Judge Zagel has said he will hand down Blagojevich's prison sentence on Wednesday, the second day of the two-day sentencing hearing.
Judge Zagel has guidelines in the sentencing, but the length of time is up to his discretion. Prosecutors have asked for a 15 to 20 year sentence, but Blagojevich's defense attorneys argue that he should get a "compassionate" sentence given his public ridicule and financial costs.
Blagojevich's own statement could play a part in the sentence. He has yet to address Judge Zagel, but is expected to do so at some point on Tuesday. Legal experts are curious as to whether Blagojevich, who has maintained his innocence since his 2008 arrest, will admit some guilt and show remorse.
During the sentencing hearing on Tuesday, Judge Zagel said, "It should be noted that I agree with the government and the defense for that matter that the guideline that is correctly computed for this of 30 years to life is simply not appropriate given the facts of this case."
Judge Zagel made that statement after listening to both the defense and government. At issue: the severity of punishment within the guidelines presented, dependent on Blagojevich's role in the crime, i.e. if he was a "leader."
Defense attorneys said Tuesday with the same argument they had during the first and second trial. Defense attorney Carolyn Gurland said, "Mr. Blagojevich received nothing , and was going to receive nothing."
She argued that the government did not show "specific, reliable figures," and that the talk was "fundraising requests, not illegal bribes and threats on their own."
Gurland said that if Blagojevich were the leader of the conspiracy, "there would have been a Senate seat appointment."
Prosecutors presented their side next. Attorney Reid Schar said, "The fact that he was asking people around him how to participate in a criminal activity doesn't make him any less of a leader organizer. He was the only one who stood to benefit."
After hearing both arguments, Judge Zagel said, "In fact, the governor of Illinois had a significant power to inflict penalties on those who did not pay. . . His role of a leader is clearly shown by his actions, not just by his badge of office."
Referring to conversations recorded by the FBI during the Blagojevich investigation, Judge Zagel said, "Frankly I don't think - based on those tapes, that he was an easy man to stop. His tone was very demanding."
Blagojevich silent before sentencing
The usually talkative Blagojevich, who is just days shy of his 55, did not make a statement outside his home and entered the federal courthouse through a basement door Tuesday on the first day of the former governor's sentencing hearing.
Blagojevich said little outside his Ravenswood Manor home on Tuesday as he left for the federal courthouse with wife, Patti. Blagojevich, a big Chicago Cubs fan, answered only questions about the election of legendary Cub Ron Santo to the Hall of Fame.
"God bless him, I'm so happy to see he made it in to the Hall of Fame," Blagojevich said. "Long overdue."
Blagojevich was found guilty on 18 corruption counts, including trying to sell a U.S. Senate seat to the highest bidder, in two separate trials.