Free Sentencing Memorandum - District Court of Arizona - Arizona

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Kent & Ryan, P.L.C.
LUHRS Tower 45 West Jefferson, Suite 206 Phoenix, Arizona 85003 (602) 277-8888 (Office) (602) 253-3105 (Fax) [email protected] Candace H. Kent, #013285

Attorneys for Defendant UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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) ) Plaintiff, ) ) vs. ) ) Michael Dewayne Smith, ) ) Defendant. ) __________________________________)

United States of America,

Case No: CR 2004-0677-001-PHX-FJM SENTENCING MEMORANDUM AND REQUEST FOR DOWNWARD DEPARTURE

Excludable delay under 18 U.S.C. section 3161 (h) may result from this Request. Defendant, Mr. Smith, by and through Undersigned Counsel, respectfully requests a downward departure. Mr. Smith currently faces a range of imprisonment of 12 to 18 months pursuant to the advisory Sentencing Guidelines. Mr. Smith asks that this Court grant his Request for a downward departure and reduce his offense level and place him on probation. And, as set forth below, there is substantial reason to do so.

I. Background: Mr. Smith's involvement in the charged criminal activity was aberrant, extremely short lived and was followed by cooperation and contrition. Mr. Smith asks this Court to take into consideration the following factors: 1. Mr. Smith is a Criminal History Category I. 2. Mr. Smith's criminal activity in this matter occurred over the span of merely two months in the year 2002, nearly 5 years ago. He has not been involved in any known criminal activity since that time and has only a single misdemeanor conviction in

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Municipal Court prior to that time period. 3. Mr. Smith eventually gave an incriminating statement to the authorities when questioned and was there after fully willing to cooperate with law enforcement. 4. Mr. Smith has fully accepted responsibility for his role in this offense. He regrets that he agreed to purchase the involved firearms for other individuals in exchange for monies at a time of financial need. However, there is no evidence that Mr. Smith had any involvement with these firearms beyond their purchase or had reason to know that they would be used in any specific illegal activity. 5. Mr. Smith has been employed at Marivillea Care Center for approximately one year now and is well liked and respected by his employer and fellow employees. Enjoying his work in this area, Mr. Smith hopes one day to operate his own janitorial service. 6. Mr. Smith is a loving father to his son Michael Smith, Jr. He shares joint custody of his son and assists with his care and support on a daily basis. Mr. Smith also has two other children, twin girls, with whom he has little contact. (The Presentence Report notes that Mr. Smith's mother did not verify the existence of the twins. Mr. Smith explains that his mother does not acknowledge her son as being the biological father of the girls though he believes he is their father.) 7. Mr. Smith did not graduate from high school but wishes at some point to continue with his education in order to support his family and even own his own business. In working toward that goal, Mr. Smith plans to obtain his GED from South Mountain Community College and to then take business classes. 8. Mr. Smith has been on Pretrial Services release in this matter for approximately nine months and has successfully complied with all release terms. 9. Mr. Smith is an active member of his church, AZUSA World Ministries, and has the support of his fellow members.

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10. Mr. Smith wishes the court to review and consider the letters written on his behalf by his friends, family and loved ones previously submitted to the court.

II. Basis for Downward Departure: Generally, the United States Guidelines provide the Court with the discretion to depart downward when the case falls outside the "heartland" of cases. 18 U.S.C. 3553(b)(2001);U.S.S.G.section 5K2.0;United States v. Koon, 518 U.S.81,92-93 (1996) (The "relevant question is...whether a particular factor is within the heartland given all the facts of the case."). Accepting those factors categorically excluded by the Sentencing Commission, "(t)he guidelines place no limit on the number of potential factors that may warrant a departure." Id. at 104 (quoting Burns v. United States, 501 U.S. 129, 136-137). Here, while the guidelines are only advisory, there are very strong reasons to depart downward. Given the entire circumstance of Mr. Smith's life and role in this offense, a period of probation would still fully reflect the seriousness of the offense, afford deterrence and serve the community by rehabilitating the Defendant and thus protect the public from future crimes. 1. Section 5K2.20 Aberrant Behavior A sentence below the applicable guideline range may be warranted in an extraordinary case if the Defendant's criminal conduct constituted aberrant behavior. Mr. Smith is a Criminal History Category I with only one contact with the criminal justice system prior to this incident and none in the subsequent five years. Mr. Smith's behavior falls squarely in the definition of aberrant as it was a single type of occurrence, was committed without significant planning, was of limited duration, and represents a marked deviation by the Defendant from an otherwise law-abiding life. See U.S.S.G. section 5K2.20, Application Note 1 (2002). Mr. Smith's case is textbook aberrancy. His conduct is truly "a single course of

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conduct" due to the limited nature of the conduct, just five transactions over just two months with virtually no planning on his part. In United States v. Takai, 941 F.2d 738 (9th Cir. 1991) the Court determined that the defendants, who were otherwise law-abiding people, engaged in efforts to obtain illegal green cards by bribing an INS official via a series of acts over an eight day period, but that the two crimes ­ the forming of the conspiracy and the offer of the money ­ constituted a single act for the purpose of deciding whether the conduct was aberrant. In Mr. Smith's case, the conduct occurred over a limited period of time with no significant planning on his part and with the limited motivation of obtaining money for his family and not for greed. Given his history, this conduct was an obvious marked deviation from his otherwise law-abiding life. It can be argued that a downward departure based on aberrancy is an attempt to predict the likelihood of future criminal conduct. Mr. Smith, at age 33, now has his first felony conviction. This conviction is for conduct that occurred nearly 5 years ago and for which he was honest and forthright with law enforcement at the time of the initial investigation. Despite being aware of the investigation, Mr. Smith did not flee. He stayed in the community to await his fate and has not engaged in illegal activity since. Instead, he has steadily worked and supported his family. Clearly, he has learned his lesson and will never appear before the court again. In that regard, his extraordinary acceptance of responsibility should also play a role in this Court's decision. United States v. Brown, 985 F.2d 478, 482-83 (9th Cir. 1993) (extraordinary acceptance of responsibility is a basis for departure). Accordingly, Mr. Smith's case is an exceptional one that would allow for a departure pursuant to Section 5K2.20. Indeed, a departure, under § 5K2.20 is warranted. 2. Section 5H1.6 Family ties and Responsibilities, and Community Ties This Court has the authority to depart downward under U.S.S.G. section 5H1.6 because of the "extraordinary" nature of the obligations arising from his family

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obligations. This is not to suggest that this factor alone in this case automatically provides such a basis. Rather, the Ninth Circuit Court of Appeals has expressly authorized the Court to look at several factors and depart downward, even when one factor alone does not warrant it. United States v. Takai, 941 F.2d 738 (9th Cir. 1991) (a combination of factors may be considered when determining downward departure for aberrant conduct); United States v. Fairless, 975 F.2d 664 (9th cir. 1992) (same). If this Court views the section 5K2.20-request above as being a "close call", the Court may look at all such factors that warrant a departure. In this case, such a review should convince the Court that Mr. Smith is deserving of a downward departure. In the case of Mr. Smith, his son is dependent on him financially and emotionally. He picks up his son everyday after school and tends to his needs such as assisting with homework and preparation of meals. It rests with Mr. Smith to provide a good male role model for his son. He shares custody of his child with the child's mother in order to accomplish this. He also tends to his son's spiritual needs by bringing him regularly to church and teaching him how to live life as a responsible, law abiding Christian. His presence, guidance and support will be clearly missed by his son and the rest of his family should he be incarcerated. Mr. Smith is quite close to his family and regrets his actions that have caused them pain and stress, especially as he has led nothing but an exemplary life in the aftermath of this aberrant conduct. As the court in United States vs. Cook, 938 F.2d 149, 153 (9th Cir. 1991) observed, "a unique combination of factors may constitute (a mitigating) `circumstance' justifying a downward departure. Such a departure may be appropriate when " `a court finds an atypical case,' one `where conduct significantly differs from the norm.' " Id. (quoting U.S.S.G. Ch. 1, Pt A Section 4(b)). Mr. Smith's case is not typical in any regards, and as such, it is appropriate to take his atypical circumstances into account and give them the relevancy they deserve in the form of a downward departure.

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III. 18 U.S.C. Section 3553: As this Court is aware, the Sentencing Guidelines are now only advisory to this Court in the aftermath of the recent United States Supreme Court decision in United States vs. Booker, 125 S. Ct. 738 (2005). Accordingly, as this court looks to 18 U.S.C. Section 3553 for guidance in sentencing Mr. Smith, the Defense asks this court to take into account all the above noted information. Specifically, the Defense asks the court to reflect on Mr. Smith's personal history and characteristics as encompassed in 3553 (a)(1) as well as the need for the sentence imposed to: (A) reflect the seriousness of the offense, to promote respect for the law and to provide a just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the Defendant; and (D) to provide the Defendant with needed future education or vocational training, medical care, or other correctional treatment in the most effective manner. The Defense submits that a sentence of probation does sufficiently reflect the seriousness of the offense while promoting respect for the law and providing a just punishment for this Defendant with his limited criminal history in light of the fact that the conduct occurred years ago and there has been no other such conduct. Similarly, there appears to be no need for incarceration of this Defendant to protect the community or to act as a deterrent. Mr. Smith has already clearly shown that he can be law-abiding and indeed wishes to remain law-abiding. Further, probation will allow Mr. Smith to continue with his education and allow him to better his financial situation for the sake of his family. Finally, the Defense asks this court to look to 3553(b) regarding the applicability of the guidelines to this particular case and to find that there are significant factors that the Guidelines do not adequately address. Accordingly, the Defense asks this court to

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exercise its discretion and to grant a reasonable downward departure. See 18 U.S.C. Section 3553(B) (departures for aberrant behavior are for mitigating circumstances "not adequately taken into consideration by the Sentencing Commission"); United States v. Green, 105 F.3d 1321 (9th Cir. 1997).

IV. Conclusion: For all the foregoing reasons, Mr. Smith asks this Court to place him on probation. RESPECTFULLY SUBMITTED this 8th day of February, 2007. Kent & Ryan, P.L.C. By: s/ Candace H. Kent Candace H. Kent 45 West Jefferson, Suite 206 Phoenix, Arizona 85003 Attorneys for the Defendant

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ELECTRONICALLY FILED on February 8, 2007.
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COPY of the forgoing E-Mailed this 8th day of February, 2007 to: Honorable Frederick J. Martone [email protected] COPY of the forgoing Mailed this 8th day of February, 2007 to: Mr. Carlos Valentine United States Probation Office 401 West Washington Street, Suite 160 SPC7 Phoenix, Arizona 85003 By: s/ Candace H. Kent Candace H. Kent

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