MOTION FOR DOWNWARD DEPARTURE AND/OR VARIANCE FROM THE SENTENCING GUIDELINES

  

When a defendant who has been charged with a federal crime in an indictment and has been found guilty, he may petition the sentencing court for a sentence lower than recommended in the federal sentencing guidelines.  The appropriate way to request a more lenient sentence is by way of a motion for a downward departure and/or a variance from the guideline’s recommended sentence.  Below is a motion for a downward departure and/or a variance from the guideline’s recommended sentence modified from a motion which was actually filed by SC Attorney Joseph Griffith on behalf of a defendant charged with tax fraud and the hiring of illegal immigrants.  This case was prosecuted by the South Carolina U.S. Attorney’s Office, Florence division.  The case was investigated by special agents of the IRS, Immigration and Customs Enforcement (ICE), and the FBI.  The motion was successful in that the judge sentenced the defendant to 45 days in jail when the sentencing guidelines recommended a sentence of 18 to 24 months in prison. 

DEFENDANT’S MOTION FOR DOWNWARD DEPARTURE AND/OR VARIANCE FROM THE SENTENCING GUIDELINES

The Defendant (“Defendant”), by and through his undersigned counsel, Joseph P. Griffith, Jr., hereby respectfully moves for a downward departure and/or a variance from the United States Sentencing Guidelines (“Guidelines” or “USSG”).  The request for a departure and/or variance is based on the following mitigating factors:

  1. The defendant has demonstrated extraordinary community service and rehabilitation;
  2. The defendant’s unlawful conduct was aberrant behavior;
  3. The proposed Guidelines sentence computation substantially overstates the seriousness of the crime;
  4. Defendant’s sentence should be less than Guidelines recommendation (18 to 24 months) in order to avoid disparate treatment in comparison to similarly situated defendants;
  5. The defendant has provided extraordinary acceptance of responsibility; and,
  6. The defendant has extraordinary family ties and obligations.

The defendant respectfully requests a hearing at sentencing and an opportunity to present evidence and oral arguments in support of the said motion for a downward departure from the Guidelines sentencing computation. 

Furthermore, a review of the other six sentencing factors which the court must consider pursuant to 18 U.S.C. § 3553(a) strongly suggests that the defendant should not be sentenced to incarceration in federal prison for 18 to 24 months as recommended by the Guidelines.   Rather, the defendant should receive a substantially lesser sentence.  Defendant respectfully requests that this honorable Court impose a sentence ranging from probation with conditions to confinement in a half-way house and/or home confinement. 

I.                   PROCEDURAL BACKGROUND

On March 24, 2009, the Defendant was indicted by the Grand Jury for one count of tax evasion in violation of 26 U.S.C. § 7201, and one count of hiring at least 10 aliens in violation of 8 U.S.C. §1324(a)(3)(4).  The specific allegations and charges contained in Count 1 of the Indictment were as follows:

1.         At all times relevant to the Indictment, the defendant was the sole owner of Defendant Construction Company, Inc., a subchapter S corporation, operating a concrete pouring and finishing business in Conway, South Carolina.

2.         During the years 2003 through 2006, the defendant skimmed gross receipts from the Defendant Construction Company, Inc., totaling $659,378.15 for his personal use but failed to report these proceeds as income resulting in a tax loss of $198,653.00.

3.         On or about October 15, 2006, in the District of South Carolina, the defendant a resident of Conway, South Carolina, did willfully attempt to evade and defeat a large part of the income tax due and owed by him to the United States of America for the calendar year 2005, by preparing and causing to be prepared and by signing and causing to be signed, a false and fraudulent U.S. Individual Income Tax Return, form 1040 which was filed with the Internal Revenue Service, and in that false return, defendant stated that his taxable income for the calendar year 2005, was the sum of $42,846.00 and that a refund of $4,163.00 was due from the Internal Revenue Service.  In fact, as he then and there knew his taxable income for the calendar year was the sum of $332,364.00 upon which taxable income there was owing to the United States of America an income tax of $84,096.00.

The specific allegations and charges contained in Count 2 of the Indictment were as follows:

4.         That from in or before January 2006, to on or about May 16, 2007, in the District of South Carolina, the defendant knowingly hired at least ten individuals with actual knowledge that the individuals were unauthorized aliens as defined by Title 8, United States Code, Section 1324a(h)(3); in violation of Title 8, United States Code, Section 1324a(3)(A).

On June 4, 2009, Defendant entered into an amended plea agreement with the Government by which he pleaded guilty to Counts 1 and 2 of the Indictment.  Defendant also agreed to provide detailed financial information to the U.S. Probation Office prior to sentencing, and to make full restitution to the Internal Revenue Service in the total amount of $248,637.20, pursuant to 18 U.S.C. § 3663(A)(3).

On July 21, 2009, a Pre-Sentence Report (“PSR”) was issued by U.S. Probation Officer Van N. Benson, which calculated the Offense Level of Count 1 at 16 and the Offense Level of Count 2 at 18.  With specific acceptance of responsibility adjustments and reductions, the Total Offense Level for both charges was determined to be 15 with a Criminal History Category of I (0 points) pursuant to the Guidelines.  The Total Offense Level was calculated as follows:

COUNT 1:  Tax Evasion

+16      Base Offense Level per U.S.S.G. § 2T1.1 and § 2T4.1 (Tax Table)

 

16        Total Offense Level Count 1

COUNT 2:  Hiring at Least 10 Aliens

+12      Base Offense Level per U.S.S.G. § 2L1.1(a)(3)

+6        Specific Offense Characteristics (offense involved smuggling, transporting, or harboring of 25 but less than 99 unlawful aliens)

18        Combined Offense Level (Pursuant to U.S.S.G. §3D1.3(a), in the case of counts grouped together pursuant to U.S.S.G. § 3D1.2(b), the offense level applicable to a group is the highest offense level of the counts in the group).

-2         Acceptance of Responsibility Adjustment per USSG § 3E1.1(a)     

-1         Additional Reduction Adjustment per USSG § 3E1.1(b)

15        Total Offense Level of Counts One and Two

As the PSR reflects, the advisory Guidelines range in this case as to Counts One and Two, based on a total offense level of 15 and a criminal history category of I, and prior to a departure or variance, is 18 to 24 months in prison (Zone D), with the minimum term satisfied by a sentence of imprisonment per USSG § 5C1.1(f).  However, as set forth below, a lesser sentence is authorized and appropriate under the Guidelines and Title 18, United States Code, Section 3553. 

II.                FACTUAL BACKGROUND

Defendant has been in the construction business since graduating from Conway High School.  Around 1997, he formed Defendant Construction and continued to perform construction work, primarily as a concrete sub-contractor, as well as remodeling and handyman work, in the Horry County area.  In 1998, he obtained a sub-contract with Homes Corporation in which he performed multi-family flat concrete work and employed around 5 to 7 employees.  By 2002, Homes Construction started a second project and hired Defendant Construction to provide concrete construction as a sub-contractor.  With two projects going, Defendant was constantly experiencing a shortage of laborers.  He was forced to go to the local unemployment office to hire workers, and the results were not good.  Most of these laborers did not work more than two weeks before quitting.  

In 2004, Homes Construction started a third project and again sub-contracted Defendant Construction to perform its concrete construction work.  Defendant continued to struggle to find laborers who would show up for work on a consistent basis, and he continued to have to new workers on an almost daily basis which made jobs difficult because they needed on the job training.

In 2005, Homes Construction had approximately six projects ongoing, and Defendant was struggling to keep up with Homes as well as 7 to 8 other contractors.  Laborers were so scarce that Defendant had to get in his truck and literally drive around through different communities to try to find people who would work.  At this time, he met a Hispanic man who would only agree to work for cash.  In desperation, Defendant began hiring him and his friends in order to be able to maintain his company’s ability to perform jobs and stay in business.  During this time period, Defendant employed about 25 employees and about 25 sub-contractors.   

By 2007, the contracting business had deteriorated greatly due to adverse market conditions.  Defendant has also had plumbing and trail sales businesses, but no longer operates these businesses.  His started an automobile sales business, and continues to try to run this business.  Defendant construction business is barely surviving.  He currently employs three employees and two sub-contractors in his construction contracting business. It is certainly unlikely that these jobs will survive if Defendant is sentenced to prison pursuant to the Guidelines.

In June of 2007, Defendant agreed to forfeit $29,236.00 to the United States, and voluntarily signed a consent forfeiture of the same. Defendant has made a complete disclosure of his criminal conduct, and readily admitted the same.  He provided all of his documentation to the IRS, ICE and the U.S. Attorney’s office and was interviewed several times to fully explain his actions.  He has, from the start, provided extraordinary cooperation with the government in its investigation of this matter.  He has repeatedly tried to assist IRS and ICE agents in trying to build criminal cases against potential criminal subjects, but to no avail. He agreed to plead guilty, and did plead guilty to the aforementioned Indictment pursuant to a plea agreement.

As noted in the PSR, the tax loss to the government is $198,653 for his failure to properly report his income and pay income taxes.  For restitution purposes, Defendant has agreed to repay the government $248,637.20. 

Defendant is a 43 year old businessman who has been married to his wife for 10 years.  They have three children.  Other than for minor traffic tickets and the subject conviction, he has led a completely law-abiding life.  He is a major source of financial support for his wife and two children, and they rely tremendously on him in his role as a father and husband.  It should be noted that his wife, a stay-at-home mom with a small child, is quite fearful about her family’s survival should a sentence be imposed on her husband which precludes his continued ability to work and generate an income.

Defendant has an extraordinary record of prior good works and community service.  He has served as an active member of the Conway Church, and has served on the Church’s Board.  Defendant has often donated construction time and materials to raise money for Church-sponsored projects, including spearheading efforts to build a new Sunday School facility for the parish’s children, and assisting with the Church’s hospital and nursing home ministries, as well as the Church’s ministries to aid the homeless and needy.  Defendant has a record of personally visiting the Church’s sick and home-bound members to provide comfort and support.  Defendant has financially sponsored his local high school student sports teams, including the girls’ softball team, so they are in a position to continue their athletic events.

Defendant also has a history of taking special care of his employees.  There are numerous examples of his kindness and charitable efforts towards his employees.  He has paid his employees’ home electric bills when they fell behind.  He has bought Christmas presents for employees’ children when they could not afford to do so.  He has given employees cars to drive when they had no means of transportation.  In short, despite his conduct in the case at bar, Defendant has a history of extraordinary community and charitable good works.

In an effort to show extraordinary rehabilitation, since admitting his criminal activity, Defendant has continued all of his foregoing ministries with his Church, his support of the local high school athletic programs, and his charitable deeds towards his employees.

III.             SENTENCING PARADIGM PER BOOKER, GALL, USSG AND 18 U.S.C. § 3553

The Guidelines are now but one of seven statutory factors to weigh when formulating a sentence.  United States v. Booker, 125 S. Ct. 738 (2005); 18 U.S.C. § 3553.  In Booker, the Supreme Court held that the mandatory manner in which the Guidelines required courts to impose sentencing enhancements based on facts found by the court, by a preponderance of the evidence, violated the Sixth Amendment to the Constitution. The Supreme Court remedied the constitutional violation by severing two statutory provisions, 18 U.S.C. § 3553(b)(1) (requiring sentencing courts to impose a sentence within the applicable Guideline range), and 18 U.S.C. § 3742(e) (setting forth appellate standards of review for Guideline issues), thereby making the Guidelines advisory.  Booker, 125 S.Ct. at 756-57.  Although the Guidelines are no longer mandatory, Booker makes clear that a sentencing court must still “consult [the] Guidelines and take them into account when sentencing.”  Booker, 125 S.Ct. at 767.

Since Booker was decided, the Fourth Circuit has instructed that a district court should first determine the appropriate sentencing range under the Guidelines, making all factual findings appropriate for that determination.  See United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).  Next, the court must “determine whether a sentence within that range … serves the factors set forth in § 3553(a) and, if not, select a sentence [within statutory limits] that does serve those factors.”  United States v. Moreland, 437 F.3d 424 (4th Cir. 2006); United States v. Green, 436 F.3d 449, 455, 4th Cir. 2006).  In making this determination, the court should first look to whether a departure is appropriate based on the Guidelines or relevant case law, and, if an appropriate basis for departure exists, the district court may depart.  Id.; United States v. Rybicki, 96 F.3d 754 (4th Cir. 1996). 

If the resulting departure range still does not serve the factors set forth in § 3553(a), the court may then elect to impose a non-Guidelines sentence (a “variance sentence”), but should explain its reasons pursuant to 18 U.S.C. § 3553(c)(2)Hughes, supra.  The sentence must be “within the statutorily prescribed range and … reasonable.”  Id. at 546-47 (emphasis added).[1]  The “sentencing court may not presume that the Guidelines range is reasonable.”  United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

The United States Supreme Court recently modified the Fourth Circuit approach to sentencing as set forth in its decision of Gall v. United States, 128 S.Ct. 586 (2007).  In Gall, the Supreme Court set forth the sentencing paradigm as follows:

As we explained in Rita, a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. See 551 U.S., at —-, 127 S.Ct. 2456. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark. The Guidelines are not the only consideration, however. Accordingly, after 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. In so doing, he may not presume that the Guidelines range is reasonable. See id., at —-, 127 S.Ct. 2456. He must make an individualized assessment based on the facts presented. If he decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one. After settling on the appropriate sentence, he must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. Id., at —-, 127 S.Ct. 2456.

Thus, first, the Court must establish the Sentence under the Guidelines and make appropriate factual findings.  Second, the Court must allow the parties to argue for the sentence they deem appropriate.  Third, the Court must consider all of the factors set forth in 18 U.S.C. § 3553(a), decide an appropriate sentence and adequately explain the chosen sentence.

IV.         A DOWNWARD DEPARTURE IS WARRANTED

A downward departure is warranted in this case.  Congress has instructed that a sentencing court must “impose a sentence of the kind, and within the range,” required by the guidelines “unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.”  18 U.S.C. § 3553(b). 

In determining “whether a potential basis for departure was adequately considered by the [Sentencing] Commission, . . . a sentencing court must focus on whether the factor is taken into account by the guidelines, policy statements, or commentary and whether it is encompassed within the heartland of situations to which the applicable guideline was intended to apply.”  United States v. Barber, 119 F.3d 276, 280 (4th Cir.), cert. denied, 522 U.S. 988 (1997) (citing Koon v. United States, 518 U.S. 81 (1996)). 

The Sentencing Commission has “adequately considered circumstances within the heartland of conduct encompassed by the guidelines and did not consider conduct falling outside the heartland.”  Barber, 119 F.3d at 280.  The “heartland” of a given guideline is “a set of typical cases embodying the conduct that each guideline describes.”  USSG ch. 1, pt. A, introductory cmt. 4(b).  Accordingly, the crucial inquiry is whether the individual facts that the district court is considering are taken into account in the heartland of situations encompassed within the applicable guideline.  Barber, supra.        

In order to ascertain whether a factor under consideration is an appropriate basis for departure, the Koon Court instructed that after identifying a potential basis for departure a sentencing court should determine whether that factor was forbidden, encouraged, discouraged, or unmentioned by the Commission as a basis for departure.  Barber, supra.  The category of a particular factor is determined by reference to the guidelines, policy statements, and commentary.  Id.  With respect to an encouraged factor, “the court is authorized to depart if the applicable Guideline does not already take it into account.”  Koon, 518 U.S. at 96.  If the factor is taken into account by the appropriate guideline, then the court may depart “only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.”  Id.  Similarly, a discouraged factor may serve as the basis for departure only if it is present to such an unusual degree that it cannot be said to come within the heartland of the applicable guideline.  See Id.; see also Barber, 119 F.3d at 281.  Finally, a sentencing court may depart on the basis of a factor that is unmentioned by the guidelines as a ground for departure if that factor removes the case from the heartland of cases contemplated by the applicable guideline, but such departures should only occur in “‘rare’ situations.”  Id.; see USSG ch. 1 pt. A introductory cmt. 4(b).

Where a departure is determined to be appropriate, the extent thereof need only be reasonable under the circumstances.  United States v. Bellamy, 264 F.3d 448, 454 n.3 (4th Cir. 2001), cert. denied, 534 U.S. 1143 (2002).  As explained by the Supreme Court in Williams v. United States, 503 U.S. 193, 203 (1992), “the reasonableness determination looks to the amount and extent of departure in light of the grounds for departing.”  Under Williams, this is necessarily a wide-ranging and flexible inquiry:

In assessing reasonableness . . . the Act directs a court of appeals to examine the [statutory] factors to be considered in imposing a sentence under the Guidelines, as well as the district court’s stated reasons for the imposition of the particular sentence.  A sentence thus can be ‘reasonable’ even if some of the reasons given by the district court to justify the departure from the presumptive guideline range are invalid, provided that the remaining reasons are sufficient to justify the magnitude of the departure.

Id. at 203‑04 (citing then current version of section 3742(e)); see also 18 U.S.C.A. § 3742(e), (e)(C) (West Supp. 2004) (providing that appellate review of whether a sentence “departs to an unreasonable degree” must consider the statutory “factors to be considered in imposing a sentence” as well as the district court’s statement of its “reasons for the imposition of the particular sentence”).  United States v. Davis, 2004 WL 1828353, at *5 (4th Cir. 2004).

As this Court knows, a downward departure for a defendant is generally governed Section 5K of the Guidelines.  While there is no substantial assistance departure available in this case, Defendant relies upon Guidelines Sections 5K2.0 (Other Grounds For Departure) as the basis for his request for a downward departure.

Section 5K2.0 provides for downward departures as follows:

●  Subpart (a)(1)(A) provides for a departure in the case of an offense other than a child crimes offense if there are mitigating circumstances of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission that should result in a sentence lower than that calculated under the Guidelines. 

●  Subpart (a)(2) provides for a departure based upon circumstances of a kind not adequately taken into consideration by the Sentencing Commission, including both Identified Circumstances and Unidentified Circumstances. 

● Subpart (a)(3) provides for a departure in exceptional cases based upon circumstances present to a degree not adequately taken into consideration by the Sentencing Commission. 

●  Subpart (a)(4) provides for a departure based upon an offender characteristic, set forth in Section H, or other circumstance which is present to an exceptional degree. 

●  Subpart (c) provides for a departure based upon a combination of two or more offender characteristics or other circumstances, none of which is independently sufficient to support a departure, if they make the case an exceptional one, are present to a substantial degree, and are identified in the Guidelines as a permissible ground for departure. 

As more fully described below, Defendant also relies on the authority of USSG § 5K2.20 in support of a downward departure on the basis of “aberrant behavior.”

In light of the unique circumstances presented by this case, it is clear that it falls outside the heartland of cases and that a downward departure is warranted for the reasons set forth below.

1.  The defendant’s unlawful conduct was aberrant behavior.

Aberrant behavior has long been recognized as a ground for departure from Guidelines sentences.  USSG § 5K2.20 provides that a downward departure may be warranted for “aberrant behavior.”  That guideline states:

§ 5K2.20. Aberrant Behavior (Policy Statement)

(a)        In General.—Except where a defendant is convicted of an offense involving a minor victim under section 1201, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, of title 18, United States Code, a downward departure may be warranted in an exceptional case if (1) the defendant’s criminal conduct meets the requirements of subsection (b); and (2) the departure is not prohibited under subsection (c).

(b)        Requirements.—The court may depart downward under this policy statement only if the defendant committed a single criminal occurrence or single criminal transaction that (1) was committed without significant planning; (2) was of limited duration; and (3) represents a marked deviation by the defendant from an otherwise law‑abiding life.

(c)        Prohibitions Based on the Presence of Certain Circumstances.—The court may not depart downward pursuant to this policy statement if any of the following circumstances are present:

(1)        The offense involved serious bodily injury or death.

(2)        The defendant discharged a firearm or otherwise used a firearm or a dangerous weapon.

(3)        The instant offense of conviction is a serious drug trafficking offense.

(4)        The defendant has either of the following: (A) more than one criminal history point, as determined under Chapter Four (Criminal History and Criminal Livelihood) before application of subsection (b) of 4A1.3 (Departures Based on Inadequacy of Criminal History Category); or (B) a prior federal or state felony conviction, or any other significant prior criminal behavior, regardless of whether the conviction or significant prior criminal behavior is countable under Chapter Four.

Application Note 3 provides:

3.         Other circumstances to Consider.—In determining whether the court should depart under this policy statement, the court may consider the defendant’s (A) mental  and emotional conditions; (B) employment record; (C) record of prior good works; (D) motivation for committing the offense; and (E) efforts to mitigate the effects of the offense.

This list is not exhaustive.  See United States v. Booe, 252 F. Supp. 2d 584 (E.D. Tenn. 2003).

Defendant meets the criteria set forth in § 5K2.20 and a downward departure under § 5K2.20 is warranted in this “exceptional” case.  While the defendant obviously took steps to carry out the fraud in this case, he did not “significantly plan” the unlawful activity and it was not an elaborate scheme.  At most, the tax fraud involved minimal planning by Defendant.  The government and the probation office have not asserted an allegation that sophisticated means were involved in the instant case.    

Likewise, the subject criminal conduct was of a limited duration.  The charged conduct occurred from 2003 through 2007.  The “limited duration” requirement of § 5K2.20(b)(2) no longer requires a single act or transaction in order to qualify for a departure.  United States v. Vieke, 348 F.3d 811 (9th Cir. 2003).  Courts have held that fraud crime schemes ranging upwards of four years in duration still meet the limited duration test for aberrant behavior.  Vieke, 348 at 814; United States v. Nunemacher, 362 F.3d 682 (10th Cir. 2004) (possession, distribution and destruction of child porn over several months was of limited duration justifying, in part, a downward departure).

Finally, this criminal conduct represents a marked deviation by the defendant from an otherwise law-abiding life.  Other than traffic tickets, Defendant has had no prior arrests or convictions.

Moreover, as Application Note 3 instructs, the court may consider defendant’s (A) mental and emotional conditions;[2] (B) employment record; (C) record of prior good works; (D) motivation in committing the offense; and (E) efforts to mitigate the effects of the offense.  At least four of these factors militate in favor of granting a departure.

As for employment record, prior to the subject offense, Defendant enjoyed a sterling reputation as a Conway construction contractor and was successful in the businesses in which he was involved.  Around 1997, he formed Defendant Construction and continued to perform construction work, primarily as a concrete sub-contractor, as well as remodeling and handyman work, in the Horry County area.  In 1998, he obtained a sub-contract with Homes Corporation in which he performed multi-family flat concrete work and employed around 5 to 7 employees.  By 2002, Homes Construction started a second project and hired Defendant Construction to provide concrete construction as a sub-contractor. 

In 2004, Homes Construction started a third project and again sub-contracted Defendant Construction to perform its concrete construction work. 

In 2005, Homes Construction had approximately six projects ongoing, and Defendant was struggling to keep up with Homes as well as 7 to 8 other contractors.  During this time period, Defendant employed about 25 employees and about 25 sub-contractors.   

By 2007, the contracting business had deteriorated greatly due to adverse market conditions.  Defendant’s construction business is operating at a reduced size due to the lackluster economy.  He currently employs three employees and two sub-contractors in his construction contracting business. Defendant has proved himself to be a hard working, self-employed businessman who hangs tough despite difficult economic times.  Thus, his employment record heretofore was unblemished.

Defendant also had an admirable record of prior good works.  He has served as an active member of the Conway Church, and has served on the Church’s Board.  Defendant has often donated construction time and materials to raise money for Church-sponsored projects, including spearheading efforts to build a new Sunday School facility for the parish’s children, and assisting with the Church’s hospital and nursing home ministries, as well as the Church’s ministries to aid the homeless and needy.  Defendant has a record of personally visiting the Church’s sick and home-bound members to provide comfort and support.  Defendant has financially sponsored his local high school student sports teams through the Conway Booster Club, including the girls’ softball team, so they are in a position to continue their athletic events.

Defendant also has a history of taking special care of his employees.  There are numerous examples of his kindness and charitable efforts towards his employees.  He has paid his employees’ home electric bills when they fell behind.  He has bought Christmas presents for employees’ children when they could not afford to do so.  He has given employees cars to drive when they had no means of transportation.  In short, despite his conduct in the case at bar, Defendant has a history of extraordinary community and charitable good works.

Defendant’s motivation in committing the offense was not to hurt the government or anyone else but an unwise effort to try to keep his business afloat in tough economic times.  Like many construction contractors who have been adversely affected by the gradual stall in the real estate economy, Defendant tried to cut corners to keep his business going.  While this is certainly not an excuse or a justification for his wrongful conduct, which he has readily admitted, his initial motivation is a factor which warrants the Court’s consideration.

Defendant has not profited in any meaningful way as a result of his misconduct.  His net worth, as reported in the PSR, is negative.  Defendant and his family live a relatively simple and modest lifestyle, with a current monthly net income of less than two thousand dollars.      

Defendant also made great efforts to try to mitigate the effects of his misconduct.  In June of 2007, Defendant agreed to forfeit $29,236.00 to the United States, and voluntarily signed a consent forfeiture of the same. Defendant has made a complete disclosure of his criminal conduct, and readily admitted the same.  He provided all of his documentation to the IRS, ICE and the U.S. Attorney’s office and was interviewed several times to fully explain his actions.  He has, from the start, provided extraordinary cooperation with the government in its investigation of this matter.  He has repeatedly tried to assist IRS and ICE agents in trying to build criminal cases against potential criminal subjects, but to no avail. He agreed to plead guilty, and did plead guilty to the aforementioned Indictment pursuant to a plea agreement.

His extraordinary acceptance of responsibility clearly mitigates the government’s losses in this case.   Also, pursuant to the plea agreement, Defendant voluntarily agreed to the entry of an order of restitution in the amount of $248,637.20 in order that full restitution be made in this case.  Again, Defendant agreed to forfeit $29,236.00 to the United States which is to be applied toward said restitution.  Defendant also agreed to provide detailed financial information to the U.S. Probation Office prior to sentencing.  Thus, these efforts clearly demonstrate a good faith attempt on Defendant’s part to mitigate the government’s losses caused by his misconduct.

“The aberrance of a criminal act is an encouraged factor for departure.’”  United States v. Garcia, 182 F.3d 1165, 1176 (10th Cir.), cert. denied, 528 U.S. 987 (1999); United States v. Jones, 158 F.3d 492, 500 (10th Cir.1998) (“the aberrant nature of a criminal defendant’s offense conduct may properly be considered as a mitigating factor in a downward departure decision.”).  Downward departures based on aberrant behavior have been upheld even in violent and/or serious cases in which probation was not available or seriously considered.  Garcia, 182 F.3d at 1168, 1177 (cocaine trafficking, possession with intent to distribute); United States v. Tsosie, 14 F.3d 1438, 1440, 1441-42 (10th Cir.1994) (voluntary manslaughter).

Courts have granted departures based on “aberrant behavior” in a variety of situations.  See, e.g., United States v. Langille, 324 F. Supp. 2d 38 (D. Me. 2004) (granting “aberrant behavior” departure where 70-year-old defendant robbed a bank); Booe (departure granted in bank robbery case, in part because defendant was suffering from depression, and had a good work history); United States v. Khan, 2004 WL 819079 (2d Cir. 2004) (unpublished) (upholding departure granted in prosecution for conspiracy to commit bulk-cash smuggling and related offenses); United States v. Patterson, 281 F. Supp. 2d 626 (E.D.N.Y. 2003) (in drug conspiracy, departure for aberrant behavior warranted where defendant was motivated by desire to do a favor for a friend and cooperated with the government); United States v. Mellert, 2003 WL 22025007 (N.D. Cal. 2003) (unpublished) (departure granted in insider trading case; defendant had outstanding employment record, mitigated effects of conduct by depositing profits rather than spending them, and was involved in numerous prior good works).

As in the foregoing cases, the uniqueness of this case warrants a departure under § 5K2.20.  The criteria of § 5K2.20 are met and this case falls far outside the heartland of a typical bank fraud case.  Therefore, a downward departure is warranted.

2.  The Guidelines sentence substantially overstates the seriousness of the crime.

In this case, defendant has pleaded guilty to one count of tax evasion in violation of 26 U.S.C. § 7201, and one count of hiring at least 10 aliens in violation of 8 U.S.C. §1324(a)(3)(4).  The tax evasion charge has an adjusted offense level of 16 and the illegal hiring charge has an adjusted offense level of 18.  The Guidelines calculation requires applying the higher adjusted offense level prior to the 3 level reductions for acceptance of responsibility. 

The defendant asserts that the Guidelines application substantially overstates the seriousness of the crime in two respects.  First, based on the totality of the circumstances, the illegal hiring charge is not a more serious offense than the tax evasion charge.  To apply the level 18 (alien charge) as opposed to level 16 (tax charge) unnecessarily and inappropriately increases the calculation by two levels.  Second, the alien charge adjusted offense level is arbitrarily inflated to level 18.  It is not equitable to apply a 6 level increase under § 2L2.1(b)(2)(B) simply because there may be 25 illegal aliens involved in the underlying offense, whereas § 2L2.1(b)(2)(A) requires only a 3 level increase when 24 illegal aliens are involved in the underlying offense.

Based on the foregoing, the more appropriate Guidelines adjusted level is level 16, (which, after acceptance of responsibility, results in a total offense level 13), and a departure under Section 5K2.0 Subparts (a)(1)(A), a(2) and/or (a)(3) is warranted here.  This is not a typical tax evasion/illegal hiring case; rather, it falls far outside the heartland of cases, and warrants a downward departure. 

3.  The defendant has demonstrated extraordinary community service and rehabilitation.

As noted above, Defendant also has an extraordinary record of prior good works and community service.  As noted above, he has served as an active member of the Conway Church, and has served on the Church’s Board.  Defendant has often donated construction time and materials to raise money for Church-sponsored projects, including voluntarily spearheading efforts to build a new Sunday School facility for the parish’s children, and assisting with the Church’s hospital and nursing home ministries, as well as the Church’s ministries to aid the homeless and needy.  Defendant has a record of personally visiting the Church’s sick and home-bound members to provide comfort and support.  Defendant has financially sponsored his local high school student sports teams through the Conway Booster Club, including the girls’ softball team, so they are in a position to continue their athletic events.

Defendant also has a history of taking special care of his employees.  There are numerous examples of his kindness and charitable efforts towards his employees.  He has paid his employees’ home electric bills when they fell behind.  He has bought Christmas presents for employees’ children when they could not afford to do so.  He has given employees cars to drive when they had no means of transportation.  In short, despite his conduct in the case at bar, Defendant has a history of extraordinary community and charitable good works.

Likewise, in an effort to show extraordinary rehabilitation, since his admission of criminal activity, Defendant has continued his ministries with the Church, his support of local athletic teams, and his charitable deeds for his employees.

While § 5H1.11 of the Sentencing Guidelines state that “civic, charitable, or public service … and similar prior good works are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range[,]” the Introductory Commentary to Part H of the Guidelines provides that they “may be relevant to this determination in exceptional cases.”  (emphasis added). As explained by the Supreme Court, a court may still depart “if the [discouraged] factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.”   Koon, 518 U.S. at 96 (emphasis added). This is clearly such a case.

Numerous other courts have recognized a defendant’s prior community service as a basis for a downward departure.  United States v. Serafini, 233 F.3d 758 (3rd Cir. 2000) (“Serafini’s civic and charitable contributions were exceptional and thus warranted a downward departure.”); United States v. Goldberg, 295 F.3d 1133, fn. 3 (10th Cir. 2002) (extraordinary community service, collateral employment consequences of conviction, and extraordinary post-conviction rehabilitation justified a downward departure); United States v. Greene, 249 F.Supp.2d 262 (S.D.N.Y. 2003) (“Greene is entitled to a downward departure for his charitable works.”); United States v. Wilke, 156 F.3d 749 (7th Cir. 1998) (community ties and charitable good works may be considered factors in support of a downward departure in extraordinary cases). 

Likewise, “courts have recognized post-arrest conduct may justify a departure even though section 3E.1.1 rewards acceptance of responsibility.” (emphasis added) United States v. Sally, 116 F.3d 76 (3rd Cir. 1997); United States v. Watson, 2000 WL 1840080 (D.Me) (unpublished) (recognizing departures for post-offense, pre-sentence rehabilitation); United States v. Brock, 108 F.3d 31 (4th Cir. 1997) (same).

Thus, Defendant’s pre- and post-charge community service and rehabilitation should be a basis for a downward departure.

4.  The defendant has demonstrated extraordinary acceptance of responsibility.

So too, Defendant has demonstrated extraordinary acceptance of responsibility for his actions which support a downward departure.  There is no question that he voluntarily acknowledged his criminal conduct to law enforcement authorities, cooperated fully and completely, and tried to help the government pursue other criminal cases albeit to no avail.

Extraordinary acceptance of responsibility is a recognized basis for a downward departure and has been so applied when appropriate.  In United States v. Nguyen, 212 F.Supp.2d 1008 (N.D.Iowa 2002), the court departed downward based upon the defendant’s extraordinary acceptance of responsibility.  It noted as follows:

While the Eighth Circuit Court of Appeals has not addressed the type of exceptional acceptance of responsibility at issue in this case, it has recognized that extraordinary acceptance of responsibility may be a proper ground for a downward departure pursuant to section 5K2.0, despite section 3E1.1‘s express contemplation of acceptance of responsibility. See, e.g., United States v. Oligmueller, 198 F.3d 669, 671 (8th Cir.1999) (recognizing district court’s authority to depart downward when there are extraordinary efforts at restitution, taking the case outside the heartland) (citation omitted); United States v. Condelee, 961 F.2d 1351, 1353 (8th Cir.1992) (recognizing sentencing court’s discretion to depart downward “in unusual circumstances such as extraordinary restitution”); United States v. Garlich, 951 F.2d 161, 163 (8th Cir.1991) (remanding for resentencing because district court should have considered “whether the extent and timing of Garlich’s restitution [were] sufficiently unusual to warrant a downward departure”); Crumb, 902 F.2d at 1339-40 (affirming departure for extraordinary acceptance of responsibility when defendant voluntarily surrendered to authorities only nine days after he had been ordered to self-surrender). Thus, the court rejects the argument that section 3E1.1 precludes a departure from the Guidelines even in extraordinary cases and concludes that the Commission has not forbidden departures based on the type of extraordinary acceptance of responsibility exhibited by Mr. Nguyen….

The Eighth Circuit Court of Appeals has repeatedly recognized departures under the theory of extraordinary acceptance of responsibility when the circumstances of the case are truly exceptional and outside the heartland of section 3E1.1. See, e.g., United States v. Newlon, 212 F.3d 423, 424 (8th Cir.2000) (affirming downward departure for defendant’s extraordinary pre-arrest participation in substance abuse treatment); United States v. DeShon, 183 F.3d 888, 889-91 (8th Cir.1999) (affirming extraordinary acceptance of responsibility departure when defendant made a “concrete change of life”); United States v. Kapitzke, 130 F.3d 820, 823-24 (8th Cir.1997) (affirming downward departure for defendant’s extraordinary acceptance of responsibility by defendant’s pre-indictment participation in substance abuse treatment with “truly outstanding” results);*1023 Crumb, 902 F.2d at 1338-40 (extraordinary acceptance of responsibility when defendant voluntarily surrendered to authorities nine days after he had been ordered to self-surrender); see also Garlich, 951 F.2d at 163 (directing district court to consider extraordinary acceptance of responsibility for exceptional restitution as ground for potential departure). Thus, a departure on the ground of extraordinary acceptance of responsibility is a proper basis upon which to depart if, as Koon and guideline 5K2.0 direct, a defendant’s acceptance of responsibility “is present to an exceptional degree or in some other way [is] different from the ordinary case where the factor is present.”

(emphasis added)

Therefore, based upon the foregoing, a downward departure from the advisory Guidelines range is appropriate in this case.  A departure from Level 15 (18-24 months) to a range of probation or a half-way house and/or home confinement is certainly reasonable under the circumstances. 

V.           A VARIANCE IS WARRANTED UNDER 18 U.S.C. § 3553

Even if the Court were to decide that a Guidelines departure is inappropriate, the Court may vary from the advisory Guidelines to impose any reasonable sentence based on a consideration of the § 3553 factors.  Booker at 757, 767.  As analyzed below, a variance from the Guidelines is warranted, and a sentence of probation with reasonable conditions is authorized and appropriate under the facts of this case. 

The factors set forth in Title 18, United States Code, Section 3553, are as follows:

(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.

18 U.S.C. § 3553.   

The first set of factors in §3553(a)(1) — the nature and circumstances of the offense and the history and characteristics of the defendant – favors the 43-year old Defendant.  The subject unlawful conduct was non-violent, unexceptional, tax evasion and alien employment offenses:  the Defendant evaded less than $200,000 in income taxes, hired illegal aliens, and readily admitted his guilt of the same. Prior to this wrongful conduct, Defendant had led a law-abiding life and achieved success as a self-made, hard-working, blue collar businessman.  Defendant has successfully operated construction and automobile sales companies in his career.  Depending on the season, Defendant has in the past employed as many as 25 employees as well as sub-contractors (who employed another 25 employees) in his construction business.  He currently employs three employees and several sub-contractors depending on the construction job.  His construction company has completed about six jobs in the past twelve months.    It is certainly likely that these many jobs will be lost or not renewed if Defendant is sentenced to prison pursuant to the Guidelines with no opportunity to continue to run his business.  Furthermore, it is in the government’s best interest that Defendant be able to continue his businesses in order to generate the income necessary to pay his restitution. 

Moreover, as will be more fully described at sentencing, Defendant has been and remains a pillar of emotional and financial support for his two small children and his wife of 10 years, and his family continues to need his emotional and financial support.  A copy of a letter reflecting the importance of Defendant’s presence with his family is attached hereto as Exhibit A and incorporated herein by reference.  A copy of a recent family photograph is attached hereto as Exhibit B and incorporated herein by reference.

To underscore the impact of a long sentence of incarceration on his family, excerpts from Defendant’s wife’s letter to the Court, attached as Exhibit A, are as follows:

Defendant is very seldom in a bad mood.  He can make you laugh when you need it most and when you need someone to talk to, Defendant is the one that most people turn to….  Defendant is a hard worker and works very hard to provide for our family.

Financially, if Defendant is sentenced to a prolonged absence with an inability to work, there will be a profound impact on our family.  In the midst of family upheaval, it will fall on me to provide for our family’s financial needs and obligations.  Defendant profession does not provide insurance for disability or long absences.  Defendant works hard to provide a modest and stable life for our family and without his income, our finances, home and family are at stake.  I am a stay at home mom with young children. Our family requires his income to insure our bills are current and our home is secure.  I fear that if Defendant is subject to a lengthy sentence and he can’t work, we may lose our home.  This is an event that I know our children will not understand and something that I am not certain how to face alone.  We do not live extravagant lives by any measure but what we do have in our possession was gained by hard work.  The thought that our children will be without their father and the possibility that they may be uprooted from their home and possibly become destitute is hard to bear.  Several other families that are employed by Defendant are going to suffer similar fates if he is not allowed to continue to work.  I know he has to pay his debt to society, but please let Defendant work while he serves out his punishment.

The second set of factors in § 3553(a)(2)(A)-(D) addresses several traditional sentencing considerations.  In this case, there is certainly no indication of a need to protect the public from further criminal conduct by Defendant.  He has been abiding by all laws since confronted by law enforcement about the subject wrongful conduct.  There is no indication of a need to provide the Defendant correctional treatment.  Considering that this is a mundane, non-violent tax evasion/alien hiring case where the Defendant has demonstrated extraordinary acceptance of responsibility, aberrant behavior, extraordinary community and charitable service and rehabilitation, and fully admitted his guilt, a variance sentence ranging from probation with conditions to time in a half-way house and/or home confinement is adequate to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.

An outpouring of community support can also be a relevant factor in support of a variance.  United States v. Cottingham, 318 Fed.Appx. 159 (4th Cir. 2008) (tax evasion case with $277,574 loss sentenced to six months imprisonment after a variance approved based upon defendant’s age, his long history of health problems, his lack of a prior criminal record, the extent of his community service, and the outpouring of support). A copy of letters of in support of Defendant are attached hereto as Exhibit C and incorporated herein by reference.     

As set forth above, the Guidelines sentence of 18 – 24 months in prison also substantially overstates the seriousness of the Defendant’s crime.   Thus, a variance is justified.    

The third factor in § 3553(a)(3) – - the kinds of sentences available – encourages the Court to consider sentencing options, such as probation, in addition to imprisonment.  Here, Defendant is requesting probation or confinement in a half-way house and/or home confinement. Such a variant sentence is certainly “reasonable” and therefore authorized under Booker

The fourth and fifth factors in § 3553(a)(4)-(5) require the Court to consider the Guidelines and Policy Statements applicable to the case.  As set forth above, a downward departure based upon aberrant behavior, extraordinary Church, community and charitable service and rehabilitation, extraordinary acceptance of responsibility, and substantial overstatement of the seriousness of the crime, is warranted and authorizes a sentence of probation or confinement in a half-way house and/or home confinement.  Again, even if the Court were to conclude that a Guidelines departure due to these factors was not technically available, a variance based upon the same factors would still certainly be warranted and reasonable. 

The sixth factor in § 3553(a)(6) focuses on the need to avoid a sentencing disparity among similarly situated defendants.  In this case, the aberrant behavior, extraordinary Church, charitable and community service and rehabilitation, extraordinary acceptance of responsibility, substantial overstatement of the seriousness of the crime, and his agreement to a forfeiture order and agreement to provide full payment of all restitution are extraordinary factors that distinguish this case from the heartland of similar cases.  Defendant would point out several instances where similarly situated defendants received a substantially less sentence than that recommended by the Guidelines here.

In United States v. Chettiar, 501 F.3d 854 (8th Cir. 2007), the defendant was convicted of hiring 10 or more illegal aliens.  The district court imposed a sentence of one day time served with a two-year period of supervised release that included 12 months’ confinement with three months in a half-way house and nine months in home detention.  While the Court of Appeals reversed the case, the reason was because the district court said it had multiple reasons for the variance but had articulated only one reason in the record.  Of note, the one reason articulated by the district court was that the defendant had not physically or sexually abused any of the aliens he had employed.  So too, there is no evidence whatsoever that Defendant physically, sexually or emotionally abused any of the aliens he had employed, and this factor serves as an additional basis for a variance. 

In United States v. Tomko, 562 F. 3d 558 (3rd Cir. 2009), the defendant pleaded guilty to tax evasion with a loss of $228,557, and, after a variance, was sentenced to home confinement and probation.  The factors relied upon by the court in support of the variance were “Defendant’s lack of any significant criminal history, his involvement in exceptional charitable work and community activity, and his acceptance of responsibility.”  In United States v. Weisberg, 2008 WL 4646916 (6th Cir.), the defendant pleaded guilty to tax evasion with a loss of $321,654, and, after a variance, was sentenced to 5 months imprisonment and 5 months home confinement. In United States v. Fred E. Cooper, 394 F.3d 172 (3rd Cir. 2005), the Court held that a four-level downward departure was warranted because of the defendant’s good works that were of a personal nature. The departure resulted in three years probation for a defendant who pleaded guilty to one count of securities fraud and one count of subscribing to a false tax return, and had a Guidelines range of fifteen to twenty-one months.

Likewise, in United States v. Simmons, Criminal Case Number 2:04-cr-438 (D.S.C. 2005), the defendant was convicted of violating 18 U.S.C. § 2314 for stealing a Beneteau yacht valued at approximately $750,000.  Simmons received a sentence of 5 years probation.  In United States v. Stevens, Criminal Case Number 2:07-cr-556 (D.S.C. 2005), the defendant was convicted of violating 18 U.S.C. § 1955 for running an illegal gambling operation.  Stevens received a sentence of 3 years probation.

In fairness to Defendant, he too should receive a sentence which is substantially less than recommended by the Guidelines in order to avoid a sentencing disparity between similarly situated defendants.  By looking at the above-noted cases, it is clear that Defendant should receive a sentence similar to the one imposed on defendant Chettiar.  The amount of financial loss in the case at bar, less than $200,000, is clearly less egregious than that of the Simmons case (about $750,000) in terms of financial loss, and Defendant’s sentence should bear a resemblance to the sentence Simmons, Tomko or Cooper received.  The Stevens case also provides support for a probationary sentence for Defendant.  Thus, a proposed sentence ranging from probation to confinement in a half-way house and/or home confinement will not cause an unwarranted sentencing disparity.

The seventh factor in § 3553(a)(7) focuses on restitution, which is adequately addressed above.

Thus, an analysis of the Section 3553 factors as set forth above, including, but not limited to, aberrant behavior, extraordinary community service and rehabilitation, extraordinary acceptance of responsibility, the mundane, non-violent nature of the unlawful conduct, the Defendant’s family ties, and long-time law-abiding history, the lack of a need to rehabilitate the Defendant or protect the public by a long imprisonment (if any), the Defendant’s good employment history and the impact the sentence will have on his current employees, the Defendant’s prior forfeiture of money to the government, the need to avoid a disparity in sentencing, the lack of evidence that Defendant physically, sexually or emotionally abused any of the aliens he had employed, evidence that he treated the aliens well, the outpouring of community support on behalf of the Defendant, the Defendant’s commitment to restitution, the need of the Defendant to be able to work in order to pay restitution, and the Guidelines’ substantial overstatement of the seriousness of the offense, a variance from the Guidelines recommendation is warranted.[3]

VI.             CONCLUSION

Based on the foregoing authorities, arguments and evidence to be presented at sentencing, the Defendant respectfully requests that the Court impose a sentence ranging from probation with appropriate conditions to confinement in a half-way house and/or home confinement.  In any event, the Defendant respectfully requests that he be allowed to work while serving his punishment.

                                                                        Respectfully submitted,

                                                                        /s/ Joseph P. Griffith, Jr.

                                                                        Joseph P. Griffith, Jr., Esquire

                                                                        Joe Griffith Law Firm, LLC

Seven State Street

                                                                        Charleston, South Carolina 29401

                                                                        (843) 225-5563 (Telephone)  

                                                                        (843) 722-6254 (Facsimile)

                                                                        www.joegriffith.com             


[1] As at least one court has noted in this post-Booker era, “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 § 3553(a) factors.”  United States v. Ranum, 353 F.Supp.2d 984 (E.D. Wis. 2005).

[2] Defendant is not asserting any mental or physical condition contributed to the subject wrongdoing.

[3] Rita v. United States, 551 U.S. 338 (2007) (Stevens, J., concurring) (“Matters such as age, education, mental or emotional condition, medical condition (including drug or alcohol addiction), employment history, lack of guidance as a youth, family ties, or military, civic, charitable, or public service are not ordinarily considered under the Guidelines [but are] matters that § 3553(a) authorizes the sentencing judge to consider.”).

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About Joe Griffith 2

A South Carolina Criminal Lawyer, Attorney, Law Firm that practices white collar criminal law in SC. A SC criminal defense lawyer for antitrust crimes, bank fraud, bankruptcy fraud, breach of trust, child pornography crimes, criminal conspiracy, defense contractor fraud, embezzlement, environmental crimes, foreign corrupt practices (FCPA), fraud, government contracting fraud, health care fraud, hospice fraud, hospital fraud, investment fraud, medical fraud, medicare fraud, medicaid fraud, obscenity charges, physician fraud, ponzi schemes,public corruption, securities fraud, stock fraud, tax evasion, tax fraud, tax crimes, telemarketing fraud, theft. Griffith also handles qui tam, whistleblower, false claims act, whistleblower protection cases. Joe Griffith Law Firm serves the following South Carolina (SC) Counties: Abbeville County, Aiken County, Allendale County, Anderson County, Bamberg County, Barnwell County, Beaufort County, Berkeley County, Calhoun County, Charleston County, Cherokee County, Chester County, Chesterfield County, Clarendon County, Colleton County, Darlington County, Dillon County, Dorchester County, Edgefield County, Fairfield County, Florence County, Georgetown County, Greenville County, Greenwood County, Hampton County, Horry County, Jasper County, Kershaw County, Lancaster County, Laurens County, Lee county, Lexington County, Marion County, Marlboro County, McCormick County, Newberry County, Oconee County, Orangeburg County, Pickens County, plea agreement, Richland County, Saluda County, Spartanburg County, Sumter County, Union County, and Williamsburg County. Contact the Joe Griffith Law Firm immediately to discuss your legal rights at www.joegriffith.com.
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