UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
SHERMAN DIVISION
 _____________________________________________________________________

DEFENDANT’S REQUEST FOR A MINIMUM SENTENCE PURSUANT TO
18 U.S.C. SECTION 3553(a) FACTORS &
MOTION FOR DOWNWARD DEPARTURE PURSUANT TO U.S.S.G 5K2.0

I. PRINCIPLES OF SENTENCING POST- BOOKER

In Booker, the Supreme Court held that Blakely v. Washington applied to the federal sentencing guidelines, and that the Sixth Amendment’s jury trial guarantee prevented judges from finding facts that exposed a defendant to increased prison time. As a remedy, a different majority of the Court excised the provision of the Sentencing Reform Act that made the guidelines mandatory, 18 U.S.C. § 3553(b). The remedial majority held that district courts must still consider the guideline range, 18 U.S.C. § 3553(a)(4) & (5), but must also consider the other directives set forth in § 3553(a). Thus, under Booker, courts must treat the guidelines as just one of a number of sentencing factors.

Section 3553(a) requires courts to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph 2.” Section 3553(a)(2) states that such purposes are:

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

Section 3553(a) further directs sentencing courts to consider (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (3) the kinds of sentences available; (6) the need to avoid unwanted sentencing disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense.

The directives of Booker and § 3553(a) make clear that courts may no longer uncritically apply the guidelines and, as one court suggested, “only depart . . . in unusual cases for clearly identified and persuasive reasons.” United States v. Wilson, Case No. 2:03-CR-0082, 2005 L 78552, at *1 (D. Utah Jan. 13, 2005). The approach espoused in Wilson is consistent with the holdings of the merits majority in Booker rejecting mandatory guideline sentences based on judicial fact-finding and the remedial majority in Booker directing courts to consider all of the § 3353(a) factors, many of which the guidelines either reject or ignore. For example, under § 3553(a)(1) a sentencing court must consider the “history and characteristics of the defendant.” But under the guidelines, courts are generally forbidden to consider the defendant’s age, U.S.S.G. § 5H1.1, his education and vocational skills, §5H1.2, his mental and emotional condition, §5H1.3, his physical condition including drug or alcohol dependence, §5H1.4, his employment record, §5H1.5, his family ties and responsibilities, §5H1.6, his socio-economic status, §5H1.10, his civic and military contributions, §5H1.11, and his lack of guidance as a youth, §5H1.12. The guidelines’ prohibition of considering thee factors cannot be squared with the §3553(a)(1) requirement that the court evaluate the “history and characteristics” of the defendant. The only aspect of a defendant’s history that the guidelines permit courts to consider is criminal history. Thus, in cases in which a defendant’s history and character are positive, consideration of all of the §3553(a) factors might call for a sentence outside the guideline range.

Further, §3553(a)(2)(D) requires a sentencing court to evaluate the need to provide the defendant with education, training, treatment or medical care in the most effective manner. This directive might conflict with the guidelines, which in most cases offer only prison. See U.S.S.G. §5C1.1 (describing limited circumstances in which court can impose sentence other than imprisonment). In some cases, a defendant’s educational, treatment or medical needs may be better served by a sentence which permits the offender to remain in the community.

In addition, §3553(a)(7) directs courts to consider “the need to provide restitution to any victims of the offense.” In many cases, imposing a sentence of no or only a short period of imprisonment will best accomplish this goal by allowing the defendant to work and pay back the victim. The guidelines do not account for this. In fact, the mandatory guideline regimes forbid departures to facilitate restitution. United States v. Seacott, 15 F.3d 1380, 1388-89 (7 th Cir. 1994).

Finally, in some cases the guidelines will clash with §3553(a)’s primary directive: to “impose a sentence sufficient, but not greater than necessary to comply with the purposes” of sentencing.

In sum, in every case, courts must now consider all of the §3553(a) factors, not just the guidelines. And where the guidelines conflict with other factors set forth in §3553(a) courts will have to resolve the conflicts.

Some have suggested that due to the Commission’s expertise and experience developed over the years it is appropriate to afford their work “heavy weight.” Wilson, 2005 WL 78552, at *1. While it is clear that the Commission has collected a great deal of data over the years and studied sentencing practices, it is not clear whether the courts should continue to use the old “departure” methodology when imposing a sentence outside the advisory guideline range. One could certainly argue that because the guidelines are no longer binding the courts should no longer feel compelled to justify a sentence outside of them by citing factors that take the case outside the “heartland.” Rather, courts are now free to disagree, in individual cases and in the exercise of discretion, with the actual range proposed by the guidelines, so long as that the ultimate sentence is reasonable and carefully supported by reasons tied to the §3553(a) factors.

Sentencing will be harder now than it was prior to Booker. District courts cannot just add up figures and pick a number within a narrow range. Rather, they must consider all of the applicable factors, listen carefully to defense and government counsel, and sentence the person before them as an individual. Booker is not as an invitation to do business as unusual.

In the present case, after carefully considering all of the evidence and applying all of the §3553(a) factors, Defendant Doe respectfully requests that this Court impose a probated sentence or, in the alternative, a minimum term of home detention. Such a sentence would be sufficient, but not greater than necessary, to satisfy the purposes of sentencing.

II. APPLICATION OF PRINCIPLES

Defendant Doe is a dedicated husband and a loving father of two children, ages 14 and 15 years old. The fourteen year old son, Joh Doe, Jr., is from a previous marriage that ended when Mr. Doe’s wife died of lupus in 1998. The fifteen year old boy, De Marcus Doe, is Mr. Doe’s stepson. Mr. Doe has also been very much involved in the community, having coached and organized a number of Pee-Wee football teams, and sponsored various cheerleading teams. A number of character letters have been submitted to the court regarding Mr. Doe’s community service and standing in the community. Mr. Doe was a solid employee for the City of Plano for over 20 years, and he has absolutely no prior criminal history.

Under § 3553(a) and the decisions of the Supreme Court, a sentencing court may properly consider a defendant’s motive. Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993) (stating that “the defendant’s motive for committing the offense is one important factor”). In the present case, Defendant Doe was not motivated to line his own pockets or purchase extravagant luxury items. He was motivated to raise additional money which he could invest in the football and cheerleading team. This is significant because the guid elines treat a person who steals $100,000 to finance a lavish lifestyle the same as someone who steals the same amount to pay for an operation for a sick child. It is true that from the victim’s perspective the loss is the same no matter why it occurred. But from the standpoint of personal culpability, there is a significant difference. See United States v. Emmenegger, 329 F. Supp. 2d 416, 427-28 )S.D.N.Y. 2004) (“Were less emphasis placed on the overly-rigid loss table, the identification of different types of fraud or theft offenses of greater or lesser moral culpability or danger to society would perhaps assume greater significance in assessing the seriousness of different frauds.”). In the present case, Defendant Doe did not lead a lavish lifestyle. The financial condition portion of the Pre-Sentence Report paints a picture of a modest lifestyle and a net worth of less than $150,000. It should also be noted that Mr. Doe’s conviction has had a significant collateral effect on him, as a felony conviction will likely preclude him from working for the City of Plano again.

When evaluating all of the facts and circumstances, it is difficult, if not impossible, to conclude that Mr. Doe is a danger to society or that he is likely to reoffend. It is also doubtful that a prison sentence, as opposed to probation or a period of home confinement, would provide additional value as a deterrent or promote respect for the law. Finally, while not binding on the Court, it should also be noted that Mr. Finn and Assistant United States Attorney Elliot Ness agreed that an appropriate sentence in this case would be in the 10-16 months range provided for by an adjusted offense level of 12. This agreement is evidenced by language contained in the Plea Agreement.

III. MOTION FOR DOWNWARD DEPARTURE PURSUANT TO U.S.S.G. SECTION 5K2.0

Finally, to the extent that the Court holds that the old “departure” language survived Booker, the Defendant, in an abundance of caution, respectfully requests that the Court depart downward, pursuant to U.S.S.G. Section 5K2.0. Defendant makes this request because, for the reasons stated earlier herein, his characteristics and behavior fall outside of the “heartland” of offenders committing such an offense.

Respectfully submitted,

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been sent to all parties of record, via fax and regular U.S. mail, as identified below, on April 21, 2006.

David Finn

Many judges have criticized the guid elines not only for their inflexibility, for also for their unnecessary harshness in many cases. See, e.g,, Rhonda McMillion, “ABA Supports Push to Restore Judicial Discretion in Sentencing,” 90 A.B.A.J. 62 (Jan. 2004) (noting speech by Justice Anthony M. Kennedy stating that “prison sentences are too long, mandatory minimum sentences should be repealed, and sentencing guid elines should be reconsidered”); Gina Holland, “Justice Applauds Bucking Sentencing Law,” at http://news.findlaw.com (Mar. 17, 2004) (quoting Justice Kennedy’s statement that courts should not have to “follow, blindly, these unjust guidelines”).

Further, some courts of appeals prohibited downward departures on the basis of the defendant’s not acting for personal gain. See United States v. Corry, 206 F.3d 748, 750-51(7 th Cir. 2000).