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Case 1:04-cr-00351-WDM

Document 312

Filed 04/25/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO JUDGE WALKER D. MILLER COURTROOM MINUTES

Courtroom Deputy: Kathy Preuitt-Parks Court Reporter: Darlene Martinez Probation Officer: Susan Heckman CASE NO. 04-CR-00351-WDM Parties UNITED STATES OF AMERICA,

Date: April 25, 2007 Time: 2 hours and 48 minutes Interpreter: n/a

Counsel Habib Nasrullah Special Agent John Wallace

Plaintiff, vs. KENNETH J. YOUNG, William Herringer

Defendant.

SENTENCING

1:10 a.m.

COURT IN SESSION

APPEARANCES OF COUNSEL. Defendant is present and on bond. ORDERED: The Presentence Report is not disputed by the parties and are adopted in the Court's factual findings in this case. The report is incorporated by reference as part of the Court' findings and conclusions. s

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Page Two 04-CR-00351-WDM April 25, 2007 Court and counsel discuss what evidence counsel intends to introduce. Mr. Herringer advises that he intended to present testimony of Dr. Louis Dennis Kleinsasser but has been unable to determine if the doctor is on his way. Mr. Herringer tenders the doctor' report. s Court exhibit 1 is ADMITTED for purposes of this hearing. Mr. Nasrullah advises that he will not rely on the doctor' report without the opportunity s to cross examine him. Mr. Herringer requests a brief recess to try and contact Dr. Kleinsasser. 1:45 p.m. 2:01 p.m. 2:03 p.m. 2:25 p.m. COURT IN RECESS COURT IN SESSION Direct examination of Dr. Louis Dennis Kleinsasser by Mr. Herringer. Cross examination by Mr. Nasrullah.

Witness excused. 2:52 p.m. 2:56 p.m. 3:00 p.m. John Gillen addresses sentencing on behalf of the defendant. Kenneth Marlet addresses sentencing on behalf of the defendant. Cindy Young addresses sentencing on behalf of the defendant.

Court addresses the defendant' objections to the presentence investigation report and s defendant' motion for downward departure. s Comments by Mr. Herringer. Comments by Mr. Nasrullah. Defendant addresses sentencing. 4:05 p.m. 4:16 p.m. COURT IN RECESS COURT IN SESSION

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Court states its findings and conclusions. Page Three 04-CR-00351-WDM April 25, 2007 Mr. Herringer addresses sentencing. Comments by Mr. Nasrullah addresses sentencing. Statement by the Court regarding defendant's offense level, criminal history level and sentencing guidelines range. Defendant was found guilty on January 11, 2007 as to count 1 of the 3rd Superseding Indictment. ORDERED: Defendant's plea of guilty is ACCEPTED. TOTAL OFFENSE LEVEL: CRIMINAL HISTORY CATEGORY: 23 I

RECOMMENDATION OF THE PROBATION OFFICER IS AS FOLLOWS: Guideline Provision Custody Supervised Release Probation Fine Special Assessment 46 to 57 months 2 to 3 years Recommended Sentence 52 months 3 years

Not eligible $10,000 to $100,000 $100

Not recommended Not recommended $100

Restitution Restitution is not an issue in this matter. Community Service Due to the nature of this case, community service is not recommended. Court considers statutory factors of 18 USC § 3553(a) in arriving at sentence.

Case 1:04-cr-00351-WDM

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ORDERED: Defendant shall be imprisoned for 33 months.

Page Four 04-CR-00351-WDM April 25, 2007 ORDERED: Upon release from imprisonment, defendant shall be placed on supervised release for a period of 3 years. ORDERED: Conditions of Supervised Release that: (X) Within 72 hours of release from the custody of the Bureau of Prisons, defendant shall report in person to the probation office in the district to which the defendant is released. (X) Defendant shall not commit another federal, state or local crime. (X) Defendant shall not illegally possess controlled substances. (X) Defendant shall not possess a firearm or destructive device. (X) Defendant shall comply with standard conditions recommended by U.S. Sentencing Commission. (X) Defendant shall refrain from the unlawful use of a controlled substance and submit to one drug test within 15 days of release on supervised release and at least two periodic drug tests thereafter for use of a controlled substance. (X) Mandatory drug testing provisions of 18 U.S.C. § 3583(d) are WAIVED because defendant indicates a low risk of future substance abuse. ORDERED: Special Condition of Supervised Release that: (X) Defendant shall cooperate in the collection of a DNA sample from the defendant as directed by the probation officer. (X) Defendant shall register as a sex offender in any jurisdiction where the defendant resides, is employed, carries on a vocation, or is a student, as directed by the probation officer. IN addition, the Adam Walsh Child Protection and Safety Act provides that for initial registration purposes only, a sex offender shall register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence. (X) Defendant shall participate in an approved program of sex offender evaluation and treatment, which may include polygraph and plethysmograph and Abel examinations, as directed by the probation officer. The defendant will be required to pay the cost of these evaluations and treatment. The defendant shall comply with the rules and restrictions specified by the treatment agency. The Court authorizes the probation officer to release psychological reports and/or the presentence report to the treatment agency for continuity of treatment. (X) The defendant shall notify the probation officer of all computers and/or other Internet access devices to which the defendant has access. Defendant shall

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allow the probation officer to make unannounced examinations of date stored on the defendant' personal computer(s) and other Internet devices, s and collected by such system(s) at any reasonable time and copy data which the probation officer believes may be evidence of a law violation or a technical violation of a condition of supervision. Page Five 04-CR-00351-WDM April 25, 2007 (X) (X) Defendant shall comply with the terms and conditions for payment of the special assessment, restitution or fine imposed by this judgment. Defendant shall pay any special assessment, restitution, fine that is imposed by this judgment, and that remains unpaid at the commencement of the term of supervised release.

ORDERED: Defendant shall pay $100.00 to Crime Victim Fund (Special Assessment), to be paid immediately. ORDERED: No fine is imposed because defendant has no ability to pay a fine. ORDERED: Costs of imprisonment and supervised release are WAIVED. ORDERED: Defendant may surrender voluntarily as follows: Report to the designated institution on or before 12:00 noon on May 29, 2007. ORDERED: Defendant advised of right to appeal. Any notice of appeal must be filed within 10 days. ORDERED: Bond is continued. ORDERED: A copy of the presentence report shall be forwarded to the U.S. Bureau of Prisons and the U.S. Sentencing Commission. 4:50 p.m. COURT IN RECESS 168 minutes

Total in court time: Hearing concluded

Case 1:04-cr-00351-WDM

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