The opposite thing is going to happen in this case, and I'm sure you'll hear Ken on Serious Trouble saying the same thing next week (you can get Andrew McCarthy, another former AUSA, saying the same thing in the National Review today if you want that with a dash of anti-woke conservative racial politics). In basic economic crimes, sentences scale primarily with dollar losses, and FTX lost billions. He's going to do something resembling the statutory max, and then only if statutory limits take life off the table.
The whale sushi article is excellent and is a good intuition for most white collar crimes. You run into the big exception in these ultra-high-dollar cases like Theranos and FTX, because of the 2B1.1(b)(1) dollar loss chart.
Elizabth Holmes committed fraud, endangered lives, and harassed whistle blowers (one spent over $400,000 in legal fees fighting with Theranos). She only got 11 years and 3 months. I would not be surprised if Sam Bankman-Fried also got a fairly short sentence.
Holmes was only found guilty on 4 of 11 charges, totalling around $300m raised from investors. SBF is guilty on all counts of stealing 26 times more than that - $8bn of his customers deposits.
The loss amount calculated for Holmes was $120m; $381 million was the total investment amount, but not all of that valuation was due to fraud.
While its a lot, its substantially less than where the table for loss amount tops out at $550 million, whereas it seems certain that SBF is going to top out the chart.
It's worth noting that the mechanism is still different. In this case, "the upper end of the range when you math out the sentencing guidelines" and "the amount you get if you take all the base charges and add them up and assume they're sequential" start to blend together because of the sheer scale.
But it's not like when the scale gets big enough, the whale sushi hypothetical math starts becoming the real way we calculate sentences. It's just that the guidelines really do try to account for super villain levels of crime.
> the upper end of the range when you math out the sentencing guidelines" and "the amount you get if you take all the base charges and add them up and assume they're sequential" start to blend together because of the sheer scale.
No, it doesn't “start to blend together”. The amount you get when you take all the base charges, assign then the maximum sentence, and have them run consecutively isn’t something that the upper end of the guidelines range coincidentally blends into despite not actually directly applying, its the actual legal limit, and for that reason is directly applied (by assigning the statutory maximum to each offense and having them run consecutively) in the guidelines as the limit case. (It also, while the guidelines are not mandatory and judges may depart above or below them, is the upper limit—and, where it exists, the statutory minimum the lower limit—for sentences that depart from the guidelines.)
> But it's not like when the scale gets big enough, the whale sushi hypothetical math starts becoming the real way we calculate sentences.
Yes, it is. If, after all the other pieces of the guidelines calculation are done and all the offenses that aren’t required to be sentenced separately at their own statutory amounts are grouped in the way that they would run concurrently were the guidelines sentence short enough, the guidelines specify that you look at the total punishment, if it fits in the legal maximum for the offense with the longest limit, you do that and run everything else concurrently, if not, you run enough consecutively, if possible, yo reach the total possible, until you run everything consecutively at its max legal sentence and stop. “Whale sushi” is exactly the mechanism applied by the guidelines in the limit case, not something that the upper end case under the guidelines happens to approximate coincidentally.
> It's just that the guidelines really do try to account for super villain levels of crime.
No, its that the guidelines are, well, guidelines for calculating a sentence which is constrained on the lower end by any statutory minimums and on the upper end by thr statutory maximums for the individual offenses (and also, by statutory rules on which offenses must be sentenced separately and not concurrently with which other offenses), so each of those binding rules is expressly part of the guidelines sentence calculations.
Another thing that makes this case difficult is that SBF kind of breaks the sentencing guidelines. He starts at the highest possible base offense level for fraud, so he's in a position where every point haggled over is worth years of sentence time. And this also means statutory maximum sentences come into effect, and I personally don't know how that interacts when you've got multiple charges.
I believe the statutory maximum for fraud is 20 years, and so I suspect that's the minimum that he's going to be in prison for.
> And this also means statutory maximum sentences come into effect, and I personally don't know how that interacts when you've got multiple charges.
The judge can order consecutive sentences for multiple charges, making the effective statutory maximum in such cases very long indeed. Sholam Weiss [1] was an extreme example of this, racking up 845 years for a $450M fraud in the 90s.
The whale sushi article is excellent and is a good intuition for most white collar crimes. You run into the big exception in these ultra-high-dollar cases like Theranos and FTX, because of the 2B1.1(b)(1) dollar loss chart.