Free Sentencing Memorandum - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 District of Arizona 3 850 W. Adams Street, Ste. 201 Phoenix, Arizona 85007 4 Telephone: (602) 382-2729 5 JANE L. McCLELLAN AZ State Bar No. #015902 6 Asst. Federal Public Defender [email protected] 7 Attorney for Defendant 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Defendant Timothy Wayne Isabell, by and through undersigned counsel, hereby submits the following sentencing memorandum and motion for downward departure, pursuant to U.S.S.G. § 5H1.4 for extraordinary physical condition, U.S.S.G. § 5K2.20 for aberrant behavior, and U.S.S.G. § 5K2.0 for the totality of the v. Timothy Wayne Isabell, et al., Defendant. United States of America, No. CR-03-1082-PHX-MHM Plaintiff, SENTENCING MEMORANDUM AND MOTION FOR DOWNWARD DEPARTURE OR VARIANCE IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

22 circumstances, or for a variance from the advisory guideline range, pursuant to 18 23 U.S.C. § 3553(a). 24 I. 25 Defendant's Background Timothy Isabell is 53 years old and a current resident of Lake Wales,

26 Florida. He was born in Ohio and raised primarily by his mother, because his father 27 left shortly after birth. He has been married to the co-defendant in this case, Sheila 28

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1 Isabell, for 34 years, but they have been separated for the last three years. They had 2 three children together: Andrew, who died four years ago in a car accident; Gary, age 3 32; and April, age 29. He has a close relationship with his children. 4 5 6 7 9 Mr. Isabell dropped out of school in the ninth grade because he had to help out financially at home. He has had no other schooling except for his GED about fifteen years ago. He is currently employed as an equipment operator. He has

8 previous work experience as a truck driver and in construction. Eleven years ago Mr. Isabell suffered a heart attack and had to have 10 triple by-pass surgery. He suffers from congestive heart failure and may need 11 additional surgery in the near future. He also suffers from diabetes and arthritis in the 12 hips and has difficulty walking. Other than insulin, however, he does not take any 13 other prescription medicine. He does not have health insurance because he has a new 14 employer, and he has received his medical care through emergency care at the 15 16 hospital. 17 Mr. Isabell has a history of depression. In the past, he has participated 18 in mental health counseling and been prescribed anti-depressants. He is currently not 19 under the care of a mental health professional, but he admits that counseling and 20 medication would be beneficial. He has no history of drug or alcohol abuse. 21 22 23 24 II. Motion for Downward Departure Defendant asserts that a downward departure is appropriate based on U.S.S.G. § 5H1.4 for extraordinary physical condition, U.S.S.G. § 5K2.20 for

25 aberrant behavior, and U.S.S.G. § 5K2.0 for the totality of the circumstances. 26 //// 27 28
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A downward departure pursuant to U.S.S.G. § 5H1.4 may be warranted

2 if a defendant has an "extraordinary physical impairment . . . home detention may be 3 as efficient as, and less costly than, imprisonment." Here, defendant has a significant 4 5 6 7 heart condition and suffers from diabetes and depression. Although the diabetes and depression may be controlled by medication, his heart condition is different. Most likely, he will need surgery at some time in the future. The stress of being

8 incarcerated may exacerbate his heart condition. He also has mobility problems due 9 to his arthritis in his hips. 10 Mr. Isabell is not facing a lengthy sentence, and, is eligible for a split 11 sentence of five months of incarceration and five months of home detention. 12 However, the costs of incarceration are high, both in terms of the mental and physical 13 toll it will take on him and the monetary cost to the government. Thus, Defendant 14 asserts that a two-level downward departure is warranted based on his extraordinary 15 16 physical health problems, namely congestive heart failure. 17 This Court may also consider a downward departure based on aberrant 18 behavior. "The court may depart downward under this policy statement only if the 19 defendant committed a single criminal occurrence or single criminal transaction that 20 (1) was committed without significant planning; (2) was of limited duration; and (3) 21 22 23 24 represents a marked deviation by the defendant from an otherwise law-abiding life." U.S.S.G. § 5K2.20. Those requirements are satisfied by the facts in this case.

Defendant did not plan on committing this offense and when he and his wife first

25 applied for the grant to build the community building, their intentions were 26 honorable. They were missionaries and truly wanted to help the Tribe. Unfortunately 27 they were in over their heads and made mistakes. Rather than make amends or admit 28 their

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1 wrongdoing, they left. It was Ms. Isabell who made most of the plans in regard to 2 the grant and was the instigator behind the plan to construct the building. 3 The Court should also consider the defendant's mental and emotional 4 5 6 7 conditions; employment record; record of prior good works; motivation for committing the offense; and efforts to mitigate the offense. Mr. Isabell had an exemplary employment history and history of good works. His motivation for

8 obtaining the grant was to help the Tribe. The purchase of the vehicles was an ill9 thought out attempt to mitigate the losses. The Isabells thought that if they made 10 money selling the vehicles, then they could put the money back into the Church's 11 efforts. For all of these reasons, this Court should also consider a downward 12 departure based on aberrant behavior. 13 Lastly, the Court may consider the totality of the circumstances as a basis 14 for downward departure, under U.S.S.G. § 5K2.0 if the combination of these two 15 16 identified bases are sufficient to justify a sentence outside the recommended guideline 17 range. 18 III. 19 A Reasonable Sentence After the Booker decision, the district court must now look at both the

20 sentencing guidelines and the sentencing factors set forth in 18 U.S.C. § 3553 when 21 fashioning a reasonable sentence. The guidelines do not have presumptive weight. 22 Also, "it is important that district courts clearly and carefully differentiate between 23 the findings and conclusions as regards the application of the Guidelines, and the 24 25 findings and conclusions as regards the application of non-Guidelines factors
th 26 pursuant to 18 U.S.C. § 3553(a)." See United States v. Mix, 442 F.3d 1191, 1198 (9

27 Cir. 2006) (). 28 ////

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Pursuant to 18 U.S.C. § 3553(a), the court shall consider the following

2 factors: (1) the nature and circumstances of the offense; (2) the characteristics of the 3 defendant; (3) the need for the sentence to reflect the seriousness of the offense, to 4 5 6 7 promote respect for the law, and to provide just punishment; (4) the need to afford adequate deterrence; (5) the need to protect the public from crimes by the defendant; (6) the need to provide the defendant with education or vocational training, medical

8 care, or other correctional treatment; (7) the kinds of sentences available (i.e., 9 imprisonment, probation, community confinement, home detention, and supervised 10 release); (8) the sentencing guidelines; (9) the need to avoid unwarranted disparity 11 among defendants with similar records found guilty of similar conduct; and (10) the 12 need to provide restitution to any victims. After considering all of these factors, the 13 court "shall impose a sentence sufficient, but not greater than necessary," to comply 14 with these purposes. 18 U.S.C. § 3553(a) (emphasis added). 15 Here, this conviction will represent defendant's first felony. Mr. Isabell 16 17 is highly unlikely to re-offend, and he presents no danger to the community. In many 18 ways, this case more closely resembles a breach of contract than a fraud case. The 19 Isabells did not obtain the grant for fraudulent purposes. After they received the 20 money, they did not know how to properly construct the building or handle the 21 money. They made poor decisions and wasted the Tribe's money. If Mr. Isabell goes 22 to prison, he will be unable to pay restitution. He has been working and should be 23 able to contribute toward the restitution owed. Also, he is in ill health and a sentence 24 25 of incarceration will be unduly harsh on him and potentially costly to the government. 26 Mr. Isabell's recommended guideline range falls within Zone C, and thus 27 he is eligible for a split sentence, or five months of incarceration followed by five 28 months of home detention. A five-month sentence accomplishes little in the form of

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1 deterrence to Mr. Isabell or the community. Because the sentence should not be any 2 greater than necessary, defendant respectfully requests that the Court downward 3 depart or vary from the advisory guideline range and impose a sentence of probation. 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/ Jane L. McClellan JANE L. McCLELLAN Asst. Federal Public Defender IV. Conclusion For all of the reasons stated above, defendant respectfully requests that This sentence meets all the statutory purposes of § 3553(a).

8 the Court impose a sentence of probation. Respectfully submitted: September 15, 2006. JON M. SANDS Federal Public Defender

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1 Copy of the foregoing transmitted by ECF for filing this 15th day 2 of September, 2006, to: 3 Clerk's Office 4 United States District Court Sandra Day O'Connor Courthouse 5 401 W. Washington Phoenix, Arizona 85003 6 John Lopez 7 Assistant U.S. Attorney 8 Two Renaissance Square 40 North Central Ave., Ste. 1200 9 Phoenix, Arizona 85003 10 Copy mailed to: 11 Justine Kozak 12 U.S. Probation Office Sandra Day O'Connor U.S. Courthouse 13 401 W. Washington Street Suite 410 14 Phoenix, Arizona 85003 15 Timothy Wayne Isabell 16 Defendant 17 19 20 21 22 23 24 25 26 27 28 s/ Kathy A, Kruckeberg 18 Kathy A. Kruckeberg

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