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Value of crime to guide sentencing of Nacchio
Nottingham likely to stay within guidelines today
By Greg Griffin, Staff Writer
Denver Post
Friday, July 27, 2007

When Joe Nacchio is given his prison sentence in federal court today, much will ride on the financial value that a judge assigns to his crime.

If U.S. District Judge Edward Nottingham accepts prosecutors' argument that Nacchio's crime robbed investors of $52 million, he is likely to sentence the former Qwest chief executive to seven years and three months.  That's the amount the government is recommending.

But if Nottingham agrees with Nacchio's attorneys that the government has overstated the financial impact of the crime, jail time could be lower.

Nacchio's attorneys have argued that the 19 counts of insider trading for which he was convicted cost investors $1.8 million.  They say his jail sentence, if any, should therefore be far shorter.  If Nottingham were to accept the $1.8 million figure, the federal sentencing guidelines call for up to four years in prison.

"Under the federal sentencing guidelines, the court has some discretion to go either way, to depart upward or downward," said Tony Leffert, a former federal prosecutor now at Robinson, Waters & O'Dorisio.

Other factors could come into play, such as whether Nacchio takes responsibility for the crime or shows contrition.  His likely appeal of the conviction may keep Nacchio from going too far in that direction.

In addition to the positions staked out by attorneys on either side, Nottingham will have the recommendation of the court's probation office.  Its detailed presentencing investigative report -- which will brief the judge on Nacchio's background and financial status, among other things -- could recommend a jail sentence that differs from the prosecution's.

Each recommendation is based upon interpretations of the sentencing guidelines.  Under those guidelines, each crime is given a base number, and points are added depending on the severity of the crime.  Prosecutors arrived at a sentence of 70 to 87 months by placing the amount of Nacchio's alleged ill-gotten gains at $52 million.

Judges typically don't stray far, if at all, from the guidelines.  A sentence that falls far from the recommended range can open the door for appeal.

Experts say that Nottingham is likely to stay within federal guidelines for sentencing but that he has leeway in interpreting the severity of the crime, Nacchio's remorse and other factors.

Nacchio's attorneys have raised the issue of the health of family members as a potential mitigating factor in his sentencing.  The family members are not named in the filings.

Thursday, prosecutors asked Nottingham to deny Nacchio's request for bail pending appeal, arguing that some of the issues the defense raised in their motion were "peccadilloes, not the building blocks for an appeal."

"The United States requests that the court ... require Joseph Nacchio to begin serving his prison sentence immediately," prosecutor Cliff Stricklin wrote in the filing Thursday.

Staff writer Andy Vuong contributed to this report.

Staff writer Greg Griffin can be reached at 303-954-1241 or ggriffin@denverpost.com.


http://www.denverpost.com/business/ci_6474422