Free Motion for Departure - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 1614

Filed 06/18/2008

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IN THE UNITED STATES DISTRICT COURT F0R THE DISTRICT OF COLORADO Criminal Case No. 04-cr-00103-REB UNITED STATES OF AMERICA, Plaintiff, v. 2. GEORGE ALAN WEED Defendant. ________________________________________________________________________ DEFENDANT WEED'S MOTION FOR VARIANCE FROM GUIDELINE SENTENCE ________________________________________________________________________ Defendant George Alan Weed, through counsel, moves, pursuant to 18 U.S.C. § 3553(a) for a variance below the Sentencing Guidelines range, for the reasons set forth below. Section 3553(a) elucidates a number of factors to be considered by the Court when imposing sentence on a defendant. These include: the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence adequately to deter criminal conduct and to protect the public from further crimes of the defendant; and the need to provide the defendant with needed medical care. All §3553 factors must be weighed by the Court because the Federal Sentencing Guidelines are advisory and not mandatory. United States v. Booker, 543 U.S. 220 (2005). Moreover, extraordinary circumstances are not required to justify imposing a sentence that is outside the advisory Guidelines range. Gall v. United States, 128 S. Ct. 586, 595 (2007).

Case 1:04-cr-00103-REB

Document 1614

Filed 06/18/2008

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Mr. Weed is a 72 year old man with significant medical issues. He suffers, inter alia, from a dead left kidney and renal cysts on the right kidney, which also may be failing; type II diabetes mellitus; partial paralysis in his legs and spinal pain, and a hole in his left retina that eventually will require surgery. All of these conditions will require ongoing treatment and care, which the BOP may or may not be able to provide, but even if it can, the care burden assumed would be both heavy and unnecessary. Of course, the Guidelines traditionally have disfavored health and age as sentencing factors, as reflected in §§ 5H1.1 and 5H1.4. However, in the aftermath of Gall and Kimbrough, 1 "[a] factor's disfavor by the Guidelines . . . no longer excludes it from consideration under § 3553(a)." United States v. Munoz-Nava, 524 F.3d 1137, 1148 n. 6 (10th Cir. May, 2008). Moreover, even the aforecited sections of the Guidelines themselves provide that age and health sometimes should weigh in on whether a defendant receives sentence outside the applicable Guideline range. To wit, Section 5H1.1 states, in relevant part, that "[a]ge may be a reason to impose a sentence below the applicable guideline range when the defendant is elderly and infirm and where a punishment such as home confinement might be equally efficient as and less costly than incarceration." Moreover, section 5H1.4 provides, in relevant part, "an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment." Mr. Weed therefore respectfully submits that, given his age and variety of medical ailments (especially his kidney problems), he more appropriately should be sentenced to home

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Kimbrough v. United States, 128 S. Ct. 558 (2007).

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Case 1:04-cr-00103-REB

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detention or, at most, to a term of imprisonment significantly less than that recommended by the Guidelines. As for other factors that the Court must consider under 18 U.S.C. § 3553(a), Mr. Weed does not pose a threat to the public. Other than the instant case, wherein he was not convicted on 28 of the 31 charges brought against him, Mr. Weed has no criminal history. In the more than four years that Mr. Weed has been on pre-trial and post-trial release from this Court, he has committed no violations of his release conditions. As such, the likelihood of recidivism by Mr. Weed would seem quite remote in the event that he were sentenced to home detention or even to a term of imprisonment substantially less than that recommended by the Guidelines, such that he reasonably could be expected to survive his sentence and then live again in society. As such, Mr. Weed asks that this Court impose a sentence on him that is substantially below that recommended by the advisory Guidelines, either in the form of home detention or of a significantly reduced term of imprisonment. Dated this 18th day of June, 2008. Respectfully submitted,

s/Thomas E. Goodreid Thomas E. Goodreid 1801 Broadway, Suite 1100 Denver, CO 80202 Telephone: (303) 292-0110 Fax: (303) 292-0522 E-Mail: [email protected] Attorney for Defendant George Alan Weed

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Case 1:04-cr-00103-REB

Document 1614

Filed 06/18/2008

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CERTIFICATE OF SERVICE I certify that on 18 June 200, I electronically filed the foregoing DEFENDANT WEED'S MOTION FOR VARIANCE FROM GUIDELINE SENTENCE with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: [email protected] (Thomas J. Hammond) [email protected] (Richard Stuckey) [email protected] (Mathew T. Kirsch) [email protected] (Wyatt B. Angelo) [email protected] Richard Kornfeld [email protected] (Peter R. Bornstein) [email protected] (Jonathan S. Willett) [email protected] (Paula Ray) [email protected] (Mitchell Baker)

s/Thomas E. Goodreid Thomas E. Goodreid 1801 Broadway, Suite 1100 Denver, CO 80202 Telephone: (303) 292-0110 Fax: (303) 292-0522 E-Mail: [email protected] Attorney for Defendant George Alan Weed

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