Free Motion for Departure - District Court of Arizona - Arizona

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Attorney At Law 45 West Jefferson Suite 412 Phoenix, Arizona 85003 602/254-8861 Attorney for Defendant

RICHARD D. GIERLOFF, #6350

UNITED STATES DISTRICT COURT STATE OF ARIZONA, DISTRICT OF ARIZONA
UNITED STATES OF AMERICA, Plaintiff, vs.. ZERESH THORNBURG, et. al., Defendants. ) ) ) ) ) ) ) ) ) ) NO. CR04-1058-006-PHX-FJM SENTENCING MEMORANDUM AND MOTION FOR DOWNWARD DEPARTURE

The Defendant, Zeresh Thornburg, by and through counsel undersigned hereby respectfully presents her sentencing memorandum and requests for downward departure in connection with sentence to be imposed on March 20, 2006. The presentence report prepared by James W. Cook, Senior US Probation Officer does make note of the fact that Ms. Thornburg was a minor participant and recommends a two level reduction based upon that fact. Mr. Cook likewise

recommends a two level downward adjustment for acceptance of responsibility and he anticipates that the Government will move for an additional one level reduction based upon the timeliness of her cooperation. The Defendant agrees with these recommendations and respectfully requests that this court follow them and additionally requests further downward departure in the discretion of the court based on the following factors. A defendant's age is not ordinarily relevant in considering

downward departure (Section 5H1.1 (policy statement)). However, age, when combined with other factors may warrant the consideration of a downward departure. See United States v.

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Hildebrand, 152 F.3d 756 (8th Cir. 1998) (affirming downward departure for a 70 year old minor participant with life threatening health conditions). The defendant is not requesting a downward departure by this court based upon her health conditions although evidence was presented to the Presentence Writer that she suffers from Fibromyalgia, Bipolar disorder and has recently begun suffering seizures. However Ms. Thornburg does request that this court consider her age, she was only 18 at the time of these offenses, in combination with her utter lack of sophistication at the time of these crimes. United States v. Jagmohar, 909 F.2d 61, 65 (2nd Cir. 1990) but see United States v. Castro-Cervantes, 927 F.2d 1079, 1081 (9th Cir. 1990) (upward departure upheld because guidelines "do not take into account the sophistication of the robber"). The Presentence Report notes that the available evidence establishes co-defendants Gamble and Harris were the organizers and leaders of a series of seven bank robberies. These two individuals apparently recruited Mr. Green, with whom Ms. Thornburg had a social relationship. It is apparent that Mr. Green was able to inveigle Ms. Thornburg into participating as a driver in the robbery of the Compass Bank. Ms. Thornburg remains today a young and impressionable individual and was even more so at the time of these crime. As noted she was a mere 18 years of age at the time and her conduct suggests that she was an utterly unsophisticated individual who was easily swayed by Mr. Green. Ms. Thornburg's mother likewise notes as much as reported in the presentence report. At the time of her arrest, Ms. Thornburg was residing with her mother, which supplies this court with further evidence that even at age 20, Ms. Thornburg lacked the sophistication and skills to make her own way in the world. Finally, Ms. Thornburg respectfully requests that this court consider further downward departure based upon United States v. Udo, 963 F.2d 1318, 1319 (9th Cir. 1992) there, the Court was interpreting U.S.S.G. § 5K1.1 (substantial cooperation) and held that the court may depart more than the Government's recommendation once the Government makes the motion for downward departure. Here, it is anticipated that the Government will make only the more routine recommendation of a one level reduction based upon Ms. Thornburg's cooperation in timely advising the Government of her intention to plead guilty, based upon § 3E1.1(b). Ms. Thornburg can make no claim to substantial cooperation however, she respectfully requests that this court -2Filed 03/13/2006

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consider analogizing her situation, together with the other listed mitigating factors, and granting a greater downward adjustment than recommended by the Government. Therefore, based upon the foregoing, it is respectfully requested that this court exercise its discretion and depart downward to a level the court finds justified by the ends of justice. Respectfully submitted this 13th day of March, 2006

By /s/ Richard D. Gierloff Richard D. Gierloff, Attorney

The foregoing has been electronically filed this 13th day of March, 2006, with the United States District Court with copies forwarded to: The Honorable Frederick J. Martone Judge of the US District Court Kurt Altman United States Attorney 40 N. Central Avenue Suite 1200 Phoenix, Arizona 85004-4408 James W. Cook Senior U.S. Probation Officer Counsel for All Co-Defendants /s/ Richard D. Gierloff

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