IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
: Cr. No. xxxxxxxxxx(PLF) :
v. : :
:
xxxxxxxxxxxxxxxxxx, :
:
:
Defendant. :
MEMORANDUM IN AID OF SENTENCING
xxxxxxxxx, through undersigned counsel, respectfully submits this Memorandum in aid of his sentencing, which is scheduled for March 30, 1998.
1. Mr. xxxxxxx was arrested on June 12, 1997 and charged with possession of a firearm by a convicted felon, based upon conduct occurring on September 18, 1996. On October 29, 1997, following trial by jury, Mr. xxxxxxx was convicted of that offense.
2. Sentencing was postponed so that counsel could file a Motion for New Trial. On March 6, 1998, this court heard and denied the New Trial Motion. Sentencing is now scheduled for March 30, 1998.
3. According to the presentence report (PSR) prepared in this case, the United States Sentencing Guidelines (U.S.S.G.) range applicable to the conduct for which Mr. xxxxxxx was convicted is 77 to 96 months.
4. The court should depart downward from that sentencing guideline range on the basis of Mr. xxxxxxx's extraordinary family responsibilities. As the PSR reflects, Mr. xxxxxxx has two children by xxxxxx, xxxxxx (age x) and xxxxx (age x). These children were in Ms. xxxxxx custody until approximately a month ago. Ms. , who was a recovering drug addict, had successfully completed the Second Genesis drug treatment program and had remained drug-free for over three years. Unfortunately, Ms. recently relapsed and began using drugs heavily. She also began to neglect her children, and as a consequence, they were removed from her care. The children are now in three separate residences, and attend three separate schools or day care centers. Genita xxxxxx oldest child, Brandon, is being cared for by his godmother. Mr. xxxxxxx's two children are being cared for on a temporary basis by Genita xxxxxx sister, xx , and by his cousin, Teresa xxxxxxx. Helena is employed full-time and will not be able to continue caring for January. Her sister, xxxx , will assume responsibility for that child. The Child Protective Services agency has attempted to intervene in the family situation and has tried to serve Genita with notices of a court hearing, but her whereabouts are unknown. Given the likelihood of court intervention in the family situation, it is possible that without Mr. xxxxxxx, the care and nurturing of these children will be left to the foster care system. Helena informed counsel that when Mr. xxxxxxx was not incarcerated, he took care of all three of Ms. xxxxxx children. He has been with Ms. since xxx was a youngster and has assumed responsibility for Brandon even though he is not his natural father. He provided financial support for all three children.
The policy statement to U.S.S.G. § 5H1.6 provides that "[f]amily ties and responsibilities . . . are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." Courts of appeals interpreting that provision have unanimously agreed that the section permits a downward departure when family circumstances are extraordinary. United States v. Dyce, 91 F.3d 1462, 1466 (D.C. Cir. 1996). The instant case presents the extraordinary circumstance where children are at risk of being removed from their natural family unless the court departs downward to permit a parent to assume responsibility for the children. In Dyce, this circuit recognized that the fact that children may have no place to go if a parent is incarcerated is a factor that "may transform the `ordinary' case . . . into a case that is not at all ordinary." 91 F.3d at 1466, citing United States v. Rivera,, 994 F.2d 942, 948 (1st Cir. 1993).
Other circuits have recognized that putting a family member at risk is a ground to depart downward. In United States v. Fletcher, 15 F.3d 553, 557 (6th Cir. 1994), the court upheld a downward departure, one basis for which was that the defendant's parents needed his care. Likewise, in United States v. Gaskill, 991 F.2d 82, 86 (3d Cir. 1993), the court approved a downward departure on the ground that the defendant was needed at home to care for his wife, who suffered from a serious mental illness, and that there were no other family members able or willing to care for her in the defendant's absence. See also, United States v. Bissell, 954 F. Supp. 841 (D.N.J. 1996), granting a departure where defendant's two teen-aged daughters had been recently traumatized by the public suicide of their father and that trauma would be exacerbated by their mother's lengthy incarceration; United States v. Graham, 1998 WL 88885 (N.D.Ill. Feb. 20, 1998), granting a downward departure where the defendant cared for his son's disabled wife and their children while his son worked; United States v. Strong, 1996 WL 745397 (N.D.Ill. Dec. 23, 1996), granting a downward departure where defendant had custody of several children so that the children would not be separated and placed in foster care; and United States v. Moy, 1995 WL 311441 (N.D.Ill. May 18, 1995), granting a downward departure in part because of defendant Moy's wife's poor physical health and need for his care. Given the separation of Mr. xxxxxxx's children, and the possibility that the Child Protective Services may take custody of the children, Mr. xxxxxxx is needed at home to care for the children. On that ground, the court can sentence him to a less severe sentence than the 77 months called for by the guidelines.
5. Even if the court decides that a downward departure is not warranted, the court should impose a sentence at the lowest end of the applicable guideline range. Mr. xxxxxxx's conduct in this case, even if the court credits the government's evidence, was more an example of bad judgment than of criminal intent. The evidence was uncontradicted that Gary xxxxxx owned the gun with which Mr. xxxxxxx was charged, that the gun was registered to Mr. xxxxxx in Maryland, and that Mr. xxxxxx placed the gun on the steps where Mr. xxxxxxx was seated for the very brief period during which he left the steps to relieve himself behind some nearby bushes. Even if Mr. xxxxxxx knew that the gun was placed on the steps, and even if he attempted to conceal the gun from the police, his possession was very momentary and he did not have the gun for any improper purpose.
6. Mr. xxxxxxx has several prior convictions, but they are either for drug offenses or for crimes connected with drug dependency, such as burglary and breaking and entering. Likewise, the crimes for which he was arrested but not convicted were for drug offenses or breaking and entering. Mr. xxxxxxx has a long history of substance abuse, dating back to his teenage years. In 1995, he enrolled in the Second Genesis drug treatment program and graduated from the program in September, 1996. A letter documenting his successful completion of the program was furnished to counsel by his probation officer in Maryland, Ms. Jacqueline Spearman, and is attached as Exhibit A.
7. At the time of the instant offense, Mr. xxxxxxx was on probation in Maryland. Ms. Spearman was his supervising probation officer. She related to counsel that Mr. xxxxxxx reported to her as he was required to do, and that he tested negative when tested for drug use. She classed his performance on probation as "poor," however, due to his re-arrest. A hearing is scheduled for April 10, 1998 to determine whether Mr. xxxxxxx has violated probation by the conviction in the instant case.
8. The PSR reports that Mr. xxxxxxx has a pending case in Maryland for possession with intent to distribute cocaine and possession of a handgun. According to Peter Fein, Esq., Mr. xxxxxxx's attorney in that case, the gun was found underneath a mattress in a bedroom of a house in which Mr. xxxxxxx does not reside. He was at the house when a search warrant was executed and all the occupants of the house were taken into custody and charged with the items found in the house. Trial in that matter is scheduled for May 13, 1998.
9. According to the PSR, Mr. xxxxxxx has remained fairly steadily employed in spite of his long-term drug addiction. At the time of his arrest in the instant case, he was working at McKinney CleanCut Landscaping, at 16600 Mattawoman Lane, Waldorf, Maryland (301/372-6425). His employer there, Ms. McKinney, verified to counsel that he began work there in April of 1996 and worked through October, 1997, when he was incarcerated in this case. Before he began work at the landscaping company, he was employed at City Soundz in Capitol Heights, Maryland. He worked there full-time during the time he was in Second Genesis, and then on a part-time basis after he started work at the landscaping company.
10. In addition to working full-time, Mr. xxxxxxx was enrolled in a literacy program prior to his arrest. He started the program while he was at Second Genesis, and thereafter, attended in Landover, Maryland. One of the persons who worked with him in the literacy program was Keith Moore. Mr. Moore advised counsel that although Mr. xxxxxxx completed the 8th grade, he reads at a significantly lower level, closer to 5th or 6th grade. Mr. xxxxxxx has continued literacy classes since his incarceration.
11. All of these factors argue for a sentence at the lowest end of the guideline range. Mr. xxxxxxx's employment record, his desire to better himself by taking literacy classes, his successful completion of an in-patient drug treatment program indicate his amenability to rehabilitation. The lowest end of the applicable guideline range, 77 months, is a sufficient period of incarceration, we submit, to accomplish the additional goals of punishment and deterrence.
For these reasons, and any others appearing to the court at the sentencing hearing, Mr. xxxxxxx respectfully requests this court to depart downward from the applicable U.S.S.G. range because of his extraordinary family responsibilities, and if the court is unwilling to do so, to sentence him at the lowest end of the guideline range.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
________________________
Reita Pendry
Assistant Federal Defender
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
(202)208-7500
CERTIFICATE OF SERVICE
I certify that I have served a copy of the foregoing Memorandum in Aid of Sentencing, and of the accompanying Motion to Late-File, upon Sima Sarrafan, Esq., Assistant U. S. Attorney, by mailing a copy to her at her offices at 555 4th Street, N.W., Washington, D. C., and by faxing a copy to that same address, this 18th day of March, 1998.
_______________________
Reita Pendry