Breaking Down Tekashi 6ix9ine’s Two-Year Prison Sentence, As Told By Bobby Shmurda's Former Lawyer

STOCKHOLM, SWEDEN - SEPTEMBER 19: Takeshi 6ix9ine performs in concert at Hovet on September 19, 2018 in Stockholm, Sweden. (Photo by MICHAEL CAMPANELLA/Redferns)

Breaking Down Tekashi 6ix9ine’s Two-Year Prison Sentence, As Told By Bobby Shmurda's Former Lawyer

We spoke to defense attorney Kenneth Montgomery to learn the details of how Tekashi 6ix9ine’s lenient two-year prison sentencing actually came about.

Published December 19th

Written by Diamond Alexis

The long-awaited D-day for Tekashi 6ix9ine, real name Daniel Hernandez, finally arrived on Wednesday morning (Dec. 18), when the Brooklyn rapper stood before a judge to receive his sentencing on federal RICO charges in affiliation with the Nine Trey Blood gang. 

Judge Paul Engelmeyer handed down the lenient sentence of two years in prison and five years of supervised release following Tekashi’s highly-publicized cooperation agreement with prosecutors. As previously reported by The New York Times, Tekashi shared extensive information with federal prosecutors that helped them successfully prosecute several members of the Nine Trey Bloods and gain first-hand insight into the gang’s activity. In further exchange for Tekashi’s cooperation, prosecutors moved to recommend a sentence lower than the mandatory minimum.

Thus, the 23-year-old’s testimony liberated him from what could have been a life spent behind bars (as various sources reported the rapper was facing anywhere between 38-47 years). Although the case is a wrap, the mystery still lies as to how a defendant’s cooperation could lead a judge to shed over 40 years from a mandatory prison sentence. 

To help decipher the complexities of the judge’s ruling, BET.com spoke with criminal defense attorney Kenneth J. Montgomery, former lawyer of incarcerated Brooklyn rap star Bobby Shmurda and current lawyer defending famed hip-hop podcaster Taxstone. As a seasoned federal defense attorney with two of hip-hop’s highest-profile litigations tucked in his case files, Montgomery breaks down the intricate details of the cooperation agreement process.  

Daniel Hernandez, aka, Tekashi 69, aka 6ix9ine, appears at his arraignment in Manhattan Criminal Court on Wednesday, July 11, 2018. He was arrested earlier Wednesday on an assault warrant from Texas.  (Photo by Jefferson Siegel/NY Daily News via Getty Images)
(Photo: Jefferson Siegel/NY Daily News via Getty Images)

BET: Tekashi was sentenced to an incredibly lenient two years. Can you explain the process behind this decision from the judge?

Montgomery: A cooperation agreement allows a district judge to go under the mandatory minimum [sentencing] that a federal defendant is facing. That's the most important part of cooperation. When you get a 5k letter (a motion that a prosecutor gives to the court confirming that the defendant cooperated) from the government saying that you substantially assisted (gave information that aided in an investigation and led to prosecution)—and I don't think there's any dispute that Tekashi's cooperation and testimony at trial substantially-assisted the government—it allows the judge to go under the mandatory minimum.

There are other things that [the judge] has to consider, and those factors are what we call 3553-A factors, or sentencing factors: the background and character of the defendant, the nature of the crime(s), general and specific deterrent(s), the crime itself, etc. Then, you balance that out with the public policy nature of cooperation. In such a high-profile case that garnered so much attention, most federal judges are not going to hammer a cooperating defendant because it deters other people from cooperating. So, the judge is going to credit his cooperation because it was substantial assistance. 

I wasn't in that courtroom, but I'm sure if you listened to Judge Engelmayer's reason behind the sentence, what he was basically saying is that he looked at the cooperation and probably compared this crime to other crimes where RICO charges and cooperating defendants [were involved]. He probably sentenced him based on that. That's called avoiding sentencing disparity, so there were probably [previous cases involving cooperating defendants] who received similar sentences. That's how [I believe] he justified that sentence.


In a high-profile case such as this one, at what point does a criminal defense attorney urge their client to accept a plea deal, and on what basis? 

Ultimately, if your client has an opportunity to cooperate, that only happens two ways: your client [either] tells you they want to cooperate, or the government reaches out. I have no doubt that [in this case] once the government got their cooperator, they reached out. Remember that part of the narrative in the government's case was that [Hernandez] was kidnapped himself. I'm sure at one point, the prosecutors reached out to [Tekashi's] attorneys and asked if he would be interested in "coming in." That's how it usually goes. Under the law, as an attorney, once you're aware that the government has offered your client to come in, you have to give that opportunity to your client to make that decision. Then, it's a conversation that happens between the lawyer and the client. They'll discuss the pros and cons of it and if it would be beneficial or not.

Do you believe the judge was making an example out of Tekashi as far as his cooperation is concerned? 

I'm not so sure about that. At the end of the day, his fame helped him, and his cooperation helped him. So, would this deter other rappers from cooperating? Probably. We're in a very weird place as far as street culture goes because there are people who cooperate, and people know they cooperated. They come home and they resume what they were doing before they were arrested, and some even find legitimate jobs in the industry and other businesses.

I think it's a cautionary tale for young people in our society who are inundated and programmed to legitimize crime and dysfunction.

Are there any similarities in this case with that of Bobby’s or Taxstone’s, and could those similarities speak to how rap artists are typically handled in high-profile cases? 

I can speak to Bobby's case, which I worked on for a period of time. It was similar because he was very popular. In many regards, he wasn't as popular as Tekashi at the time, but they were certainly on their way. So, the popularity is very similar. Bobby and Rowdy's case might have started with a cooperator somewhere along the line. But it was a state case handled by a [Special Narcotics Prosecutor] who doesn't have the resources of the federal government. Their case was really a wiretap case and much more serious in the sense that there were bodies (murders) in the case. They also had videotape, which was similar [to Tekashi's case] in that regard. But, I think the comparisons stop there. I don't believe anyone in GS9 had cooperated with the government, so there's no similarities in that regard either.

I cannot comment on Daryl Campbell's [Taxstone's] case, because that is [currently] my client.

What are Tekashi’s chances of being released early (i.e. an appeal)?

He has no grounds to appeal because I'm sure the cooperation agreement included him waiving [that right]. The 13 months he's already served will definitely be factored into the two-year prison sentence. He will likely receive his good time credit (a sentence reduction for inmates who maintain good behavior in prison). After the time served, he'll probably have another six to seven months before he's released. I imagine it's possible he'll be released next summer.

(Photo: MICHAEL CAMPANELLA/Redferns)

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