Barrett Brown sentenced to 63 months in prison

Barrett Brown sentenced to 63 months in prison
boingboing.net

However, I wouldn't believe random tweets. For example, one says:

"Notable that though there's no evidence Barrett took part in the hack releasing credit card info judge is determined he did. #FreeBB"

This is pretty unlikely, particularly if it was used as a sentencing factor. Every federal judge knows that you can't use facts not proven to a jury or in a plea agreement, to enhance a sentence.

This is completely well-settled law now. See United States v. Booker, 543 US 220 (2005), Blakely v. Washington, 542 U.S. 296 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000)

(Apprendi is a little different in that it says you can't enhance past statutory maximum, but Booker and Blakely make plain you can't enhance at all except using facts admitted by the defendant or proven to a jury)

My understanding, after reading the news and the relevant stuff on freebarrettbrown.org (which collects a bunch of filings) is that he faced sentencing for three counts: (i) concealing laptops during the execution of a warrant, (ii) threatening an FBI agents, and (iii) being an accessory after the fact to the STRATFOR hack.

Of those three, (i) and (ii) seem open-and-shut. Even Brown's own motion to dismiss concedes them. (The more damning of the two, about the laptops, was accompanied with a sort of harebrained argument that it's not a crime to conceal evidence so long as you hide it somewhere in the scope of the search warrant, so that it is at least mathematically possible that agents executing the warrant could have found it.) He plead guilty to them, then discussed them in their particulars at his allocution.

Accessory-after-the-fact liability for relaying a URL to a bunch of stolen credit cards is a fuzzier charge. I have no idea what I think about it. But two things worth considering:

(1) Accessory-after-the-fact liability is a much lesser offense than being an accomplice to the STRATFOR hack. Accomplice liability would have charged him as a principal to the actual crime. That's not what he got convicted for.

(2) The charge doesn't criminalize sharing of URLs, but rather intentionally facilitating the spread of stolen credit card numbers. The DOJ had the burden of proving intent. His "actus reus" was, I think we all agree, very minimal. But his mens rea might not have been.

His vulnerability to having mens rea proven at trial was probably greatly enhanced by the fact that one of the open-and-shut charges against him was about his effort to shield Jeremy Hammond from prosecution. It would have been hard for him to argue that he wasn't much more intimately involved in the STATFOR hack than some Twitter rando RT'ing a URL would have been.

I dunno. As usual, nothing is as simple as Boing Boing and Wired make things out to be.

I think the government had a stronger case against Brown than it did against Auernheimer.

He did stupid, illegal things, and honestly it sounds like he got off pretty light, to me.