Free Sentencing Memorandum - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 District of Arizona 3 850 W. Adams Street, Suite 201 Phoenix, Arizona 85007 4 Telephone: (602) 382-2755 5 DOUGLAS A. PASSON, #017423 [email protected] 6 Asst. Federal Public Defender Attorney for Defendant 7 IN THE UNITED STATES DISTRICT COURT 8 9 10 11 12 13 14 15 16 17 Defendant Scott Segal, by and through undersigned counsel, 18 respectfully submits this Sentencing Memorandum and Request for Non-Guideline 19 Sentence and/or Downward Departure. 20 It is expected that excludable delay under Title 18 U.S.C. Section 21 3161(h)(1)(F) may occur as a result of this motion or from an order based thereon. 22 Respectfully submitted: August 5, 2005. 23 24 25 26 27 28 s/ DOUGLAS A. PASSON DOUGLAS A. PASSON Asst. Federal Public Defender JON M. SANDS Federal Public Defender vs. Scott Segal, Defendant. United States of America, No. CR-04-378-PHX-SRB Plaintiff, SENTENCING MEMORANDUM/ REQUEST FOR DOWNWARD DEPARTURE AND/OR NONGUIDELINE SENTENCE DISTRICT OF ARIZONA

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Memorandum of Points and Authorities OVERVIEW A. Factual Overview Regardless of the jury's verdict, the circumstances surrounding Mr. Segal's acquisition and relationship to the seized collection of guns and military memorabilia became abundantly clear at trial. Every shred of evidence in this case

8 points to the inescapable conclusion that the items at issue were part of an extremely 9 impressive and valuable collection, amassed over generations, and used only for 10 lawful purposes. Scott Segal has developed an incredible love of and expertise 11 concerning all of these types of items and has become an avid collector. Scott Segal 12 is not a dangerous or violent individual, nor is he someone who traffics in illegal 13 items. It is Scott Segal's love of collecting, his connection to his departed father, and 14 his bad judgment that brings him before the Court for sentencing in this matter. 15 B. Legal Overview 16 17 As the Court is well aware, the sentencing landscape has changed 18 dramatically in the last year. In United States v. Booker, 125 S.Ct. 738 (2005), the 19 Supreme Court held that the sentencing guidelines are advisory only, not mandatory. 20 The Court held that sentencing courts must consider the other factors set forth in 18 21 22 23 24 25 26 27 28 2 U.S.C. § 3553 (a) in fashioning the appropriate sentence. 125 S. Ct. at 757, 764, 766, 767, 768. These factors include: ! ! ! the nature and circumstances of the offense; the history and characteristics of the defendant; the need for the sentence imposed to reflect the seriousness of the offense;

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the need for the sentence to promote respect for law and to provide just punishment for the offense;

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the need for the sentence to afford adequate deterrence to criminal conduct;

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the need for the sentence to protect the public from further crimes of the defendant;

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providing the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

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the need to avoid unwarranted sentencing disparities; and the need to provide restitution to the victims.

Id. at 764-65 (citing 18 U.S.C. §§ 3553(a)(1), (3), (5)-(7) (main ed. and Supp.2004). Many post-Booker cases illustrate that a sentencing court may consider

16 formerly discouraged factors, or facts that do not meet the standard for departure, to st 17 impose a lower sentence. See, e.g., United States v. Antonakopoulos, 399 F.3d 68 (1 18 Cir. 2005) (that defendant was caretaker for his brain damaged son may be considered 19 under 3553(a) though there were alternative means of care and thus not ground for 20 departure); United States v. Haidley, 400 F.3d 642, 645 (8th Cir. 2005) (that defendant 21 22 23 24 used embezzled money for her child's high medical expenses, and her "family situation, which included two young children at home" (neither of which rose to the level of departure) were both "factors which can be considered under 3553(a)(1) (`the

25 nature and circumstances of the offense and the history and characteristics of the 26 defendant')."); United States v. Ranum, 353 F.Supp.2nd 984 (E.D. Wis. 2005) ("The 27 guidelines' prohibition of considering these factors cannot be squared with the 28 3

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1 Section 3553(a)(1) requirement that the court evaluate the "history and 2 characteristics" of the defendant'); U.S. v. Myers 353 F.Supp.2nd 1026, 1028 (S.D. 3 Iowa 2005) ("The guidelines prohibition of considering these factors cannot be 4 5 6 7 squared with the § 3553(a)(1) requirement that the court evaluate the "history and characteristics" of the defendant....Thus, in cases in which a defendant's history and character are positive, consideration of all of the § 3553(a) factors might call for a

8 sentence outside the guideline range"); see also 18 U.S.C. § 3661( "no limitation shall 9 be placed on the information concerning the background, character, and conduct of 10 a person convicted of an offense which a court of the United States may receive and 11 consider for the purpose of imposing an appropriate sentence" (cited in Booker, 125 12 S. Ct. at 743). 13 It is also important to note that Congress has directed that the district 14 court, in determining a just sentence, "shall impose a sentence sufficient, but not 15 16 greater than necessary, to comply with [the purposes of sentencing]" (emphasis 17 added). 18 U.S.C. § 3553(a). This is the "primary directive" of the sentencing statute. 18 See Ranum, 353 F.Supp.2d at 985. 19 Although the Supreme Court requires a sentencing court to "consider" 20 the guidelines when fashioning an appropriate sentence, a Court's strict adherence to 21 the guidelines absent the most limited and extraordinary circumstances would amount 22 to no change at all in the prior method of imposing sentence. Such unwavering 23 adherence would render the Supreme Court's decision to make the guidelines 24 25 advisory as nothing more than a "wink and a nod". It would also severely encroach 26 upon the defendant's right to due process and also the Sixth Amendment issues which 27 were of such great concern to the Court in Blakely v. Washington. 28 4

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Given the new sentencing structure, and notwithstanding the existence

2 of "traditional" grounds for departure in this case, this Memorandum uses the term 3 "mitigating factors" instead of "downward departures" when referring to the reasons 4 5 6 7 8 9 10 justifying a substantial sentence reduction in this case. See Dissent of Justice Stevens in Booker, 125 S.Ct. at 788 ("there can be no departure from a mere suggestion."). II. MITIGATING FACTORS SUPPORTING NON-GUIDELINE SENTENCE. A. The Collection Was Used For Lawful Sporting Purposes Or Collection. The relevant guidelines require a significant reduction in sentence if the

11 prohibited possessor "possessed all ammunition and firearms solely for lawful 12 sporting purposes or collection, and did not unlawfully discharge or otherwise 13 unlawfully use such firearms or ammunition". U.S.S.G. § 2K2.1(b)(2). However, if 14 a defendant's base offense level is determined to fall under § 2K2.1(a)(1)-(5), he is 15 16 excluded from the substantial sentence reduction of section (b)(2). The probation 17 department claims Mr. Segal falls under U.S.S.G. § 2K2.1(a)(4)(B)(offense involving 18 a firearm described in 26 U.S.C. § 5845(a)). Mr. Segal disputes this claim and has 19 previously objected to this calculation.1 Even if he is somehow exempt from the 20 reduction under the letter of the guidelines, the circumstances pertaining to this 21 offense must be given their proper weight under Booker. 22 There is no dispute that the collection at issue in this case is simply that­ 23 a collection. Indeed, it is a very valuable collection. Indeed, the collection contains 24 25 Counsel is aware that the government may take the position that Mr. Segal falls under U.S.S.G. § 2K2.1(a)(4)(A)(offense committed after sustaining one felony 27 conviction for crime of violence). This issue will be addressed if and when it is 28 raised by the government. 26 5
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1 many very rare, very old guns. The government's own expert testified that the 2 explosive materials, which were low-grade and legal for non-prohibited possessors 3 to own, could be considered collector's items that dated back to the Vietnam War, the 4 5 6 7 Korean War, and beyond. There was no testimony presented that the defendant used any of the items in the collection since the late 1990's. Even then, his only use was to take guns and ammunition to the shooting range and practice target shooting. This

8 of course, is a "lawful sporting purpose." Consequently, Mr. Segal deserves a 9 sentence reduction set forth in section (b)(2). 10 11 12 B. Extraordinary Family Responsibilities/Extraordinary Effect On Innocent Family Members. The Ninth Circuit and almost every other circuit has recognized the

13 propriety of granting a downward departure in situations where a family member of 14 the defendant would suffer extraordinary harm resulting from the incarceration of the 15 defendant. See e.g., United States v. Leon, 341 F.3d 928 (9th Cir. 2003)(court affirms 16 district court's decision to grant six-level departure because defendant is sole care17 18 19 20 giver to wife who had renal failure and was suicidal); United States v. Aguirre, 214 F.3d 1122 (9th Cir. 2000)(affirms downward for defendant mother who had 8-year-old child and death of common-law husband left child without custodial parent); U.S. v.

rd 21 Dominguez, 296 F.3d 192 (3 Cir.2002) (in bank fraud case, district court erred in 22 holding it could not depart four levels downward for defendant who resided with her

23 elderly parents, who were physically and financially dependant upon her). 24 For crimes committed on or after October 27, 2003, U.S.S.G. § 5H1.6 25 adds commentary giving a list of factors a court should consider in determining 26 whether to depart on the grounds of family ties and loss of care taking or support. Of 27 course, this offense happened well before October of 2003, which means those 28 6

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1 guidelines should not apply to this defendant. However, even if one applies the 2 factors set forth in the current guidelines to the facts of this case, a sentence reduction 3 is wholly in order. 4 5 6 7 The first factor to consider is the seriousness of the offense. The guidelines do not set forth any guidance for this vague terminology. Every federal felony is serious. Moreover, every mitigation request presumably stems from a

8 guideline range requiring incarceration. This is a case of illegal possession. It is not 9 a crime of violence. There was no victim who suffered any physical or financial 10 harm. Thus, in the grand scheme of federal felonies, this one is actually relatively 11 minor. 12 13 14 15

The next factor is family involvement in the offense. If the jury's verdict

is to be given any credit, than it cannot fairly be said that Miriam Ruth Segal played any role in the offense. However, even if the court determines that she did play some

16 kind of role in the offense, such a determination would not preclude a sentence 17 reduction under Booker. 18 The next factors assess whether the defendant's service of a sentence 19 within the applicable range will cause an extraordinary and direct loss of essential 20 care taking. This is clearly the most important factor, and one which must carry the 21 22 23 24 most weight. This is a situation that goes far beyond the normal case of a son who provides routine company for his aging mother. Miriam Ruth Segal is eighty years old with many infirmities and counts on her son for her very existence. For example,

25 the following is a list of functions Scott Segal must perform for his mother: 26 . . . 27 . . . 28 7

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Helping her out of bed in the morning; Helping her perform forty-five minutes of doctor suggested stretching exercises;

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Helping her into and out of the shower; Helping her up and down the stairs of their two-story home; Retrieving dishes and other items from cabinets for meal preparation; Administering her morning, dinner and bedtime medications; Grocery shopping every Tuesday and Thursday; Keeping track of all doctor's appointments; Transporting her to all doctor's appointments; Taking her out to buy clothing and other items; Ordering and picking up her prescriptions; Running all miscellaneous errands (Mrs. Segal does not drive); Cleaning and vacuuming the house; Cleaning the cat box and feeding all pets; Upkeep of exterior of home; Taking care of her when she is not able to get out of bed. The next factor examines whether there are other means to provide the

care taking function that will be lost through the defendant's incarceration. Scott Segal is the only family member in a position to help his mother with the laborious and life-sustaining tasks at issue. The Segals have no family in Massachusetts. What

25 little family the Segals have remaining out of state are in no position to assume her 26 care. Moreover, Mrs. Segal does not have the financial means to pay for the kind of 27 full-time assistance her son must provide. 28 8

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The final factor is whether the requested departure will adequately

2 address the loss of care taking. Clearly, any reduction in sentence will directly 3 address the issue at hand. In short, if Mr. Segal receives a substantial prison sentence 4 5 6 7 8 9 he will most likely never see his mother again. More important for purposes of this analysis, his absence will most likely hasten her death. C. The Forfeiture of the Collection Constitutes Substantial Punishment, Including Causing Financial and Emotional Damage to Mr. Segal and His Mother. The forfeiture in this case is a substantial mitigating factor under Booker.

10 The criminal conviction in this case will result in the total loss of the collection. As 11 the Court heard throughout the trial, the financial and the sentimental price tags of 12 this collection are enormous. The collection is valued in the neighborhood of fifty 13 to seventy-five thousand dollars. Moreover, this collection is Scott Segal's family 14 legacy. It is his primary emotional connection to his father, Martin Segal, who died 15 16 in the early nineties. The Segal family had dreams of passing the collection on from 17 generation to generation. Those dreams are over. The punishment Scott Segal faces 18 as a result of the forfeiture is extraordinary and warrants consideration in fashioning 19 an appropriate sentence. 20 D. Defendant Has Extraordinary Physical Impairment and BOP May Not Be Able To Provide Adequate Care. 21 22 As set forth in the presentence report, Mr. Segal was diagnosed with 23 "advanced degenerative disease of both knees" in July of 2003. PSR at ¶ 46. He 24 likely requires knee replacement surgery. He has been unable to obtain the necessary 25 surgery because he cannot afford the surgery. He lost his job at Intel as a result of the 26 27 28 arrest in this case. The pain in his knees limits his ability to obtain employment and causes him constant pain, for which he cannot currently afford medication. 9

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1 Moreover, he cannot have the surgery until he reduces his weight by 100 pounds. 2 He also has a back problem and is believed to be developing arthritis in his hands. 3 PSR at ¶¶ 46, 47, and 48. U.S.S.G. §5H1.4 makes "physical appearance including 4 5 6 7 8 9 physique" not "ordinarily" relevant, but may be so in unusual cases. Again, Booker strengthens arguments for this mitigating factor and undermines restrictions of the guidelines. E. Vulnerability To Victimization or Abuse In Prison. Because of Mr. Segal's history and because of his physical condition he

10 may be highly susceptible to abuse or victimization in prison. This is a long 11 established ground for sentence reduction. See, e.g., Koon v. United States, 518 U.S. 12 81 (1996) (no abuse of discretion to grant downward departure to police officers 13 convicted of civil rights violation because of vulnerability in prison). 14 F. Combination of Factors. 15 Whether under Booker or the advisory guidelines, even if each of the 16 17 mitigating circumstances above do not, in and of themselves, form an adequate basis 18 for a sentence reduction, this Court has the authority to reduce the sentence based 19 upon a combination of those factors. U.S.S.G. § 5K2.0; United States v. Cook, 938 20 F.2d 149, 153 (9th Cir. 1991) (holding that a unique combination of factors may form 21 22 23 24 a circumstances worthy of departure). G. The Sentence Must Not Be Greater Than Necessary To Comply With The Purposes Of Sentencing. The mitigating circumstances set forth above address several of the

25 enumerated § 3553(a) factors, primarily the history and characteristics of the 26 defendant, the circumstances of the offense, and the additional punishment Mr. Segal 27 faces because of his unique circumstances. However, there are additional factors 28 10

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1 which must also be addressed, as this Court is precluded from giving a sentence 2 greater than that which is necessary to comply with the enumerated sentencing goals. 3 The sentence need not be substantial to afford adequate deterrence, either general or 4 5 6 7 9 specific. Mr. Segal stands to lose everything that is dear to him as a result of this conviction. He lost his job, his financial resources, the collection, he will be separated from his mother, and will lose his freedom. In terms of general deterrence,

8 it would not take the kind of sentence proposed in this case to make the desired point. In terms of specific deterrence, Mr. Segal has no intention of ever 10 violating the law. Although Mr. Segal's last conviction did not deter him from 11 violating the law, for the reasons stated above, the situation here has had far more of 12 an impact on him. Moreover, because the collection at issue will be forfeited, the 13 situation that resulted in his conviction is now eliminated. It is highly unlikely that 14 Mr. Segal would have any desire, let alone the financial ability to begin a collection 15 16 anew. Moreover, any sentence of incarceration in this case will be substantially 17 greater than any previous sentence, and therefore sufficient to deter any future 18 violations. 19 20 21 22 23 24 . . . 25 . . . 26 27 28 ... ... 11 Respectfully submitted: August 5, 2005. JON M. SANDS Federal Public Defender s/ DOUGLAS A. PASSON DOUGLAS A. PASSON Asst. Federal Public Defender

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1 I hereby certify that on August 5, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal 2 of a Notice of Electronic Filing to the following CM/ECF registrants: 3 FREDERICK BATTISTA 4 Assistant U.S. Attorney Two Renaissance Square 5 40 N. Central, Suite 1200 Phoenix, Arizona 85004-4408 6 Copy mailed to: 7 8 CRAIG HARAGA U.S. Probation Office 9 Sandra Day O'Connor U.S. Courthouse 401 W. Washington Street, Suite 160 10 Phoenix, Arizona 85003 11 SCOTT SEGAL 12 Defendant 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 s/ S. Bereolos 14 S. Bereolos

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