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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
v.
[CLIENT]
)
)
)
)
)
No. 14 CR 410
Hon. Gary S. Feinerman
SENTENCING MEMORANDUM
Defendant, [CLIENT] (“[client]”), by James A. Shapiro, hereby submits the following
Sentencing Memorandum.
TABLE OF CONTENTS
I.
No Objections to Presentence Report (“PSR”). . . . . . . . . . . . . . . . . . . . . . . . . 2
II.
Sentencing Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
a. Sentencing Courts Are Always Required to Consider Factors
the § 3553(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
b. “Reasonableness” Is Not the Sentencing Standard in the
District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
c. Post-Booker Sentence Reductions Are Not Limited
By Restrictive Guideline Language or Case Law . . . . . . . . . . . . . . . . . . 7
d. A Pure Guideline Sentence May Neglect A Number of
§ 3553(a) Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
e. After Booker, a Defendant’s History and Characteristics
Can Justify a Reduced Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
III.
Advisory Guideline Range . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
IV.
Downward Variance from Advisory Guideline Range . . . . . . . . . . . . . . . . . 10
a. The § 3553(a) Factors Counsel Against
Sentencing Within the Guideline Range . . . . . . . . . . . . . . . . . . . . . . . . . 11
1. Nature and Circumstances of the Offense . . . . . . . . . . . . . . . . . . . . . 11
2. [client]’s History and Characteristics . . . . . . . . . . . . . . . . . . . . . 12
i. Charitable Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ii. Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3. The “Parsimony Provision” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A.
B.
C.
D.
Retribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Deterrence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Incapacitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Rehabilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4. Restitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
b. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
I. No Objections to Presentence Report (“PSR”)
[client] has no objection to the very fair and accurate PSR prepared by Probation Officer
Alper.
II. Sentencing Analysis
After the Supreme Court's decisions in United States v. Booker, 543 U.S. 220 (2005), and
Gall v. United States, 552 U.S. 38 (2007), district courts are still required to correctly calculate
the advisory guidelines range. “[A]fter giving both parties an opportunity to argue for whatever
sentence they deem appropriate, the district judge should then consider all of the § 3553(a)
factors to determine whether they support the sentence requested by a party.” Gall, 552 U.S. at
49-50. Gall also instructs that the district court “must make an individualized assessment based
on the facts presented.” 552 U.S. at 50.
If the district court decides that a sentence outside of the guidelines is warranted, it “must
consider the extent of the deviation and ensure that the justification is sufficiently compelling to
support the degree of the variance.” Id. In addition, Gall admonishes that the district court “must
adequately explain the chosen sentence to allow for meaningful appellate review and to promote
the perception of fair sentencing.” Id.; see also 18 U.S.C. § 3553(c) (district court “at the time of
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sentencing, shall state in open court the reasons for its imposition of the particular sentence”);
Rita v. United States, 551 U.S. 338, 348-49 (2007) (discussing § 3553(c)).
In Rita, the Supreme Court recognized that the requirement that a district court explain
the reasons for its chosen sentence “reflects sound judicial practice” because “[c]onfidence in a
judge's use of reason underlies the public's trust in the judicial institution” and a statement of the
judge's reasoning “helps provide the public with the assurance that creates that trust.” Rita, 551
U.S. at 356.
The length and amount of detail of the judge's reasoning required depends on the
circumstances. Id. A statement of reasons for a criminal sentence is particularly important. Id.
While a sentencing judge is not required to state on the record that it has explicitly considered
each of the § 3553(a) factors or to discuss each of the § 3553(a) factors, “[t]he sentencing judge
should set forth enough to satisfy the appellate court that he has considered the parties'
arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Id.
Generally, when sentencing within the advisory guideline range, the district court is not
required to give a lengthy explanation for its sentence if the case is typical of those contemplated
by the Sentencing Commission. Id. However, if a party requested a sentence outside of the
guideline range, the district court “will normally go further and explain why he has rejected those
arguments.” Id. at 357. Subsequent to Rita and Gall, “[w]here the judge imposes a sentence
outside the Guidelines, the judge will explain why he has done so.” Id.
a. Sentencing Courts Are Always Required to Consider the § 3553(a) Factors.
The Seventh Circuit has said that district judges must engage in a two-step sentencing
process: (1) they must calculate the advisory guideline range, resolving any disputed guideline
issues; and (2) they must then consider the § 3553(a) factors to decide whether to impose a
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sentence within the range or outside the range. United States v. Robinson, 435 F.3d 699, 701 (7th
Cir. 2006); accord United States v. Garcia, 754 F.3d 460, 483 (7th Cir. 2014). Under Supreme
Court and Seventh Circuit law, district judges cannot simply consider the guideline range and
have that be the end of the inquiry. Instead, they are also required to consider the § 3553(a)
factors. See United States v. Vaughn, 433 F.3d 917, 924 (7th Cir. 2006) (“[T]here must be
sufficient indication that [the district court] considered the § 3553 factors relevant to the
calculation of the defendant’s sentence.”).
“[T]he sentencing judge may not rest on the guidelines alone, but must, if asked by either
party, consider whether the guidelines sentence actually conforms, in the circumstances, to the
statutory factors.” United States v. Cunningham, 429 F.3d 673, 676 (7th Cir. 2005); see also
United States v. Dean, 414 F.3d 725, 728 (7th Cir. 2005) (“[N]ow that [the guidelines] are
advisory, while section 3553(a) remains unchanged, judges will have to consider the factors that
the section tells them to consider.”). However, “the need for a judge to explain in detail his
consideration of the § 3553(a) factors when choosing to stick with the guidelines is proportional
to the arguments made by the defendants. When the judge is not presented with much, he need
not explain much.” United States v. Spano, 447 F.3d 517, 519 (7th Cir. 2006) (citations omitted).
It is not enough for a judge to merely recite the 3553(a) factors. Cunningham, 429 F.3d at
679. The judge must also conduct some analysis of how those factors apply to the facts, and
explain why a particular sentence is appropriate under § 3553(a). Id. at 675-76. The judge must
give “an adequate statement of . . . reasons” for imposing a given sentence, Dean, 414 F.3d at
729, and those reasons must be “logical and consistent with the factors set forth in section
3553(a).” United States v. Williams, 425 F.3d 478, 481 (7th Cir. 2005). If the judge’s
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“application of those factors to the facts of the case” is unreasonable, the Seventh Circuit will
reverse. Vaughn, 433 F.3d at 924.
In addition to reflecting on the purposes of sentencing and the guidelines’
recommendations, Section 3553(a) requires courts to consider, among other things: (1) the nature
and circumstances of the offense and the history and characteristics of the defendant; (2) the
kinds of sentences available; (3) the need to avoid unwarranted sentencing disparities among
defendants with similar records who have been found guilty of similar conduct; and (4) pertinent
policy statements. 18 U.S.C. § 3553(a).
District courts now look to the sentencing guidelines only to guide “a wholly
discretionary decision” that is exercised in reference to the sentencing factors set forth in §
3553(a). See United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006) (“choice of sentence,
whether inside or outside the guideline range, is discretionary”); United States v. Ngatia, 447
F.3d 496, 501-02 (7th Cir. 2007) (same). In other words, the guidelines simply recommend a
potential sentencing range, and a district court judge’s “freedom to impose a reasonable sentence
outside the range is unfettered.” Demaree, 459 F.3d at 795. The sentencing court must make an
individualized assessment based upon the facts presented. A sentence below the advisory
guideline range is appropriate as long as the reasons for selecting that sentence “are rooted in §
3553(a), sufficiently individualized to the circumstances of [the] case, and generally associated
with sentencing leniency.” United States v. Wachowiak, 496 F.3d 744, 745 (7th Cir. 2007).
b. “Reasonableness” Is Not the Sentencing Standard in the District Court.
Section 3553(a) sets the sentencing standard for the district court. The Seventh Circuit
has clearly held that “the statute [3553(a)] is . . . a directive to the sentencing court.”
Cunningham, 429 F.3d at 676. The district court is required to follow § 3553(a)’s primary
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directive in imposing sentence. Section 3553(a) states that a sentencing court “shall impose a
sentence that is sufficient, but not greater than necessary, to comply with the purposes” of
sentencing. Congress’s use of the word “shall” demonstrates that judges are required to impose
the minimally sufficient sentence. In other words, even if a guideline sentence might be
acceptable, § 3553(a) requires a judge to impose a lesser sentence if a lesser sentence is
sufficient to meet the purposes of punishment set forth in § 3553(a)(2).
Significantly, neither the Supreme Court nor the Seventh Circuit has held that the
“reasonableness” of a sentence is something to be considered by the district court in the first
instance. However, the Sixth Circuit has considered the issue and found that it is not. See United
States v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir. 2006) (“[A] district court's job is not to
impose a ‘reasonable’ sentence. . . . Reasonableness is the appellate standard of review in
judging whether a district court has accomplished its task.”) (emphasis in original); see also
United States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006) (citing and quoting Foreman).
Moreover, neither the Supreme Court nor the Seventh Circuit has held that the guidelines
are to be accorded a presumption of reasonableness at the district court level. Under both Booker
and Seventh Circuit law, “reasonableness” is simply the standard of review that operates on
appeal. In fact, the Seventh Circuit has held that the district court “cannot treat all sentences that
would fall within the guidelines sentencing range as reasonable per se.” Cunningham, 429 F.3d
at 676.
The “presumption of reasonableness” standard of review established by the Seventh
Circuit simply means that if a district court decides (after considering both the guidelines and §
3553(a)), to impose a sentence within the guideline range, the Seventh Circuit will grant that
sentence a rebuttable presumption of reasonableness on appeal. United States v. Mykytiuk, 415
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F.3d 606, 608 (7th Cir. 2005). But “there is no presumption of unreasonableness that attaches to
a sentence that varies from the range.” United States v. Jordan, 435 F.3d 693, 698 (7th Cir.
2006). In other words, if a sentencing judge imposes a sentence outside the guideline range, the
Seventh Circuit will not presume that sentence to be unreasonable. Instead, the court of appeals
will examine whether and to what extent that sentence conforms to the § 3553(a) factors. See
Cunningham, 429 F.3d at 675 (“Whether a sentence is reasonable depends on its conformity to
the sentencing factors set forth in 18 U.S.C. § 3553(a)(2).”) (citing Booker, 543 U.S. at 259-60).
c. Post-Booker Sentence Reductions Are Not Limited
By Restrictive Guideline Language or Case Law.
After Booker, judges are no longer limited by the warnings within the guidelines that
discourage or prohibit certain facts from consideration. Congress has clearly stated that “[n]o
limitation shall be placed on the information concerning the background, character, and conduct”
of the defendant at sentencing. 18 U.S.C. § 3661 (emphasis added). Booker itself cites this
section of the SRA. Booker, 543 U.S. at 251. Therefore, even if the guidelines say that a judge
cannot give a traditional downward departure for lack of guidance as a youth, § 3661 authorizes
a post-Booker sentence reduction based on this exact same fact, as long as such a reduction
furthers one of the § 3553(a) purposes of sentencing.
Moreover, judges are no longer limited by all of the pre-Booker case law restricting and
limiting traditional downward departures. “[A]fter Booker what is at stake is the reasonableness
of the sentence, not the correctness of the ‘departures’ as measured against pre-Booker decisions
that cabined the discretion of sentencing courts to depart from Guidelines that were then
mandatory.” United States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005). In addition, a sentence
that would not have been appropriately reached by a departure before Booker may nevertheless
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be a reasonable sentence after Booker. See United States v. Castro-Juarez, 425 F.3d 430, 436
(7th Cir. 2005).
d. A Pure Guideline Sentence May Neglect A Number of § 3553(a) Factors.
If district judges simply impose guideline sentences, they may violate the Supreme
Court’s and Congress’s directives and neglect significant 3553(a) factors that are not taken into
account by the guidelines. The Sentencing Commission itself admits that it did not base the
offense levels or the sentencing table on the § 3553(a) requirement to impose the minimally
sufficient sentence, or on the purposes of punishment in § 3553(a). See United States Sentencing
Commission, Guidelines Manual (hereinafter “USSG”), § 1A1.1, Part A (explaining that
choosing among the different purposes of criminal punishment “would be profoundly difficult”).
Instead, the Sentencing Commission explains, it based its sentencing scheme on a survey
of past sentencing practices. See id. (“[T]he Commission has sought to solve both the practical
and philosophical problem of developing a coherent sentencing system by taking an empirical
approach.”). A guideline sentence also does not necessarily take into account the defendant’s
history and characteristics, many mitigating circumstances of the offense, or the need to provide
restitution to victims, among other things.
e. After Booker, a Defendant’s History and Characteristics
Can Justify a Reduced Sentence.
In United States v. Baker, 445 F.3d 987, 992 (7th Cir. 2006), the Seventh Circuit
confirmed that a defendant’s history and character are relevant at sentencing and may alone be
grounds for a reduced sentence, if such a sentence meets the § 3553(a) purposes of punishment.
The court held that Baker’s history of employment, educational background, religious
background, and youth all justified a reduced sentence, because “[t]he court’s consideration of
these facts . . . coincides with the sentencing factors specified in § 3553(a).” Id. at 992.
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Baker means that a reduced sentence may also be justified by other aspects of the
defendant’s history, such as the defendant’s responsibilities to children or sick relatives, the
defendant’s traumatic childhood, any abuse the defendant suffered as a youth, and the
defendant’s mental health. The Seventh Circuit has also held that after Booker, a judge may give
factors relevant to a defendant’s character, such as the defendant’s positive contributions to the
community, “more weight than the Guidelines themselves would have allowed.” United States v.
Rose, 435 F.3d 735, 737 (7th Cir. 2006).
Courts must give defendants the “opportunity to draw the judge's attention to any factor
listed in section 3553(a) that might warrant a sentence different from the guidelines sentence.”
United States v. Dean, 414 F.3d 725, 730 (7th Cir. 2005). In entering the sentence, the judge
must consider the sentencing factors in § 3553(a), United States v. Re, 419 F.3d 582, 583 (7th
Cir. 2005), and “articulate the factors that determined the sentence that he has decided to
impose.” Dean, 414 F.3d at 729. Explicit factfinding on the factors influencing a decision to
exceed the guideline range is required where a particular fact is contested and “may be decisive
to the choice of sentence.” Dean, 414 F.3d at 730.
III. Advisory Guideline Range
Pursuant to the plea agreement and presentence report (“PSR”), [client]’s base offense
level is six, with a six-level increase for more than 250 victims, together with a two-level
increase for abusing a position of trust. (Plea Agreement at 5-6; PSR ¶¶ 20-28, 37-38) [client] is
entitled to a two-level reduction for his acceptance of responsibility. With an Adjusted Offense
Level of 12 and a Criminal History Category I, [client] has an advisory guideline range of 10-16
months of imprisonment. Because he is in Zone C of the Guideline Table, he would be eligible
for a split sentence under the guidelines.
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IV. Downward Variance from Advisory Guideline Range
Although the advisory guideline range is 10-16 months, [client] urges this Court to
sentence him below that range by determining the appropriate sentence in light of the factors set
forth in 18 U.S.C. § 3553(a). In United States v. Kaiser, 2013 520 Fed. Appx., 731, 732, 2013
WL 1397148 (10th Cir. 2013), the United States Court of Appeals for the Tenth Circuit affirmed
as procedurally reasonable the district court’s downward variance to three years of probation
from an advisory guideline range of 6-12 months’ imprisonment.1 Like [client], Ms. Kaiser was
convicted of stealing quite a bit of mail.
In United States v. Honor, 2013 WL 3466539, *3 (E.D.N.Y. 2013), Judge Weinstein
sentenced a former postal employee to only six months of imprisonment despite an advisory
guideline range of 37-46 months. The defendant’s conduct in Honor was far more serious than it
was here. It pertained to his role in a scheme involving the submission of fraudulent Federal
Personal Income Tax Returns containing a combination of improperly obtained Social Security
numbers of Puerto Rican residents and false mailing addresses in New York City. Id. at *2. The
defendant's role was to intercept any letters from the IRS that were addressed to individuals
whom he did not recognize as legitimate residents on his mail route and provide them to other
people in the scheme. Id. The FBI investigation revealed that the defendant's role was minimal in
relationship to the overall scheme, but vital to the scheme's success. Id.
Despite the seriousness of the offense, other considerations supported the imposition of a
non-guidelines sentence. Id. For example, Honor had a strong military service record. Id. He also
had a difficult upbringing. Id. at *3.
1
For some reason, Ms. Kaiser appealed the 50 or more victim enhancement even though she received a
probationary sentence despite that enhancement.
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This court should follow the leniency of Judge Weinstein and the Tenth Circuit and
sentence [client] to three years of probation. Probation is not as big a variance from the 10-16
month advisory guideline range as Judge Weinstein’s six-month sentence was from Honor’s 3746 month guideline range, and it is a roughly equivalent variance from Kaiser’s 6-12 month
guideline range, which overlaps with [client]’s 10-16 month range.
In doing so, this Court should of course consider the guideline range, as it must do under
Booker, 543 U.S. at 264 (“The district courts, while not bound to apply the guidelines, must
consult those guidelines and take them into account when sentencing”). It should then reject that
range as too high.
a.
The § 3553(a) Factors Counsel Against
Sentencing Within the Guideline Range.
Since Booker, the guideline range is but one factor of many to be considered under 18
U.S.C. § 3553(a). See Booker, 543 U.S. at 249 (relying on § 3553(a)(1)’s text stating that court
will consider “the nature and circumstances of the offense and the history and characteristics of
the defendant.”); see also United States v. Ranum, 354 F. Supp. 2d 984, 985 (E.D. Wis. 2005)
(Adelman, J.). The § 3553(a) factors justify a sentence beneath the advisory guideline range.
1. Nature and Circumstances of the Offense
This offense involves theft of over 250 pieces of mail. The factual basis of the plea
agreement adequately sets forth the nature of the offense. [client] stole mail because he was
angry at the post office for not giving him overtime hours, for suspending him for getting injured
on the job when the injury was not his fault, and for other indignities. Now that cooler heads
have prevailed, he realizes that stealing mail did not really victimize the post office, but the poor
senders and recipients of gift cards and other mail he stole, rifled, and threw away.
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[client] has fully accepted personal responsibility for his criminal conduct by entering a
timely guilty plea, by timely notifying the government of his intention to plead guilty, and by
cooperating with all aspects of the presentence investigation. (PSR ¶ 17). During the presentence
interview, [client] stated, “I know I was wrong” and expressed remorse for committing the
offense.” (PSR ¶ 18).
2. [client]’s History and Characteristics
Subparagraph (1) of 18 U.S.C. § 3553(a) requires courts to consider “the history and
characteristics of the defendant.” 18 U.S.C. § 3553(a)(1).
[client] is 45 years old. (PSR ¶ 45). His father, a retired carpenter, is 80. His mother is 70
and a retired lamp company employee. Id. He was raised in the Englewood neighborhood of
Chicago. (PSR ¶ 46). Even though Englewood has a notorious reputation for being infested by
several street gangs, [client] was not affiliated with any of them, perhaps because he was raised
in a close-knit family where both parents were employed. (PSR ¶ 46).
In 1998, [client]’s parents separated, but have not had their marriage dissolved, and
remain “best friends.” (PSR ¶ 47). [client] speaks with his parents and two siblings on a daily
basis. (PSR ¶ 47). [client]’s parents are aware of his conviction in this case and remain
supportive of their son. (PSR ¶ 47).
He is the father of two children: Delicia Holmes, age 26; and Ray Foster, age 26. (PSR ¶
48). [client] continues to have a “good relationship with his children, speaking with them on a
daily basis.” (PSR ¶ 48). He owes no outstanding child support and has no history of domestic
violence. (PSR ¶ 48).
He lives in a three-bedroom home in Alsip, which is properly furnished, and there are no
indications that he is living beyond his economic means. (PSR ¶ 51). He has no history of
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substance abuse. Pretrial Services conducted a urinalysis on August 7, 2014, which tested
negative for the presence of any illegal controlled substances. (PSR ¶ 63).
[client] has been employed as a truck driver for Penske Trucking since July 1, 2014.
(PSR ¶ 65). In fact, Samantha Benicky has written this Court on behalf of [client]. Ms. Benicky
states that [client] has demonstrated “exceptional leadership skills,” “is always at work on time
lending a helping hand when needed,” and has conducted himself “in a courteous and polite
manner.”
Ms. Benicky concludes that the company is very happy to have [client] as an
employee, that they hope he “plans on staying with the company from this point forward,” and
that it is a “pleasure to provide [client] a reference.”
A review of the attached letters written on behalf of [client] indicates that [client] has a
generous nature and is always willing to assist and help others, for example by providing food
for them.
i. Charitable Activities
[client] is actively involved with the Calahan Foundation, NFP, where he volunteers his
time and energy. The Calahan Foundation is located in the Englewood neighborhood of Chicago
and they provide assistance to ten local housing shelters, provide basic needs for homeless
individuals, provide scholarship awards to low-income, inner-city high school students, and
participate in the Toys-for-Tots Christmas program. See www.calahanfoundation.org.
[client] actively volunteers in assisting at the shelters for battered women and single
mothers on the south and west sides of Chicago. One campaign involved providing coats, hats,
and gloves for needy women. [client] is also a member at Valley King Ministry located in Oak
Forest, Illinois.
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ii. Age
[client] is 45 years old. Sending a man of that age to jail does not accomplish very much.
It certainly punishes him for his crime, but it also puts an older man in harm’s way. This Court
can and should take [client]’s age into account in sentencing him. A sentence of probation, home
detention, or intermittent or community confinement adequately punishes him for his offense.
3. The “Parsimony Provision”
Next, § 3553(a) requires courts to “impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph (2).” 18 U.S.C. § 3553(a)
(emphasis added). This has come to be known as “the parsimony provision.” See United States
v. Jimenez-Beltre, 440 F.3d 514, 525 & n.8 (1st Cir. 2006); see also United States v. Riley, 655
F. Supp. 2d 1298, 1302 (S.D. Fla. 2009) (using provision to help justify 60-month sentence for
child pornography instead of 210-260-month guideline range).
Commentators note that this provision, which was originally part of the House sentencing
reform bill and was later added to the Senate resolution and adopted in committee, “is not just
another ‘factor’ to be considered along with others set forth in Section 3553(a)—it sets an
independent limit on the sentence a court may impose.”
David L. McColgin & Brett G.
Sweitzer, Grid & Bear It, 29 Champion 50, 50 (2005); see also United States v. Foreman, 436
F.3d at 644 n.1 (6th Cir. 2006) (“[A] district court's mandate is to impose ‘a sentence sufficient,
but not greater than necessary, to comply with the purposes’ of section 3553(a)(2).”) (quoting 18
U.S.C. § 3553(a)), overruled on other grounds, United States v. Young, 580 F.3d 373 (6th Cir.
2009); Richard S. Frase, Punishment Purposes, 58 Stan. L. Rev. 67, 83 (2005) (stating “the
structure of section 3553(a),” which lists the parsimony principle first, suggests that this
principle “set[s] overall limits on the crime-control and other purposes which follow”).
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The parsimony provision requires courts to impose the minimum necessary to accomplish
the purposes enumerated in paragraph (2). Paragraph (2) lists those purposes as:
(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.
18 U.S.C. § 3553(a)(2). These purposes, of course, substantially correspond to the four
traditional goals of criminal punishment: retribution, deterrence, incapacitation, and
rehabilitation.
A. Retribution
As to purpose (A), [client]’s offense is serious, but it is not a crime of violence or a
serious drug offense. Punishment for his theft certainly needs to be serious enough to promote
respect for the law, but it does not have to be unduly harsh to accomplish that goal in this case.
No one was physically injured or threatened in this crime. No one was poisoned with drugs on
the street. No one lost their life savings through a fraudulent investment or Ponzi scheme,
especially senior citizens who are no longer employed and have virtually no way to recover from
the loss. Instead, [client] stole quite a bit of mail. He harmed many senders and recipients of
mail, but the known pecuniary losses are limited to gift cards, with a value of approximately $25
to $60.
[client] has also done everything in his power to assist the government in righting this
wrong. He has pled guilty, openly acknowledging his offense. He has “cooperated with all
aspects of the presentence investigation.” (PSR ¶ 17). He has already paid what little restitution
is identifiable. Some retribution may be warranted, but incarceration would simply be too much
retribution for a man with zero criminal history points and where the known loss amount is
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miniscule. A sentence of probation constitutes a sentence that is sufficient, but not greater than
necessary, to comply with the various sentencing considerations.
Some retribution may be warranted, but justice would demand that it come in the more
restitutive form of a sincere and forced effort to make the victims whole rather than a jail
sentence. The federal felony conviction essentially limits his employment prospects, and stains
his life forever. See United States v. Suarez-Reyes, 2012 WL 6597814, *9 (D. Neb. 2012)
(defendant “will suffer the stigma of a felony on his record.”). A jail sentence would simply be
too much retribution for a 45-year-old man. A sentence of probation, home detention, or
intermittent or community confinement (work release), exacts ample retribution for his offense.
B. Deterrence
As to purpose (B), deterrence is usually divided into two subcategories: (1) specific; and
(2) general. Specific deterrence, of course, is to deter [client] from stealing from his employer or
committing any other crime again. He has now been convicted of a federal felony. Suffice it to
say that [client] has learned his lesson, is terrified of the federal criminal justice process, and
never wants to go through this process again. He has lost his well-paying job with the Postal
Service. He is specifically deterred from committing any crime, much less theft of mail, ever
again.
As to general deterrence, a message certainly needs to be sent to the community at large
that mail theft will not be tolerated and will be significantly punished. But it is the certainty of
punishment, not its severity, that deters crime. See United States v. Scroggins, 880 F.2d 1204,
1206 (11th Cir. 1989) (noting Revolutionary War’s introduction of concept); United States v.
Kloda, 133 F. Supp. 2d 345, 347-48 (S.D.N.Y. 2001) (in context of business crimes); United
States v. Bannister, 786 F. Supp. 2d 617, 660-61 (E.D.N.Y. 2011) (Weinstein, J.) (citing Steven
16
N. Durlauf & Daniel S. Negin, Imprisonment and Crime: Can Both be Reduced?, 10
Criminology & Pub. Pol'y 13, 37 (2011)); United States v. Greene, 146 F. 803, 900 (S.D. Ga.
1906) (refusing to impose cumulative sentences in embezzlement scheme), overruled on other
grounds, Quercia v. United States, 289 U.S. 466, 469 (1932): see also Anthony N. Doob &
Cheryl Marie Webster, Sentence Severity and Crime: Accepting the Null Hypothesis, 30 Crime &
Just. 143 (Univ. of Chicago 2003) (arguing that severity of punishment does not deter crime);
Jeffrey Grogger, Certainty vs. Severity of Punishment, 29 Econ. Inquiry 297, 308 (1991)
(concluding increased certainty of punishment generates significant deterrent effects while
increased severity produces insignificant results); William N. Trumbull, Estimations of the
Economic Model of Crime Using Aggregate and Individual Level Data, 56 S. Econ. J. 423, 42737 (1989) (analyzing data to conclude certainty of punishment has greater deterrent effect than
severity); Ann Dryden Witte, Estimating the Economic Model of Crime with Individual Data, 94
Q.J. Econ. 57, 81-83 (1980) (maintaining certainty of punishment produces greater deterrent
effect than severity of punishment).
Here’s how the certainty rather than severity of punishment will deter the general public
and postal employees in this case: Word will get out of [client]’s conviction, either through the
media or word-of-mouth. The public and postal community will know that [client] got caught
because the postal inspectors were watching him. Prospective mail thieves will learn that if they
steal enough mail, the postal inspectors will inevitably find out. And when they find out, they
will go to the U.S. Attorney’s office for prosecution. The prosecution is likely to be successful,
because postal thieves are generally caught on videotape (as in this case) or set off an electronic
wire in an envelope.
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The public and other postal workers will know that [client] got caught, lost his lucrative
job and benefits with the Postal Service, and now has to work at a job earning less money with
fewer benefits. They will learn that [client] was ordered to pay restitution as part of his sentence.
[client]’s conduct will be viewed as incredibly shortsighted in terms of the relatively small
amount of money he received in comparison to the loss of his job and benefits with the Postal
Service.
In terms of [client]’s sentence, they will learn that he received a sentence of probation
instead of prison. It is the certainty of that punishment, the likelihood of getting caught,
prosecuted, and punished, that will deter the general public, not the severity of prison time.
[client]’s conduct in this case has already resulted in certain punishment, a federal felony
conviction. That will affect his employment prospects for the rest of his life. A sentence of three
years’ probation would serve as enough of a general deterrent to the public.
In Suarez-Reyes, Judge Bastaillon noted that slightly more than 40 percent of both district
and circuit court judges would like greater availability of sentencing options (particularly
probation-plus-confinement or “split” sentences) for theft and fraud offenses. 2012 WL 6597814
at *5 (citing Fifteen-Year Assessment, Executive Summary at 57 and Summary Report on the
U.S. Sentencing Commission's Survey of Article III Judges at 4). The court noted the defendant
in that case had already suffered serious consequences as a result of his crime. He suffered the
stigma of a felony on his record, among other things. These factors, along with the fact of brief
incarceration and five years of supervised release with stringent conditions, served to deter others
from engaging in similar criminal conduct. The value of any additional prison time as a deterrent
would have been marginal. Id.
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In the event this court finds, as Judge Bataillon did in Suarez-Reyes, that a sentence
including some brief period of incarceration is necessary to deter other offenders and to achieve
some level of proportionality to other economic crimes such as theft and burglary, [client] urges
it to be the same one day as in that case.
C. Incapacitation
As to (C), which amounts to incapacitation, [client] obviously does not need to be
incarcerated to protect the public from further crimes. Recidivism drops substantially with age.
In fact, according to a United States Sentencing Commission Report released in May, 2004,
“Recidivism rates decline consistently as age increases. Generally, the younger the offender, the
more likely the offender recidivates.”
Id. (quoting U.S.S.C., Measuring Recidivism: The
Criminal
the
History
Computation
of
Federal
Sentencing
Guidelines,
at
12,
http://www.ussc.gov/publicat/Recidivism-General.pdf). According to the Commission Report,
Category I offenders like [client] over 40 have only a 6.9% recidivism rate:
-------------------------------------------------Age at Sentence Category I Percent Recidivating
-------------------------------------------------Under age 21 29.5%
-------------------------------------------------Ages 21-25 22.3%
-------------------------------------------------Ages 26-30 13.3%
-------------------------------------------------Ages 31-35 14.6%
-------------------------------------------------Ages 36-40 12.1%
-------------------------------------------------Ages 41-50 6.9%
-------------------------------------------------Ages over 50 6.2%
See U.S.S.C., Measuring Recidivism: The Criminal History Computation of the Federal
Sentencing Guidelines at 30, Exh. 9, http://www.ussc.gov/publicat/Recidivism-General.pdf.
19
The positive correlation between age and recidivism is impossible to deny. Under the
guidelines, the age of the offender is not ordinarily relevant in determining the sentence.
U.S.S.G. § 5H1.1. But under § 3553(a)(2)(C), age of the offender is plainly relevant to the issue
of “protect[ing] the public from further crimes of the defendant.” Id. [client]’s statistical
likelihood of recidivism is exceedingly low. He obviously does not need to be incapacitated to
keep him from committing further offenses.
In Gall, the Supreme Court affirmed the district court’s sentence of 36 months’
probation, despite an advisory guideline range of 30 to 37 months, based, in part, on issues
similar to those in this case. Gall, 552 U.S. at 43-44. The district court concluded that a term of
imprisonment was not necessary to deter the defendant from engaging in future criminal conduct
or to protect the public from any future criminal acts by the defendant. Gall, 552 U.S. at 59. The
Supreme Court rejected the Eighth Circuit’s conclusion that a sentence of probation was
inadequate and beyond the realm of available sentencing choices and emphasized the fact that a
sentence of probation is in fact punishment and is not merely “an act of leniency.” Gall, 552
U.S. at 44.
The sentence [client] is requesting of the Court is a serious one, befitting the offense of
conviction. As the Court observed in Gall, a felony conviction and a sentence of probation,
together with special conditions, constitutes a serious punishment.
While custodial sentences are qualitatively more severe than probationary ones, offenders
sentenced to probation are nonetheless subject to conditions which restrict their liberty. See
United States v. Knights, 534 U.S. 112, 119 (2001) (inherent in the very nature of probation is
that probationers do not enjoy the absolute liberty to which every citizen is entitled). For
example, probationers may not leave the judicial district, move, or change jobs without
20
notifying, and, in some instances, receiving permission from their probation officer or the court.
Id. In addition, they must report regularly to their probation officers, permit unannounced visits
to their home, refrain from associating with any person convicted of a felony, and refrain from
excessive drinking. See U.S.S.G. § 5B1.3.
Furthermore, most probationers are also subject to individual “special conditions”
imposed by the court. Finally, a probationer always faces the possibility of harsh consequences if
a condition of their probationary term is violated. See Advisory Council of Judges of National
Council on Crime and Delinquency, Guides for Sentencing 13-14 (1957) (probation is not
merely letting an offender off easily).
If this court decides to impose a period of home confinement as a condition of probation,
[client] will be confined to his home. He will not be allowed to travel, and will not be able to
accompany his elderly parents to doctor appointments or places in the community. He would not
be allowed to leave his home to visit friends, see a movie, eat in a restaurant, sit in the park, shop
at the mall, or do any of the small acts that provide so much of the pleasure and enjoyment of life
and which the rest of us take for granted. He will, for all practical purposes, be a prisoner in his
home and not be able to leave except for work or medical reasons.
In addition, as the court is more aware of than most in society, a federal conviction is a
stigma that blights a life forever and has serious and severe consequences on not just [client], but
also his family. Such punishment provides a permanent reminder of [client]’s wrongdoing, and,
for [client], carries a high degree of guilt and shame.
In promulgating an amendment to Guideline § 2D1.1 (pertaining to drug offenses), which
will take effect November 1, 2014 (the day after sentencing in this case), the United States
Sentencing Commission made the following observations:
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The amendment was also motiv[at]ed by the significant overcapacity and costs of
the Federal Bureau of Prisons. The Sentencing Reform Act directs the
Commission to ensure that the sentencing guidelines are "formulated to minimize
the likelihood that the Federal prison population will exceed the capacity of the
Federal prisons." See 28 U.S.C. § 994(g). Reducing the federal prison population
and costs of incarceration has become an urgent consideration. The Commission
observed that the federal prisons are now 32 percent overcapacity . . . Spending
on federal prisons exceeds $6 billion a year, or more than 25 percent of the entire
budget for the Department of Justice. The Commission received testimony from
the Department of Justice and others that spending on federal prisons is now
crowding out resources available for federal prosecutors and law enforcement, aid
to state and local law enforcement, crime victim services, and crime prevention
programs, all of which promote public safety.
“Amendments to the Sentencing Guidelines, Policy Statements, and Official Commentary
(effective November 1, 2014)” at 24 (April 30, 2014) (available at www.ussc.gov/guidelinesmanual/amendments-guidelines-manual). Although this is not a drug case, if prison
overcrowding is an issue, it is an issue for all cases, not just drug ones. The last thing the Bureau
of Prisons needs is a mail thief adding to prison overcrowding, even if only for a few months
instead of years.
D. Rehabilitation
[client]’s rehabilitation will come in the form of working as a condition of probation. If
he is sent to prison and loses his job, he will not be able to be rehabilitated. Here, [client]’s
rehabilitative needs require a sentence of probation, home detention, or intermittent or
community confinement, during which he can continue working. As Judge Adelman put it, “This
directive [of rehabilitation] might conflict with the Guidelines, which in most cases [obviously
including [client]’s] offer only prison.” Ranum, 354 F. Supp. 2d at 986 (citing USSG § 5C1.1,
describing limited circumstances in which court can impose sentence other than imprisonment).
As the parsimony provision commands, this Court should impose the minimum sentence
necessary to accomplish the rehabilitative purpose of criminal punishment. That minimum
22
sentence is a three-year probationary sentence. Alternatively, home detention, intermittent, or
community confinement would enable him to keep his job.
4. Restitution
Furthermore, § 3553(a)(7) requires this Court to consider “the need to provide restitution
to any victims of the offense.” 18 U.S.C. § 3553(a)(7). [client] has already paid restitution to the
two known victims in this case. As restitution is a form of restorative justice, he would have
liked to have made more victims whole, but neither he nor the government cannot identify them.
This court may take payment of restitution into consideration in varying downward from the
advisory guideline range.
[client] will certainly lose his job if he goes to prison for this offense. If he loses his job,
it will be very difficult for him to obtain another one after he gets out of prison with a federal
felony conviction on his record. In order to avoid these consequences, this Court should give
[client] a three-year probationary sentence. Alternatively, this Court should sentence [client] to
intermittent or community confinement, home detention, or any other custodial sentence that
would allow him to work and keep his job.
b. Conclusion
Under the “principle of parsimony,” this Court should sentence [client] to the minimum
sentence necessary to accomplish the goals of criminal punishment under § 3553(a). That
minimum sentence is three years of probation, the mandatory $100 special assessment, and $60
in restitution, both of which have already been paid. In the event this Court determines that a
more severe sentence is necessary to accomplish the goals of criminal punishment, [client] urges
this Court to consider home incarceration, electronic home monitoring, intermittent, weekend
incarceration that would enable [client] to work during the week, or a halfway house. In the
23
event this Court determines that the minimum sentence necessary to accomplish the goals of
criminal punishment includes any prison time, [client] respectfully requests this Court to give
him a surrender date in January, so he can spend the holidays with his family.
Respectfully submitted,
[CLIENT]
By: /s/ James A. Shapiro
James A. Shapiro,
attorney for [client]
James A. Shapiro
Robinson Shapiro & Schwartz
208 South LaSalle Street
Suite 1750
Chicago, Illinois 60604
(312) 782-4615
Certificate of Service
The undersigned, an attorney, certifies that he caused a true and correct copy of the attached
SENTENCING MEMORANDUM to be served upon the government by electronically serving it
through the CM/ECF system on October 17, 2014.
William Novak
24
Assistant United States Attorney
219 S. Dearborn St.
Chicago, IL 60604
By: /s/ James A. Shapiro
James A. Shapiro, attorney
for [client]
James A. Shapiro
Robinson Shapiro & Schwartz
208 South LaSalle Street
Suite 1750
Chicago, Illinois 60604
(312) 782-4615
25