Sample Federal Sentencing Memorandums and Motions

The following is a sentencing memorandum and objections filed for a child pornography case in the Eastern District of Michigan (Detroit)


UNITED STATES DISTRICT COURT
EASTER DISTRICT OF MICHIGAN

THE UNITED STATES OF AMERICA, Case 2:08-XXXX
Judge XXXXX
Plaintiff,

vs.

XXXXXXXXXXXXX,

Defendant.
_________________________________/

SENTENCING MEMORANDUM
Introduction

 

COMES NOW the Defendant, XXXX XXXXX, and submits this objection to the presentence investigation report and a sentencing memorandum in support of Defendant’s position for sentencing. The Presentence Investigation Report provided by the United States Probation Office states that the correct offense level for XXXXX XXXXX is a level 34, thus qualifying XXXXXX for a sentencing guideline range of 151 to 188 months. The Rule 11 Plea agreement entered into by the United States and XXXXXX calculated his level at a 33 and provided a sentencing range of 135 to 168 months.
The Defendant, XXXXXX, by and through counsel first makes his objection to the sentencing level in the Presentence Investigation Report. Second, the Defendant, would implore the court to evaluate all 18 U.S.C. §3553 factors in determining an adequate sentence. Lastly, the Defendant has filed several composite exhibits to this memorandum hoping to show the United States and this court the true character of XXXXX XXXXX.
Objection To Increase Under §3D1.4:
The Defendant, XXXX, objects to the one level increase under §3D1.4 of the United States Sentencing Guidelines. The increase is based on grouping under this section of the guidelines. However, this computation is incorrect. Under the Rule 11 Plea agreement the Defendant is pleading guilty to two counts. The first count of mailing child pornography (18 U.S.C. §2252(a)(1)) is correctly calculated at a level 36. The second count of travel with intent to engage in illicit sexual conduct (18 U.S.C. §2423(e)) is also correctly calculated at a level 24. Under §3D1.4, there is no increase for two distinct groups if the range between the highest level and the lowest level is 9 or more levels. (§3D1.4(c)) In this case there is a twelve (12) level discrepancy between the highest and the lowest level. Therefore, the Defendant objects to the one (1) level increase in the offense level and would respectfully ask this Honorable court to find the appropriate offense level is 33.
Discretion of the Sentencing Court
As this Court is aware, in United States v. Booker, 125 S.Ct. 738 (2005), the United States Supreme Court restored to sentencing judges their power to use their own discretion in determining appropriate sentences. The Fourth Circuit held:
In the wake of Booker….the discretion of a sentencing court is no
longer bound by the range prescribed by the sentencing guidelines.
Nevertheless, a sentencing court is still required to consult the guidelines and take them into account when sentencing Id at 767. Consistent with the remedial scheme set forth in Booker, a district court shall first calculate (after making the appropriate findings of fact) the range prescribed by the guidelines. Then, the court shall consider that range as well as other relevant factors set forth in the guidelines and those factors set forth in § 3553 before imposing the sentence. Id at 764-765. If the court imposes a sentence outside the guideline range, it should explain its reasons for doing so. In light of the excision of §3742(e) by the Supreme Court, we will affirm the sentence imposed as long as it is within the statutorily prescribed range, see Apprendi, 5301 U.S. at 490, and is reasonable, see Booker, 125 S. Ct. at 767. United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).

In light of Hughes, we ask the Court to consider the following factors and analysis and impose a reasonable sentence based upon the facts and circumstances of this case.
Statement of Agreed Facts
Pursuant to the Rule 11 Plea Agreement, the Government and Mr. XXXXX agreed upon the following facts:
On February 13, 2007, the defendant ordered via computer (located in his home in Rochester Hills, Michigan) five child pornography DVD’s from an undercover postal inspector. As payment for the five DVD’s, Defendant sent $50.00 through the United States mail as well as a DVD containing three child pornography films. A search of the defendant’s home resulted in the discovery of at least 27 additional images of pornography. In February and March 2007, defendant used his computer to arrange travel to Costa Rica through Latin America Pleasure Tours. Defendant sent payment to Latin America Pleasure Tours to arrange a child escort of 14-15 years of age to engage in sexual contact with the defendant. On March 15, 2007, while en route to Costa Rica, defendant was arrested by FBI agents on a layover at the Atlanta Airport.

Personal and Family Background

XXXXX is thirty-eight (38) years old and was born in XXXXX to XXXX and XXXX XXXXX. XXXXX’s mother previously suffered from cancer in 1994 and his father was diagnosed with terminal cancer in 1998, both of his parents currently reside in XXXX. They provided XXXX with a loving, affectionate, intact environment free from abuse or neglect or any alcohol or drug addictions. When XXXX was growing up, his family took care of a slightly handicapped three-year-old girl, therefore, representatives from the Youth Welfare Office in XXXXX often visited the XXXXX home and found it suitable for her placement. When Mr. XXXXX was a teenager, he worked for the Catholic Youth Organization in the local community. He served time in the XXXXX army and was granted an Honorable Discharge. Mr. XXXXX has one sister, Carolin XXXXX, age twenty-seven (27), who remains supportive of him. His parents also support him and will be attending the sentencing hearing. In fact, once Mr. XXXXX is released from prison, he will reside with his parents in XXXXX.
XXXXX XXXXX continued with his education and received a Masters Degree in Electrical Engineering from XXX University in XXXXX. (See exhibit “3”). During and after his studies he has presented several articles related to his field. (See Exhibit “4”). XXXXX XXXXX also was a member of the XXXX Army from 1989 thru 1990. He was given an Honorable Discharge. He then entered the private sector serving as an electrical engineer in 1996 working for the Research Center of XXXX (XXXXX). He proceeded to work as a software engineer for Nortel Networks in XXXXX. XXXXX was then transferred to Continental Temic. Continental Temic has offices located in Auburn Hills, Michigan. During his tenure at Continental, XXXXX was the project leader on several engineering products. One such project was an electric window sensing device. This device would ensure that children would not have their limbs or heads caught in an electric window. XXXXX was completing this project upon his arrest for the case at hand.
Several months prior to XXXXX XXXXX’s arrest, he was consuming at least one bottle of wine per night. He had also become severally depressed with his current situation in the United States. Continental had requested XXXXX to continue working in the United States for another six months upon the conclusion of his current contract. Feeling obligated to the company, XXXXX stayed on with Continental and became even more depressed. XXXXX readily admits in his statement to the FBI that he was easily directed to “child porn” through the Internet and news groups at this time in his life. (See exhibit “2”).

Sentencing Considerations
It is respectfully submitted that neither defense counsel nor Mr. XXXXX underestimate nor downplay the nature, severity and gravity of the crime committed. The facts are the facts. Mr. XXXXX has violated 18 U.S.C. § 2252(2) by mailing child pornography and also violated 18 U.S.C. § 2423(e) by attempting to travel with intent to engage in illicit sexual conduct. The gravity of the matter at hand is not misjudged by defense counsel and certainly has not been taken lightly by Mr. XXXXX. The harm suffered by the child victims and the effects of those acts are assumed to be severe. However, it is respectfully requested that this Court consider, along with the U.S. Sentencing Guidelines, the following factors and analysis:
18 U.S.C. § 3553. Imposition of a sentence
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;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—

(i) issued by the Sentencing Commission pursuant to section 994 (a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28); and

(ii) that, except as provided in section 3742 (g), are in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994 (a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28);

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission pursuant to section 994 (a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28); and

(B) that, except as provided in section 3742 (g), is in effect on the date the defendant is sentenced.

(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.

As indicated, supra, as a result of Booker/Fanfan and Gall/Kimbrough, trial courts are no longer required to impose a sentence “within the ranges” provided in the United States Sentencing Guidelines. The recent United States Supreme Court decisions have given District Court Judges the ability to fashion a sentence that he or she feels is appropriate for each specific defendant. The Defendant puts forth the following as recommendations addressing all the sentencing factors the Court is now at liberty, but certainly not required to consider.
(1) Nature and Circumstance of the offense:
XXXXX XXXXX turned to child pornography at a time when he was at the lowest point in his life. Isolated from friends and family, and with no real social existence, XXXXX XXXXX became a person not known by any of his family or friends for 37 years. His advanced education was of no use to the deviant thought processes that occurred over several months. In isolation from any social environment, XXXXX XXXXX began a downward spiral that ended in his arrest for the crimes at issue. At no point does the Defendant or his counsel make the argument that severe depression immediately leads to such behavior, rather the point to be made is that this particularly Defendant found an outlet for his depression through drinking alcohol and masturbating to child pornography.
The Defendant was traveling to Costa Rica in order to have sex with adults and minors at the exact same time he was attempting to gather child pornography. Although these counts are independent, the simultaneous actions of the Defendant exemplify the mental collapse of XXXXX XXXXX.
(2) History and Character of XXXXX XXXXX:
XXXXX XXXXX had never been arrested, indicted or charged with any criminal activity until the current indictment. The Defendant has been an extremely productive member of society for all of his life. He has been an exemplary employee and has proven his abilities as an engineer. Attached as exhibits are examples of XXXXX XXXXX’s work as an engineer (See exhibit “4”). XXXXX XXXXX has been nothing but a good member of society for most of his life. There are 20 character letters attached as exhibits and several other letters relating to XXXXX XXXXX’s social character. (See Exhibit “5”) Several of the letters are from individuals with children that have had contact with XXXXX XXXXX over many years. These letters describe XXXXX XXXXX as a kind, safe and considerate friend and colleague. All these people stand behind XXXXX XXXXX as well as his family. (See Exhibits “5” and “6”).
(3) Sentencing Factors under 18 U.S.C. §3553(2)(A-D)
With the decision in Gall, Kimbrough and Booker, the Court is now able to consider sentencing policy outside the United States Sentencing Guidelines. The Court may use the guidelines as advisory in determining the appropriate sentence for a particular defendant.

In determining a sentence that will reflect the seriousness of the offense the court may consider other cases with similar conduct. Again, neither the defendant, nor defense counsel makes the argument that these indictments are not serious offenses. These offenses are serious. However, in comparison to many indicted cases for child pornography, this case is not even close to the more serious offenders. XXXXX is an amateur offender; he had three pornography films and only 27 additional images on his computer. He was in the beginning stages of his sickness. XXXXX was not even aware of the proper method to send the pornography to the postal inspector. Other defendants have actually produced child pornography and disseminated it over the internet or have been apprehended with thousands of images.
As to the traveling for illicit sex count, it is important to note in an email dated on February 11, 2007, that XXXXX wrote to the FBI agent in Florida, “’I’m not sure yet I want to do this though” when asked about hiring a companion 14 to 15 years old. (see exhibit “1”). XXXXX did send other emails confirming his desire for the minor escort. However, the statement by XXXXX shows hesitation in going forward with these actions. On this same note, when XXXXX was interviewed by the FBI in Atlanta, he gave a full written statement regarding his conduct which included his confession to possession of child pornography and the statement that he had never, “touched a child sexually before.” (See exhibit “2”) He also told the arresting officers the location of the additional images on his computer without even knowing about the indictment pending in this Court. In his written confession, he stated that he was sorry for what he had done. The seriousness of this count is obvious. Nonetheless, XXXXX XXXXX did not actually get to Costa Rica as opposed to other defendants.
Deterrence to criminal conduct is a major consideration under 18 U.S.C. §3553. In this case XXXXX XXXXX has been incarcerated in several different facilities throughout the United States during the pendency of this case. He has needed medical care on several occasions and not received it. He has been unable to see on several occasions because he could not access any eye glasses. He has been held in safety cells for weeks at a time with no contact with anyone except his attorney. He has lost his job and will no longer be able to enter several countries which he would have been able to work in the past. He lost his entire savings. Upon his return to XXXXX, he may have to serve even more time incarcerated for his actions here in the United States. He will be required under INTERPOL to register as a sex offender. The deterrence for future criminal conduct has been etched into XXXXX XXXXX’s mind by the period of incarceration he has already served. The imposition of any period of incarceration will serve as deterrent for any future criminal conduct.
The issue is how much incarceration is appropriate to provide the deterrence that is desired by the justice system. XXXXX XXXXX does not have any experience as a criminal. He has no experience at losing his liberty. He would implore the Court to sentence him to the minimal period of incarceration necessary and reasonable based on all the information the Court has before it. In considering this, the Defendant, would also inform the Court that he has waived any and all deportation proceedings. When the Defendant is released from the Bureau of Prisons, he will be sent back to XXXXX. Additionally, the Government has agreed to treaty transfer upon XXXXX’s ability to be transferred to XXXXX
The court must lastly consider the need to protect the public from further crimes by the defendant. It is clear that XXXXX XXXXX is not a hardened criminal with a record of deviant acts. More to the point, he is a man that has gone through the worst part of his life and has now come to realize just how harmful his actions have been to the children in these videos and to the children that are subject to prostitution. There is a need to protect society and XXXXX XXXXX from accessing child pornography to ensure that he does not revert back into his mental demons. The best way to do this is to get him out of the United States and back to his family and friends. He clearly is not a threat when he is back home in XXXXX. XXXXX XXXXX has also expressed his desire to receive any treatment that may be available in the United States or in XXXXX to help prevent this problem from ever occurring in the future. XXXXX had previously sought out treatment at FDC Miami, but was instructed by counsel kept quiet about this instant because of safety concerns with in the facility.
Conclusion
XXXXX XXXXX is embarrassed and remorseful for the events leading up to his arrest. He is currently suffering from his previous criminal behavior and has been devastated by the reality of the situation. He will never be able to enter U.S. soil as a free citizen in his lifetime. He has lost his job, is currently in debt, and is far away from his family and friends. He will be forced to register as a sex offender in the United States as well as Europe.
Based on the foregoing , the Defendant respectfully requests that this Honorable Court exercise its judgment to sentence XXXXX XXXXX to a period of incarceration sufficient, but not greater than necessary to reach the ends of justice.

CERTIFICATE OF SERVICE

I HEREBY certify that on January 17th, 2008, I electronically filed the foregoing document with Clerk of Court using the ECF system which will send notification of such filing to the following:

AUSA Mr. xxxxxx

Submitted By:

_/S/__Russell Mace________
Russell W. Mace III, Esq.
Russell Mace & Associates, P.A.
1210 Washington Avenue, Suite 220
Miami Beach, Florida 33139
305-532-3636
305-532-5560 fax
RWM@themacefirm.com


The following is a sentencing memorandum for a crack cocaine federal indictment in South Carolina.


IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

UNITED STATES OF AMERICA ) Criminal No.: 4:07XXXX
)
v. )
) SENTENCING MEMORANDUM
XXXXX XXXXX XXXXX )

INTRODUCTION

 

COMES NOW the Defendant, XXXXX, submits this sentencing memorandum in support of Defendant’s position for sentencing. The Presentence Investigation Report provided by the United States Probation Office states that the correct offense level for XXXXX is a level 33, a criminal history level of III, thus qualifying XXXXX for a sentencing guideline range of 168 to 210 months. The Defendant, by and through counsel, implores this Court to evaluate all 18 U.S.C. §3553 factors in determining an adequate sentence.

STATEMENT OF THE CASE

Defendant, XXXXX XXXXX XXXXX was indicted on eight counts in the District of South Carolina, Florence Division, on August 28th, 2007. (PSR ¶ 1). He plead guilty to counts 1 and 8 of an eight count indictment, charging him with conspiracy to possess with intent to distribute and to distribute 50 grams or more of cocaine base and 500 grams or more of cocaine and possession of a firearm in furtherance of a drug trafficking crime. (plea agreement pg. 1).

STATEMENT OF FACTS
The offense for which this Court is sentencing Mr. XXXXX involves the sale of crack cocaine to an informant. The informant purchased 29.1 grams of crack cocaine on April 27, 2007, 10.9 grams of crack cocaine on June 29, 2007, 11.4 grams of crack cocaine on July 25, 2007, and 12.8 grams of crack cocaine on August 6, 2007. (PSR ¶ 17, 21, 25, 29). A search warrant was executed on August 15, 2007 during which 500 grams of powder cocaine were seized. (PSR ¶ 35). Additionally, an unloaded 20 gauge Winchester model 1300 shotgun was found in his residence in the master bedroom closet. XXXXX waived his Miranda rights and agreed to speak with the officers immediately. He also agreed to make two consensual phone calls monitored by Agents to potential suspects known to him. The offensive conduct outlined in the presentence investigation report attributes 1.5 kilograms of crack cocaine and 500 grams of powder cocaine to Mr. XXXXX.

CHARATERISTICS OF MR. XXXXX
Mr. XXXXX is 31 years old, born in Chicago, Illinois. (PSR ¶ 69) His parents were divorced when he was young and he has not had any contact with his father since they separated. He moved to Conway when he was six years old and was living in Myrtle Beach prior to his arrest. (PSR ¶ 75). He has two children, Journi Wiliams, age 13 months, and XXXXX, age 10. He was paying roughly $285.00 per month in voluntary child support for his son, XXXXX. (PSR ¶ 73). Mr. XXXXX is in good mental health, but has been diagnosed with high blood pressure and currently takes clonidine on a daily basis. (PSR ¶ 76). His mother is in poor health and is disabled; she suffers from sugar diabetes and a heart condition. (PSR ¶ 69).
Mr. XXXXX admitted during his interview that he began using marijuana when he was 12 years old and has been using marijuana at least twice per week and last used it in August of 2007. (PSR ¶ 78). He experimented with powder cocaine when he was 20 and used it at least twice a week since that time. Id. He also used crack cocaine when he was 28 and continued to use it on a weekly basis until his arrest.
THE UNITED STATES SENTENCING GUIDELINES
The Supreme Court issued its decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), almost four years ago. While issues remain regarding the role of the Sentencing Guidelines, it is clear that there is no presumption favoring the guidelines in the District Court. As stated in Rita v. United States,127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007), “the sentencing court does not enjoy the benefit of a legal presumption that the guideline sentence should apply.” There is “no thumb on the scale in favor of a guideline sentence.” United States v. Wachowiak, 496 F.3d 744, 749 (7th Cir. 2007). See also United States v. Glover, 431 F.3d 744, 752-753 (11th Cir.2005); United States v. Rita, 127 S.Ct. at 2474 (Stevens, J. concurring) (“I trust that those judges who have treated the guidelines as virtually mandatory during the post-Booker interregnum will now recognize that the guidelines are truly advisory.”).

18 U.S.C. §3553 FACTORS

It is respectfully requested that this Court consider, along with the U.S. Sentencing Guidelines, the following factors and analysis and grant the defendant a sentence necessary to comply with 18 U.S.C. § 3553..

18 U.S.C. § 3553. Imposition of a sentence
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;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—

(i) issued by the Sentencing Commission pursuant to section 994 (a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28); and

(ii) that, except as provided in section 3742 (g), are in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994 (a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28);

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission pursuant to section 994 (a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28); and

(B) that, except as provided in section 3742 (g), is in effect on the date the defendant is sentenced.

(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.

As indicated, supra, as a result of Booker/Fanfan and Gall/Kimbrough, trial courts are no longer required to impose a sentence “within the ranges” provided in the United States Sentencing Guidelines. The recent United States Supreme Court decisions have given District Court Judges the ability to fashion a sentence that he or she feels is appropriate for each specific defendant.
18 U.S.C. §3553(a) mandates that the Court “impose a sentence sufficient, but not greater than necessary, to comply” with the purposes of sentencing set forth in the second paragraph of that same statute. A district court’s job is not to impose a ‘reasonable’ sentence it should impose “a sentence sufficient, but not greater than necessary, to comply with the purposes” of section 3553(a)(2). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task.” United States v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir. 2006) In Rita v. United States, 127 S. Ct. 2456, 2463 (2007), the Court summarized the factors found in that second paragraph: the “(1) offense and offender characteristics; (2) the need for a sentence to reflect the basic aims of sentencing, namely (a) “just punishment” (retribution), (b) deterrence, (c) incapacitation, (d) rehabilitation; (3) the sentences legally available; (4) the Sentencing Guidelines; (5) Sentencing Commission policy statements; (6) the need to avoid unwarranted disparities; and (7) the need for restitution. See also United States v. Hunt , 459 F.3d 1180, 1182 (11th Cir. 2006).
Application of § 3553(a) to Mr. XXXXX Case
The Defendant puts forth the following as recommendations addressing the sentencing factors the Court is now at liberty, but certainly not required to consider. Upon his arrest, Mr. XXXXX cooperated with law enforcement authorities and continues to do so. He does not dispute the obvious, that this offense involves a significant amount of powder cocaine and cocaine base. He is not minimizing his conduct and understands that he must face the consequences of his actions. The minimum mandatory for the offense for which this Court is sentencing is ten years for Count 1, followed by a consecutive period of five years for Count 8. Mr. XXXXX is therefore facing a mandatory minimum of fifteen years in prison, an extensive amount of time. Although Mr. XXXXX has a criminal history level of III and was previously convicted of various drug charges stemming from an arrest in 2002, he has served only one hundred days in the county jail for this past conduct. He has not been incarcerated for a lengthy time period and this will be the first time Mr. XXXXX will serve time in Federal Prison.
At the time of his arrest, he immediately accepted responsibility for his actions and never attempted to shift the blame on any other individuals. Although a shotgun was found in Mr. XXXXX’ home, the weapon was unloaded and in a closet with no narcotics. He does have a history of drug abuse, and was exposed to illegal drugs at a young age as mentioned in the PSR. Nevertheless, he has strong support from his family, who will assist him with the rehabilitation process once he is released from prison. He also has two young children that need his emotional and financial support.
Conclusion
Even when the Sentencing Guidelines were mandatory, sentencing courts were to treat all defendants before them as individuals. In Koon v. United States, 518 U.S. 81, 113 (1996), the Supreme Court held “It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” The decision in Booker and the mandate of the statute to impose a sentence that is “sufficient, but not greater than necessary,” has given sentencing courts greater latitude to impose a sentence that fits the crime and the individual before the court.
Based on the foregoing , the Defendant respectfully requests that this Honorable Court exercise its judgment to sentence XXXXX to a period of incarceration sufficient, but not greater than necessary to reach the ends of justice.

Certificate of Service

I HEREBY certify that on April 17th, 2008, I electronically filed the foregoing document with Clerk of Court using the ECF system which will send notification of such filing to the following:
AUSA Mr. PPPPP

Submitted By:

_/S/__Russell Mace________
Russell W. Mace III, Esq.
Russell Mace & Associates, P.A.
1144 Shine Ave. Suite C
Myrtle Beach, SC 29577
rwm@themacefirm.com