Free Sentencing Memorandum - District Court of Arizona - Arizona

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Mark J. Berardoni
State Bar No. 012970 Luhrs Tower 45 West Jefferson St., Suite 810 Phoenix, Arizona 85003-2317 (602) 257-1295 Attorney for Defendant - Jeffrey Howard Feingold

5 6 7 8 9 10 11 12 13 14 15 Defendant, Jeffrey Howard Feingold, by and through undersigned counsel, respectfully sets request that this Court determine that sufficient facts and legal authorities exist to sustain ) ) Plaintiff, ) ) v. ) ) Jeffrey Howard Feingold, ) ) Defendant. ) ) ____________________________________) United States of America, CR02-0976-001-PHX-SMM SENTENCING MEMORANDUM/ OBJECTIONS AND REQUEST FOR DEPARTURE/ 18 U.S.C. 3553 ANALYSIS IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

16 forth M ARK J. B ERARDONI his A TTORNEY A T L AW

17 his objections and to depart from the sentencing guidelines as formulated by the United States 18 Sentencing Commission which are presented in the United States Probation Officer's Presentence 19 Investigation Report. It is further requested that this court consider the factors as set forth in 18 20 U.S.C. Section 3553(a), and determine that under the facts of this case, that a sentence below the 21 advisory guidelines is "reasonable" pursuant to U.S.A. v. Booker, 2005 WL 50108 (US). The 22 relevant facts and legal authorities are more fully set forth in the following Memorandum of Points 23 and Authorities. 24 25 26 27 28 Case 2:02-cr-00976-SMM Document 265 Filed 05/01/2007 Page 1 of 7 s/Mark J. Berardoni Mark J. Berardoni Attorney for Defendant- Jeffrey Howard Feingold RESPECTFULLY SUBMITTED this 1st day of May, 2007.

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MEMORANDUM OF POINTS AND AUTHORITIES Relevant Facts Jeffrey Feingold, who just turned sixty-one while incarcerated in prison, lived a substantial majority of his life as productive member of society. He has served in the military, has been married for more than 30 years, raised a daughter, is highly educated, practiced as a naturopathic physician for 28 years, and of course, paid taxes for all those years. Then somewhere in fifties something obviously went wrong. It is not the intent to minimize the hurt and injury that was created in such a short period of time, but what actually went wrong is still open to debate. At his previous sentencing hearing, a lot was said that he did this for greed without concern for others. Though

10 profit is part of any profession, including the legal profession, nothing in his past indicates that he 11 is steeped in greed. He never intended to step outside of the law. Perhaps due to his roots being 12 from Philadelphia, it appears to me after conversing with him, that he still retains some naivety 13 because he truly does care for others, and it does not appear that his character would permit him to 14 intentionally harm others. Jeffrey Feingold had an epiphany when he heard the hurt that he caused 15 when his former patients testified. 16 Susan Feingold, who has shared 35 years with him, in her letter (attached as Exhibit 1), tells

17 you, her husband has always honored her as his wife and as a woman. She knows that he always 18 wanted to be a doctor to help others, and tells of how he treated nuns for no fee, and even mentions 19 his Boy Scout roots. She then tells of the hardship of incarceration and how their 28 year-old 20 daughter helps out as promised during her father's incarceration, notwithstanding her diagnosis of 21 bi-polar disease. 22 Then Dina Galassini, who testified at his previous sentencing, updates you in her letter

23 (attached as Exhibit 2) and reiterates that she has known Jeffrey for ten years. She was originally 24 a naturopathic patient and describes Jeffrey as super-conservative and very professional. Though 25 she was their realtor and former patient, their relationship has grown into that of a family friend. She 26 also tells of the hardship of incarceration as she requests compassion for her friends. 27 B. 28 Objections 1. Paragraphs #32 & 33 Document 265-2- Filed 05/01/2007 Page 2 of 7

Case 2:02-cr-00976-SMM

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The Drug Equivalency Tables for one gram of Oxycodone is equivalent to 500 grams of marijuana. See Section 2D1.1, Drug Equivalency Tables Federal Sentencing Guidelines Manual, 2001 Ed. The presentence writer, in her calculations, utilized a 6700 gram equivalency. Although the sentencing did not occur until October 25, 2004, the offense conduct involved ranged from July 26, 2001 through December 31, 2002. The guidelines in effect for 2001/2002 should have been used. The calculation for conversion into a marijuana equivalency should have been 62.6 kilograms. The total marijuana equivalency would then be 149.6 kilograms. This, then would result in a Base Offense Level of 26. 2. Paragraph # 39

Although technically not an objection, it is now requested that the defendant be assessed a

11 two-level downward adjustment for Acceptance of Responsibility pursuant to U.S.S.G. Section 12 3E1.1(a). It is anticipated that during his allocution to the court that the Defendant will clearly 13 demonstrate acceptance of responsibility for his offense. For example, he has never contradicted the 14 acts associated with his criminal behavior and he now accepts responsibility for that which he has 15 done. 16 C. 17 18 Departures 1. Post-Sentencing Rehabilitation

As to be expected, his incarceration has not been easy on him and has taken its toll on his

19 family. Since his incarceration, he has been hospitalized on at least two occasions and been 20 diagnosed with chronic ulcerated colitis, along with having a mega colon. His most recent 21 hospitalization was November 2006. 22 The defendant has demonstrated his commitment to repairing and rebuilding his life even

23 while he is incarcerated. Some may have given up hope, but he tries to make the best of his loss of 24 life with his family and that of his liberty. In that regard, he has attended "ACE" courses, has had 25 no write-ups at all, works in the kitchen, and has maintained his camp status. Post-Offense 26 Rehabilitation has been held to provide grounds for departure to reward those who have 27 demonstrated their commitment to repairing and rebuilding their life. United States v. Green, 1998 28 WL 541374 (C.A.9 (Cal.) 1998). In Green, the district court reiterated that post-sentencing Case 2:02-cr-00976-SMM Document 265-3- Filed 05/01/2007 Page 3 of 7

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rehabilitation can be used as a factor in departure. D. 18 U.S.C. Section 3553(a) In this new era of post-Booker, the Ninth Circuit recently held that the guidelines have no greater weight than the other sentencing factors. U.S. v. Zavala, _F.3d_(9th Cir. April 11, 2006 No. 05-30120). Now the guidelines are just one factor to consider in fashioning an appropriate sentence. The court shall impose a sentence sufficient, but not greater than necessary. 18 U.S.C. Section 3553(a). The following are the seven factors the court should consider in imposing a sentence: (1) "The nature and circumstances of the offense and the history and characteristics of the defendant."

At the previous sentencing hearing, it became clear that Jeffrey Feingold's actions had caused 10 significant harm to others. His acts need to be punished, but to his credit, his history has substantial 11 merit because he has no criminal past until well into his fifties, and even now through his 12 incarceration he follows the rules. His characteristics which include being a family man, and a 13 gentle man, should afford some leniency, notwithstanding the injuries that he caused by his actions. 14 (2) 15 (A) 16 17 18 19 [must] reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; The need for the sentence imposed

Any prison sentence will reflect the seriousness of this offense. (B) to afford adequate deterrence to criminal conduct;

As these cases had their geneses five years ago, and enforcement has been

20 significantly adhered to, any sentence which includes a term in the Federal Bureau of Prisons would 21 afford adequate deterrence to criminal conduct. 22 23 (C) to protect the public from further crimes of the defendant;

Based on his past as well as his current behavior, and of course the loss of his license,

24 would all combine to make recidivism nonexistent. 25 26 Mr. Feingold does not appear to require any of the above. However, if any were deemed 27 necessary most of the programs could be arranged through United States Probation Department. 28 Case 2:02-cr-00976-SMM Document 265-4- Filed 05/01/2007 Page 4 of 7 (D) to provide the defendant with the needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

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(3)

The kinds of sentences available; Based on the guidelines, prison is the only realistic sentence available. This, however,

can now include a time-served disposition, followed by a substantial term of Federal Supervised Release. (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

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The base offense level should be 26. The pre-sentence writer enhanced this by adding two levels for Adjustment for Role in the Offense pursuant to Section 3 B1.3. Then, if the court

10 grants a 2 level downward departure for Adjustment for Acceptance of Responsibility the resulting 11 Total Offense Level would be 26. This, along with a criminal history category of I has a guideline 12 range of 63-78 months in the Federal Bureau of Prisons. 13 14 15 16 If the court sustains the objections, then there would be no sentencing disparities. 17 Additionally, it should be noted that his pretrial plea offer (I believe), had a range between three and 18 five years in prison. While one should certainly expect that more prison time is possible by risking 19 going to trial, the disparity between the plea and the original sentence was significant. 20 For the court perusal, I have attached Brooke Feingold's letter, and incorporate into this 21 section by reference (attached as Exhibit 3). Her tone is strong, but it is to be expected as she is 22 talking about her father. Though the information contained is from the past, and is pre-truth in 23 sentencing, it is still somewhat timely. To make her point more illustrative, I have included the base 24 offense level for Voluntary Manslaughter (2001), which is Base Offense Level 25 and Involuntary 25 Manslaughter (2001) was at worst, when a death occurred recklessly, only a Base Offense Level 14. 26 (7) 27 If applicable, supervision as opposed to incarceration, would better suit payment of 28 Case 2:02-cr-00976-SMM Document 265-5- Filed 05/01/2007 Page 5 of 7 the need to provide restitution to any victims of the offense. (6) (5) any pertinent policy statement None other than those previously set forth. the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct

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restitution. Conclusion The court should sustain the objection to paragraph 32,33 and 39 and set forth the base offense level at Level 26. Assuming a two-level enhancement for Adjustment in the Role and a twolevel decrease for Acceptance of Responsibility the Total Offense Level would remain at Level 26. This would result in a range of prison of 63-78 months, with the lower end being appropriate because the equivalency amount of marijuana is closer to the low end of the category for Level 20, which applies to 100 kg but less than 400 kg of marijuana. Then, Mr. Feingold should be rewarded for his post-sentencing conduct and the court should

10 grant a downward departure of 2-3 levels. This would result in a guideline range of 46-63 months 11 in prison. This range along with a significant period of Supervised Release would comply with the 12 mandate of U.S.A. v. Booker, 2005 WL 50108 (US) in that this sentence under these circumstances 13 is "reasonable". 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:02-cr-00976-SMM Document 265-6- Filed 05/01/2007 Page 6 of 7 s/Mark J. Berardoni Mark J. Berardoni Attorney for Defendant- Jeffrey Howard Feingold RESPECTFULLY SUBMITTED this 1st day of May, 2007.

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CERTIFICATE OF SERVICE I hereby certify that on May 1, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Honorable Stephen M. McNamee Chief United States District Judge Sandra Day O'Connor U.S. Courthouse 401 West Washington Street Phoenix, Arizona 85003 Mary Beth Pfister Assistant United States Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408

10 Shawn T. Shear (mailed) U.S. Probation Officer 11 United States Probation, Suite 160 Sandra Day O'Connor U.S. Courthouse 12 401 West Washington, SPC 7 Phoenix, Arizona 85003-2119 13 Jeffrey Howard Feingold (mailed) 14 15 By: s/Todd E. Babel 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:02-cr-00976-SMM Document 265-7- Filed 05/01/2007 Page 7 of 7