An order has hit the docket in the Black Friday prosecutions in New York. In it, Judge Lewis Kaplan indicates that the court will consider an upward adjustment in Mr. Beckley’s sentence on the ground of “an aggravating circumstance.” What does this mean?

In Mr. Beckley’s plea agreement, the government and he agreed that his U.S. Sentencing Guidelines range was 12-18 months’ imprisonment for both of the counts to which he pleaded guilty, meaning that it would not be unreasonable to expect that his custodial sentence would fall somewhere in the range of 12-18 months. However, these are only guidelines; the court has the power to take into account circumstances that it believes have not been adequately covered by the sentencing guidelines. In this case, the applicable guideline places a premium on “the reasonably foreseeable pecuniary harm” to the bank under the plea to the bank fraud conspiracy count. From a reading of the order’s text, the government is “not in a position to establish pecuniary harm.” However, Judge Kaplan states that the defendant “conspired to circumvent, and circumvented, governing laws of the United States in order to conduct or facilitate an unlawful business or businesses involving billions of dollars from which those businesses gained many millions of dollars.” The judge is concerned that the guideline’s heavy emphasis on loss might not result in an “appropriate” sentencing range and, therefore, appears to believe that an upward departure may be warranted in Mr. Beckley’s case.

Mr. Beckley’s sentencing has been put off to June 28th. Any submissions by his attorneys on the departure from the guidelines are due by June 8th at the latest and any submissions by the government are due by no later than June 18th. (Mr. Beckley can then file a reply to the government’s submissions.)

It is too soon to say what the end result will be for Mr. Beckley in sentencing terms. Watch to see how he and the government respond to Judge Kaplan’s order.