anderson is active in continuing legal education. He is a Past Director of the Advanced Criminal Law Course, sponsored by the State Bar of Texas. He is a Past Member of the Texas Board Of Legal Specialization Criminal Law Advisory Committee and a member of the Judicial Advisory Council of the Texas Board of Criminal Justice. Henry Bemporad, JD, became the Federal Public Defender for the Western District of Texas in 2007, after serving as appellate section chief and as Deputy Defender. He earned his B.A. (with highest honors) from the University of Texas at Austin and J.D. (with distinction) from Stanford University. Henry clerked for U.S. District Judge Edward C. Prado who now sits on the U.S. Court of Appeals for the Fifth Circuit. Henry is the appellate representative on the Training Expert Panel for the Defender Services x

5 Division of the Administrative Office of the U.S. Courts, and is co-chair of both the Defender Supreme Court Resource and Assistance Panel and the National Association of Federal Defenders Amicus Committee. Henry is the author of An Introduction to Federal Sentencing (10th Ed. 2009). Arnold Spencer, JD, serves as the First Assistant U. S. Attorney and Chief of the Criminal Division for the United States Attorneys Office, Eastern District of Texas. He has extensive experience investigating and prosecuting securities fraud and other white collar criminal matters. He also prosecuted several important environmental cases, one of which was recognized in 2006 by the Attorney General with the John Marshall Award. Mr. Spencer graduated from Amherst College in 1988 and the University of Texas Law School in Prior to joining the Justice Department, he was an associate in the Corporate Criminal Law section at Haynes and Boone, and prior to that, as an investment banking analyst in the Mergers and Acquisitions division at Morgan Stanley & Co. He has written several articles and is a frequent speaker on corporate criminal compliance, the U.S. Sentencing Guidelines, and corporate and legal ethics. Jason A. Sickler, JD, is a Regional Counsel for the South Central Region of the U.S. Bureau of Prisons, in its Dallas, Texas office. This region is composed of Texas, Louisiana, Oklahoma, Arkansas, and New Mexico. He joined the staff of the Bureau in He received his law degree from the William Mitchell School of Law of the University of North Dakota. As Regional Counsel for the South Central Region, he is responsible for a territory that includes Texas, Louisiana, Oklahoma, Arkansas, and New Mexico. His responsibilities include providing legal advice and counsel to agency leadership and other staff at the regional office and institution levels. He provides litigation support in relation to civil actions involving Bureau staff and criminal matters stemming from the institutions in his region. In locations such as Houston where the Bureau has a pretrial mission, he also interacts regularly with Assistant U.S. Attorneys and criminal defense counsel. His litigation work, for the 20 institutions in his region, includes defense of medical malpractice actions, cases pursued under other traditional tort theories, challenges to sentence computations, and alleged Constitutional violations. His region has approximately 25 legal staff for the geographical area of responsibility, of which 13 are attorneys. Charles W. Blau, JD, is a partner in the law firm of Meadows, Owens, Collier, Reed, Cousins & Blau, L.L.P., in Dallas, Texas. He focuses his practice on the representation of individuals and entities that are accused of white collar crimes. Mr. Blau assists companies in discrete internal investigations both before and during governmental inquiries. He also aids corporations in fashioning, enacting and administering compliance and ethics programs. He regularly advises clients how to prevent and detect criminal, civil and administrative problems, often in conjunction with independent accountants and investigators. His practice concentration and experience includes criminal law and litigation: Tax Fraud, Criminal Anti-Trust and Securities Fraud, Defense Procurement Fraud, Environmental Crimes, Health Care Fraud, Bank Fraud and Money Laundering Crimes. Mr. Blau was an Assistant United States Attorney for the Southern xi

6 District of Indiana in 1976 and held various federal prosecutorial positions through 1987, including Associate Deputy Attorney General of the United States. He is a prolific author and speaker. He is an active member of the ABA White Collar Crime Subcommittee and served as a co-chair of the Southwest Regional Committee of the organization. He is member of the Florida, Indiana and Texas bar associations as well as many other professional organizations. He received his undergraduate degree from Indiana University, his law degree from the University of Louisville and his L.L.M. in taxation from Georgetown University. Michael E. Clark, JD, LLM, has practiced law for over 25 years, with the first 15 years in public service, including 10 years as a federal prosecutor, the last four of which he served as the Chief of the Criminal Division for the U.S. Attorney's Office in the Southern District of Texas. He is also a former state prosecutor. He has extensive trial experience in business and professional matters. Mr. Clark has two LL.M. degrees -- one in Taxation and the other in Health Law from the University of Houston Law Center He serves as an Adjunct Professor of Law, as a faculty instructor for NITA, and is widely published. Within the ABA, he serves on the Standing Committee on Publishing Oversight; chairs the Business Law Section s White Collar Crimes Committee (and is an Editorial Board member of The Business Lawyer), serves on the Governing Council for the Health Law Section and chairs its Publications Committee; and serves on the Planning Committee for the National Institute on Securities Fraud. He is a Fellow of the American Bar Foundation and the developer and Editor-in-Chief of a treatise published in 2007 by BNA and the ABA Health Law Section about pharmaceutical law. Mr. Clark has been Board Certified in Criminal Law by the Texas Board of Legal Specialization and the National Board of Trial Advocacy since the late 1980's. xii

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