Free Sentencing Memorandum - District Court of Arizona - Arizona

Carmen L. Fischer Attorney at Law 2 SBN #009975
1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
Luhrs Tow er - Suite 403 45 W est Jefferson Street Phoenix, A Z 85003-2314 (602) 252-1282 A ttorney for D efendant Joseph Patrick Sm ith, III

UNITED STATES OF AMERICA DISTRICT OF ARIZONA ) ) Plaintiff, ) ) v. ) ) JOSEPH PATRICK SMITH, III, ) ) Defendant. ) ____________________________________) UNITED STATES OF AMERICA, CR04-162-PHX-SRB SENTENCING MEMORANDUM

Joseph Patrick Smith, III submits this memorandum in support of his request that he be placed on probation. Since the guidelines are now advisory, the court is to consider all the sentencing factors set forth in 18 U.S.C. Section 3553. United States v. Booker, U.S. , 125 S.Ct. 738 (2005).

(a) Factors to be considered in imposing a sentence.--The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider-(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed-(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide 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 educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available;

27

(4) the kinds of sentence and the sentencing range established for­
28
C a rm e n L . F is ch e r L u h rs To w e r, S u ite 4 0 3 45 W . Jefferson Street Phoenix, Arizona 85003 (602) 252-1282

Case 2:04-cr-00162-SRB

Document 104 1 Filed 09/09/2005

Page 1 of 4

1 2 3

(5) any pertinent policy statement-(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense.

4

18 U.S.C. §3553
5

A grant of probation is sufficient to comply with the purposes set forth in 18 U.S.C. §3553.
6

A grant of probation will reflect the seriousness of Mr. Smith's offense, promote respect for
7

the law, and provide just punishment for the offense Mr. Smith committed.
8

The nature and circumstances of the offense and the history and characteristics of Mr. Smith.
9

Nature and circumstances of the offense.
10

Mr. Smith plead guilty conspiracy to commit fraud involving aircraft parts. In 1992, Mr.
11

Smith's father, Joseph Patrick Smith Jr., was convicted and was sentenced to fifteen months with the
12

Bureau of Prisons for selling used aircraft parts as new. After his release from prison, the father
13

opened Smyth Aerospace Manufacturing Ltd. in Ireland and his sons, Joseph Patrick Smith III and
14

Thomas Smith joined him. The government is in the process of extraditing the father from Ireland for
15

prosecution in this case.
16

History and Characteristics of Mr. Smith
17

Mr. Smith is forty-four years old and this is his first felony conviction. Once Mr. Smith was
18

made aware that the indictment in this case was pending against him, he hired counsel and made
19

arrangements to return to the United States from Ireland.
20

Once Mr. Smith returned from Ireland, his life spiraled downward when he began using crack
21

cocaine. Mr. Smith developed a ferocious addiction to crack cocaine which he readily admitted during
22

his presentence interview. The addiction was so strong that after he was released from custody to await
23

placement at Recovery Homes, he kept using crack cocaine and simply waited at his apartment for the
24

United States Marshals to pick him up, which they did.
25

Mr. Smith physically kicked his crack cocaine addition during his time in CCA awaiting
26

placement at Recovery Homes.
27

Although Mr. Smith has dabbled with drugs most of his adult life, he has never received any
28
C a rm e n L . F is ch e r L u h rs To w e r, S u ite 4 0 3 45 W . Jefferson Street Phoenix, Arizona 85003 (602) 252-1282

Case 2:04-cr-00162-SRB

Document 104 2 Filed 09/09/2005

Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
C a rm e n L . F is ch e r L u h rs To w e r, S u ite 4 0 3 45 W . Jefferson Street Phoenix, Arizona 85003 (602) 252-1282

counseling for his addiction. In fact, some of the government's discovery indicates that Mr. Smith's parents moved Mr. Smith and his brother, Thomas, to Ireland to get them away from cocaine. While in Recovery Homes, Mr. Smith has made great steps in understanding and addressing his addiction. He is also taking the appropriate steps to address the state court legal problems which arose as a result of his possessing crack cocaine. To provide the defendant with needed treatment in the most effective manner. A grant of probation will provide Mr. Smith with the drug treatment he needs in the most effective manner. He is doing well at Recovery Homes and placing him on probation will permit him to remain at Recovery Homes and complete the drug treatment program and attend follow-up treatment. Guideline sentence range. As detailed in Mr. Smith's Objection to the Presentence Report, he believes that the appropriate guideline offense level is 12 and that he falls within Criminal History Category I. Thus, the guideline range is in Zone C and the range is 10 to 16 months. If his objection is not granted, the offense level will be 13 and the guideline range will be in Zone D and the range will be 12 to 18 months. (¶84 & 88) The change in the guidelines in 1998 increased Mr. Smith's offense level. §1B1.11 instructs that the guideline manual in effect on the sentencing date should be used unless it would violate the ex post facto clause. Mr. Smith's offense occurred from July 1998 through October 2000. See Plea Agreement, p. 1: 18-21. Application note 2 to §1B1.11 requires that the 1998 guideline manual be used in determining Mr. Smith's offense level. As a result, the 1998 guidelines manual increased Mr. Smith's offense level by two levels as illustrated below. Guideline Manual Base Offense Level Loss of $37,222 More than minimal planning November 1, 1997 6 4 2 November 1, 1998 (¶45) 6 4 2

Case 2:04-cr-00162-SRB

Document 104 3 Filed 09/09/2005

Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
C a rm e n L . F is ch e r L u h rs To w e r, S u ite 4 0 3 45 W . Jefferson Street Phoenix, Arizona 85003 (602) 252-1282

Substantial part of fraud committed outside U.S. Conscious disregard or reckless risk of serious bodily injury (See objection) Adjusted Offense Level

-0-

2

2

2

14

16

The need to provide restitution to any victims of the offense. Placing Mr. Smith on probation and assisting him to remain free of drugs will help result in providing restitution to the victims of this offense. On probation Mr. Smith can be gainfully employed and making restitution payments. Conclusion: Mr. Smith requests that this court place him on probation. Respectfully submitted this 9th day of September, 2005.

/s/ CARMEN L. FISCHER Attorney for Defendant

Case 2:04-cr-00162-SRB

Document 104 4 Filed 09/09/2005

Page 4 of 4