Free Reply/Response Misc - District Court of Connecticut - Connecticut

Case 3:00-cr-00226-SRU

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT ) ) ) ) ) ) ) ) )

UNITED STATES OF AMERICA, v. MARVIN SPAN Defendant.

Docket No. 3:00-cr-00226-SRU March 6, 2006 REDACTED

MEMORANDUM IN SUPPORT OF CROSBY REMAND RESENTENCING Marvin Span, by and through undersigned counsel and pursuant to the Order of Remand entered by the United States Court of Appeals for the Second Circuit on April 20, 2005, hereby submits this memorandum in support of resentencing in the wake of United States v. Booker, 543 U.S. 220 (2005) and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). Mr. Span respectfully argues that the Court should impose a sentence of 15 years' (180 months') imprisonment as opposed to the 188-month term mandated by the Federal Sentencing Guidelines in effect at the time of his original disposition, on October 7, 2003. Appended hereto in support of this application is a draft of a psychiatric evaluation prepared at the request of prior counsel, Attorney Francis O'Reilly and under the auspices of the Probation Office that addresses physical and sexual abuse Mr. Span endured as a youth and the impact it had on his adolescent and adult behaviors. For reasons set forth herein, an eight months lesser sentence is not only non-trivially different, but it also is sufficient but not greater than necessary to satisfy the considerations enumerated in 18 U.S.C. § 3553(a).

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I. PROCEDURAL BACKGROUND IN BRIEF On September 6, 2000, officers of the Connecticut Statewide Narcotics Task Force and of the Bridgeport Police Department's Special Services Division executed a search and seizure warrant at 340 Putnam Street, Apartment 2B, in Bridgeport. PSI, p. 2 ¶¶6-7. Law enforcement personnel located and arrested Marvin Span inside the apartment and, in conjunction with a search of the identified premises, uncovered, inter alia, a loaded .38 caliber revolver firearm. Id. at ¶¶89. Approximately one month later, on October 18, 2000, a federal grand jury sitting in Bridgeport returned a one-count Indictment against Mr. Span, charging him with Unlawful Possession of a Firearm By a Prohibited Person in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). Docket #1. On February 11, 2002, Mr. Span appeared before this Court and, consistent with the terms of a written plea agreement into which he entered with the government, pled guilty to the Indictment. Docket #s 38, 49 (transcript). Mr. Span's offense of conviction carries a mandatory-minimum sentence of 15 years' imprisonment pursuant to 18 U.S.C. § 924(e). PSI, p. 14 ¶64. By the terms of his plea agreement, Mr. Span agreed that the appropriate guideline range, accounting for a three-level reduction for acceptance of responsibility, was 188-to-235 months' imprisonment, which reflected a total offense level of 31 and criminal history category of VI. Docket # 38 at 3; 2/11/2002 Transcript (Tr.) at 16. The Probation Office's calculations of the Federal Sentencing Guidelines produced an identical recommended guideline range. PSI, p. 14 ¶65. After rejecting arguments made in relation to sentencing that the appropriate base offense level was 33 rather than 34, the Court, on October 7, 2003, sentenced Mr. Span to the bottom-end of this recommended range, 188 months' imprisonment, or eight months more than the statutory mandatory minimum. 2

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Docket #s 60 (defense sentencing memorandum), 64 (judgment); 10/7/2003 Tr. at 20-25, 36-37. Mr. Span timely filed a notice of appeal, on October 22, 2003. Docket # 65. During the pendency of the direct appeal, the government filed a consent motion for limited remand of Mr. Span's case for the purpose of allowing this Court to consider whether to resentence in light Booker and Crosby, supra, and, should the Court find that it would impose a non-trivially different sentence, then for resentencing pursuant to Fed. R. Crim. P. 32. See United States v. Crosby, 397 F.3d at 117. The Court entered a scheduling order for filing of simultaneous submissions, which was extended upon Mr. Span's request. Docket #s 78, 84. Mr. Span, through counsel, has filed a Motion for Leave to Late File and a Motion to File Under Seal under separate cover today. II. ARGUMENT While not seeking to diminish the serious of the offense to which Marvin Span voluntarily admitted guilt, this case presents numerous mitigating circumstances that the Court could not fully account for in a mandatory Guidelines system. As the Court is already familiar, Mr. Span is the product of a troubled and abusive home environment and engaged in serious drug use during most of his adulthood, when not incarcerated. However, undisclosed until now, Mr. Span is also the victim of serious sexual abuse that has contributed to as yet unresolved emotional turmoil, which has previously manifested itself in depressive feelings and suicidal ideations. This type of background calls for judicial leniency, even where restricted by statute.

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A.

Mr. Span Was Sentenced Under a Mandatory Guidelines Regime That Created Unlawful Boundaries on the Court's Discretion Necessarily Limited the Nature and Scope of the Information the Court Could Properly Consider When Imposing Sentence. Marvin Span was sentenced approximately eight months before the Supreme Court

decided Blakely v. Washington, 542 U.S. 296 (2004). The sole issue raised through his direct appeal, filed on December 3, 2004, was whether, in light of Blakely, his Sixth Amendment rights were violated due to sentencing enhancements based on the Court's factual findings. Where the government initially moved for summary affirmance, relying on United States v. Mincey, 380 F.3d 102 (2d Cir. 2004), Booker re-cast the relevant inquiry, and the government withdrew its motion. Indeed, through its memorandum in support of its motion for limited remand, the government correctly observed that Crosby court "held that in any case in which a defendant appeals a sentence imposed prior to the Supreme Court's Booker decision [as did Mr. Span], the district court committed `error' if it imposed sentence in conformity with the then-binding view that the United States Sentencing Guidelines were mandatory." In the instant case, the Court previously explained to Mr. Span at the change of plea hearing that the Sentencing Guidelines would guide its determinations: In the federal courts, sentencing is governed largely by what are called the Sentencing Guidelines which is a set of rules and regulations about how we are to sentence someone and there's really two fundamental factors that go into sentencing. One is the seriousness of the offense; the other is your criminal history, and determinations about that are made by the judge.... [W]hatever your lawyer and the prosecutor may say, I have to decide how the sentencing guidelines apply. 2/11/2002 Tr. at 22. This description of the sentencing process and the role the Guidelines played was consistent with pre-Booker Circuit precedent that held the Guidelines cabined sentencing 4

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courts in their discretion "within narrow procedural and substantive limits" -- limits hemming in "compassion and common sense" except in extraordinary or atypical situations. United States v. Anderson, 15 F.3d 278, 280 (2d Cir. 1994), United States v. Rogers, 972 F.2d 489, 495 (2d Cir. 1992); see United States v. Galante, 111 F.3d 1029, 1036 (2d Cir. 1997) (Guidelines "put boundary line fences on that field [of traditional discretion]"). As noted ante, at sentencing, the Court found that the Probation Office correctly calculated the Guidelines, with a base offense level of 34 and an total offense level, after a threelevel reduction for acceptance of responsibility (§ 3E1.1), of 31, which, when accounting for armed career criminal and criminal history considerations, resulted in a sentencing range of 188to-235 months' imprisonment. 10/7/2003 Tr. at 24-25. Mr. Span moved for a downward departure for this range in recognition both of his efforts to assistance law enforcement investigations and of his post-offense rehabilitation. Docket # 60 at 5-8; 10/7/2003 Tr. at 26-30. The government opposed the proposed departure bases, and the Court rejected them. Id. at 3135. Significantly for purposes of the issue now presented, where the Court denied Mr. Span's departure requests, it expressly and exclusively relied on them in imposing a sentence at the bottom of the recommended range, 188 months' imprisonment: I do believe that they help me decided where within this very broad range you should be sentenced and that, in others words, because you've taken these steps, because you have tried to assist the government, because this reflects a change in attitude on your part, I'm going to sentence you at the bottom of the guideline range rather than in the middle or at the top, and I'll tell you that, given your lengthy conviction record, I probably would have sentenced you either in the middle or at the top of this range but for the types of things that your lawyer has argued for in his brief and today at argument. You've been basically on a 20 year crime spree, almost 5

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20 years, I think '84 was your first conviction and there really hasn't been a let-up since then. It seems from your record you've been in trouble time after time after time and almost as soon as you get out of prison you're back in trouble again and that's been going on for quite a long time. And, as a result of that, I think a sentence higher in the guideline range would be appropriate but for those significant efforts that you've undertaken and, as a result of them, I'm going to sentence you lower in the range, because I think it's not necessary either to punish you further or to deter you further or to deter others further in light of all of the circumstances to sentence you higher in the guideline range. 10/7/2003 Tr. at 35-36 (emphasis added). B. A 180-Month Term of Imprisonment Is Sufficient But Not Greater Than Necessary To Achieve the Statutorily Enumerated Goals of Sentencing. In Booker's wake, the Sentencing Guidelines must still be calculated and consulted, 18 U.S.C. § 3553(a)(4), but these rules are no more controlling of the final sentencing decision than any of the many other factors the court must "consider" under § 3553(a) as a whole. United States v. Crosby, 397 F.3d at 113; see United States v. Jaber, 362 F.Supp.2d 365, 371-72 (D.Mass. 2005); Simon v. United States, 361 F.Supp.2d 35, 40 (S.D.N.Y. 2005); United States v. Biheiri, 356 F.Supp.2d 589, 594 n.6 (E.D.Va. 2005); United States v. Ranum, 353 F.Supp.2d 984, 986 (E.D.Wis. 2005). Indeed, sentencing courts' overriding duty is to determine and impose the punishment which is "sufficient, but not greater than necessary," 18 U.S.C. § 3553(a), to achieve the various purposes of criminal justice in each case after "considering" a list of factors, including what sentences are "available." Id.(a)(2),(3). Nothing in Section 3553(a) states that the statutory mandate applies only "[e]xcept as otherwise provided by law," or the like. The listed purposes are promotion of respect for law, including the provision of just punishment in light of the seriousness of the offense, id.(a)(2)(A); deterrence (both general and specific), id.(a)(2)(B);

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incapacitation to protect the public, id.(a)(2)(C); and any needed rehabilitation and treatment of the offender, id.(a)(2)(D). In this context, real world wisdom born of trial courts' unique perspectives and experience has a renewed place in offender disposition. See Koon v. United States, 518 U.S. 81, 98 (1996) ("district court must make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing"), Mistretta v. United States, 488 U.S. 361, 404 (1989). Or, as Justice Kennedy artfully observed: It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique case study in human failings that sometimes mitigate, sometimes magnify, the crime and punishment to ensue. Koon, 518 U.S. at 113. Respectfully, applying the governing legal criteria and standard statutory construction methodology to this case, the Court should find, at the conclusion of a resentencing hearing, that the proper sentence -- that is, the sentence which seems, after consideration of the statutory factors, to be "sufficient, but not greater than necessary" -- is no greater than 15 years (180 months). 1. The presentence investigation report details information that supports imposition of a non-trivially lesser sentence. Absent objections from either the defense or the government, this Court adopted the Probation Office's factual findings, as set forth in Mr. Span's presentence investigation report (PSI). 10/7/2003 Tr. at 18-19. Notable among the information presented in the PSI is its description of the environment in which Mr. Span was raised, the serious physical abuse to which he was subjected at the hands of his father, and his longstanding struggles with drug addiction --

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all of which were prohibited departure considerations under the former, mandatory Guidelines system. U.S.S.G. §§ 5H1.4 (drug dependence), 5H1.12 (disadvantaged upbrining). Marvin Span told the Probation Office that he was raised in South Norwalk's Roodner Court Housing Project, where he witnessed "prostitution, narcotics distribution, and street fights" with sufficient regularity as to describe them as "common" events. PSI, p. 8 ¶39. It was while living in Roodner Court that, around age 11 or 12, Marvin began drinking alcohol with his peers, paying older individuals to purchase them alcohol. Id. at 11 ¶53. He began smoking marijuana in high school and, at the end of his senior year, first experimented with cocaine, which he started selling shortly thereafter and, in so doing, derailed plans for college. Id. at 11-12 ¶¶53-54. Aside from periods of incarceration, Mr. Span used cocaine, namely "crack" cocaine, from 1984 to the time of his instant arrest. Id. at 12 ¶54. He also experimented with PCP and used heroin regularly in the years preceding his arrest, becoming physically addicted. Id. at 12 ¶¶54-55. The PSI also contains information that concerning the physical abuse Marvin suffered at his father's hands. Marvin told the Probation Office that "his father [, a Connecticut Housing Authority maintenance worker,] beat him on a daily basis for virtually no reason at all. He described this abuse to be in the form of being struck with open and closed fists, along with being whipped with a belt... [H]e remembered his father also abusing his mother, stating that she always had black eyes and bruises." PSI, p. 8 ¶41. When questioned regarding this abuse, Bernal Davis, Mr. Span's mother, "dodged the topic and, without eye contact, stated that while she was home she did not observe any abuse, but could not comment on what may gone when she wasn't home." Id. at 10 ¶46.

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Emblematic of the skewed sensibilities that his upbringing produced, Marvin "never shared a father/son relationship" with his father, who his mother kicked out of the house when he was in elementary school. Yet, later in life, Marvin sold his father drugs and "smoked crack with his father just before his arrest for the instant offense." PSI, p. 8 ¶¶40-41. "This was the extent of their relationship.... [H]e saw his father as one whom he could make money off of to support his own habit." Id. at ¶41. Where the Court could not deviate from Mr. Span's recommended guideline range to account for his tumultuous upbringing, it is notable that a Federal Judicial Center study survey conducted in 1996 found that 10.8 percent of responding district judges believed "lack of guidance as a youth" was "relevant to within-range and downward" determinations, a position shared by 15.4 percent of responding circuit judges. M. Johnson & S. Gilbert, The U.S. Sentencing Guidelines: Results of the Federal Judicial Center's 1996 Survey 92 (1997). Additionally, district court judges ranked sentences for offenses imposed under guideline section 2K2.1, that is, those involving firearms and ammunition, as the third most "harsh" (i.e., least fair) of the 12 categories of offenses surveyed. Id. 112. Mr. Span respectfully submits that this case, as presented to the Court in October 2003, merits imposition of a non-trivially different sentence, namely the minimum-permissible by statute: 180 months' imprisonment. Such a sentence is sufficient but not greater then necessary to fully account for the enumerated goals of sentencing set forth in 18 U.S.C. § 3553(a).

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2. Previously available but undisclosed information further supports imposition of a nontrivially lesser sentence. Shortly after accepting representation in this matter, undersigned counsel met with Marvin Span at FCI Ray Brook, New York and learned that Attorney Francis O'Reilly had referred him to for a psychiatric evaluation subsequent to the change of plea hearing. Further investigation revealed that William H. Campbell, M.D., then a clinical fellow with Yale conducting forensic assessment for the Connecticut Mental Health Center (CMHC)), met with Mr. Span on August 1, 2002. Although arranged through the Probation Office to avoid added expense to the CJA fund, this non-confidential evaluation was not completed for reasons that remain unclear. Fortunately, Dr. Campbell contemporaneously transcribed a draft of his report, which is appended hereto.1 As the Court can see, not only did Dr. Campbell's inquiry corroborate the Probation Office's investigation, particularly that concerning substance abuse history and the physical abuse, but Marvin Span also disclosed for the first time a history of sexual victimization as well as past depression and suicidal ideation.

1

Undersigned counsel received a copy of Dr. Campbell's report via facsimile on February 27, 2006. As conveyed to AUSA Alex Hernandez via voice message, a copy was not forwarded to the government due to the poor transmission quality. The attached copy was received via first class mail on March 4. Also, please be advised that undersigned counsel spoke with Dr. Campbell, who presently serves as the Residency Program Director and Director of Clinical Services at Case Western University in Cleveland, Ohio (216-844-3450). Dr. Campbell, who received and reviewed a copy of his draft report from CMHC, advised that while he is "comfortable with" the report through the diagnostic formulation section (Rpt. at 8), the balance is incomplete because he was unable to follow-up on Mr. Span's self-reporting. Specifically, before being told that the evaluation was no longer needed, Dr. Campbell had planned to speak further with Mr. Span's mother and to obtain, review and incorporate information from Mr. Span's medical, mental health and correctional records. Finally, it is noted that since the report was to be prepared for the Probation Office, Dr. Campbell did instruct Mr. Span that any information disclosed was not subject to patient-client privilege. See Rpt. at 1. 10

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In terms of substance abuse, Dr. Campbell's report provides additional detail regarding Mr. Span's reported progression from alcohol to marijuana to crack and to heroin. Mr. Span recalls drinking "as much as two or three 40-ounce beers per day," while concurrently submitting that "alcohol was not an important part of his life." Rpt. at 4. He also admitted to using "crack" cocaine heavily from 1991 through 1993 and from 1997 through 2000. During these periods, he reportedly sniffed "5 to 10 bags of heroin per day." Id. Aside from his criminal history, one area of Mr. Span's life impacted by substance abuse was his health in that he was knocked down once while fighting in an intoxicated state, striking his head on a car fender. Id. at 5. In terms of domestic violence, Mr. Span told Dr. Campbell: My father was crazy. He'd get high. He'd beat me and tell me `Get out of the house you faggot'. He treated me like dirt, like I didn't even come from his body. He didn't treat any of the other kids like that ... just me and my mother. I'd go to school with black eyes and he'd tell people that I was wrestling with my brother. He'd come home smellin' like a liquor factory. He'd beat my mother first and then me. Rpt. at 2. Dr. Campbell also relayed that "Mr. Span related a vivid memory of finding his mother `knocked out cold' and lying on the floor when we was 7 or 8 years old. He stated that [he kept shaking her] but could not get her to respond." Id. Where the foregoing understanding of Mr. Span's difficulties may have contributed to the Court's imposition of the shortest possible term of imprisonment permissible under the Guidelines, it is respectfully submitted that new disclosures concerning childhood sexual victimization support exercise of the Court's post-Booker discretion. Quoting from Dr. Campbell's report: Mr. Span also mentioned that he was `sexually molested' as a child, but was reluctant to discuss it because `people think you're a homo 11

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or a faggot.' He became noticeably agitated and related that he had never shared the details of this with anyone before. However, he was able to regain his composure and return to the issue. He reported that he would `hang out' with two friends who lived across the hall from him during his childhood. These two friends were 6 to 8 years old than him and `They were like the only family I had. They'd protect me and not let anything happen to me.' When he was 7 years old he related that the eldest brother forced Mr. Span to perform oral sex on him in the hallway of the apartment complex. The following day both brothers promised to give him a Matchbox car he coveted if he agreed to perform oral sex on them. Mr. Span related that he felt compelled to do this stating, `I looked up to them. I thought I had to do it." Approximately one week later, the eldest brother forced him to perform oral sex on him behind a store in front of the former's friend (`He was braggin' to his friend').... While visiting his stepbrother in South Carolina between the ages of 7 and 10, a similarly aged friend of his stepbrother's talked him into submitting to anal intercourse on two separate occasions. The friend allegedly told him, `This is how we do it down here. Everybody does it. This is what you do before you get a girl.' Although Mr. Span did not consider the anal intercourse to have been forced upon him, the episodes have intensified his concern that he might be homosexual. Mr. Span recalled having sex with one [of] his sister's girlfriends approximately twice a week for two years beginning at the age of nine. He stated that he, his sister [one year his senior], and their friends would get together in the living room or the children's bedroom in his mother's apartment while she was at work and engage in oral sex and vaginal intercourse. Rpt. at 3-4. As had happened with his father, supra, Mr. Span found himself as an adult getting high with the neighbor who had molested him. In his early 20s, Marvin began socializing with the abuser, who was then a garbage man in Norwalk and drove a Cadillac. The former neighbor would let Marvin use his credit card as well as his apartment, to bring back girls and to bag up

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drugs. Marvin recounts that they used to get high together, with the neighbor having become "a crack head" who reportedly died of a heart-related conditions exacerbated by his drug use. Mr. Span also reported depressive feelings (historic and current) and past attempts to take his own life. Regarding the latter, Marvin's mother reportedly stopped him from stabbing himself when he was approximately ten years old. Rpt. at 5. And, when he was 24 and under the influence of PCP, a girlfriend reportedly prevented him from hanging himself at a time when he "he was feeling depressed because of his legal difficulties." Id. Mr. Span respectfully submits that this new information merits imposition of a non-trivially different sentence, namely the minimum-permissible by statute: 180 months' imprisonment. Such a sentence is sufficient but not greater then necessary to fully account for the enumerated goals of sentencing set forth in 18 U.S.C. § 3553(a). III. CONCLUSION Relative to the minimum term of imprisonment his offense of conviction mandates, eight months may not appear a substantial reduction in sentence. However, beyond the direct impact on his liberty, such a change would affect Mr. Span's classification within the federal Bureau of Prisons, which weighs each prisoner's time remaining to serve in measuring security level. It also reflects a sentence that appropriately satisfies statutory calls for retribution, incapacitation, deterrence and rehabilitation. For these reasons and any other(s) that the Court deems appropriate and just, Marvin Span respectfully submits that this matter should be scheduled for resentencing in order that the Court may impose a non-trivially different sentence consistent with Booker and the advisory guideline system that it wrought.

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Respectfully submitted,

/s/ Todd Bussert Todd A. Bussert, CT24328 103 Whitney Avenue, Suite 4 New Haven, CT 06510-1229 (203) 495-9790; Fax: (203) 495-9795 [email protected] CERTIFICATE OF SERVICE

I, Todd Bussert, hereby certify that a copy of the foregoing was served via first class mail, postage prepaid, this 6th day of March 2006 on the following: Alex Hernandez, Supervisory AUSA United States Attorney's Office 915 Lafayette Boulevard Bridgeport, CT 06604

/s/ Todd Bussert Todd Bussert

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