Joshua Bevill’s Story

U.S. Sentencing Guidelines Run Amok

In federal court, the U.S. Sentencing Guidelines drive an offender's sentence. The chart starts at level 1 and goes as high as level 43, life in prison without the possibility of parole, or death by Imprisonment, extreme punishment reserved for irredeemable offenders such as terrorists and people who traffic very young children for the use of pornography. Or is it? 

Joshua Bevill's U.S. Sentencing Guideline score was life in prison without the possibility of parole. As a result, he received a statutory maximum sentence of 90 years, 30 years to be served...only 30 years. But he's not a terrorist or a child trafficker. 

Joshua Bevill committed a relatively minor (low-level) white-collar offense: he made misrepresentations to three high-net-worth investors, causing a combined loss of $106,000—that's $106, thousand, not $106, million.

Yes, there is certainly more to the story. Bevill's case demonstrates just how crazy the federal brand of justice has become and just how brazen the manipulation of the U.S. Sentencing Guidelines can be. In other words, using clever tricks courts can take relatively minor nonviolent cases and ratchet up the score on the U.S. Sentencing Guideline range by a lifetime, in the name of crushing defendants with punitive prison sentences that are radically disproportionate to the harm and seriousness of the crime and indicative of the punitive nature of the federal brand of "justice."

It is difficult to think of a better example of the brokenness of the federal justice system than the case of Joshua Bevill. It's not always about innocence or guilt. It is usually about the proportionality of the prison sentence in relation to the crime committed.

Unprecedented double punishment & imprisoned for uncharged, untried crimes

Joshua Bevill just turned 41. He’s been in federal prison for more than a decade. He has about two decades remaining on his 30-year federal sentence. He makes a plea for clemency and implores a legal advocate to help him call attention to the injustices that pervade his case, as without the help of a legal advocate/law school clinic Josh's Clemency request is like tossing it in a black hole.

A. Joshua Bevill’s Case, an anomaly

If one searches the millions of federal cases that have flowed through the American justice system—state and federal—they will not find another case like Joshua Bevill’s. It’s one of the most extreme and unusual cases of U.S. Sentencing Guideline manipulation in the 30-plus-year history of the U.S. Sentencing Guidelines and an anomaly even relative to the entire history of the U.S. justice system. Prosecutors themselves called it a "unique situation."

More precisely, although Joshua Bevill is a nonviolent white-collar defendant who was convicted of a securities fraud that comprised three high-net-worth investors who lost a combined $106,000, his 90-year prison sentence (30 years to be served in federal prison) is based largely on crimes for which he was never charged, tried, or convicted—uncharged, untried crimes that allegedly occurred some 8 years before the conduct in Bevill’s present case (his crime of conviction) even began, an unprecedented case in many respects. It's also a product of an unprecedented anomaly tied to double punishment.

By hitching, at the sentencing phase, the uncharged crimes and other uncharged conduct to Bevill's present case, it made his fraud appear 40 times larger, causing his U.S. Sentencing Guideline range to leap by a multiple of 17, from about 5 years in prison to 85 years in prison. It actually jumped to life in prison without parole, but the statutory maximum was 85 years, hence Bevill's statutory maximum 85-year sentence (30 years to be served).

Wait...the U.S. Sentencing Guidelines yielded a lifetime in prison for making misrepresentations to three investors who lost a combined $106,000, a relatively minor nonviolent offense. This even struck federal prosecutors as irrational.

Tellingly, federal prosecutors filed on March 1, 2012, Sentencing Memorandum with Bevill's sentencing judge (it was the Probation Department who prepared Bevill's sentencing report, not the prosecutors), in which they emphasized that this "unique" sentencing anomaly grossly overstated the seriousness of Bevill's present case: a securities fraud that comprised three high-net-worth investor/victims and a combined loss of $106,000.  As such, in that same Sentencing Memorandum prosecutors asked for a massive 60 percent downward variance from Bevill's outrageous sentencing range, based purely on the 3553 sentencing factors, telling Bevill's judge that a sentence spanning even 25 years would be purely punitive and would serve only to unfairly warehouse Bevill, who upon release is neither a danger to the public nor likely to re-offend, according to prosecutors.

But if one Googles the FBI's press release about Bevill's case, this is not the story they will see. Superficially, Bevill received decades in federal prison for a multimillion-dollar fraud. But upon closer inspection, the manipulation that created this illusion becomes transparent and even striking and unravels like a ball of yarn. Point is. Although there might not be an injustice in the face of the case, once one gets down in the details, the injustice is glaring—as the truth lies in the details. 

Put differently, the federal brand of justice is subtle and insidious, but once the manipulation and abusive practices that produced the injustice is deconstructed, it becomes apparent. In short, through egregious manipulation of the U.S. Sentencing Guidelines, the perceived severity and degree of harm of Bevill's present case was artificially inflated to a different order of severity altogether.

B. The Parallels Between Bevill’s Case and the Treatment of Suspected Terrorists Being Held at Guantanamo Bay

Outside of Cuba is the infamous Guantanamo Bay, a detention center (an effective prison) that holds people suspected of plotting or carrying out terrorism against the United States. The detainees there can be held for many years or a decade or more without even being charged with a crime, much less convicted. They can be held on scant evidence and loose ties to people suspected of terrorism. But, with the exception of some human rights warriors, given this is done outside of the United States in the name of the War on Terror, it’s widely accepted by the American public—a necessary evil.

A dangerous legal sentencing loophole: so-called uncharged relevant conduct

How was all of this possible? Imprisoned for uncharged crimes? Double punishment?

You would be shocked to learn there is a dangerous legal loophole—called “uncharged relevant conduct”—in the federal court system on American soil that allows federal courts to imprison people for crimes for which they were never charged, tried, or convicted—it even allows the government to imprison people for crimes they were charged and acquitted of. You heard that right—under this legal loophole a person can be found not guilty by a jury, only to be subsequently sentenced to many years or decades in federal prison for the very crimes he was acquitted of. This has nothing to do with terrorism. This plays out in federal courtrooms across America—for example, in drug cases, fraud cases, other nonviolent cases, gun cases, and so on. In fact, this subtle brand of injustice is woven into the fabric of the federal justice system—a dangerous brand of injustice that strikes at the heart of the fairness of the American justice system and cheapens it by stripping the criminally accused of their vital Constitutional procedural protections, producing an inherently unfair one-sided knock-off brand of justice of greatly diminished quality. Like the prisoners at Guantanamo Bay, the victims of his legal loophole will never see their day in court: no indictment-by-grand-jury or trial-by-jury. Instead, they are crushed with many years or, in Joshua Bevill’s case, many decades, for crimes for which they weren’t even charged, much less tried for. Most egregiously, in Joshua Bevill’s case, the uncharged crimes weren’t even remotely related to his present crime of conviction and allegedly occurred some 8 years before the conduct in Bevill’s present case even began, a disturbing and unsettling fact, which will be explored below. 

C. What the legal community says about this dangerous legal sentencing loophole

This trick has not gone unnoticed by the legal community. The late U.S. Supreme Court Justice Scalia called it "sinister." He also underscored an important point by highlighting the fact that "If the protections extended to criminal defendants by the Bill of Rights can be so easily circumvented, most of them would be...vain and idle enactments, which accomplish nothing." Justice Scalia was wrong. The Bill of Rights plays a key role: to act as a prop to create the illusion of fairness, when in practice, it means nothing.

In his days as a U.S. Appeals Court Judge, current U.S. Supreme Court Justice Korsuch questioned the constitutionality of using uncharged relevant conduct—found by a judge under a lesser standard as opposed to fact-finding by a jury—which can add many years and even decades to a defendant's prison sentence. U.S. Supreme Court Justice Kavanaugh also shares Justice Gorsuch's concern, opining in pertinent part that "[a]llowing judges to rely...on uncharged conduct to impose a higher sentence than they otherwise would impose seems a dubious infringement of the rights of due process and a jury trial."

In a landmark U.S. Supreme Court case, the high court was incredulous at such a model of justice, noting, "The Jury could not function as a circuit breaker in the State's machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime that State actually seeks to punish."

One U.S. Appeals Court Judge summed it up like this: “…sentencing for uncharged conduct was not authorized by Congress is a 'political aberration of our times and repugnant to the basic principles of fair process and procedure traditionally thought to be indigenous to our federal criminal laws," emphasizing that if such a thing happened "in the former Soviet Union or [within a] third world country...human rights observers would condemn those countries." (8th Circuit Judge Lay in U.S. Galloway.)

When the nation's preeminent expert on federal sentencing law, Ohio State Law Professor Douglas Berman, explained the concept of uncharged relevant conduct to his law students, he said that they "thought he was playing a prank on them," i.e., they were "incredulous."

And to borrow the words of Yale legal scholars Amy Baron-Evans and Jennifer Niles Coffin in their study, "Deconstructing the Relevant Conduct Guideline,"  "[t]he equivalent of a conviction is obtained without the basic rudiments of due process assumed to apply in our criminal justice system, based on information that is often unreliable." (Amy Barons-Evans)

We simply do not have space to detail the legal community's outrage regarding the exploitation of this dangerous practice, but it's a sentiment shared by an overwhelming number of U.S. Supreme Court Justices, U.S. Appeals Court Judges, and law professors and legal scholars alike, which speaks volumes.

We invite you to sign Joshua’s petition.