Larry Levine
Verified Criminal Litigator & Prison Consultant
Michael Cohen Esq., Donald Trump’s former lawyer and personal fixer was just handed a 36 month federal prison sentence for 9 crimes essentially consisting of “Money Laundering and Lying to Congress” by U.S. District Judge William Pauley inside a packed New York Federal Courtroom.
While to some, 36 months may seem like a “Substantial Sentence”, but in the big scheme of Federal Sentencing, it’s really not! As a matter of fact, if circumstances warrant, Trump’s former mouthpiece can be back out on the street eating real food in around 18 months or less, and that’s if he ever even goes in.
Here are a couple of scenarios that need to be considered:
First off, the Feds could, and probably will, delay his reporting date to the Federal Bureau of Prisons (BOP), as more and more people are potentially charged and ensnarled into the web of Trump alleged crimes. The Feds have a “Snitch Tool” they use for inmates after sentencing called a Rule 35, more formally codified as a Rule 35 under the Federal Rules of Criminal Procedure.
While a sentence reduction for cooperation prior to sentencing is called a 5.K1 filing, its cousin the Rule 35 lets a sentenced defendant sing like a bird after they’ve been sentenced and allows the judge to drop their sentence even more: To maybe even to no prison time! The Rule 35 Statute reads as follows:
Rule 35. Correcting or Reducing a Sentence
(a) CORRECTING CLEAR ERROR. Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.
(b) REDUCING A SENTENCE FOR SUBSTANTIAL ASSISTANCE.
(1) In General. Upon the government's motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.
(2) Later Motion. Upon the government's motion made more than one year after sentencing, the court may reduce a sentence if the defendant's substantial assistance involved:
(A) information not known to the defendant until one year or more after sentencing;
(B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or
(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.
Essentially, the Feds could use Cohen for years to help build cases and testify and provide substantial assistance and information on other people and delay his reporting the entire time. When the Feds are done charging new people and Cohen’s done running his mouth and snitching on them, all the prosecutors have to do is get him back in front of Judge Pauley who can then modify his sentence to straight probation.
But let’s suppose Cohen turns into a stand-up guy and decides not to rat on anyone, and he just goes inside come March 6 and does his sentence like a man. On a 36 month sentence, Cohen will owe the BOP 1,095 days of custody. If you factor in 141 days of “Goodtime” and another 180 days of “Community Custody” in a Halfway House along with home confinement, that shaves off 10 and half months of physical custody leaving about 27 months on the inside to go.
And If Cohen’s lawyers were on their toes, they may have given him advice about claiming he had a drug or alcohol problem and entering the Federal Bureau of Prison's (RDAP) Residential Drug Abuse Program, which could allow him to get released up to an additional 9 months early on top of everything else. So now his 3 years of prison time have been whittled down to 18 months of custody.
With his future now securely in the hands of the Federal Bureau of Prisons, it’s up to a paper-pushing bureaucrat BOP designator at Federal Bureau of Prison DSCC in Grand Prairie Texas to decide as to what type of prison to send him to, and where to house him.
In order to figure all this out, the BOP designator is going to use something called a form BP-338 to score him and decide what his Custody and Level will be. The BP-338 looks at a defendant’s: Surrender Status, Criminal History, Severity of their Current Offense, Outstanding Warrants and Detainers, Months to release, Age and Education as well as if the
Defendant has any Substance Abuse Issues.
In all likelihood as with most non-violent Federal Inmates who have no public safety factors, and received a light sentence, Cohen should be sent to a so-called minimum security "Club Fed" Federal Prison Camp instead of being designated "behind the wire" as they say, to a low security (FCI) Federal Correctional Institution.
The differences between a minimum security camp and low-security FCI for an inmate can be drastic.
While to some, 36 months may seem like a “Substantial Sentence”, but in the big scheme of Federal Sentencing, it’s really not! As a matter of fact, if circumstances warrant, Trump’s former mouthpiece can be back out on the street eating real food in around 18 months or less, and that’s if he ever even goes in.
Here are a couple of scenarios that need to be considered:
First off, the Feds could, and probably will, delay his reporting date to the Federal Bureau of Prisons (BOP), as more and more people are potentially charged and ensnarled into the web of Trump alleged crimes. The Feds have a “Snitch Tool” they use for inmates after sentencing called a Rule 35, more formally codified as a Rule 35 under the Federal Rules of Criminal Procedure.
While a sentence reduction for cooperation prior to sentencing is called a 5.K1 filing, its cousin the Rule 35 lets a sentenced defendant sing like a bird after they’ve been sentenced and allows the judge to drop their sentence even more: To maybe even to no prison time! The Rule 35 Statute reads as follows:
Rule 35. Correcting or Reducing a Sentence
(a) CORRECTING CLEAR ERROR. Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.
(b) REDUCING A SENTENCE FOR SUBSTANTIAL ASSISTANCE.
(1) In General. Upon the government's motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.
(2) Later Motion. Upon the government's motion made more than one year after sentencing, the court may reduce a sentence if the defendant's substantial assistance involved:
(A) information not known to the defendant until one year or more after sentencing;
(B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or
(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.
Essentially, the Feds could use Cohen for years to help build cases and testify and provide substantial assistance and information on other people and delay his reporting the entire time. When the Feds are done charging new people and Cohen’s done running his mouth and snitching on them, all the prosecutors have to do is get him back in front of Judge Pauley who can then modify his sentence to straight probation.
But let’s suppose Cohen turns into a stand-up guy and decides not to rat on anyone, and he just goes inside come March 6 and does his sentence like a man. On a 36 month sentence, Cohen will owe the BOP 1,095 days of custody. If you factor in 141 days of “Goodtime” and another 180 days of “Community Custody” in a Halfway House along with home confinement, that shaves off 10 and half months of physical custody leaving about 27 months on the inside to go.
And If Cohen’s lawyers were on their toes, they may have given him advice about claiming he had a drug or alcohol problem and entering the Federal Bureau of Prison's (RDAP) Residential Drug Abuse Program, which could allow him to get released up to an additional 9 months early on top of everything else. So now his 3 years of prison time have been whittled down to 18 months of custody.
With his future now securely in the hands of the Federal Bureau of Prisons, it’s up to a paper-pushing bureaucrat BOP designator at Federal Bureau of Prison DSCC in Grand Prairie Texas to decide as to what type of prison to send him to, and where to house him.
In order to figure all this out, the BOP designator is going to use something called a form BP-338 to score him and decide what his Custody and Level will be. The BP-338 looks at a defendant’s: Surrender Status, Criminal History, Severity of their Current Offense, Outstanding Warrants and Detainers, Months to release, Age and Education as well as if the
Defendant has any Substance Abuse Issues.
In all likelihood as with most non-violent Federal Inmates who have no public safety factors, and received a light sentence, Cohen should be sent to a so-called minimum security "Club Fed" Federal Prison Camp instead of being designated "behind the wire" as they say, to a low security (FCI) Federal Correctional Institution.
The differences between a minimum security camp and low-security FCI for an inmate can be drastic.
- Camps have no perimeter fences or armed security.
- FCI's have two secure barbed wire fences with roving security patrols armed with Machine Guns.
- Camp housing unit doors are never locked.
- FCI inmates are locked in their housing units at night.
- Camps generally house non-violent white-collar offenders.
- FCI's can house bank robbers, drug dealers and those convicted of sex crimes
- Camps house inmate serving up to 10 years or less.
- FCI's house inmates serving 10 to 20 years.
- Camps have relatively few correctional workers.
- FCI's have a high ratio of staff to inmates.
- Camps have few incidents of inmate-on-inmate violence.
- FCI's are known to have stabbings, inmate-on-inmate violence and occasional riots
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I'm just waiting to see what actually evolves.
