Free Sentencing Memorandum - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE UNITED STATES OF AMERICA, Plaintiff, v. MIZRAIN GONZALEZ, Defendant. : : : : : : : : :

Cr.A. No. 07-135-SLR

SENTENCING MEMORANDUM SUBMITTED ON BEHALF OF DEFENDANT MIZRAIN GONZALEZ COMES NOW, Defendant Mizrain Gonzalez by and through his attorney, John S. Malik, and respectfully requests that this Honorable Court grant Defendant Gonzalez a downward Sentencing variance1 or Sentencing departure based upon the following grounds: A. Introduction. 1. Sentencing in the above captioned criminal case is scheduled for Tuesday,

August 5, 2008 at 4:30 P.M. in the United States District Court for the District of Delaware before the Honorable Sue L. Robinson. Defendant Gonzalez is to be sentenced on one count of Possession with Intent to Distribute Heroin in violation of 21 U.S.C. § 841(a)(1) and one count of Possession of a Firearm During a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c). As calculated in the Presentence Report, Defendant Gonzalez's guideline range of sentence on the Possession with Intent to Deliver Heroin charge is 30 to 37 months based on a Base Offense Level of 15 and a Criminal History

1

See United States v. Vampire Nation, 451 F.3d 189 (3rd Cir. 2006), ruling that a post Booker discretionary sentence not based on a specific Guidelines departure provision is known as a Sentencing "variance". Id. at 195, n. 2, citing United States v. Sitting Bear, 436 F.3d 929, 932-933 (8th Cir. 2006).

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Category of III. (PSR at § 58). Furthermore, in addition to any period of incarceration Mr. Gonzalez may receive on the aforementioned heroin offense, he must be sentenced to a consecutive ten year mandatory term of incarceration on the firearm charge.2 B. Factors to be Considered Pursuant to 18 U.S.C. § 3553(a). 2. In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621

(2005), the United States Supreme Court held that the United States Sentencing Guidelines are advisory only and are not mandatory. Consequently, the factors set forth in 18 U.S.C. § 3553(a) must be considered by a district court in fashioning a sentence for a defendant.3 These factors include: the nature and circumstances of the offense, the history and characteristics of the defendant, the need for the sentence imposed to promote respect for the law, and the need to avoid unwarranted sentencing disparities.4 Post-

2

See 18 U.S.C. 924(c)(1)(B)(i), which states: (B) If the firearm possessed by a person convicted of a violation of this subsection(i) is a short-barreled rifle, short-barreled shot-gun, the person shall be sentenced to a term of imprisonment of not less than 10 years....

3

See United States v. Vampire Nation, supra at 195-196, holding that the Guidelines are now advisory; that post-Booker, district courts exercise broad discretion in imposing sentences, so long as they begin with a properly calculated Guidelines range of Sentence and fully consider the broad variety of factors set forth in 18 U.S.C. § 3553(a) as well as all grounds advanced by the parties at Sentencing; and, that a district court may exercise discretion to vary from a Sentence under the Guidelines in a way that is not based on a specific Guidelines departure provision.
4

In pertinent part, 18 U.S.C. § 3553(a) reads as follows: (a) Factors To Be Considered in Imposing a Sentence. - The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider-- (1) the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed--

(2)

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Booker, a district court may now consider a virtually unlimited number of potential mitigating factors.5 This truly discretionary approach to Guidelines Sentencing was approved last year by the United States Supreme Court in Gall v. United States, 552 U.S. --- , 128 S.Ct. 586, --- L.Ed.2d --- (2007), where a district court's downward departure from a Guideline Range of Sentence of 30 to 37 months of incarceration to 36 months of probation in a Distribution of Ecstasy case was held to constitute a proper exercise of the district court's Sentencing discretion; and, in Kimbrough v. United States, 552 U.S. ---, 128 S.Ct. 558, --- L.Ed.2d --- (2007), where a district court's downward departure from a Guideline Range of Sentence of 168 to 210 months of incarceration to 120 months of incarceration in a Possession with Intent to Distribute in Excess of 50 grams of Crack

(A)

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;

(B) (C) (D)

(3) (4)

the kinds of sentences available; the kinds of sentence and the sentencing range established for-- (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines....

(5) (6)

any pertinent policy statement.... the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and, the need to provide restitution to any victims of the offense.

(7)
5

See Koon v. United States, 518 U.S. 81, 106 (1996), and United States v. Coleman, 188 F.3d 354, 358 (6th Cir. 1999).

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Cocaine case also was held to be a proper exercise of the district court's Sentencing discretion. 3. Pursuant to the decision in Booker, district court judges have the authority

to deviate from the guidelines either upwards or downwards. The Booker Court clearly acknowledged that each individual defendant cannot always be sentenced in accordance with a statutory guideline. Each case has its own merits or flaws and each defendant has their own level of culpability. In fact, it has been held that the Guidelines "do not require a judge to leave compassion and common sense at the door to the courtroom."6 C. Defendant Gonzalez' Family Responsibilities. 4. As indicated in the Pre-Sentence Report, Mr. Gonzalez has substantial

local family ties and responsibilities. (See PSR at §§ 40-47). He has three younger siblings who live in the Wilmington area, namely, Javier Gonzalez, age 23; Esmerelda Gonzalez, age 23; and Jacquelyn Gonzalez, age 22. Most importantly, Mr. Gonzalez has an 8 year old daughter, Raina McKenzie, of whom Mr. Gonzalez has full custody, and a 2 year old son, Mizrain Gonzalez, III, of whom Mr. Gonzalez has full custody together with his son's mother and his fiancé, Ms. Tasha Brown. Raina presently resides with her grandmother, Ms. Jacquelyn Rodriguez, and suffers from diabetes for which she takes insulin. Mizrain currently resides with his mother, Ms. Tasha Brown. Despite being incarcerated, Defendant Gonzalez continues to maintain a close relationship with Ms. Brown who brings both Raina and Mizrain regularly to visit their father at the Salem County Correctional Facility. Although the Court cannot depart from the mandatory minimum ten year sentence on the firearm charge, Defendant Gonzalez requests that the
6

See United States v. Dominguez, 296 F.3d 192, 196 (3rd Cir. 2002).

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Court consider the future needs of his daughter, Raina, and his son, Mizrain, when fashioning an appropriate Sentence and depart or vary downward from the 30 to 37 months Guideline Range of Imprisonment on the heroin charge to a six month period of home confinement upon his release from incarceration followed by a period of supervised release. E. Substance Abuse and RDAP. 5. As indicated in the Pre-Sentence Report, Mr. Gonzalez reports past use of

marijuana and PCP. While on Delaware State probation in 2006, Mr. Gonzalez tested positive for marijuana and PCP on separate occasions. (PSR at §§ 50-51). Mr. Gonzalez has expressed an interest in participating in a substance abuse treatment program while in prison. Accordingly, it is respectfully requested that the Court recommend that Mr. Gonzalez participate in the Residential Drug and Alcohol Program, (RDAP), as a part of his sentence. F. Offense Conduct 6. Defendant Gonzalez does not intend to downplay the seriousness of his

offense conduct and he is remorseful that he sold drugs to support his family rather than to continue working in low-paying jobs due to his lack of secondary education or vocational training. Faced with the inevitability of the ten year mandatory term of incarceration that he must serve on the firearm offense, Mr. Gonzalez stated during his Presentence Interview that, "...he would rather not have any money, and be at liberty with his two children, than in this predicament." (PSR at § 16). Again, although the charged offenses are serious, Mr. Gonzalez's Guideline Range of Sentence on the heroin charge alone would have required only a two and one half to three year period of

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incarceration. However, the Court is deprived of any Sentencing discretion by statute with respect to the attendant firearm offense since 18 U.S.C. § 924(c)(1) compels the Court to impose the mandatory ten year sentence on the firearm charge since the weapon in question was a short-barreled shotgun. Recognizing that any firearm offense is extremely serious, Defendant Gonzalez notes that his adult criminal history does not include any arrest or conviction history for offenses alleging physically violence or assaultive conduct. The shotgun in question was not brandished, but was merely present in Mr. Gonzalez' home in the area where the heroin was found. Since the shotgun had a short barrel, the normal five year mandatory sentence for firearms possession in connection with a drug offense is doubled to a ten year mandatory sentence. It is Mr. Gonzalez' contention that a total sentence of ten years is highly punitive and sends a message to the community that possession of a firearm during a drug offense is something that will result in an extremely harsh sentence. Accordingly, Mr. Gonzalez prays that a Sentencing variance or departure be granted in the case sub judice from his 30 to 37 month range of Sentence on the heroin charge to home confinement and supervised release only in light of the ten year mandatory sentence this Court must impose on the firearm offense. G. Defendant Gonzalez Was Exposed To Domestic Violence as a Child. 7. During his childhood, Mr. Gonzalez unfortunately was exposed to

significant domestic violence in his home. Mr. Gonzalez' mother, Ms. Jacqueline Rodriguez, stated in her Presentence Report interview that Mr. Gonzalez father would regularly beat her and these beatings were witnessed by Mr. Gonzalez and his siblings. (PSR at § 42.) Mr. Gonzalez personally recounted during his Presentence Investigation

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Interview that on one occasion, he watched as his father pushed his mother down a flight of stairs that resulted in Ms. Rodriguez breaking both her wrists in the fall. (PSR at § 40). The Court can consider a defendant's troubled upbringing and his exposure to domestic violence as a child as a potential basis for a Sentencing variance or departure.7 It is submitted that the environment rife with domestic violence in which Mr. Gonzalez was raised may have contributed to his involvement with the criminal justice system and thus warrants a downward Sentencing variance or departure from the 30 to 37 month range of Sentence Mr. Gonzalez faces on the Possession with Intent to Deliver Heroin charge. H. Defendant Gonzalez' Post Offense Rehabilitation Efforts. 8. While incarcerated on pretrial detention pending the resolution of the

subject case, Mr. Gonzalez has utilized his time at the Salem County Correctional Facility as constructively as possible. Specifically, Mr. Gonzalez has participated in the Salem County Correctional Facility's GED Program and has successfully passed sections of the GED examination.8 These efforts by Mr. Gonzalez are significant and are to be lauded especially in light of the fact that his childhood education ended with Mr. Gonzalez completing only the eighth grade. (PSR at § 52). Prior to his incarceration,
7

See United States v. Lopez, 938 F.2d 1293, 1298 (D.C.Cir. 1991), upholding the district court's downward Sentencing departure and finding that a district court has discretion to take account of a defendant's background of domestic violence provided that the district court makes the necessary findings to support its decision; and, Penry v. Lynaugh, 492 U.S. 302, 319 (1989), holding that evidence about a defendant's background is relevant because of the belief "long held by this society, that the defendants who commit criminal acts that are attributable to a disadvantaged background or to emotional or mental problems may be less culpable than defendants who have no such excuse."
8

Attached hereto as Exhibit "A" is a copy of a letter dated June 13, 2008 from Mrs. Angel Brown of the Salem County Correctional Facility GED Program and a copy of Mr. Gonzalez' transcript from the Salem County Vocational and Technical Schools Adult Education and Literacy Program. Mrs. Brown indicates that Mr. Gonzalez has passed sections of the GED examine and that he will be eligible to take the GED test when it is next administered on September 22 and 23, 2008.

[7]

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Mr. Gonzalez had taken night courses at the James H. Groves Adult High School from 2004 through 2008 where he was rated by his teachers as being an average to good student. (PSR at 53). Mr. Gonzalez' continued post-offense efforts at personal rehabilitation provide a basis for a Sentencing variance or departure from his Guideline range Sentence of 30 to 37 months. Various pre-Booker and post-Booker cases have recognized post-offense rehabilitation as an appropriate basis for a Sentencing variance or departure.9 J. Character Reference Letters. 9. A number of individuals have written character reference letters on behalf

Mr. Gonzalez.10 Specifically, the following persons provided letters: 9

Ms. Tasha Brown ­ fiancé.

See: United States v. Chapman, 356 F.3d 843, 848-849 (8th cir. 2004), holding that post-offense rehabilitation can support a downward departure based upon U.S.S.G. § 5K2.0 if the defendant's efforts are sufficiently exceptional to be considered atypical and cases that warrant a departure must fall outside of the "heartland" of the guidelines; United States v. Newlon, 212 F.3d 423, 424 (8th Cir. 2000), finding downward departure under the Guidelines based on defendant's atypical rehabilitation efforts was warranted where prior to his arrest, at his own request, the defendant spend 85 hours over a period of 20 days in a substance abuse treatment program, his state probation officer indicated that he was "doing well", his counselor reported that defendant had sincere desire for treatment, and his family noted a marked improvement in his behavior and attitude; United States v. Cornielle, 171 F.3d 748, 753-754 (2nd Cir. 1999), affirming limited downward departure granted by district court from 10 to 16 month range of Sentence to 8 to 14 month range of Sentence based in part upon defendant's post-offense rehabilitation as well as four year delay in bringing perjury charges against defendant; United States v. DeShon, 183 F.3d 888, 889-890 (8th Cir. 1999), ruling that district court did not abuse its discretion in departing downward in an income tax evasion and money laundering case from a Guideline Sentencing range of 30 to 36 months imprisonment to 5 months of community confinement without work release on the basis of the defendant's post offense rehabilitation about which witnesses testified that defendant had renewed his life in the church and was making extraordinary efforts to turn his life around; United States v. Whitaker, 152 F.3d 1238, 1239 (10th Cir. 1998), holding that exceptional efforts at post-offense drug rehabilitation could be considered an appropriate basis for a downward Sentencing departure; and, United States v. Sally, 116 F.3d 76, 80-81 (3rd Cir. 1997), holding that post-offense as well as post-conviction rehabilitation efforts may serve as a basis for a downward departure from a Guidelines range of sentence provided that the rehabilitation efforts are so exceptional so as to remove a particular case from the heartland in which the acceptance of responsibility guideline was intended to apply. But see also, United States v. Monteiro, 417 F.3d 208 (1st Cir. 2005), holding that defendant's post-offense rehabilitation was not sufficient for departure and that departures on this ground should be considered "hen's teeth rare".
10

Attached hereto as Exhibit "B" are copies of the character reference letters submitted by the individuals listed above.

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-

Ms. Esmerelda I. Gonzalez ­ sister. Ms. Jackie Gonzalez ­ sister. Ms. Judith I. Rodriguez ­ aunt. Pastor Alejandro Lind ­ friend and pastor. Ms. Luz Divina Diaz ­ family friend.

In their letters, Mr. Gonzalez' family members and friends speak of him as a kind and warm-hearted person, a loving brother and nephew, a caring father who is very family oriented, and a person who in the past has worked hard and held down legitimate jobs. It is requested that these character reference letters and the positive traits of Mr. Gonzalez that are discussed therein be considered by the Court prior to Sentencing. K. Totality of the Circumstances. 10. Defendant Gonzalez submits that based upon the numerous mitigating

factors set forth herein, this Court should consider the totality of the circumstances of this case since the Court is permitted to do so in crafting a Sentence that is sufficiently punitive, yet not excessive.11 In fact, the Court may even act sua sponte recognizing a district court's inherit authority to depart from the Guidelines when it deems it appropriate.12 In light of the totality of the circumstances of the subject case, Mr. Gonzalez maintains that a total Sentence of ten years is appropriately punitive, underscores the seriousness of the instant offense conduct, and does not depreciate the

11

See United States v. Delgado, 994 F.Supp. 143 (E.D.N.Y. 1998), granting a three level downward departure based on a first time offender drug courier under pressure from creditors and in combination with other circumstances such as aberrant behavior, fragility, and an exceptionally difficult life.
12

See United States v. Williams, 65 F.3d 301, 309-310 (2d Cir. 1995), holding that the Guidelines do not displace the traditional role of the district court in bringing compassion and common sense to the sentencing process.

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gravity of his offense conduct. For these reasons, Mr. Gonzales prays that he be granted a Sentencing variance or departure in the case at bar. G. Conclusion. 12. Based upon the foregoing facts and legal authorities, Defendant Mizrain

Gonzalez requests that he be granted a downward Sentencing variance or departure, specifically, that the Court sentence him to the minimum mandatory term of 120 months. Furthermore, Defendant Gonzalez respectfully requests that this Court make a recommendation to the Bureau of Prisons that he be designated to the Federal Correctional Facility at Fairton, New Jersey or to another Federal Correctional Facility close to Wilmington, Delaware so that he may have regular visits with his family and minor children. WHEREFORE , Defendant Mizrain Gonzalez respectfully requests that this Honorable Court grant a downward Sentencing variance or departure in the subject criminal action to a one month term of incarceration on the Possession with Intent to Deliver Heroin charge. Respectfully submitted, /s/ John S. Malik JOHN S. MALIK 100 East 14th Street Wilmington, Delaware 19801 (302) 427-2247 Attorney for Defendant, Mizrain Gonzalez Dated: July 22, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE UNITED STATES OF AMERICA, Plaintiff, v. MIZRAIN GONZALEZ, Defendant. : : : : : : : : :

Cr.A. No. 07-135-SLR

CERTIFICATE OF SERVICE I, John S. Malik, attorney for Defendant Mizrain Gonzalez do hereby certify that on this 24th day of July, A.D., 2008, I have had the attached Sentencing Memorandum Submitted on Behalf of Defendant Mizrain Gonzalez served electronically, and via e-mail upon the individual listed below at the following address: Lesley F. Wolf, Esquire Assistant United States Attorney United States Attorney's Office Nemours Building 1007 Orange Street, 7th Floor Wilmington, Delaware 19801

/s/ John S. Malik JOHN S. MALIK 100 East 14th Street Wilmington, Delaware 19801 (302) 427-2247 Attorney for Defendant, Mizrain Gonzalez

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