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As the dominoes fall

Assessing Vick's fate after co-defendants' sentencing

Posted: Friday November 30, 2007 7:52PM; Updated: Friday November 30, 2007 8:02PM
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In a best-case scenario, Michael Vick could return to the NFL (or another pro football league) sometime in the 2010 spring or fall.
In a best-case scenario, Michael Vick could return to the NFL (or another pro football league) sometime in the 2010 spring or fall.

Michael Vick and his legal team received potentially discouraging news this morning, when U.S. District Court Judge Henry E. Hudson sentenced two of Vick's co-defendants, Purnell Peace and Quanis Phillips, to longer prison sentences than federal prosecutors had recommended. Peace will serve 18 months, while Phillips will serve 21 months. In exchange for the defendants' cooperation, prosecutors had recommended that each receive a sentence consistent with the lower end of the federal sentencing guidelines (12 to 18 months for Peace; 16 to 24 months for Phillips). Just as he has with Vick, however, Judge Hudson had the discretion to issue sentences in excess of the guidelines and to discount -- or altogether ignore -- the prosecutors' recommendation.

In explaining his sentence, Hudson emphasized the "very callous and cruel" nature of the dogfighting and Peace and Phillips' involvement it. He also highlighted their decision-making authority.

Though it would be speculative to predict Vick's sentence based on today's sentencing, it may shed light on what Vick can expect. For a 27-year and 5-month-old quarterback so reliant on running ability and one who will likely remain suspended from the National Football League for a lengthy, if not permanent, period of time following his release, a difference of months between Vick's best- and worst-case-sentencing scenarios could significantly affect his potential return to the NFL or, in the alternative, pursuit of employment in the United Football League, which is scheduled to start next August. Indeed, NFL commissioner Roger Goodell's willingness to reinstate Vick may be influenced by the severity of Vick's sentence.

Let's start with the good news for Vick: Prosecutors have recommended that Judge Hudson sentence him to a term close to 12 months and no more than 18 months. Perhaps revealingly and despite his unambiguous disgust for Peace and Philips, Judge Hudson declined to sentence them to a term in excess of prosecutors' recommendation. If Judge Hudson were to adopt the same approach when sentencing Vick, the embattled quarterback would not receive more than 18 months, and thus nowhere near the possible maximum sentence of 60 months, meaning that he would be out of prison by 2009 and still young enough to resume a pro football career.

As a first-time criminal, Vick is also poised to receive a lighter sentence. Generally, first-time offenders of laws are treated more favorably by judges than repeat offenders, with the basic idea that repeat offenders didn't learn their lesson the first time. Then again, Vick's lack of previous criminal record was already contemplated in his 12- to 18-month sentencing guideline, meaning that he may not get a second bite on that apple.

Vick has also taken steps to appear contrite and personally responsible. He voluntarily reported early for a sentence that has yet to be entered against him and has agreed to pay more than $928,000 to care for dogs seized from his property. Also, for a first-time defendant being prosecuted for crimes that, according to some observers, are usually ignored by law enforcement officers, Vick has done nothing to publicly suggest that he is the victim of selective prosecution, be it because of his celebrity, lifestyle or race.

There are plenty of discouraging facts for Vick, however, as his sentencing on Dec. 10 approaches. Most obvious, Judge Hudson declined prosecutors' recommendation of leniency in his sentencing of Peace and Phillips. Also, based on his comments earlier Friday, Judge Hudson seems genuinely disgusted by the entire dogfighting operation.

Vick has also given Judge Hudson reason to doubt the sincerity of his contrition. In September, Vick violated the stipulation in his pretrial release that he refrain from use or unlawful possession of a narcotic drug or other controlled substance, a move that prompted Judge Hudson to impose additional restrictions on Vick's release.

Other factors remain outstanding. A U.S. probation officer reviewing Vick's case will soon issue a pre-sentencing report, which is a formal summary of relevant information on the case and the defendant. In recommending a sentence, the report will examine the totality of Vick's involvement in the dog fighting operation, including the harm inflicted upon the animals -- a piece of information which, based on today's sentencing, is a clear point of interest of Judge Hudson.

Also, despite a guilty plea, Vick's specific involvement in the dogfighting operation remains a point of contention. Vick's plea agreement, signed by him, his counsel, and the prosecution, acknowledged that he agreed to the killing of dogs and that the dogs died "as a result" of the collective efforts of Vick, Peace, and Phillips. It does not, however, expressly state that Vick personally killed those dogs. The distinction, undoubtedly of great importance to Vick and his attorneys, could imply that Vick's failings were more of passive than active immorality. Last week, however, the U.S. Attorney's Office stated that in one incident, Vick, along with Peace and Phillips, "executed approximately eight dogs that performed poorly in testing." How Judge Hudson reconciles these slight, though possibly meaningful, linguistic variations could prove crucial.

But the most telling tea leaf for Vick's sentencing may simply go back to Judge Hudson's grim admonishment following Vick's guilty plea: "You're taking your chances here. You'll have to live with whatever decision I make."

Indeed, he will.

Michael McCann is a law professor at Mississippi College School of Law. He specializes in sports law. McCann can be reached at mmccann@mc.edu.