Free Sentencing Memorandum - District Court of Arizona - Arizona

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LAW OFFICES OF SIPE & LANE, PLC 637 South 48th Street, Suite 201 Tempe, AZ 85281 480-776-5757- Telephone 480-776-5758- Facsimiile JAMES HANKEY #016526 Attorney for Defendant IN THE UNITED STATES DISTRICT COURT,

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DISTRICT OF ARIZONA, PHOENIX
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UNITED STATES OF AMERICA,
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Case No.: CR00-44-1-PHX-ROS SENTENCING MEMORANDUM

Plaintiff,
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vs.
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HOA THI TUYET LE,
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Defendant

The Defendant, HOA THI TUYET LE, by and through undersigned counsel, respectfully requests that this Court sentence her for her probation violation to no more than ten to twelve months in federal custody. At the original sentencing, on October 2, 2000, the Court found that a sentence at level 9, four to ten months was appropriate. (Transcript, page 14, lines 19-22). The Probation Office report by Probation Officer Neil Graber acknowledges that tragic circumstances have dogged Ms. Le throughout the period of her probation, but finds no mitigation and recommends that Ms. Le be sentenced to the maximum possible term. Mr. Graber is simply incorrect in not finding mitigation in this case.

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In support of his failure to find mitigation, Mr. Graber cites a pleading by Ms. Le from 2000 in which she sought permission to not notify her employer of her felony conviction. Mr. Graber claims that similar arguments were made then to arguments being made now, through Counsel. Apparently that request was denied, so it is hard to see any manner in which Ms. Le

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has received any benefit from this Court from those arguments. Additionally, not all the
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arguments are the same. Much more can and is being said now to point to mitigation than has
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ever been presented on behalf of Ms. Le in the past. If mitigation cannot be found in Ms. Le s case, it is hard to imagine any case in which mitigation would be found. Much of the tragedy in Ms. Le s life happened prior to her initial sentencing, but significant other problems have arisen in her life since sentencing. In 1992, her best friend was shot and killed by the friend s husband. The husband was best friends with Ms. Le s husband, so both Ms. Le and her husband suffered from terrible shock and depression over that situation. Also in 1992, Ms. Le was treated for breast cancer. In 1993, her husband suffered a debilitating stroke. In 1994, Ms. Le s cancer returned and she underwent a hysterectomy. That same year, Ms. Le s mother fell and broke her skull, and died after lingering in pain for several months. These are the mitigation factors previously presented to the Court.

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After sentencing, Ms. Le was fired from the job she had been holding at the time and she
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had a very tough time finding an employer who would give her a chance. Finally, Pegasus
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Construction gave Ms. Le a chance, and she did well on probation during all the time that Ms. Le worked for Pegasus. Unfortunately, Pegasus hit hard times and had to lay off Ms. Le, but the company promised to re-hire her in the future if it ever became possible to do so.

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Ms. Le returned to job searching, and suffered numerous rejections -- all of which were due to her felony conviction. In desperation, she concealed her felony from Holl- Wenn Construction a job Ms. Le considered to be a temporary job until Pegasus could re-hire her.

At about that same time Ms. Le was contacted by her brother-in-law from Belgium, with the news that Ms. Le s mother-in-law was very sick. In the call, Ms. Le s brother-in-law asked

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whether Ms. Le and her husband could help with money. In the culture in which Ms. Le was
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raised, an oldest son simply does not seek help from siblings, so for Ms. Le s brother-in-law to
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seek help from herself and her husband, it was clear to Ms. Le that the need was very real and very great. Additionally, because of her hysterectomy, and because of the way that children are viewed in Ms. Le s culture she has felt like she has not been a good wife to her husband. He has always tried to assure her that he loves her and is happy with her, but she has been in the grip of a very strong cultural bias that tells her that she is less than a woman and, therefore, must be less than a wife. Because of this mind set, she would do anything for her husband, and it became an imperative for her to find money to send to her husband s brother and mother. Obviously, Ms. Le s husband did not want her to commit a new crime, and he would have said so if she d asked. But Ms. Le internalized her problem, did not tell her husband what

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she intended, and she sent money earmarked for bills to Belgium, and later took money from
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Holl-Wen construction in order to replace the bill-money that had been sent overseas.
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Nothing mentioned in this memorandum excuses Ms. Le s criminal behavior and probation violation. But it most emphatically is despite what the Probation Officer says mitigation. This case is in an entirely different class from a case involving theft for personal enrichment, and it should be handled accordingly.

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The defense also requests that this Court consider the issue of notice to the defendant, in determining the appropriate sentence. The Court required the defense to secure a transcript of the sentencing because of the language contained in the transcript that if Ms. Le was brought before the Court a second time she would receive the maximum sentence. The problem with the notice given Ms. Le at her original sentencing, however, is that at no point in the original

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sentencing was Ms. Le informed of what the maximum sentence could have been. She actually
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was told that an appropriate sentence would be between four and ten months.
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Without having been told that the maximum sentence would be eighteen months, Ms. Le would have understood that the maximum sentence would be ten months. Or, more likely, she only understood that returning to this Court would result in a sentence that she would find very, very unpleasant. A sentence does not have to be eighteen months for that promise to be kept. Ms. Le would find a sentence of ten months or a year to be very, very unpleasant she understands that such a sentence is no more than she deserves. The United States Supreme Court long ago set out the rule that a sentence may not be increased as a result of a probation violation. Roberts v. United States, 320 U.S. 264, 54 S.CT. 113, 88 L.Ed. 41 (1943). On the other hand, as the Probation Office presentence report points out, under § 7B1.4, a downward departure may be adjusted back upward for a probation even while

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violation. In the instant case, however, there is no compelling reason to delete the downward
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departure and many reasons to leave that departure in place.
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The commission of a subsequent crime does not retroactively make Ms. Le s first crime not aberrant behavior. If it had come to light that Ms. Le had misrepresented her history and it turned out that she had committed a crime of theft prior to her original sentencing in this Court, then it would be perfectly understandable for the Court to take the position that the crime did not present aberrant behavior. Subsequent behavior, however, no matter how similar to the

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sentencing crime, does not make the original crime less aberrant. The first crime was aberrant
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behavior at the time it was committed.
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The probation violation was the result of similar behavior and one would not today claim aberrant behavior for that crime, but that crime cannot possibly retroactively make the first crime not aberrant behavior. The defense is not arguing that Ms. Le s probation violation deserves no punishment. There is, however, a middle ground between no punishment and the maximum possible punishment. There is a considerable amount of mitigation in this case, and damage to the victim will have been completely ameliorated by the time she is sentenced in Maricopa County Superior Court. She should be sentenced to a term of ten months to a year to balance the Court s need to punish her criminal behavior against the mitigation presented in her case. Accordingly, the Defendant, HOA THI TUYET LE, by and through undersigned counsel, respectfully requests

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that this Court set her confinement period at ten-to-twelve months.
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JAMES HANKEY Attorney for Defendant

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COPY OF THE FOREGOING mailed/delivered this 10th day of October 2005 to, Sandra Day O Connor U.S. Courthouse 401 W. Washington St. Suite 130, SPC 1 Phoenix, AZ 85003-2118 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, AZ 85004-4408

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