Free Sentencing Statement - District Court of Colorado - Colorado

Case 1:01-cr-00238-WDM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 01-cr-00238-WM UNITED STATES OF AMERICA, Plaintiff, v. 1. THOMAS P. ORMSBY, Defendant.

GOVERNMENT'S SENTENCING RECOMMENDATION FOLLOWING SUPERVISED RELEASE REVOCATION OF DEFENDANT THOMAS ORMSBY

The United States of America, by and through the undersigned Assistant United States Attorney, hereby submits its sentencing recommendation following the supervised release revocation of defendant Thomas Ormsby. I. BACKGROUND AND RECOMMENDATION On April 17, 2006, defendant Thomas Ormsby appeared before this Court for a supervised release revocation proceeding. Following defendant's admitting the alleged violations, namely, that he failed to participate successfully in sex offender treatment, and failed to follow directions of the United State Probation Office ("USPO") while under supervision, this Court found that defendant had violated the conditions of, and subsequently revoked his supervised release. The Court then heard argument from the parties, and the position of the USPO, recommending the following respective positions: (1) The government, concurring with the position taken by the USPO,

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recommended that defendant be sentenced to a period of incarceration at the low end (5 months) of the applicable Sentencing Guideline range (5 to 11 months), followed by 20 months of supervised release, with general and special conditions, including that defendant receive Depo-Provera to assist him in controlling his sexual aggression.1 (2) The defendant's counsel, noting that defendant had not fared well under supervision, argued that defendant should be sentenced to a period of BOP incarceration, and no further supervision. Defendant's counsel apparently agrees that the additional period of incarceration to which defendant Ormsby could be subject is 13 months. At the conclusion of the April 17th hearing, this Court requested that the parties submit further sentencing recommendations, based upon having heard each party's respective positions. The undersigned counsel advised that: (1) she concurred with the view that, if possible, defendant should receive sex offfender treatment while

Based on his original offense, by statute, defendant can be sentenced to a total of 2 years incarceration for his violation of supervised release conditions. 18 U.S.C. Section 3583(e)(3). Because defendant's supervised release was previously revoked in November 2004, and he was sentenced to 11 months imprisonment at that juncture, the maximum remaining time for defendant to be incarcerated is 13 months. Further, "[w]hen a term of supervised release is revoked and the defendant is required to serve a term of imprisonment, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release." 18 U.S.C. Section 3583(h). Here, defendant was convicted of an offense that originally authorized a three (3) year period of supervised release. Defendant has previously served 11 months imprisonment, and if this Court follows the recommendation herein, will serve another five months imprisonment. Thus, the total 16 months of imprisonment must be deducted from the three year maximum, leaving a total period of potential supervised release of 20 months, as requested herein. 2

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incarcerated in the BOP; and (2) she would attempt to ascertain from BOP whether sex offender treatment was available at BOP for defendant, and the length of incarceration (consistent with defendant's situation) that would be required to effectively treat defendant within BOP. A. Procedural History for Defendant Defendant's most recent revocation follows months of attempted intense supervision by the USPO, and multiple status review hearings before this Court to ascertain defendant's status, and to attempt to facilitate his success on supervised release. At each such status hearing, this Court admonished defendant as to the importance of complying with the conditions of his sueprvised release, particularly, that he exert himself to participate successfully in sex offender treatment. Nonetheless, on January 9, 2006, defendant failed a polygraph examination administered as part of the sex offender treatment program, indicating that he was deceptive, inter alia, in connection with sexual contact with a minor, public masturbation, and exposing his genitals in public. On January 16, 2006, defendant was issued a warning letter from the sex offender treatment program, which highlighted four areas of noncompliance. When defendant failed to take corrective actions in those areas, he was unsatisfactorily discharged from the program on February 8, 2006. Also, on February 8, 2006, defendant met with the USPO and made additional disclosures. Significantly, defendant acknowledged, inter alia, that he: (1) had blatant disregard for his treatment and the probation department since his release from prison, and only his fear of returning to prison motivated him to cooperate at that time; and (2) he continued to stay at the homeless shelter as it exposed him to a larger variety of

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potential victims to feed into his predatory nature. (USPO Supervised Release Violation Report, dated March 21, 2006, pp. 7-8). Additionally, as reflected in a report dated March 2, 2006, defendant was examined by a psychologist who concluded that: Mr. Ormsby is a highly sexually obsessed individual who has absolutely no ability to control his inappropriate sexual behavior at the present time. He continutally thinks about sex and is an opportunist in that he takes advantage of any and every situation that arises to engage in sex with other individuals, both adults and children. (Wolfsohn Report, dated 3/2/2006; pg. 3). As such, the report recommended that: (1) (2) (3) (4) Mr. Ormsby is too high a rsik to be treated safetly in the community for his sex offender issues; If Mr. Ormsby is to remain in the community, he needs sex offender treatment, including electronic monitoring to help contaim him; Mr. Ormsby needs individual weekly psychotherapy to help address his personality issues as well as sex offender issues. Mr. Ormsby needs hormonal medication management to help reduce his sexual obsessions.

(Wolfsohn Report, dated 3/2/2006; pg. 4). Defendant Ormsby's April 17th revocation followed his revocation in November 2004, which ultimately resulted in his BOP incarceration for 11 months. At the time of the prior revocation, the undersigned counsel had inquired of BOP regarding sex offender treatment options, and had learned that the primary sex offender treatment program ("SOTP") was located at FCI Butner, and required a minimum incarceration period of at least 18 months. The BOP later determined that defendatn Ormsby was ineligible for FCI Butner's SOTP because, upon a close review of his criminal and treatment history, Mr. Ormsby did not disply amenability to a voluntary treatment program, and had certain criminal convictions that made him ineligible. Defendant was

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designated to FCI Devens "sex offender management" program, which is also premised upon voluntary participation. B. Information Gained From the BOP As To Treatment Options For Defendant. Following the April 17, 2006 hearing, the undersigned counsel has corresponded and spoken with multiple BOP personnel who are employed in various aspects of the BOP's designation, evaluation, and sex offender treatment functions. In so doing, the undersigned counsel explained that: (1) the government seeks information to inform its sentencing recommendation, and that will avail defendant Ormsby of any sex offender treatment program for which he is eligible based upon the maximum period of incarceration to which he is subject, and his criminal, diagnostic and treatment history; and (2) by statute, defendant Ormsby is eligible to be incarcerated for a maximum period of 13 months, and his Sentencing Guideline (advisory) range is 5 - 11 months.. Based upon the government's inquiries, the undersigned counsel has learned and on information and belief, submits the following: (1) the BOP has only one sex offender treatment program, which is the program at FCI Butner; and which requires a minimum period of incarceration of 18 months. In connection with the previous revocation proceedings in 2004, defendant Ormsby's file was reviewed and he was found to be ineligible for Butner based upon his criminal and treatment history. BOP personnel advise that, given that there are many more potential candidates for the SOTP program than there is available space, once a defendant has been evaluated and rejected, that individual is generally not eligible for a future placement at Butner.

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(2) The program at FCI Devens, although also designed for sex offender inmates, is primarily involved in evaluating and preparing inmates to re-enter the community. Further, once a defendant has been placed at Devens for one period of incarceration, there is little additional benefit from a further FCI Devens' placement (and thus, the BOP is unlikely to return Mr. Ormsby to Devens). (3) There are no other facilities within the BOP that can provide sex offender treatment for Mr. Ormsby during any period of incarceration to which defendant may be sentenced by this Court. C. Recommendation The government maintains its recommenation that defendant Ormsby be sentenced to five (5) months incarceration, to be followed by 20 months of supervised release, subject to general and special conditions. The government's recommendation is based upon its conclusion, after consulting with BOP personnel, that there are no custodial sex offender treatment programs within BOP in which defendant Ormsby can be treated. As such, a period of incarceration at the low end of the applicable range will impose a sanction on defendant Ormsby for his admitted violations of his supervised release conditions, but will allow for a significant period of supervision once Mr. Ormsby is released back into the community. Further, in light of defendant Ormsby's February 8, 2006 acknowledgement to the USPO that his latest efforts to cooperate with teratment and supervision were motivated only by his fear of re-incarceration, the government submits that a sentence of five (5) months incarceration will allow this Court to maintain an optimal amount of potential further incarceration ­ should Mr. Ormsby not cooperate once released from a further BOP term. Finally, the government 6

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requests that, as to any further period of supervision for Mr. Ormsby following imprisonment, this Court order the special conditions referenced at the April 17th hearing, including, specifically, that defendant receive Depo-Provera under the direction of his treating physician. II. CONCLUSION For the foregoing reasons, the government respectfully requests that this Court sentence defendant Ormsby as follows: (1) five (5) months incarceration within the BOP; (2) twenty (20) months supervised release, with standard and special conditions as specified by the USPO. Respectfully submitted this 24th day of April, 2006. WILLIAM J. LEONE United States Attorney By: s/Patricia Davies PATRICIA DAVIES Assistant United States Attorney United States Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone: 303/454-0231 Fax: 303/454-0401 [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 24th day of April 2006, I electronically filed the foregoing GOVERNMENT'S SENTENCING RECOMMENDATION FOLLOWING SUPERVISED RELEASE REVOCATION OF DEFENDANT THOMAS ORMSBY with the clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: Virginia Grady, Esq. [email protected] Ms. Jennifer Nuanes U.S. Probation Office c/o [email protected]

By: S/Joyce Hegge JOYCE HEGGE Legal Assistant to Patricia Davies United States Attorney's Office th 1225 17 Street, Suite 700 Denver, CO 80202 Phone: 303/454-0231 Fax: 303/454-0401 [email protected]

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