Hunter Biden was relieved, at least for a while, after pleading guilty to tax offenses in Los Angeles on Sept. 5 — sparing him the ordeal of a second criminal trial.
But Mr. Biden, 54, now confronts a daunting and uncertain process that could result in serious time behind bars when he is sentenced in Delaware on Dec. 13 and California on Dec. 16.
He is looking at a maximum of 17 years in federal prison for the tax charges, and $1.35 million in fines. He faced nine counts for falsifying records and failing to file returns dating to a period when he was hooked on crack, alcohol and easy cash. That is on top of the 25-year maximum he faces after being convicted in Delaware for lying on a federal gun application.
He will serve, at most, a small fraction of that time — and his legal team hopes to spare him even that. Looming above it all is one outstanding question: Will his father, President Biden, intervene with a pardon or commutation?
Hunter Biden is at the mercy of two federal judges following sentencing guidelines that suggest he is likely to serve a year or more behind bars. Here is how his sentencings are likely to play out.
What sentence will he get in the tax case?
The fate of every federal felon is dependent on a single digit — a numerical score calculated from the U.S. Sentencing Commission’s rating scale that runs from one, for minor crimes, to 43, which is assigned to the most serious offenses. The higher the score, the stiffer the sentence.
In the tax case, Mr. Biden’s score is about 17 for each charge, based on the guidelines, which typically means six to 12 years in prison cumulatively.
But Mr. Biden is more likely to be sentenced to about two to three years, after judges account for other factors and the practice of calculating sentences concurrently for defendants fitting his profile, legal experts say.
Points are added or subtracted based on a person’s profile. They are tacked on for aggravating factors such as career criminality or a pattern of violence, or taken off for mitigating factors. The latter are called “discounts.”
Mr. Biden is a first-time offender. He has been clean and sober for years and paid his taxes and fines years ago, albeit with money provided by a wealthy benefactor. He has repeatedly apologized for his actions and admitted legal culpability in the tax case, sparing the court a trial that would have most likely spanned three grueling weeks.
But federal judges have wide discretion and could simply choose not to give Mr. Biden the discounts he requests. The judge in California, for instance, could punish Mr. Biden for waiting until the day of jury selection to enter his plea, legal experts say.
Also working against him: the extent of his income and the $1.4 million in taxes he failed to pay while bankrolling a wild, reckless and addiction-fueled spending binge, as well as his previous conviction in Delaware.
He would have a lower score if the dollar amounts were smaller, which is why his team is likely to argue that the amount of his income from that period was lower than the government’s claims.
When multiple charges arise from a single criminal act rather than a wider-ranging pattern of criminality, judges typically issue concurrent sentences, using the guidelines for the most serious charge, said Douglas Berman, a professor at the Moritz College of Law at Ohio State University who has studied sentencing.
That boils down to a sentence of roughly 24 to 36 months.
What about the gun case?
In June, Mr. Biden was found guilty on three counts related to lying about his drug addiction when he applied to buy a handgun in Delaware, offenses rarely prosecuted as a stand-alone crimes.
It was a particularly bitter blow. In July 2023, a plea deal that would have allowed Mr. Biden to avoid any prison time on both cases imploded when the judge in the gun case raised questions about its legality.
By one calculation, Mr. Biden has a base-line score of 12, which would carry a 10-to-16-month sentence, according to the sentencing guidelines.
But a number of variables are at play — meaning his sentence could end up closer to zero to six months if he can prove he bought “all ammunition and firearms solely for lawful sporting purposes or collection.” Showing that could lead to one of the most significant reductions available to him.
During a messy weeklong gun trial, Mr. Biden’s team introduced evidence, including a police report, that he bought the gun for target practice and out of nostalgia for sport shooting. But prosecutors could try to prove he also bought the gun for self-protection at a time when he was interacting with dangerous criminals, which could result in a stiffer sentence.
After Mr. Biden’s conviction, David C. Weiss, the special counsel who brought both cases, told reporters he had prosecuted Mr. Biden to show that nobody “is above the law.” But he also suggested the government would not seek a sentence more severe than for any other person convicted in such a case.
What will the judges do?
Federal judges have broad leeway in determining sentences, provided they abide by basic guidelines laid out in federal law.
It is uncommon, but not unheard-of, for judges to veer from guidelines to issue more lenient sentences. To do so, they must draft an opinion explaining why they want to “depart” from the standard guidelines.
Mr. Biden’s team does not believe that either of the two Trump-appointed judges presiding over the cases will do that, given the intense public scrutiny of their actions.
Judge Maryellen Noreika, who is overseeing the gun case in Delaware, was a low-profile patent litigator with no experience in criminal cases before being appointed to the federal bench in 2017. She has a limited record in criminal cases.
Defense lawyers generally view Judge Mark C. Scarsi, who is overseeing the tax case in Los Angeles, as fair and rigorous, if broadly sympathetic to prosecutors.
Judge Scarsi, a politically moderate intellectual property lawyer, joined the conservative Federalist Society in 2017, just after former President Donald J. Trump was elected. He was confirmed to the bench in 2020.
It was his emphatic rejection of the defense’s proposed witnesses at a pretrial hearing in August that paved the way for Mr. Biden’s lawyers to enter a guilty plea. His tone caught their attention: At one point, he threatened Mark Geragos, one of the defense lawyers, with a “six figure” fine if he varied from the court’s directives.
Judge Scarsi has issued notably tough sentences in several recent cases. He sentenced the founder of a construction company to two years in prison for failing to pay $1.6 million in taxes and ordered him to pay that amount.
What will President Biden do?
White House officials have been adamant in publicly rejecting suggestions that President Biden will pardon his son. Those sentiments come directly from the president, who has repeatedly said he does not want to give him preferential treatment, according to current and former White House officials.
Privately, people close to both men question whether President Biden will be able to maintain that position after the election — when there is maximal personal danger for his son and minimal political consequence for himself. The pressure will only increase if former President Donald J. Trump, who has promised to prosecute his political enemies, wins the election, they said.
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