Free Motion for Departure - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 1482

Filed 03/13/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Criminal Action No. 04-cr-00103-REB UNITED STATES OF AMERICA, Plaintiff, v. 5. JANNICE McLAIN SCHMIDT, Defendant. ______________________________________________________________________________ MOTION FOR VARIANCE FROM GUIDELINE SENTENCE ______________________________________________________________________________

Defendant, Jannice McLain Schmidt, by her counsel Paula M. Ray, pursuant to 18 U.S.C. § 3553(a), moves for a variance from the sentencing guideline range as set forth in the latest Addendum to the Presentence Report as follows: 1. While it is Ms. Schmidt's position that she should be released from custody

forthwith, as more particularly set forth in the Sentencing Hearing Memorandum (DOC 1393) and Sentencing Statement RE: Conspiracy and Objections to the Presentence Addendum (DOC 1474), in the event this Court rules against Ms. Schmidt and finds that she should be sentenced to the 108 months imprisonment as recommended by the Addendum to the Presentence Report, Ms. Schmidt respectfully requests a Variance below the Guideline Range.

Case 1:04-cr-00103-REB

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2.

18 U.S.C. § 3553(a) lists several factors to be considered in sentencing to

include the history and characteristics of the defendant; adequate deterrence to criminal conduct; protection of the public from further crimes of the defendant; and the provision of medical care in the most effective manner. 3. The Guidelines are not mandatory, and they are only one of the many

factors to be considered in imposing a Federal sentence. See Gall v. United States, ____ U.S. ____, 128 S.Ct. 586, 602 (2007). 4. Moreover, the door is still open for a defendant to show that her sentence

would not have been upheld but for facts found by the sentencing judge and not a jury. Id. at 602-603 (J. Scalia concurring). Ms. Schmidt objects, on the basis of the Fifth and Sixth Amendments to the United States Constitution, to a finding by this Court outside that admitted by Ms. Schmidt in her Plea Agreement, since the Guideline range proposed by the Government relies on Judge found facts, not facts found by a jury or admitted by the defendant. See Id. 5. Ms. Schmidt is a 71 year old woman with many medical issues. Her ability

to receive adequate medical care in the custody of the Bureau of Prisons is jeopardized, and a great expense to the Government. 6. Ms. Schmidt played a minor role in the Ponzi scheme at issue in the case.

She was taken advantage of by her husband, who devised the Ponzi scheme. Her history is one of a naïve woman who had worked on her ex-husband's farm in Nebraska. She

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Case 1:04-cr-00103-REB

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was sheltered from criminal conduct in the small towns in which she lived by both the community and her ex-husband. She was taken in by Mr. Schmidt and she invested her life savings in the Ponzi scheme. As a result of this, she forfeited her farm to the Government. 7. There is no evidence that Ms. Schmidt would commit any additional crime

in the future. She led a crime free life prior to marrying Mr. Schmidt. The time she has already served has adequately deterred her from further criminal conduct. For the above reasons, Ms. Schmidt respectfully requests that this Court impose a sentence of twenty-four months, or time served.
DATED this 13th day of March, 2008. PAULA M. RAY, P.C.

s/ Paula M. Ray 1801 Broadway, Suite 1100 Denver, CO 80202-3839 Telephone: 303.292.0110 Email: [email protected]

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Case 1:04-cr-00103-REB

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CERTIFICE OF SERVICE I hereby certify that on this 13th day of March, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Peter Bornstein, Esq. [email protected] Thomas Hammond, Esq. [email protected] Declan J. O'Donnell, Esq. [email protected] Matthew T. Kirsch, Esq. [email protected] I have sent a copy via U.S. mail, postage prepaid to: Caryl Ricca Senior U.S. Probation Officer United States Probation Office 1929 Stout Street, Suite C-120 Denver, CO 80294-5424 Richard N. Stuckey, Esq. [email protected] Thomas Goodreid, Esq. [email protected] Ronald Gainor, Esq. [email protected]

s/ Paula M. Ray

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