Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

Case 3:03-cr-00241-JCH

Document 106

Filed 05/17/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA V. GARY AGNEW : : : May 17, 2005 CASE NO. 3:03CR241(JCH)

GOVERNMENT'S OPPOSITION TO DEFENDANT'S MOTION TO EXTEND SURRENDER DATE The government opposes the defendant's third request for extension of his surrender date, currently set for May 30, 2005. Defendant has failed to demonstrate a legitimate basis to further extend his surrender date and his motion should be denied. The defendant originally filed a motion for extension on February 18, 2005, claiming that due to his wife undergoing a spinal cervical fusion on January 19, 2005, he needed to be home to assist her with daily activities. The defendant also referenced his pending appeal on Blakely issues and possible remand. While the government did not oppose the initial request for a 30 day extension, as noted in the defendant's motion, the government opposed any additional extensions. The Court granted the defendant's motion and extended his surrender date to April 15, 2005. On March 22, 2005, the defendant submitted his second motion for extension of the surrender date based again on his wife's need for assistance with daily activities. The defendant also noted that the parties had filed a motion for remand for consideration of the need for resentencing in light of the Superme Court's decision in United States v. Booker, 125 S.Ct. 738 (2005), and the Court of Appeal's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). The defendant's motion noted the government's opposition to any further extensions.

Case 3:03-cr-00241-JCH

Document 106

Filed 05/17/2005

Page 2 of 4

The Court granted the motion and extended the defendant's surrender date yet another 30 days to May 30, 2005. Since the granting of the second motion for extension of the surrender date, the Second Circuit has remanded the case to the District Court for further consideration in light of Crosby. On May 6, 2005, the Court ordered the parties to brief the issues relating to Post-Crosby Proceedings on Remand by May 23, 2005.1 The government intends to file a brief requesting that, for the reasons to be cited in the government's memorandum, the Court determine that it would not have imposed a nontrivially different sentence and that the sentence imposed remain in effect. Relying on his wife's surgical fusion procedure of approximately four (4) months ago, the defendant seeks yet another 30 day extension of his surrender date. Other than a medical release from employment issued by his wife's doctor, the defendant submits no justification, medical or otherwise, for his claim. The defendant has failed to explain how his wife still needs his assistance for daily activities four months after the medical procedure. Nor has he submitted any medical support for the same. Even assuming his wife still requires assistance with daily activities, he has failed to explain how he is the only available source for such support to his wife. See United States v. Smith, 331 F.3d 292, 294 (2d Cir. 2003) (reversing family circumstances departure where defendant was not the sole care giver or financial supporter of his 2 year old son); see also United States v. Reyes-Rodriguez, 344 F.3d 1071, 1075 (10th Cir. 2003) (departure not warranted where defendant could not establish that the care and support he was to
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While the Government does not believe a hearing is necessary, if the Court is inclined to have a hearing on the sentencing issue, the Government respectfully requests that it be held prior to May 30th so that the defendant can be directed to surrender on that date. 2

Case 3:03-cr-00241-JCH

Document 106

Filed 05/17/2005

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provide his parents, living in impoverished area of Mexico, was so unique that it could not be provided by siblings). The defendant's successive requests are simply an attempt to delay his surrender date and his continued denial of acceptance of responsibility. In fact, the Government has learned that the defendant has recently represented to United States Postal Service staff that his sentence will be vacated and/or significantly reduced. His post-conviction claims for back pay, based on the Postal Service's failure to return him to work at a time when he claimed to be totally disabled, is further evidence of the defendant's lack of acceptance of responsibility. The defendant has no valid basis for bond pending appeal2 and his successive motions for extension of his surrender date are devoid of merit. Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY MARIA A. KAHN ASSISTANT UNITED STATES ATTORNEY FEDERAL BAR NUMBER ct06573 /s/ KRISHNA R. PATEL ASSISTANT UNITED STATES ATTORNEY FEDERAL BAR NUMBER ct24433
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As the government noted in its Supplemental Sentencing Memorandum, dated December 3, 2004, the defendant has not sought and there is no legitimate basis for bond pending appeal. Apart from a challenge to the sentence imposed under Blakely, which has been resolved by the Supreme Court's decision in Booker, the defendant has not and cannot identify a single substantial issue of law or fact that is likely to result in reversal. The defendant filed post trial motions raising numerous claims, including sufficiency of the evidence, and those were appropriately denied by this Court. Indeed, the evidence of guilt in this case was overwhelming given the lengthy visual and video surveillance, undercover audio recordings and testimonial evidence. 3

Case 3:03-cr-00241-JCH

Document 106

Filed 05/17/2005

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United States Attorney's Office 157 Church Street New Haven, Connecticut 06510 (203) 821-3700 CERTIFICATION OF SERVICE This is to certify that the within and foregoing has been sent by fax and mail, this day of May 2005, to: Cheryl E. Heffernan, Esq. Law Office of Cheryl E. Heffernan 2842 Old Dixwell Avenue Hamden, CT 06518-3100 Joseph Zampano, USPO United States Probation Office Room 211 915 Lafayette Blvd. Bridgeport, Ct. 06604 /s/ KRISHNA R. PATEL ASSISTANT UNITED STATES ATTORNEY

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