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How a typo can get you 3.5 more years in prison

A pencil correcting a mistake.
A pencil correcting a mistake.
Universal Images

On Tuesday, President Obama did something he hasn't done very often — he reduced the sentence of a federal prisoner.

But unlike the previous times that Obama has reduced (or "commuted") the sentences of prisoners, this wasn't a case of racial disparity or judicial malpractice. Obama was simply correcting a typo.

Back in 2006, Ceasar Cantu was convicted of marijuana trafficking and money laundering. But when the judge went to calculate what sentence Cantu should get, the guidelines had a typo — leading the judge to sentence Cantu to 15 years in jail, rather than the 11.5 years Cantu would have gotten if the typo had been fixed.

But because the typo was buried deep in a complicated criminal-sentencing equation, no one noticed in time for it to get fixed — and ultimately, only Obama had the authority to fix the error without breaking the law.

How a typo can get you more jail time

Federal law requires that anyone who's convicted of trafficking more than 100 kilograms of marijuana — as Cantu was — has to serve at least 10 years in prison. This sort of law is called a "mandatory minimum."

But that's just the minimum. Judges then have to figure out how long the prison sentence should actually be. They usually consult a set of instructions called the federal sentencing guidelines. (Judges don't have to follow these guidelines exactly, but they often do.)

These guidelines are basically the world's most complicated algebra equation. They start with the severity of the crime for which the person was convicted, and give it a number. The guidelines then adjust that number up or down based on various circumstances: whether the convict had a gun, whether anyone was hurt or threatened, how involved the convict was in the planning of the crime, etc. The guidelines also consider how serious the defendant's criminal history is.

In Cantu's case, the judge reviewed a report that laid out these guidelines. But this is where the typo came in: The report initially said that Cantu's "base offense level" was a 34. But, by the end of the report — the part that contained the actual recommendation for sentencing — that number appeared as a 36.

The result? Cantu's sentence ended up being three and a half years longer.

Why only Obama could fix the typo

Cantu's lawyer never caught the typo. In fact, Cantu only caught the typo six years after he had been sentenced and reading through his own report.

Cantu then asked the judge to fix the problem. After all, if Cantu's lawyer hadn't caught the mistake, then he clearly hadn't had effective legal representation. But the judge couldn't agree to Cantu's request — it had been more than a year since sentencing, so the legal right to ask for a reduction had expired.

That's where the Obama administration comes in. The Constitution gives the president the ability to commute any federal sentence, regardless of how long ago the sentence had been passed.

Presidents typically use this power to fix substantial miscarriages of justice, or to bring older sentences in line with what the prisoners would get if they were convicted today. That's what happened last year, when Obama reduced the sentences of eight prisoners who were convicted under outdated laws for crack cocaine possession. But it also makes the president the only person who can fix an error if it's gone too long without being caught.

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