HOW MUCH PRISON TIME WILL ELIZABETH HOLMES GET?
PART 2
Part 1 of our series of How Much Prison Time Will Elizabeth Holmes Get began the process laid out in the US Sentencing Guidelines to calculate a recommended sentence.
In Part 1, we covered the following 5 initial steps in the calculation of a recommended sentence range:
We resume the calculations below, continuing with criminal history score.
Step 6: Criminal History Score
A person’s criminal history is a major consideration under the sentencing guidelines. Prior convictions lead to sentencing enhancements.
A person with no prior convictions falls into the criminal history category of 1 with no points added to the calculations. Holmes does not have a criminal history, so this section should not result in any enhancements for her.
Step 7: Acceptance of Responsibility/Trial penalty
The Sentencing Guidelines allow a reduction in an offender’s sentence if the offender takes responsibility for their actions, pleads guilty, and takes steps to show a change in behavior. Because Holmes took her case to trial, she will not qualify for a 2 point reduction for acceptance of responsibility.
In fact, Holmes may pay a trial tax or trial penalty. The trial penalty is the significant disparity between the prison sentence offered as part of a plea bargain and the longest sentence imposed if a person gets convicted at trial.
For a discussion of the trial penalty See below:
Step 8: The Math Is Off The Charts
In Part 1, we did a partial calculation of Elizabeth Holmes’ guidelines score taking only into account only the Base Offense Level and the Loss Amount.
As to loss amount, we looked at 2 possible loss amount outcomes: $144 million loss from the counts on which Holmes was convicted, and $950 million, which is the total amount of money Holmes raised.
Using the $144 million, Holmes’ partial score is 31, which translates to a suggested prison sentence range of 108–135 months (9-11 years).
Using the $950 million, Holmes’ partial score is 37, which translates to a suggested prison sentence range of 210–262 months (17-20+ years).
There will be significant disputes about enhancing Holmes’ score based on the number of victims, her leadership role, abuse of trust or special skills, vulnerable victims, and obstruction of justice.
For purposes of this estimate, let’s take only the most likely enhancements, meaning her leadership role (4 points) and the number of victims (2 points).
Let’s add 6 points to the scores above:
The $144 million scenario: 31+6 yields 37, which translates to a suggested prison sentence range of 210–262 months (17-20+ years).
The $950 million scenario: 37+6 yields 43, which translates to a suggested prison sentence of life in prison.
What? Is there a scenario under which Holmes could get life in prison?
No. Here is why.
The highest score under the Sentencing Guidelines is 43, which carries a recommended sentence of life in prison.
However, because the statute of her conviction has a maximum prison term of 20 years, Elizabeth Holmes will not be sentenced to more than 20 years. No matter what the Sentencing Guidelines calculation is, she cannot get more than 20 years per count of conviction. Moreover, running them concurrently would mean a single term of 20 years maximum covers all the counts.
Elizabeth Holmes’ score under the guidelines tables is literally off the charts if the Probation Officer recommends every enhancement that could possibly apply in her case and uses the highest loss amount.
Two Alternative Scenarios:
| SCENARIO 1 HOLMES IS NOT ELIGIBLE FOR AN ALTERNATIVE SENTENCE UNDER THE GUIDELINES | The Sentencing Guidelines consider whether or not a person is eligible for probation or an alternative sentence. Depending on where a person lands on the sentencing table, they can be eligible for a split sentence, probation, house arrest, etc. When Martha Stewart was convicted of securities violations, her sentence was a split sentence of 5 months in prison and 5 months on house arrest. A sentence like that is not in the cards for Holmes. Unless her conviction is overturned or the judge grants a significant downward departure, Elizabeth Holmes cannot avoid prison time under the guidelines. Note: There is one scenario that could help Holmes qualify for a significant downward departure for cooperation–if she were to make a deal with prosecutors to testify against Sunny Balwani at trial. In fact, Holmes testified at her trial that the exaggerated financial projections Theranos shared with investors came from Balwani. However, there is no evidence that such a negotiation is under consideration at this time. |
| SCENARIO 2 DOWNWARD DEPARTURES | People often ask if a judge can go below the Sentencing Guidelines or are federal sentencing guidelines mandatory? Absolutely, a federal judge can go below (or above) the sentencing guidelines and grant a downward (or upward) departure. The Sentencing Guidelines are advisory, not mandatory, giving a federal judge broad discretion to look at the individual circumstances of a case. |
As just noted above, one way Holmes could set herself up for a downward departure is to offer cooperation against Balwani.
In addition to cooperation against Balwani, there are several other arguments Holmes could present to the court at sentencing to ask Judge Davila to go lower than the Sentencing Guidelines. For example:
- Is Holmes mentally and emotionally in a condition to serve time in federal prison? Does her sexual trauma and abuse history suggest she should serve a lower sentence so she can get home soonest and get treatment?
- What about the Svengali defense? The Judge could consider the argument that she acted under the manipulation of a criminal mastermind, and is deserving of a downward departure.
- What about the fact that Holmes did not walk away with any money, she never sold a single share of Theranos. Holmes was a true believer who went down with the ship.
- Are there extraordinary and compelling circumstances that warrant keeping Holmes out of prison ar limiting her years away? Being a young mother, having a small child is not enough. Women in that position go away to prison every day. (In cases of ill relatives or children with special needs, people ask for leniency when they are the only parent available to care for the child.)
- Did Holmes commit herself to a significant charitable cause that warrants the Judge to reward her with a downward departure?
In short, as long as the Judge can articulate a legitimate reason to depart downward from the guidelines calculation, he has the discretion to do so.
At this point, it is anyone’s guess how Judge Davila may rule on motions for downward departures at sentencing. Without a variance or downward departure, for cooperation or otherwise, Holmes is looking at no less than 9-11 years.
SUPERVISED RELEASE
The Guidelines also consider whether a defendant should be sentenced to Supervised Release after serving time in prison.
Again, the answer is that Holmes will have to serve a term of supervised release after prison, probably the maximum of 3 years.
Supervised release is recommended for Class C felonies, which applies to Holmes.
A period of Supervised Release (or probation) requires that a person report to a US Probation Officer and follow certain standard conditions of release as well as any special conditions the judge may impose.
See Below:
Some of the typical requirements include not committing another crime, making regular restitution payments, paying fines and assessments, not leaving the state of supervision without prior approval from a probation officer, and seeking employment.
ELIZABETH HOLMES WILL GET A RESTITUTION ORDER
A term of restitution requires that the defendant make the victims whole and repay the loss amounts.
In Holmes’ case, Holmes will be subject to restitution of the $144 million that goes with the wire fraud counts in her conviction.
While in prison, Holmes will be required to make regular restitution payments under the Financial Responsibility Plan of the Bureau of Prisons. That is how the BOP enforces restitution orders while a person is in their custody.
Specifically, case managers in prison monitor the amount a person has in their commissary account and determine a percentage amount to go towards restitution. Should a person refuse to agree to these restitution payments, they will be denied privileges.
In fact, people have do not consent to restitution payments in prison are often denied participation in programs like RDAP (Residential Drug Abuse Program).
If the entire restitution amount is not paid at the time that Holmes leaves the BOP, US Probation will track that she continues to make restitution payments while on Supervised Release. When she completes probation, the unpaid restitution becomes a lien against her.
ELIZABETH HOLMES WILL BE FINED $250,000
The federal wire fraud statute under which Holmes was convicted provides for a maximum fine of $250,000. Judge Davila is likely to impose the maximum fine.
The Judge will also impose a special assessment of $400, or $100 per count of conviction.
CONCLUSIONS
Unless her conviction is overturned, Elizabeth Holmes’ sentence will include a significant term in prison, restitution, fines, assessment, and supervised release.
Her restitution amount will equal at least the $144 million loss amount in the counts of conviction. Her fine will be the maximum allowed of $250,000.
Her prison term depends on whether the Judge grants a downward departure, and whether the Judge sides with Holmes or the prosecution on various factors under the guidelines.
The biggest driver of Holmes’ prison term is the loss amount. Taking just the base offense level and a $144 million loss amount, with no other enhancements, yields a sentence range of 9-11 years. Enhancements under the Sentencing Guidelines are likely under present circumstances.
