Free Sentencing Memorandum - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10
BLUMBERG & ASSOCIATES

Bruce E. Blumberg
BLUMBERG & ASSOCIATES
_____________________

45 West Jefferson, Suite 210 Phoenix, Arizona 85003
Office: (602) 277-6180 Fax: (602) 271- 4119

Attorney for Defendant Arizona State Bar Number 010779

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, vs. HARVEY SLONIKER, Defendant. ) Case No: 04-CR-820-PHX-FJM ) ) ) SENTENCING MEMORANDUM ON ) BEHALF OF HARVEY SLONIKER ) ) ) ) ) ) ) )

11
45 West Jef ferson, Suite 210 Phoenix, Arizona 85003

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendant Harvey Sloniker, through undersigned counsel, respectfully submits the following Sentencing Memorandum prepared in this matter. The sentencing is set for April 3, 2006. As explained below, Mr. Sloniker believes that a sentence of 96 months in prison is within the Guidelines range for the offenses to which he has plead. For the foregoing reasons, the Court should accept the plea agreement in this case, including a three-level departure for acceptance of responsibility, as provided by the plea agreement. I. Procedural History On August 4, 2004, Harvey Sloniker was indicted in a 73-count indictment for charges stemming from his role as president and CEO of Corporate Industries, Inc. and other related telemarketing corporations operated between August, 2001 and July, 2002. The indictment alleged that Mr. Sloniker and several co-defendants defrauded consumers by misleading them into believing that they would receive a major credit card in exchange for payments in excess of $200.00.

1
Case 2:04-cr-00820-FJM Document 232 Filed 03/28/2006 Page 1 of 9

1 2 3 4 5 6 7 8 9 10
BLUMBERG & ASSOCIATES

On January 11, 2006, Mr. Sloniker plead guilty to Count 12, Count 50 and Count 71 of his indictment, which charged him with Wire Fraud, Conspiracy to Commit Loan Fraud and Failure to Pay Taxes, respectively. Mr. Sloniker entered into this agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). The plea agreement stipulated that the appropriate sentence would be a term of imprisonment of not less than 96 months and not more than 120 months; the civil forfeiture of assets, and a requirement that Mr. Sloniker make restitution to all of the victims. In exchange, the government agreed to dismiss the remaining counts in the indictment and to recommend that Mr. Sloniker receive a three-point reduction for acceptance of responsibility. II. Sentencing under United States v. Booker As noted above, Mr. Sloniker entered a plea in this matter on January 11, 2006. Prior to the plea, however, the Supreme Court has issued its opinion in United States v. Booker, 125 S.Ct. 738 (2005). In Booker, 125 S.Ct. at 756, a majority of the Supreme Court held that "the Sixth Amendment as construed in Blakely,542 U.S. 296, 124 S.Ct. 2531 (2004), does apply to the Sentencing Guidelines." Later, the majority added: We reaffirm our holding in Apprendi [530 U.S. 466, 120 S.Ct. 2348, (2000)]: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt. Id. at 756. The majority of the Supreme Court which reached this conclusion has been referred to as the "substantive majority." See United States v. Huerta-Rodriguez, 355 F. Supp.2d 1019, 2005 WL 318640 (D.Neb. 2005). However, a different majority of the Supreme Court determined the remedy for the Sixth Amendment problems found by the substantive majority. This majority has been referred to as the "remedial majority." See Iluerta-Rodriquez, supra. The remedial majority held: We answer the question of remedy by finding the provision of the federal sentencing statute that makes the Guidelines mandatory, 18 U.S.C.A. § 3553(b)(1) (Supp.2004), incompatible with today's constitutional holding. We conclude that this provision must be severed and excised, as must one other statutory section, § 3742(c) (main ed, and Supp.2004), which

11
45 West Jef ferson, Suite 210 Phoenix, Arizona 85003

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

2
Case 2:04-cr-00820-FJM Document 232 Filed 03/28/2006 Page 2 of 9

1 2 3 4 5 6 7 8 9 10
BLUMBERG & ASSOCIATES

depends upon the Guidelines' mandatory nature. So modified, the Federal Sentencing Act, see Sentencing Reform Act of 1984, as amended, 18 U.S.C. § 3551 et seq., 28 U.S.C. § 991 et seq., makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, see 18 U.S.C.A. § 3553(a)(4) (Supp.2004), but it permits the court to tailor the sentence in light of other statutory concerns as well, see § 3553(a) (Supp.2004). Booker, 125 S.Ct. 756-57 (2005)(emphasis added). The remedial majority further stated:

11
45 West Jef ferson, Suite 210 Phoenix, Arizona 85003

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Application of [severability] criteria indicates that we must sever and excise two specific statutory provisions: the provision that requires sentencing courts to impose a sentence within the applicable Guidelines range (in the absence of circumstances that justify a departure), see 18 U.S.C. § 3553(b)(1) (Supp.2004), and the provision that sets forth standards of review on appeal, including de novo review of departures from the applicable Guidelines range, see § 3742(e) (main ed. and Supp.2004) Id. at 764. Thus, the remedial majority judicially rewrote the Sentencing Reform Act to make the guidelines advisory rather than mandatory. Under Booker, District Courts must treat the guidelines as just one of a number of sentencing factors set forth in 18 U.S.C. §3553(a) because those courts were further directed to review the sentencing factors set forth in 18 U.S.C. §3553(a) for consideration purposes. The main goal of §3553(a) is for sentencing courts to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph 2." Section 3553(a)(2) states that such purposes are: (A) (B) (C) (D) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

Additionally, to determine if a sentence is "sufficient, but not greater than necessary," §3553(a) further directs District Courts to consider the following factors: (1) "the nature and circumstances of the offense and the history and characteristics of the defendant" §3553(a)(1);

3
Case 2:04-cr-00820-FJM Document 232 Filed 03/28/2006 Page 3 of 9

1 2 3 4 5 6 7 8 9 10
BLUMBERG & ASSOCIATES

(2) (3) (4)

"the kinds of sentences available" §3553(a)(3); "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct" §3553(a)(6); and "the need to provide restitution to any victims of the offense." §3553(a)(7).

For the reasons set forth herein, this Court must consider all of the §3553(a) factors, not just the guidelines, in determining a sentence that is sufficient but not greater than necessary to meet the goals of sentencing. If the guidelines conflict with other sentencing factors set forth in §3553(a), these statutory sentencing factors should generally trump the guidelines. See United States v. Denadri, 892 F.2d 269, 276-77 (3d Cir. 1989)(Becker, J, concurring in part, dissenting in part)(arguing that since §3553(a) requires sentence be no greater than necessary to meet four purposes of sentencing, imposition of sentence greater than necessary to meet those purposes violates statute, and is reversible, even if within guideline range). III. Application of the Statutory Sentencing Factors to Mr. Sloniker's Case. In the present case, the following factors must be considered when determining what type and length of sentence is sufficient, but not greater than necessary, to satisfy the purposes of sentencing: 1. The Nature and Circumstances of the Offense and History and Characteristics of the Offender a. Nature and Circumstances of Offense: Mr. Sloniker has accepted full responsibility for causing significant harm to the victims in this case as well as to his family and friends. At the time of the offenses committed, Mr. Sloniker was--in addition to the primary provider of his family--shouldering the burden of providing for his extended family as well. He coordinated his parents' move from Missouri and provided resources to his siblings to help them get a hold of their finances. Additionally, Mr. Sloniker was in charge of a business that had between 800 and 1,000 employees, 47 managers and four locations. Mr. Sloniker was under heavy pressure to perform, and when the burdens piled up, he resorted to alcohol dependency and abuse. He admits that many of the wrongful business decisions he made occurred during the time he was abusing alcohol. Under these conditions, Mr. Sloniker failed to resist the temptation to "cross the line" and engage in illegal practices. The Court should note, however, that Mr. Sloniker did seek legal advice from a compliance

11
45 West Jef ferson, Suite 210 Phoenix, Arizona 85003

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

4
Case 2:04-cr-00820-FJM Document 232 Filed 03/28/2006 Page 4 of 9

1 2 3 4 5 6 7 8 9 10
BLUMBERG & ASSOCIATES

lawyer, Glenn Erickson, to keep within the bounds of the law. The Government asserts that Mr. Erickson was not a compliance lawyer simply because "a true compliance lawyer helps a company to abide by the law rather than to break the law," Government's Sentencing Memorandum, 2-3, however, this assertion is couched in terms that purposefully distort the relationship between Mr. Sloniker and Mr. Erickson. First, Mr. Sloniker, like any given agent of a corporation, assumed at the inception of his relationship with Mr. Erickson that Mr. Erickson's services were within the bounds of what the federal laws would allow. It is no less than absurd to suggest, as the Government does, that Mr. Sloniker specifically sought out a minister of justice to further a crime. Next, the rule of Apprendi v. New Jersey, 530 U.S. 466 (1998), bars increases in the sentencing range based on facts not proven to the jury beyond a reasonable doubt or admitted by the defendant. In this case, the assertion that any mitigating value merited by Mr. Erickson's work should be "negated by his active participation in the scheme to defraud" assumes that the Government has properly proven that Mr. Sloniker singled out Mr. Erickson with the intent that Mr. Erickson further specific criminal activities. Such an assertion was never proven to a jury beyond a reasonable doubt or admitted by Mr. Sloniker. As a result, the Government's assertion is not functional in this context. b. History and Characteristics of Mr. Sloniker: According to the Presentence Report, Mr. Sloniker has a very limited criminal history. Mr. Sloniker concedes, as the Government has pointed out, that the Mitigation Report provided by Allan Ellis was inaccurate, however, this in itself is insufficient to "doubt the overall accuracy of the report and the credibility of the report's assertions." Government's Sentencing Memorandum, at 2. Mr. Sloniker's criminal history is very brief and, for the most part, quite dated. Mr. Sloniker is now 37 years old. In 1986, at age 18, he was convicted of misdemeanor theft and misdemeanor criminal damage to property in the Hutchinson Municipal Court in Hutchinson, Kansas. In 1989, at age 21, he was convicted of misdemeanor assault in the fourth degree in the Warren Circuit Court in Bowling Green, Kentucky. Now, approximately 17 years later, the Government uses these petty offenses from Mr. Sloniker's years as a teen and young adult to demonstrate his criminal propensity today. As the Court should note, however, Mr. Sloniker's behavior after the 1989 conviction demonstrate that his

11
45 West Jef ferson, Suite 210 Phoenix, Arizona 85003

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

5
Case 2:04-cr-00820-FJM Document 232 Filed 03/28/2006 Page 5 of 9

1 2 3 4 5 6 7 8 9 10
BLUMBERG & ASSOCIATES

brief and minor run-ins with the law several years ago cannot hide his character as a general lawabiding citizen preceding his involvement in this matter. Prior to his arrest, Mr. Sloniker was a responsible and loving father to his three daughters. He supplied his family with a stable environment, both financially as well as emotionally. Attached in the Mitigation Report are several examples of how those who new Mr. Sloniker best would describe him. For example, Christopher Ojeda states that "Harvey is a person that you can always count on, he is always there for his family and friends and he is the most positive person you will ever meet." See Mitigation Report, pg. 3. As of late, Mr. Sloniker has expressed a sincere interest in participating in a drug and alcohol treatment program to finally and directly address his problems with alcohol. He has been a model inmate during his pretrial incarceration. He has worked while incarcerated at the CCA facility, receiving the highest possible rating of "20" on his inmate work evaluations. In sum, while it is true that nothing can excuse the wrongfulness of Mr. Sloniker's conduct, Mr. Sloniker did not, as the Government has alleged, hatch a plot to defraud thousands of consumers, and build his telemarketing endeavors upon that foundation. See, e.g., United States v. Johnson, 297 F.3d 845 (9th Cir. 2002) (defendants initiated a telemarketing fraud operation upon organization of a corporation, repeatedly targeted elderly individuals, and concealed the scheme from the victims by lying to them as to the corporation's location in order to withstand inspection). Mr. Sloniker's history, character and the record attest to the fact that unlike the defendants in Johnson, Mr. Sloniker's objective at the business' inception was to provide a legitimate service to consumers. 2. The Need for the Sentence Imposed To Promote Certain Statutory Objectives (A) to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense. (B) to afford adequate deterrence to criminal conduct (C) to protect the public from further crimes of the defendant (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner 3. The Kinds of Sentences Available Although the availability of probationary, home confinement and split sentences no longer depend on where a defendant is situated in the sentencing table, the plea stipulates that Mr. Sloniker

11
45 West Jef ferson, Suite 210 Phoenix, Arizona 85003

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

6
Case 2:04-cr-00820-FJM Document 232 Filed 03/28/2006 Page 6 of 9

1 2 3 4 5 6 7 8 9 10
BLUMBERG & ASSOCIATES

will be sentenced to a term of imprisonment of not less than 96 months and not more than 120 months. Mr. Sloniker recommends that the Court accept the plea agreement and impose a sentence of 96 months. 4. The Sentencing Range Established by the Sentencing Commission Rule 11(c)(1)(C) states that the parties "may agree that a specific sentence or sentencing range is the appropriate disposition of the case..." Mr. Sloniker respectfully submits that, under the circumstances set forth below, it is within the Court's authority to accept a plea containing an agreed sentence that falls below the Guidelines. The United States Probation Office has prepared a Presentence Report that has calculated Mr. Sloniker's guideline range at 135 to 168 months (Total Offense Level 33, Criminal History Category I). Because Mr. Sloniker's plea agreement included a specified sentence under Rule 11(c)(1)(C), "the Court may accept the agreement if the Court is satisfied either that: (1) the agreed sentence is within the applicable guideline range; or (2) the agreed sentence departs from the applicable guideline range for justifiable reasons." U.S.S.G. § 6B1.2(c). A Court, however, may not accept an 11(c)(1)(C) plea in a way that alters the terms the parties negotiated. Rule 11(c)(4) provides that "[i]f the court accepts the plea agreement, it must inform the defendant that to the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the agreed upon disposition will be included in the judgment." It is a matter of well-settled law that "failure to abide by the terms of [the plea] agreement constitutes reversible error." United States v. Goodall, 236 F.3d 700, 703 (D.C. Cir. 2001); see also, United States v. Mukai, 26 F.3d 953, 955 (9th Cir. 1994). In this case, the Court may accept Mr. Sloniker's 11(c)(1)(C) plea as long as it gives full effect to the terms of the agreement. In particular, the Court should grant Mr. Sloniker credit for his acceptance of responsibility to be calculated from the sentencing range of 135-168 months. In this case, if the Court were to accept the probation officer's suggested guidelines calculation of an Offense Level of 33, and the Court also concluded that Mr. Sloniker's acceptance of responsibility warranted a three-level downward departure, the Court should, by the terms of the agreement, depart three levels

11
45 West Jef ferson, Suite 210 Phoenix, Arizona 85003

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

7
Case 2:04-cr-00820-FJM Document 232 Filed 03/28/2006 Page 7 of 9

1 2 3 4 5 6 7 8 9 10
BLUMBERG & ASSOCIATES

downward plus one month to the 96-120 month range, not one level and one month as the Government has suggested. 5. The Need to Provide Restitution to any Victims of the Offense According to the Presentence Report, Mr. Sloniker's total restitution amount is $364,702.17. The Government desires to add $25,000.00 in fines to this amount, however. Also, this amount suggested by the Government does not take into account the fact that the Federal Trade Commission already seized approximately $2,000,000 in assets from Mr. Sloniker (this figure is Mr. Sloniker's estimate, however the Government's estimate is approximately $600,000). That the Government seeks an additional amount of restitution and a fine of $25,000.00 places a hardship on Mr. Sloniker that will likely result in his inability to pay the fine. See, U.S.S.G. § 5E1.2. What the Government ignores here is that Mr. Sloniker is 37 years old. A 10 year conviction places him at 47 upon release. He has not been employed since his arrest, and he is unlikely to have an easy time finding gainful employment upon his release, although he would be more capable to make any restitution amount restitution if lesser time of imprisonment is imposed. See, United States v. Nellum, 2005 WL 300073 (E.D. Ind. Feb. 3, 2005). (Judge imposed a sentence below the guideline range on a 57 year old defendant, because a sentence within the guideline range would mean that the defendant would be over the age of 70 upon release). For these reasons, Mr. Sloniker recommends that the Court deny the Government's request for restitution and fines. IV. Conclusion For these and any other reasons that may appear to the court at the sentencing hearing on April 3, 2006, it is respectfully requested that the Court find that Mr. Sloniker's Offense level is 30, and that his sentence be limited to 96 months. Respectfully submitted this 28 th day of March, 2006. By: s/ Bruce E. Blumberg

11
45 West Jef ferson, Suite 210 Phoenix, Arizona 85003

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

8
Case 2:04-cr-00820-FJM Document 232 Filed 03/28/2006 Page 8 of 9

1 2 3 4 5 6 7 8 9 10
BLUMBERG & ASSOCIATES

CERTIFICATE OF SERVICE
I hereby certify that on this date, 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: Michael Bresnehan, Rachel Hernandez, Gary Restaino, Jeanette Alvardo, Thomas Hoidal, Ivan Mathew, Gregory Parzych and the Honorable Frederick Martone.

11
45 West Jef ferson, Suite 210 Phoenix, Arizona 85003

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

9
Case 2:04-cr-00820-FJM Document 232 Filed 03/28/2006 Page 9 of 9