Wednesday, January 24, 2007

Federal Motion-Reduced Sentence

In the wake of Booker, defense counsel in federal criminal cases can be more creative in the sentencing phase of the proceedings. Now, the judges can consider more than simply the Guideline calculation and the Defendant's criminal history.

The Guidelines are now advisory, not mandatory.

Here's an example of a motion that I recently filed on behalf of a client in federal court in Dallas.



v. Case No. 3:06-CR-100-G



18 U.S.C. SECTION 3553(a) FACTORS &

In Booker, the Supreme Court held that Blakely v. Washington applied to the federal sentencing guidelines, and that the Sixth Amendment’s jury trial guarantee prevented judges from finding facts that exposed a defendant to increased prison time. As a remedy, a different majority of the Court excised the provision of the Sentencing Reform Act that made the guidelines mandatory, 18 U.S.C. § 3553(b). The remedial majority held that district courts must still consider the guideline range, 18 U.S.C. § 3553(a)(4) & (5), but must also consider the other directives set forth in § 3553(a). Thus, under Booker, courts must treat the guidelines as just one of a number of sentencing factors.
Section 3553(a) requires courts to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph 2.” Section 3553(a)(2) states that such purposes are:
(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.
Section 3553(a) further directs sentencing courts to consider (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (3) the kinds of sentences available; (6) the need to avoid unwanted sentencing 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.
The directives of Booker and § 3553(a) make clear that courts may no longer uncritically apply the guidelines and, as one court suggested, “only depart . . . in unusual cases for clearly identified and persuasive reasons.” United States v. Wilson, Case No. 2:03-CR-0082, 2005 L 78552, at *1 (D. Utah Jan. 13, 2005). The approach espoused in Wilson is consistent with the holdings of the merits majority in Booker rejecting mandatory guideline sentences based on judicial fact-finding and the remedial majority in Booker directing courts to consider all of the § 3353(a) factors, many of which the guidelines either reject or ignore. For example, under § 3553(a)(1) a sentencing court must consider the “history and characteristics of the defendant.” But under the guidelines, courts are generally forbidden to consider the defendant’s age, U.S.S.G. § 5H1.1, his education and vocational skills, §5H1.2, his mental and emotional condition, §5H1.3, his physical condition including drug or alcohol dependence, §5H1.4, his employment record, §5H1.5, his family ties and responsibilities, §5H1.6, his socio-economic status, §5H1.10, his civic and military contributions, §5H1.11, and his lack of guidance as a youth, §5H1.12. The guidelines’ prohibition of considering thee factors cannot be squared with the §3553(a)(1) requirement that the court evaluate the “history and characteristics” of the defendant. The only aspect of a defendant’s history that the guidelines permit courts to consider is criminal history. Thus, in cases in which a defendant’s history and character are positive, consideration of all of the §3553(a) factors might call for a sentence outside the guideline range.
Further, §3553(a)(2)(D) requires a sentencing court to evaluate the need to provide the defendant with education, training, treatment or medical care in the most effective manner. This directive might conflict with the guidelines, which in most cases offer only prison. See U.S.S.G. §5C1.1 (describing limited circumstances in which court can impose sentence other than imprisonment). In some cases, a defendant’s educational, treatment or medical needs may be better served by a sentence which permits the offender to remain in the community.
In addition, §3553(a)(7) directs courts to consider “the need to provide restitution to any victims of the offense.” In many cases, imposing a sentence of no or only a short period of imprisonment will best accomplish this goal by allowing the defendant to work and pay back the victim. The guidelines do not account for this. In fact, the mandatory guideline regimes forbid departures to facilitate restitution. United States v. Seacott, 15 F.3d 1380, 1388-89 (7th Cir. 1994).
Finally, in some cases the guidelines will clash with §3553(a)’s primary directive: to “impose a sentence sufficient, but not greater than necessary to comply with the purposes” of sentencing.
In sum, in every case, courts must now consider all of the §3553(a) factors, not just the guidelines. And where the guidelines conflict with other factors set forth in §3553(a) courts will have to resolve the conflicts.
Some have suggested that due to the Commission’s expertise and experience developed over the years it is appropriate to afford their work “heavy weight.” Wilson, 2005 WL 78552, at *1. While it is clear that the Commission has collected a great deal of data over the years and studied sentencing practices, it is not clear whether the courts should continue to use the old “departure” methodology when imposing a sentence outside the advisory guideline range. One could certainly argue that because the guidelines are no longer binding the courts should no longer feel compelled to justify a sentence outside of them by citing factors that take the case outside the “heartland.” Rather, courts are now free to disagree, in individual cases and in the exercise of discretion, with the actual range proposed by the guidelines, so long as that the ultimate sentence is reasonable and carefully supported by reasons tied to the §3553(a) factors.
Sentencing will be harder now than it was prior to Booker. District courts cannot just add up figures and pick a number within a narrow range. Rather, they must consider all of the applicable factors, listen carefully to defense and government counsel, and sentence the person before them as an individual. Booker is not as an invitation to do business as unusual.
In United States v. Scroggins, 411 F.3d 572 (5th Cir.2005), a published decision that involved a Booker-type resentencing remand, the Fifth Circuit observed that a judge at sentencing should consider an individual’s relevant conduct-including applicable mitigating and aggravating Guidelines factors- so that the judge can thereby exercise the necessary discretion to determine whether it is appropriate to impose a (higher) sentence than the suggested Guidelines range to reach a “reasonable” sentence. As such, Scroggins is quite analogous since it provides the mirror opposite of the situation in Mr. Riecke’s case. By logical implication, Scroggins appears to also provide authority in this Circuit that judges are empowered to impose shorter sentences in the post-Booker world, when they deem them to be more reasonable.
An insightful post-Booker decision is United States v. Ranum, 353 F.Supp.2d 984 (E.D. Wis 2005), which holds that formerly forbidden considerations under the mandatory Guidelines- such as a defendant’s age, family ties and responsibilities, and his physical, mental and emotional condition- are proper post-Booker considerations under Section 3553(a). As the judge in Ranum cogently explained: “The guidelines are not binding, and courts need not justify a sentence outside of them by citing factors that take the case outside of the ‘heartland.’ Rather, courts are free to disagree, in individual cases, and in the exercise of discretion, with the actual range proposed by the guidelines, so long as the ultimate sentence is reasonable and carefully supported by reasons tied to the Section 3553(a) factors. Ranum, 353 F.Supp.2d at 987. (emphasis added).
In the present case, after carefully considering all of the evidence and applying all of the §3553(a) factors, Defendant Doe requests that this Court impose a sentence considerably below the advisory Guidelines calculation. Defendant Doe respectfully requests that the Court impose a probated sentence to include a term of home detention and/or electronic monitoring and a lengthy period of supervised release. Such a sentence would be sufficient, but not greater than necessary, to satisfy the purposes of sentencing.
A. Mr. Doe’s “Personal Characteristics”

Mr. Doe is a 53 year old man with virtually no juvenile or adult criminal convictions. His only conviction was a misdemeanor labor violation handed down by a justice of the peace Court approximately 12 years ago.
Mr. Doe has been a hard-working, taxpaying, member of society his entire life. He has been a cattle rancher, a forklift driver, a truck driver, a heavy equipment operator, a color printing pressman, an operator of a die cutting machine, a folding box operator, a folding box designer, a job cost estimator, and a machinery riggor and erector. He is not a wealthy man, but he has always worked hard to provide for himself, his family, the community, and his many friends.
Mr. Doe has raised several children who have likewise become contributing members of society, and he is helping put two children through college at this time. He is supporting his wife, who is currently unemployed, and he is an indispensable employer of 26 individuals who were not involved in this case.
The Court can see from the many letters submitted to it on Mr. Doe’s behalf, that he has touched many lives during his entire life. It is clear from these letters that Mr. Doe had led a law-abiding and exemplary life, and he has made significant charitable and civic contributions. Several of these letters are worth mentioning briefly:
Deacon Don Smith: A pillar of the Ellis County community and a deacon at the Ennis Catholic Church has known Mr. Riecke for 4 years. Mr. Smith states that he has seen Mr. Doe “go the extra mile in order to be helpful and caring. Our Church and society need this man to continue to be active in the manner he has been the past four years that I have known him. We will be the losers if he is incarcerated.”

Attorney Eric Jones: Mr. Jones worked with Mr. Doe in connection with the restructuring of three businesses. He notes that Mr. Doe is a hard worker and his invaluable assistance has allowed 18 employees to retain their jobs.
Ms. Lori Raines: She has known Mr. Doe for 7 years and he has been her employer for 5 years. When her husband was seriously injured in an accident, John Doe made it possible for Ms. Raymond to use vacation and sick time so that she could be at home with her husband rather than placing him in a nursing home to recover.

Reverend Fred Caldwell: While he was pastor of St. John Church in Ennis, Reverend Caldwell recalls John Doe constantly giving materials to his mission trips so the Mexican people could have a better life. He states that Mr. Doe is one of the most honest, God fearing, men he has ever met.

Randall Doe: The Defendant’s brother notes that his parents, both in their seventies, depend on John Doe financially through the family businesses
Additionally, employees and their families also rely upon John Doe, and these businesses “will likely fail in his extended absence.”

Ms. January Doe: Mr. Doe’s oldest daughter notes that the Defendant has been an excellent father who has instilled in her the importance of education and hard work. Ms. Doe, a remarkable daughter, previously worked for Congressman Joe Smith, and later with Ms. Laura Bush, in the White House, where she served as the First Lady’s scheduling director. She also states that her father has been an excellent mentor in terms of her strong faith.

Melvin Doe, III: The Defendant’s son, a FEMA employee, recalls with admiration the times that his father would spend his own money to feed and clothe employees and find affordable housing for them.

Ms. Margaret Jones: She has known Mr. Doe for approximately 6 years through their association with St. John Catholic Church in Ennis. She notes that the Defendant’s family, friends, and employees depend upon him for moral and financial support, and that the Church community “would greatly suffer without his leadership and participation.”

Ms. Charolette Tanner: She has worked for John Doe for over 15 years. She writes that the Defendant has been very generous to her over the years, particularly during her emergency surgery and subsequent recovery.

Ms. Maria Jones: Employed by the Defendant for almost 8 years, Ms. Jones stresses that he has been a considerate and caring employer. She notes that she and others are financially dependant upon the Defendant and that he has helped provide a roof over her head and clothes to wear.

Ms. Maria Teresa Kitter: Employed by John Doe for 9 years, she states that if he is not present in the business, “this company would soon collapse and we would all be damaged as well as our families who depend on us.”

Cesar Rivera Federal: Employed by John Doe for 7 years, Mr. Federal states that quite a number of employees and families rely upon the work provided by the Defendant. He also notes that Mr. Doe treats everyone fairly, regardless of race or color.

Joe Federal: Notes that volunteering and helping ones neighbor comes second nature to John Doe. He is filled with the mission of “doing for others.”

Joann Henry: Speaking of helping ones neighbor, Ms. Henry is the Defendant’s 74 year old neighbor. She suffered a bad fall last year and, in addition to visiting her in the hospital, the Defendant takes her trash out twice a week, buys groceries for her, brings her the mail, and takes her bills to the post office for mailing.

With respect to his physical condition, Mr. Doe suffers from Dupuytren’s Disease, a genetic defect that causes his right hand to begin closing involuntarily. He recently underwent surgery for this problem and the recovery period is expected to be at least six weeks. He also has chronic back pain, arthritis and leg cramps. Twelve years ago, when he realized that he might have a problem with alcohol, he went on the wagon and quit drinking.
Additionally, Mr. Doe voluntarily surrendered to E.P.A. agents on April 7, 2006, and subsequent to his arrest he has made all of his court appearances and he has complied with his conditions of release.


Defendant Doe has located 14 pre-Booker cases, which are summarized and, if applicable, distinguished below. The majority of the cases cited below appear to have involved licensed commercial activities.

1. United States v. Thorn, 317 F.3d 107 (2d Cir. 2003).

Thorn, who owned an asbestos abatement company, was convicted of nine counts of Clean Air Act (CAA) violations and one count of engaging in a money laundering conspiracy. He was sentenced to serve 65 months incarceration, forfeit $939,000, and pay almost $300,000 in restitution. Thorn, 317 F.3d at 111. The underlying facts in Thorn are quite egregious when compared to those in Defendant Doe’s case. The evidence at sentencing showed that Thorn had directed workers to violate the asbestos regulations over a nine year period (compared to a matter of two weekends in Mr. Doe’s case); such violations had occurred at over 1,100 separate facilities (compared to one facility in this case); and, Thorn had not only had lied to customers about the work having been performed in accordance with state and federal laws, but he had also conspired with purportedly independent labs and air monitoring companies to falsify that the asbestos had been finally removed from the sites. 317 F.3d at 112-113.

2. United States v. Technic Services, Inc.., 314 F.3d 1031 (9th Cir. 2002).

The two defendants in this case were TSI (an Alaska company involved with
asbestos remediation) and Rushing (TSI’s secretary and treasurer). After being convicted of CAA and the Clean Water Act violations, Rushing was sentenced to 57 months of incarceration. Technic Services, Inc., 314 F.3d at 1036. The Ninth Circuit vacated the sentence and remanded the case for resentencing after determining that certain guidelines relied upon by the trial judge weren’t applicable. 314 F3.d at 1052-1053. The underlying facts reported in Technic Services are distinguishable and quite egregious when compared to this case. The violations in Technic Services arose from illegal asbestos abatement activities at several buildings at a large pulp mill. Rushing told workers doing the abatement to wash asbestos down drains that led into a nearby bay and not to worry since the asbestos would go to the bottom. 314 F.3d at 1043. Later, when the EPA began to
focus on the violations, Rushing asked workers to sign false statements that TSI hadn’t washed wastewater into the bay and promised to pay them a huge bonus ($100,000) for doing so. 314 F.3d at 1037; 1045. Moreover, as the dissent noted, Rushing was TSI’S health and safety officer and the on-site supervisor responsible for supervising the air monitoring. Instead of properly monitoring the asbestos levels, Rushing told his employees to deactivate the air quality monitors, cover them, and clean their measuring cassettes. 314 F.3d at 1054.

3. United States v. Chau, 293 F.3d (3d Cir. 2002). The Third Circuit

vacated and remanded for resentencing Chau’s sentence of 51 months incarceration after it determined that Chau’s sentence was improperly enhanced for a permit violation. Chau, 293 F.3d at 103. A jury convicted Chau for having violated the CAA and obstructed justice in connection with an illegal abatement operation of an abandoned school building that Chau owned, but couldn’t sell. Chau, 293 F.3d at 97-99. Although, in some ways, the facts in Chau resemble those in Mr. Riecke’s case (i.e., Chau hired handymen to clean the vacant building and they did so without adequate safety precautions), the facts also were more aggravated than those in this case. Chau helped take trash bags filled with asbestos-laden refuse and left these in a vacant lot in Philadelphia. 293 F.3d at 98. Later, after the city sought a temporary injunction of the building to prevent friable asbestos from escaping, and after the EPA had executed a federal search warrant on the building for evidence, and then after court orders had issued from the city and the EPA to immediately clean up the building, Chau tried to clean the asbestos himself before the inspectors came back, as the court’s opinion notes:

Chau engaged in a desperate and illegal act. He covered his upper and lower body with black trash bags and tied some bags around his feet. Then, he put on rubber boots, and donned a clear garbage bag over his chest area, a paint respirator over his mouth and nose, aviator goggles and a bandana over his head. Thus equipped, he began stripping pipes and placing pipe wraps in trash bags when the on-scene EPA investigator arrived. Chau made some false statements to the investigator.

293 F.3d at 98-99. Shortly afterwards, the site was declared to be a Superfund site and the government paid over $200,000 to have it clean up.

4. United States v. Pearson, 274 F.3d 1225 (9th Cir. 2001).
This case, which was affirmed on appeal, involved the conduct of a certified
asbestos supervisor who was hired to oversee an asbestos abatement project at the Central Heating Plant at the Whidbey Island Naval Air Station. Pearson, 27 F.3d at 1228-1229. Pearson’s defense, which the jury rejected, was that he wasn’t involved with the project at the time when the various asbestos work practice standards were violated. He was sentenced to serve 10 months’ incarceration – which based on some upward adjustments as well as three downward adjustments ( a two-level downward departure under Application Note 5 to U.S.S.G. §2Q1.2 (degree of harm), a five-level departure under Application Note 6 (degree of risk), and a four-level departure for aberrant behavior). 27 F.3d at 1229.

5. United States v. Dipentino, 242 F.3d 1090 (9th Cir. 2001).

The Ninth Circuit reversed the convictions of Rocco Dipentino and Rafiq Ali for

having improperly removed asbestos-containing materials from the Landmark Hotel and

Casino in Las Vegas before it was demolished. Dipentino was an industrial hygienist

employed by Ali’s asbestos abatement consulting firm (“Ab-Haz”) to oversee the

removal of friable asbestos from the casino. 242 F.3d at 1093. The judge has

constructively amended the indictment by instructing on a work practice standard that the defendants hadn’t been charged with violating. Dipentino, 242 F.3d at 1092-1093. The government showed that improper care was given to the EPA’s asbestos work practice standards about wetting and lowering asbestos during the remediation activities – for which Ali and Dipentino were sentenced to serve five months’ incarceration, five months of home detention, and assessed fines of $3,000 and $2,000, respectively. 242 F.3d at 1094.

6. United States v. Weintraub, 273 F.3d 139 (2d Cir. 2001). Weintraub was a
real estate developer and the primary shareholder of Morelite Development & construction, Inc. and Liberty Reality Associates, LLC. He had been negotiating with the City of New Haven, Connecticut to buy an abandoned office building that he wanted to renovate and convert into residential apartments. Weintraub, 273 F.3d at 141. While these facts were somewhat similar to those in Mr. Doe’s case, they were more aggravated. Weintraub caused asbestos-laden refuse to be illegally dumped at public places, including a local park and property owned by Amtrack. 273 F.3d at 142. Despite these and other aggravating facts (including forged documents about the remediation being created to obtain the release of loan proceeds before the demolition), Weintraub was sentenced to serve imprisonment of one year and a day and a $250,000 fine. (A co-defendant received 13 months incarceration and a $10,000 fine.) 273 F.3d at 143.

7. United States v. Bragg, 207 F.3d 394 (7th Cir. 2000), superseded by regulation as stated in United States v. Hollis, 230 F.3d 955 (7th Cir. 2000). The
Seventh Circuit affirmed Bragg’s conviction after he and his co-defendants (Gaines and Frazier) pled guilty to knowingly removing asbestos and rejected their claims that the judge had impermissibly applied Guidelines by applying upward adjustments for vulnerable victims and an aggravating role in the offense. Bragg, 207 F.3d at 395-396. Bragg, Gaines, and Frazier were sentenced to 24, 33 and 30 months imprisonment, respectively. 207 F.3d at 395. The underlying facts in this case were quite egregious compared to those in this, since the defendants had exploited homeless men in different states to perform various illegal asbestos removal projects:

For … 17 years, Frazier was a self-employed labor contactor for asbestos-abatement projects, supplying asbestos removal work crews for projects in Alabama, Georgia, Florida, Kentucky, Mississippi, North Carolina and Tennessee… [T]o carry out the conspiracy, the defendants on two separate occasions recruited men from a shelter for the homeless in Chattanooga, Tennessee, known as the “Community Kitchen.” The first recruitment occurred in February 1996, when Frazier recruited more than a dozen men, including men from the Community Kitchen, and drove them to Memphis, Tennessee to attend a four-day asbestos “supervisor/contractor” training course conducted by Professional Services, Inc. Each worker was required to “sign in” to the course with their name and social security number. All the workers passed the course, including Bragg who never attended the course but was fraudulently “signed in” by Frazier. Although Professional Services, Inc. issued the supervisor training course certificates (19 in all) in the name and social security number of each worker who “signed in,” none of the men received their certificates; they were sent to and retained by Frazier.

207 F.3d at 396. (Internal note omitted).

8. United States v. A-Abras Inc., 185 F.3d 26 (2d Cir. 1999).

This case involved an appeal of the sentence imposed on a 51-year old naturalized
American citizen (who emigrated from the Soviet Union), after he pled guilty to
supervising and controlling an illegal removal of asbestos during an asbestos abatement project at an apartment building near Central Park in Manhattan. A-Abras, Inc., 185 F.3d at 28-29. The defendant, who had founded an asbestos removal business in 1993, was sentence to “three months imprisonment, followed by three years’ supervised release, with the special conditions that he serve three months’ home confinement and ‘pay his fine of $22,000 to the City of New York Environmental Control Board at the principal rate of $611.11 a month.’” 185 F.3d at 29.

9. United States v. Shurelds, 173 F.3d 430 (6th Cir. 1999) (unpublished).
Shurelds worked for I.E.S. Lead Paint Division, Inc., which was hired to remove
material containing asbestos from an abandoned department store.” Shurelds, at *1.
Shurelds and three individuals, along with the company, were indicted for violating the CAA. While his co-defendants pled guilty, Shurelds went to trial, was found guilty, and sentenced to serve 51 months incarceration. Id. Unlike Mr. Doe, Shurelds worked in the asbestos remediation business. Moreover, Shurelds’ sentence was enhanced for obstruction that was related to his unsuccessful attempts to bribe inspectors. See id. at *2

(Shurelds stated … that the job ‘blew up’ because he could not bribe the state air quality inspector …”).

10. United States v. Tomlinson, 1999 U.S. App. LEXIS 16758 (9th Cir.) (unpublished).

The Ninth Circuit affirmed the convictions of Tomlinson, a contractor who had
overseen workers’ improper removal during a two week period of nearly 14,000 square
feet of asbestos-containing material from a Seattle commercial building – some of which had been put into toilets and sinks. Tomlinson, 1999 U.S. App. LEXIS 16758 at * 2- *3.

Although the opinion indicates that after Tomlinson was convicted by a jury, his sentence was enhanced by six levels for continuously releasing hazardous air pollutants into the environment, it doesn’t indicated his final punishment. See 1999 U.S. App. LEXIS

16758 at * 6.

11. United States v. Itzkowitz, 1999 U.S. App. LEXIS 904 (2d Cir.) (unpublished).
The summary order in this case likewise doesn’t reveal the punishment that was imposed. Itzkowitz was convicted for having ordered the unprotected removal of asbestos pipe insulation from a building located in Brooklyn. Itzkowitz, 1999 U.S. App. LEXIS at * 2. Among his arguments on appeal was that the trial judge had reversibly erred by allowing the government to introduce other act evidence that defendant had no other occasions similarly ordered the removal of pipe that he knew contained asbestos. 1999 U.S. App.
LEXIS at *3.

12. United States v. Murphy, 65 F.3d 758 (9th Cir. 1995).

The Ninth Circuit affirmed Murphy’s convictions for violating the CAA,
CERCLA, and making false statements to government agents resulting from a
prosecution based on the illegal disposal of asbestos at an apartment complex that
Murphy owned in Reno, Nevada. Murphy, 65 F.3d at 759-760. Insufficient facts are
presented in the record for comparative purposes to Defendant Riecke’s case, since the focus of the decision was on evidentiary issues, such as the testimony of Murphy’s ex-wife to an incriminating statement that he had made. The case reveals that, after being convicted by a jury, Murphy, who was sentenced to serve 33 months’ imprisonment, sought to obtain a 5K1.1 downward departure from the government for having helped authorities apprehend another person who was involved, which the government refused to do. At the sentencing, the district court determined that Murphy was entitled to the departure, but that since the government refused, it lacked the authority to grant relief- and so sentenced Murphy at the low end of the applicable Guidelines’ range. 65 F.3d at 761.

13. United States v. Banks, 1999 WL 257647 (E.D.Pa.) (unpublished).
As the district judge explained in its order on a 28 U.S.C. § 2255 motion following an unsuccessful direct appeal, Banks had been convicted by a jury for conspiracy and
violating the CAA, for which he was sentenced to serve 30 months imprisonment,
followed by three years supervised release, and fined $30,000. Banks, 1999 WL 257647 at * 1- * 2. His co-defendant, Burrell, was sentenced to serve 15 months imprisonment, followed by two years supervised release, and a fine of $500. 1999 WL 257647 at * 1.

While the details of the underlying conduct aren’t set out in the opinion on direct appeal, United States v. Banks, 225 F.3d 650 (Table) (3d Cir. 2000), some of the facts are available from an unpublished decision the companion defendant’s case, United States v. Burrell, 1996 WL 230039 (E.D. Pa. 1996). As that case reflects, the prosecution was based on an illegal asbestos removal activity in Philadelphia. Burrell was charged as being the owner or operator of that activity, and Banks was charged in connection with his actions as the owner of a real estate businesses. Burrell, 1996 WL 230039 at * 1- * 2.

Burrell had apparently worked as an independent contractor for Banks, but additional
details aren’t reported in that opinion. Id.

14. United States v. Buckley, 934 F.2d 84 (6th Cir. 1991). Although not too many of the underlying facts in this case are revealed by the court’s opinion (“…several counts related to the release of asbestos into the environment in the course of a demolition project”), it reflects that Buckley was sentenced to a term of three years probation, fined $5,000, and order to provide 300 hours of community service after having been convicted of CAA and CERCLA violations. 934 F.2d at 86-87.

15. United States v. Kung-Shou Ho, 311 F.3d 589 (5th Cir. 2002).

The Defendant Ho went to trial and was convicted of violating the Clean Air Act. Defendant Ho was convicted of improperly removing asbestos from a building that he owned over a 7 week period. At sentencing the trial court found that the appropriate total offense level was 10. The case was appealed and the Fifth Circuit Court of Appeals affirmed the conviction but remanded the case for resentencing because an additional 4 points should have been added to the Guideline calculation because Defendant Ho was the organizer of a criminal activity involving 5 or more participants or “otherwise extensive.” On remand, Ho was sentenced to 21 months of imprisonment. The case was subsequently sent back to the trial court for a second resentencing on remand and in April 2006 U.S. District Judge Quackenbush sentenced Ho to 2 months imprisonment and a fine of $20,000.

In conclusion, when evaluating all of the foregoing facts and circumstances in light of the 3553(a) factors, it is doubtful that a prison sentence, as opposed to probation or a period of home confinement, accompanied by electronic monitoring and an extended period of supervised release, would provide additional value as a deterrent or promote respect for the law. A prison sentence would simply be greater than necessary to comply with the purposes of sentencing. While it is impossible to see into the future, it is very difficult to imagine Mr. Doe getting into trouble with the law ever again. He is a good man who made a serious mistake over two weekends. The conduct of the conviction in this case represents a marked deviation from an otherwise productive and law-abiding life. John Doe is now a convicted felon, and this has been a very difficult and humbling experience for Mr. Doe and his entire family.
Mr. Doe contends that given the 3553(a) factors and the sentences handed down in the cases cited above, a reasonable sentence in this case lies below the range recommended by the advisory Guidelines. The reasonable sentence determination can be reached through a downward departure based on the case being outside the heartland of the typical crime and the typical offender, or the Court may alternately find that, apart from the advisory Guidelines, and in light of the other sentencing factors listed in 18 U.S.C. Section 3661, a reasonable sentence differs significantly from the recommended Guidelines range.


Finally, to the extent that the Court holds that the old “departure” language survived Booker, the Defendant, in an abundance of caution, respectfully requests that the Court depart downward, pursuant to U.S.S.G. Section 5K2.0. Defendant makes this request because, for the reasons stated earlier herein, his characteristics and behavior fall outside of the “heartland” of offenders committing such an offense.

Respectfully submitted,

David Finn
Texas Bar No. 07026900
2828 North Harwood, Suite 1950
Dallas, TX 75201
(214) 651-1121 (telephone)
(214) 953-1366 (telecopy)

Counsel for Defendant Doe

The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been sent, via regular United States mail, upon all parties of record, as identified below, on January 26, 2007.

Philip Umphries
United States Attorney's Office
1100 Commerce Street, Third Floor
Dallas, Texas 75242
Casey Kimble
Dallas, Texas
Senior USPO

David Finn
Judge David Finn

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