14 March 2013

Law in Plain English: United States v. Auernheimer (Defendant's Sentencing Memorandum)

UPDATE (12:00PM, 3/18/13): Earlier this morning, Weev was sentenced to 41 months in prison, which is at the high end of the sentencing guidelines explained below.

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Note that this post is a summary of the sentencing recommendations made by Weev's lawyers; the actual sentence will be determined at his yet-to-be-held sentencing hearing.

United States v. Auernheimer (Defendant's Sentencing Memorandum)

When considering an appropriate sentence for those convicted of a federal crime, district courts should consider a variety of factors, including the nature and circumstances of the offense, the need for the sentence to reflect the seriousness of the crime, to provide deterrence (both generally and specifically),  corrective treatment, and potential restitution. These factors work within the Federal Sentencing Guidelines, which are rules promulgated to set out a uniform federal sentencing policy.

The United States Probation Office submitted a Presentence Investigation Report (PSI) that scored Auernheimer with an Offense Level of 20 and a Criminal History Category of I. This translates within the Federal Sentencing Guidelines to a sentence of 33-41 months (note: I haven't seen the PSI, nor do I know if any copy has been made public; although Weev did mention in a recent blog post that he had just received it).
Note: These are my calculations to recreate the PSI Offense Level of 20 using the Federal Sentencing Guidelines (using the calculator here). This should not be considered to be an official calculation by the United States Probation Office.
Base Offense Level: 6
Loss Amount: $73,167 (+8)
Sophisticated Means: (+2)
Dissemination of Private Information: (+2)
Use of Special Skill: (+2) 
This results in Zone D, Level 20, History I, and 33-41 months.
This memo argues on behalf of Auernheimer that his Offense Level should be 6 (rather than 20) based upon several arguments: first, that AT&T didn't suffer any financial loss; second, that Auernheimer's offense was improperly double-counted for use of "sophisticated means" and "use of a special skill;" and third, an enhancement for "dissemination of personal information."

Financial loss: Auernheimer's lawyers argue that AT&T did not establish any loss at trial, and the cost of notifying AT&T's customers ($73,167) was not appropriate to include in federal sentencing recommendations. In fact, one of AT&T's own investigators admitted there was no case; no security measures had been circumvented.

Sophisticated means: Part of this section of the memorandum is redacted, but what remains suggests that the script Auernheimer used on AT&T's website was not part of a fraudulent scheme and thus  shouldn't qualify as "sophisticated means."

Dissemination of personal information: Lastly, Auernheimer's lawyers argue that dissemination of only email addresses should not constitute dissemination of personal information. They point out that the judge in the Jeremy Hammond case refused to recuse herself even though her husband's email address had been released. Her argument was that the release of just his email address constituted no harm.

Based on the Offense Level of 6 without the double-counting or enhancements, a sentence of 0-6 months is appropriate; Auernheimer's lawyers are asking for probation. Their argument for probation is based upon a claim that the Computer Fraud and Abuse Act is vague; that Auernheimer has no prior criminal history; and that probation would be consistent with the type of sentence Aaron Swartz was offered in his plea deal (3 months), arguing that Swartz's conduct was arguably more egregious that Auernheimer's.

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