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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
:
:
DARLENE MATHIS GARDNER
11-CR-100 (RJL)
:
MEMORANDUM IN AID OF SENTENCING
“[S]urely, if ever a [wo]man is to receive credit for the good [s]he has done, and h[er]
immediate misconduct assessed in the context of h[er] overall life hitherto, it should be at the
moment of h[er] sentencing, when h[er] very future hangs in the balance.”1
* * *
On April 18, 2011, Ms. Gardner entered a plea of guilty to both counts of a two-count
information charging her with Conspiracy to Defraud the United States and Making False Claims
upon the United States. Each of the charges carries no statutory mandatory minimum and a
statutory maximum sentence of five years. Ms. Gardner will appear before this Honorable
Court for sentencing on July 13, 2011. Through counsel, Ms. Gardner respectfully submits the
following information for the Court‘s consideration in determining an appropriate sentence. For
the following reasons, and such other reasons as may be presented at the sentencing hearing,
Ms. Gardner respectfully requests that the Court impose a sentence below the advisory
1
United States v. Adelson, 441 F. Supp. 2d 506 513-514 (S.D.N.Y. 2006) (―This
elementary principle of weighing the good with the bad, which is basic to all the great religions,
moral philosophies, and systems of justice, was plainly part of what Congress had in mind when
it directed courts to consider, as a necessary sentencing factor, ‗the history and characteristics of
the defendant.‘‖)
1
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guidelines. Specifically, Ms. Gardner asks that the Court impose a lengthy period of probation
with community service rather than incarceration.
Ms. Gardner implores the Court to consider not just her criminal acts, but also her lack of
any prior criminal history, her mental health issues that contributed to the offense, and her
genuine desire to accept responsibility and give back to the community both with restitution and
community service. The seriousness of Ms. Gardner‘s offense must be balanced against the
mental health issues that contributed to it, as well as the mitigating circumstances that
surrounded the commission of the offense and her demonstrated remorse and efforts at
rehabilitation. Ms. Gardner was a law-abiding citizen with no criminal history before
committing this offense. She has always been hardworking, deeply involved in her community
and church, and a dedicated parent. Ms. Gardner suffers from mental health issues, having been
diagnosed as Bipolar and suffering from Depression and Attention Deficit Disorder.
Ms. Gardner takes responsibility for her wrongdoing and is sincerely remorseful for her
conduct. She fully acknowledges submitting inflated qualifications to obtain the Department of
Homeland Security (DHS) contract at issue in this case and knows that her mismanagement of
her company caused her to submit false claims to the government. She is deeply sorry for her
actions. Unlike most defendants who simply accept responsibility by agreeing with the
government‘s factual proffer, Ms. Gardner wrote a multi-page submission to the Probation
Office affirmatively taking responsibility for her actions. This statement is included in the PSR.
There is no need to incarcerate Ms. Gardner to prevent her from committing further
crimes in view of her extraordinarily low risk of general recidivism, as well the impossibility of
committing this crime again given her debarment from participation in government contracting
and the SBA Section 8 (a) program. The guideline range applicable in this case provides little
2
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useful advice as it was not developed based upon empirical data or national experience and fails
to satisfy the purposes of sentencing. The advisory guideline range also exceeds that which is
―sufficient, but not greater than necessary‖ to achieve the purposes of sentencing as set forth in
18 U.S.C. § 3553(a)(2).
Personal and Family Background of Ms. Gardner
When imposing a sentence, the Court must consider Ms. Gardner‘s personal history and
characteristics.2 Loathe as she is to spread her personal history on the public record, Ms.
Gardner briefly presents the following facts, not in to excuse her conduct in any way, but rather
to help the Court better understand the context in which this crime occurred.3
Early Life. Born to an unwed teenage mother and an absentee father in 1955, a time
when such a thing was viewed in a very different light than out-of-wedlock births are today, the
circumstances of Ms. Gardner‘s youth were extremely difficult. Ms. Gardner‘s lot in life was
made immeasurably worse when, starting at age seven and continuing through age twelve, she
was sexually abused by her stepfather. Compounded by the fact that her mother knew of these
incidents but refused to believe her or take any intervening steps, this experience filled her with
pain and self-doubt as it does most victims.4 Again, this was a much different time, when the
attitude toward such events was much different than today. In fact, aspects of Ms. Gardner‘s
2
See 18 U.S.C. § 3553(a)(1).
3
The following information is taken from Ms. Gardner‘s biographical sketch submitted
to the Probation Office in May of this year and reprinted in part in the Presentence Report. PSR
at pp. 7-9.
4
PSR at p. 12 ¶ 40. To make matters worse, when she was living with her grandparents
her grandfather inflicted regular physical abuse on her. Id. at p. 13 ¶ 43.
3
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early life ―can only be described as horrendous.‖ 5 Nevertheless, in stark contrast to her siblings,
Ms. Gardner has never used illegal drugs.6 She rose above the tribulation without fully
recognizing the effects it had on her psyche.
Despite his absence from the home, Ms. Gardner was influenced by her father‘s
entrepreneurial spirit during her weekly visits to his laundry business. He would talk about his
pride in owning his own business, and, looking back on those days, Ms. Gardner‘s understands
that this had a positive effect on her, paving the way for her interest in owning a business of her
own. While she was not close with her father until she became an adult, just prior to his death,
her father told her he was proud of the businesswoman she had become.
During her early years, Ms. Gardner lived with her grandmother in public housing
projects in the Lincoln Heights neighborhood in Washington, D.C. During warm weather, adults
in the neighborhood gathered on their stoops and porches every Friday night and drank long into
the night. She observed this social activity and had the first of many entrepreneurial ideas – she
rose early each Saturday morning and gathered the empty bottles, carted them to the
supermarket, and collected the deposits. Then, in possession of what seemed a small fortune to a
child, she had weekly ―candy parties‖ where she bought enough candy to share with her friends.
When Ms. Gardner was about seven years old, she left her grandmother‘s home and went
to live with her mother, who was then 21. Her mother had married and it was Ms. Gardner‘s
stepfather who repeatedly raped her between the ages of seven and twelve. Her mother knew of
5
Id. at p. 12 ¶ 40. This disadvantaged background was commented upon by several of
the persons who wrote letters to the Court. (Attached as Exhibits A-F.)
6
Id. at p. 15 ¶ 51 & 19 ¶ 64.
4
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the abuse but did nothing to stop it. When Ms. Gardner summoned the courage to talk to her
mother about it, her mother accused her of lying and trying to break up the family. Ms. Gardner
retreated to her grandparents‘ home for a period of time. After she returned to her mother‘s
home, the abuse resumed and continued until, still a child, she took matters into her own hands
and threatened her stepfather with a knife. Only then did the abuse stop. When she returned to
reside with her mother and stepfather at the age of 12, Ms. Gardner took on the primary role of a
mother in the home. Her mother, who had beaten Ms. Gardner‘s baby brother so severely that he
died, was in and out of St. Elizabeth‘s Hospital, sometimes gone for months at a time. Ms.
Gardner was then responsible for cooking and cleaning for her stepfather and half-siblings.
During her entire childhood she was exposed to abuse on many levels, as documented in the
Presentence Report. She is only now coming to terms with the effects of that continuing trauma.
Ms. Gardner has six half-siblings, all of whom have had negative encounters with the
criminal justice system. In order to protect the privacy of others, the Court‘s attention is directed
to paragraphs 39-42 of the PSR, which explains the horrific circumstances that caused her
estrangement from her maternal family.
Despite the difficulties of her early life, Ms. Gardner marshaled an ―inner strength‖7 and
with an inherent sense of self-determinism, she attended high school, where she excelled in both
academic and extra-curricular activities. She won the ―Miss Central Senior High School‖
pageant, participated in a singing group, and regularly assisted her friends with hair and makeup.
She developed a talent in this area, which she later pursued as a career. From 1971-1973, while
in high school, Ms. Gardner took classes in a diversified program at Prince George‘s Community
7
This trait is described by her maternal aunt in the PSR at p. 13 ¶ 44.
5
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College. Three years later, she followed that up with classes in business at Strayer Community
College.8
First Marriage and Early Employment. Ms. Gardner married her first husband – her
high school sweetheart – six months after graduation in 1973. She married in no small measure
to escape the violence and dysfunction in the home of her mother and stepfather. As the primary
income earner, she worked diligently to put her husband through college. She maintained two
jobs, one as head teller at Washington Federal Savings and Loan and the other as head cashier at
the Lerner Clothing Store. Ultimately, she secured a full-time job at the D.C. Department of
Finance and Revenue in 1975. Notably, in each of these positions, she was entrusted with
receiving thousands of dollars in payments and earned the implicit trust of each of her
employers.9 She never violated that trust.
After her husband obtained his degree, Ms. Gardner wanted to go back to school.
Unfortunately, not only did her husband refuse to support her efforts either emotionally or
financially, he also became abusive. After a time, she tired of being his ―doormat,‖ and the
relationship ended. He has never supported their daughter financially or otherwise.
Children. In 1975, Ms. Gardner gave birth to her first daughter, Tameka. A second
daughter, Halston, was born in 1983. Ms. Gardner raised her two daughters on her own until she
8
Ms. Gardner is alone among her six siblings inattaining this level of educational and
social success. All of her siblings developed illegal drug habits and criminal records. PSR at p.
12 ¶ 41.
9
Several people have written to the Court describing Ms. Gardner‘s reputation for
honesty. See, e.g., Letters from Mr. Chacon and Ms. Devlin.
6
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married her current husband in 1998. She took two additional part-time jobs, one as assistant to
the managing partner of a law firm and another night job as billing officer for a group of
psychiatrists. It is a tribute to Ms. Gardner‘s determination, ability, and commitment as a mother
that both girls have grown into great successes.10 Tameka, now 35, owns her own day-spa on
Capitol Hill. Halston, now 26, is a production assistant with a media company located in
California and is responsible for its New York City contacts. They are close to one another and
to their mother. More than her business successes, her daughters are their mother‘s greatest
pride. Each is an unqualified success in her own right.
Initial Enterprises. After her divorce in 1980, Ms. Gardner began to lay the
groundwork for her longstanding dream to have her own business. Determined to pursue a
career in an area in which she had developed skills, she applied for and obtained a student loan to
attend beauty school at a prominent local academy. The administrators were so impressed with
the quality and dedication of her work that they offered her, alone among all the other students,
full-time employment as a licensed cosmetologist at a companion beauty shop that they
operated.11 This provided Ms. Gardner an opportunity to build her client base and develop her
skills.
Within two years of graduating from beauty school, Ms. Gardner opened her own dayspa on R Street, N.W., which gained her valuable experience in the broad spectrum of cultural
beauty. She ran this business at the same time she raised her two daughters on her own. The
10
Those who know Ms. Gardner best give tribute to her determination to see to it that
her daughters did not have the same disadvantageous background that she did. See attached
letters to the Court.
11
PSR at p. 13 ¶ 46 & 19 ¶ 66.
7
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success of that venture brought her to the attention of one of the nation‘s most renowned beauty
and culture consultants, Carole Jackson of the Color Me Beautiful Institute. Ms. Gardner
enrolled in and graduated from the Institute. She was licensed to represent the organization with
the highest certification and opened up a branch especially dedicated to the beauty needs of
women of color. This business involved finding the right clothing, makeup, and accessories
based on one‘s skin tone for women of color in all their diversity. She quickly developed a loyal
following of clients solidly behind her venture.
Book Publication. This success, in turn, led to a book contract with Ballantine Books, in
conjunction with Random House, in 1992, through which her book Women of Color: The
Multicultural Guide to Fashion and Beauty (1994) was published. As her reputation grew, she
embarked on a multi-city tour across America, including television, radio, and print interviews.
In the process, she was retained by Nordstrom‘s Department Store to train their beauty
instructors.12
Public Service. Throughout this period of success and prosperity, Ms. Gardner did not
abandon her long-standing commitment to public service. Funded by the D.C. Employment
Services, she developed a 12-week ―life skills‖ program for incarcerated women to assist them
during the six months prior to being released into the community. She also volunteered at
various D.C. Public Schools in their ―Kids‘ Month‖ reading program. Later, she donated her
services to the High Tea Society (sponsored by the Judge Mary Terrell Foundation). In this
endeavor, she helped obtain high quality clothing and shoes donated by product lines and
individuals to help disadvantaged girls in the D.C. area participate in an early scholarship award
12
Id. at p. 20 ¶ 72.
8
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program held each year.14 She has also contributed her efforts to St. Anne‘s Infant and Maternity
Home, the D.C. Chamber of Commerce, the McLaughlin Oldsmobile Foundation, the Victim‘s
Rights Foundation, the Washington Adventist Cancer Treatment Center, the Metropolitan Baptist
Church, the 19th Street Baptist Church, the Pediatric Aids Foundation, and an institutional
reading program for seniors. This multiplicity of public service has led more than one person to
deem Ms. Gardner as a valuable community asset. These many and varied acts of charity are
described in the attached letters from numerous supporters. Some of the most telling include
descriptions of Ms. Gardner giving of herself in a private manner such as providing a home for
two nieces, a graduation gown for a friend‘s daughter, and a job for the daughter of an employee.
(See Letters Attached as Exhibits A-F.)
Interior Design. In 1998, Ms. Gardner decided to expand her vision from the lines of
beauty supplies and clothing into home furnishings, so she completed a course in interior design.
Then, in 2002, she established Systems Design, Inc. to help businesses and government agencies
create warmer, more productive environments and to help individuals provide living spaces that
reflect their interests and provide calm, relaxing spaces. In 2004, she opened the ―Collectibles
Gallery‖ in Georgetown, a high-end home furnishing and accessories store. She now felt that her
dream of independent entrepreneurship was a resounding success.
SBA Section 8(a) Program. This led Ms. Gardner in May 2002 to apply for the Small
Business Development Section 8(a) program for which she sincerely believed, based on this
background and experience, she was fully qualified. She was accepted into the program in 2002.
In joining the program, she set herself up as a competitor to much larger companies with more
14
PSR at p. 19 ¶ 67.
9
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government contracting experience. Ms. Gardner understood the importance of pursuing
contracts that allowed her Company the opportunity to team with, and be provided mentorship
from, other larger companies with more government contracting experience. She began getting
contracts with the government including design work for the Prettyman Courthouse, IRS, and the
State Department.
In 2007, Ms. Gardner closed her gallery to focus on the government contracts. At the
time of the DHS award in 2007, Ms. Gardner had approximately three years remaining in the
SBA Section 8(a) program. She attempted to manage her responsibilities under the 8(a)
program despite the recent death of her mother and the complex responsibilities in helping with
her siblings whose lives had not been as successful as hers. These duties, combined with
psychiatric treatment for depression led her, in part, to make the poor judgments that eventually
brought her before this Court.15
In the meantime, however, Ms. Gardner had become a successful businesswoman who
did not allow her status to define who she was and, as such, she truly deserves the trust and
confidence of this Court. Many of those who have written letters of support on behalf of Ms.
Gardner relate what a good heart she has. From these letters, which are truly touching, the Court
can see that Ms. Gardner has impacted the lives of numerous people in a positive way over the
15
The extent of Ms. Gardner‘s mental health condition is reflected by the PSR which
lists at least 10 prescription drugs with which Ms. Gardner has an extensive history. Thse drugs
include: Ibuprofen (p. 15 ¶ 42); Wellbutrin (pp. 16 -17 ¶¶ 57-58); Adderall (pp. 16 -17 ¶¶ 57-58;
p. 18 ¶¶ 60 & 63; and p. 19 ¶ 64); Klonopin (pp. 16 -17 ¶¶ 57-58); Celexa (p. 17 ¶ 58; p. 18 ¶ 60;
and p. 18 ¶ 63); Lamictal (p. 18 ¶ 60 and p. 18 ¶ 63); Trazodone (p. 18 ¶¶ 60 & 63); Lithium (p.
18 ¶ 61); Lithium Carbonate (p. 18 ¶ 61); Seroquel (p. 18 ¶ 61); Neurontin (p. 18 ¶ 61); Vistaril
(p. 18 ¶ 63);
10
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years. We urge the Court to read all of the letters attached to this pleading in their entirety, as
they paint a very compelling picture of a good person who had a lapse in judgment that caused
her to commit criminal acts for which she will be held accountable, but for which alternatives to
incarceration are appropriate. See Exhibits A-F.
ARGUMENT
I. A SENTENCE OF PROBATION WITH COMMUNITY SERVICE AND HOME
CONFINEMENT WOULD BEST SATISFY THE GOALS OF § 3553(a).
Statutory Provisions. The Court must ―impose a sentence sufficient, but not greater
than necessary, to comply with the purposes set forth in paragraph (2),‖ which are ―the need for
the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to 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; and
(D) to provide the defendant with needed educational or vocational training, medical care,
other correctional treatment in the most effective manner.‖
18 U.S.C. § 3553(a)(2).
―These four considerations – retribution, deterrence, incapacitation, and rehabilitation—
are the four purposes of sentencing generally.‖ Tapia v. United States, 131 S. Ct. 2382, 2387
(2011). In the present cases, all of these factors support a probationary sentence for Ms. Gardner.
In determining the particular sentence to be imposed, the Court must consider these purposes, the
nature and circumstances of the offense and the history and characteristics of the defendant, the
need to avoid unwarranted disparities, and the need to provide restitution to any victims of the
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offense. See 18 U.S.C. § 3553(a)(1)–(7); see also, United States v. Booker, 543 U.S. 220, 259
(2005). Congress has further provided that
[t]he court, in determining whether to impose a sentence of imprisonment, and, if a
term of imprisonment is to be imposed, in determining the length of the term, shall
consider the factors set forth in Section 3553(a) to the extent that they are applicable,
recognizing that imprisonment is not an appropriate means of promoting correction and
rehabilitation.
See 18 U.S.C. § 3582 (emphasis added). Each of these factors is discussed below.
(1)
Nature and Circumstances of the Offense
Ms. Gardner does not dispute that the crime she committed was serious and that, although
she worked very hard for the government, she falsified information that was submitted to the
government, both to get the contract and to obtain payment for services rendered. She fully
acknowledges that her actions were improper and ultimately criminal. However, it is important
for the Court to understand the context in which these events occurred.
In early 2007, Ms. Gardner was President of SDI, a small, minority-owned business on the
SBA Section 8(a) list, when the Department of Homeland Security (DHS) decided to renovate a
building (PCN) for the use of the Immigration and Customs Enforcement (ICE). Apparently,
DHS or GSA had preferred contractors in mind. There are complicated procurement regulations
that require agencies to go through GSA and get competitive bids to award a contract, but these
rules do not apply if the agency uses an SBA- approved small minority-owned business.
Therefore, it was suggested that the subcontractor firms (i.e., the much larger furniture
companies) partner with an 8(a) minority-owned business. This is how Ms. Gardner and SDI got
involved in the project. Initially, these larger companies wanted Ms. Gardner and SDI essentially
to be a pass-through. In other words, to be only minimally involved, simply to render them
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eligible to have the contract. However, Ms. Gardner refused based upon her understanding that
this would violate the law. That is where the problems began. While she really should have been
a subcontractor rather than a primary contractor, she was pushed by the requirement that the
minority business provide at least 51% of the services to qualify. As a result, Ms. Gardner was
under a tremendous amount of pressure and was overwhelmed beyond her capacity as the prime
contractor.
Interestingly, this case is being prosecuted not by the Fraud Section of the Department of
Justice, but by the Antitrust Division. There is a reason for that. This did not begin as an
investigation into fraud; it was an investigation into irregularities in the contracting process. It is
our understanding and belief that the other furniture companies that wanted to be involved
complained – not about SDI – but about large companies who were the putative subcontractors.
Presumably, the Antitrust Division got involved in this case because of the way the contract was
awarded, which was of course no fault of Ms. Gardner.
The ―big guys‖ pressured Ms. Gardner to demonstrate that she was capable of serving as a
prime contractor. This led her to the biggest mistake of her life – overstating her qualifications by
creating fictitious invoices to include in the proposal process to demonstrate past performance on
similar projects. There was one independent contractor (―person A‖) who assisted her in this
process. Importantly, the actions Ms. Gardner took were not for the purpose of obtaining money
she knew she was not entitled to, but rather they were to demonstrate what she believed was true
– that she would be able to handle the contract. She was wrong, and most importantly, she
acknowledges that this desire led her to make false statements in connection with obtaining the
contract.
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Ms. Gardner was clearly in way over her head. She was very capable in the field of
beauty and design, but she was not sophisticated enough to ―play with the big boys.‖ She did not
appreciate the rigorous demands of government contracting. This was compounded by her mental
health issues – her attention deficit disorder and panic disorder came through loud and clear in her
dealings with the other contractors and the government.
The government initiated the 8(a) process for this contract because the DHS project was
behind schedule and the government knew it could move faster if they could proceed without
competitive bidding. However, a skirmish broke out between two major furniture manufacturing
companies – Haworth Manufacturing and ADM International, both of whom wanted the contract
for the more than $60 million worth of furniture that the government was prepared to purchase for
the new ICE headquarters. Each of the manufacturers had its champions within the government.
Initially, Haworth won the battle and DHS awarded it a blanket purchase order issued by the GSA
National Furniture Center. But when ADM complained, the government sought out Ms. Gardner
because she was the only 8(a) design firm on the GSA schedule. With SDI as a member of the
ADM team, the work could be directed to ADM as desired. ADM with the apparent complicity
of government officials intended to use SDI as a front to achieve its own purposes. ADM drafted
a proposal that had the subcontractors doing the lion‘s share of the work. Because Ms. Gardner
understood the rules and wanted to abide by them, she insisted that her people would have to do at
least 51% of the work.
In June, the contract was awarded. The invoices submitted to GSA for work completed
were paid in June, July, and August with no complaints about the work or costs. However, in
September, the government indicated it had decided to take the project ―in another direction‖ and
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directed SDI to stop work for two weeks. From that point on, it appears the other furniture
manufacturer, Haworth, was back in the picture along with its designer, and an intense, unseemly
effort to squeeze out Ms. Gardner began.
The government stopped paying SDI invoices and began making demands upon Ms.
Gardner. The government indicated it was coming up with a new statement of work, but months
passed without any progress. Ms. Gardner became flustered, confused, and somewhat paranoid
about what was occurring. She and her people began to feel completely disrespected. In a
September 2007 meeting, Ms. Gardner asked when she would be allowed to resume work and
was told ―the train has left the station.‖ Another contractor was being used and the government
understandably did not want to pay for duplicate work. However, none of this was Ms. Gardner‘s
fault. She had a contract, and believed she was ready, willing, and able to perform. The
government unilaterally changed the rules. There is considerable documentation of the confusion
that ensued and the recognition by the government that the interests of SDI as a small business
were not being honored. GSA recognized the impropriety of DHS‘s actions, saying in an email
―We do not represent GSA or our customers well when it appears we are not being above board in
the dissemination of information.‖ The contract was not modified with a new statement of work
until January 2008. SDI was kept in limbo that entire time. Invoices were rejected. The large
subcontractors were paid, but SDI was not. The SDI contract was not terminated either for
default or for convenience.
None of this is to suggest that Ms. Gardner is blameless. She fully acknowledges that she
committed the charged crimes. However, the improprieties in the contracting process infected
everything. Nevertheless, when the government proceeded against only Ms. Gardner, she stepped
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up and admitted her own wrongdoing – the false claims she made to the government.
Overlapping all of this was an understanding on the part of Ms. Gardner and her attorneys
that this was to have been a firm, fixed price contract, not an hourly basis contact for labor
performed. Thus, the false invoices that were submitted should never have been required.
However, Ms. Gardner realizes that this did not give her license to submit false information. The
March 13, 2007 solicitation indicates ―the Government contemplates award of a fixed price
service contract.‖ At subsequent meetings, discussions centered around issuing purchase orders
rather than invoices which is also consistent with a firm, fixed price contract. The statement of
work says ―this is a firm, fixed price contract.‖ The first and second contract modifications stated
―this is a firm, fixed price contract.‖ A firm, fixed price contract is one which provides for a
price that is not subject to adjustments on the basis of the contractor‘s actual costs in performing
the contract. As a result, there was no obligation to work any particular number of hours and thus
no real motive to falsify time sheets. Ms. Gardner submitted time sheets that should never have
been required. She was trying to get paid for work she had performed and was jumping through
every hoop the government threw in front of her. Unfortunately, rather than ferret out true
information Ms. Gardner submitted false statements. Make no mistake – Ms. Gardner stands by
her admission in the plea that the invoices contained false claims. We simply offer this
information so that the Court will understand the context in which this occurred as further
evidence that this was a matter of desperation rather than acts with a more pernicious intent.
Ms. Gardner Did Not Act with Evil Intent. Ms. Gardner has pleaded guilty in Count 1
to Conspiracy and in Count 2 to a violation of the False Claims Act. 18 U.S.C.§ 287. These
charges result from the same course of conduct and therefore merge under the sentencing
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guidelines. Ms. Gardner does not dispute that some of the statements she made in connection
with obtaining the contract and in her efforts to get paid for services under the contract were
false. The contract did not include ―terms and conditions‖ for reporting monthly goals or for
invoicing at the time she made the false statements, her goal was to satisfy the government‘s
demands and to demonstrate that she was capable of meeting the contract. Although she knew
the information she was providing was false she fully believed her company was competent to
provide the services and she hoped to prove this to the government. She subsequently tried to
get paid for work her company did, but was careless and even reckless with the information she
submitted to get paid.
A claim under the False Claims Act can be prosecuted if it is either false or fraudulent. A
false statement is one which was ―untrue when made, and was then known to be untrue by the
person making it or causing it to be made.‖ A statement or claim is fraudulent ―if it was falsely
made, or caused to be made, with the intent to deceive‖ for some kind of gain.16 In this case, Ms.
Gardner acknowledges that her claims regarding past contracts and hours worked by some
employees were false and that she knew they were false at the time she made them. She
recognizes that her conduct was at a minimum ―extremely careless and foolish.‖ United States v.
Cooperative Grain and Supply Co., 476 F.2d 47, 60 (8th Cir. 1973)
The Loss Amount Overstates Ms. Gardner’s Culpability. Although the Plea
Agreement stipulates that Ms. Gardner ―waives any right to contest a loss determination in …
16
Id. at 650 (4th Cir. 1974); see also United States v. Slocum, 708 F.2d 587, 596 (11th
Cir. 1983)(citing United States v. Computer Sciences Corp., 511 F. Supp. 1125, 1134 (E.D. Va.
1981), rev'd on other grounds, 689 F.2d 1181 (4th Cir. 1982)).
17
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[the] amount of $389,738,‖ 17 the pertinence of the ―actual loss‖ is debatable.18 Recent judicial
thought is that loss is not a good measure of the serious of the offense because it is ―a relatively
weak indicator of … moral seriousness ... or the need for deterrence.‖19 Because the Guidelines
are essentially formulaic in nature, their ostensible intent is ―to appear ‗objective,‘ [and] tend to
place great weight on putatively measureable quantities, such as … the amount of financial loss
in fraud cases, without, however, explaining why it is appropriate to accord such huge weight to
such factors.‖20 As one court pointed out, this ―[h]eavy focus on loss and ‗one-size-fits-all
approach for … [the] number of victims, [and] officer/director and manager/supervisor
enhancements‖ provide no sensible guidance.‖21
While the fraud guideline focuses primarily on aggregate monetary loss and
victimization, ―it fails to measure a host of other factors that may be important, and may be a
17
Plea Agreement at p. 6 ¶ 10; PSR at p. 4 ¶ 6 & p. 7 ¶ 18.
18
The pertinent definitional note in the Guidelines defines ―actual loss‖ as ―the
reasonably foreseeable pecuniary harm that resulted from the offense.‖ U.S.S.G. 2.B1.1,
comment ¶ 3(A)(i). It is still worth noting that the GSA‘s ―final decision‖ appears to set the
actual loss at conspicuously less -- $167,214. Letter of 05-15-09 from GSA‘s Contracting
Officer to Ms. Gardner‘s former civil counsel.
19
United States v. Emmenegger, 329 F.Supp.2d 416, 424, 427 (S.D.N.Y. 2004); see
also Derick R. Vollrath, Losing the Loss Calculation: Toward a More Just Sentencing Regime
in White-Collar Criminal Cases, 59 Duke L. J. 1001, 1035 (2010) (―Early cases indicate that
appellate courts are upholding the decisions of sentencing judges who, based on policy
concerns, apply Kimbrough to deviate from the white-collar crime Guidelines. If this trend
continues, courts could begin to move away from the Guidelines‘ distracting and destructive
emphasis on the loss calculation and toward sentences designed to achieve the purposes set
forth in 3553(a).‖).
20
United States v. Adelson, 441 F. Supp. 2d 506, 509 (S.D.N.Y. 2006).
21
United States v. Parris, 573 F. Supp. 2d 744, 756 (E.D.N.Y. 2008).
18
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basis for mitigating punishment, in a particular case.‖ Allan Ellis, John R. Steer, Mark
Allenbaugh, At a “Loss” for Justice: Federal Sentencing for Economic Offenses, 25 Crim. Just.
34, 37 (2011); see also United States v. Ovid,No. 09-cr-216 (JG) at 2010 WL 3940724, *1
(E.D.N.Y. Oct. 1, 2010) (―[T]he fraud guideline, despite its excessive complexity, still does not
account for many of the myriad factors that are properly considered in fashioning just sentences,
and indeed no workable guideline could ever do so.‖). A substantial variance is needed in this
case because of the following mitigating factors, all of which are highly relevant to the purposes
of sentencing and none of which is taken into account by the guideline range.
Aberrant Nature of the Conduct. Ms. Gardner lived a law-abiding life until this
offense began. She was an active member of her church and community as well as a dedicated
wife and mother. She did not engage in criminal conduct until she became overwhelmed by the
government‘s requests for more information during the proposal process and justifications for
payment. Her offense is completely uncharacteristic when viewed in the context of her entire
productive adult life. This Court should grant a variance based on the aberrant nature of her
conduct. See, e.g., United States v. Howe, 543 F.3d 128, 133 (3rd Cir. 2008) (variance based on
―isolated mistake‖ in otherwise long and entirely upstanding life); United States v. Hadash, 408
F.3d 1080, 1084 (8th Cir. 2005) (defendant was a ―law abiding citizen, who [did] an incredibly
dumb thing‖); United States v. Davis, No. 07-cr-727 (HB) 2008 WL 2329290 (S.D.N.Y. June 5,
2008) (defendant was a first offender who had worked throughout his 15-year marriage to
educate his six children and whose offense was prompted by economic pressures).
Less Culpable Motive. It is also important to recognize that Ms. Gardner was not
motivated by greed or avarice. Though not an element of the offense in terms of trial or plea, a
19
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defendant‘s motive is highly relevant as a factor at sentencing.22 As the U.S. Supreme Court has
had occasion to note ―[m]otives are most relevant when the trial judge sets the defendant's
sentence, and it is not uncommon for a defendant to receive a minimum sentence because he was
acting with good motives, or a rather high sentence because of his bad motives.‖23 The motive
involved, together with mens rea and other mental factors speak to a defendant‘s
―blameworthiness.‖24
Ms. Gardner did not set out to defraud the government. She genuinely believed she could
complete the contract in a manner that would benefit the government and fully comply with the
contract. In short, this case is distinguishable from a case in which a defendant misappropriates
money to support a lavish lifestyle. Ms. Gardner‘s motives and intentions were good – she
simply got in far over her head and resorted to impermissible tactics to get out.
22
See Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993); United States v. Mahan, No 051518, 2007 WL 1430288, at *3 (10th Cir. 2007) (sentence was procedurally unreasonable
where district court refused to consider defendant‘s stated motive for possessing unloaded
shotgun, i.e., that he had been violently beaten by three men and sought to defend his wife);
United States v. Milne, 384 F. Supp. 2d 1309, 1310-11 (E.D. Wis. 2005) (granting variance
where ―defendant did not take the bank‘s money out of greed or a desire to live a lavish
lifestyle, [but in effort] to keep a sinking business afloat‖); United States v. Ranum, 353 F.
Supp. 2d 984, 990 (E.D. Wis. 2005) (defendant did ―not act for personal gain or for improper
personal gain of another‖).
23
See, e.g., Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993); see also United States v.
Milne, 384 F. Supp. 2d 1309, 1310-11 (E.D. Wis. 2005) (departure granted where defendant did
not take money out of greed or a desire to live a lavish lifestyle, but to keep a sinking business
going); and United States v. Ranum, 353 F. Supp. 2d 984, 990 (E.D. Wis. 2005) (defendant did
not act for personal gain).
24
See Richard S. Frase, Excessive Prison Sentences Punishment Goals and the Eighth
Amendment „Proportionality‟ Relative to What? 89 Minn. L. Rev. 571, 590 (Feb. 2005).
20
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Ms. Gardner‘s motive in the SDI enterprise was to fulfill a lifelong dream of business
ownership and to provide employment and services to others. She was not motivated by greed or
avarice or any purpose to defraud or profiteer from it. The best indication of her lack of greed or
avarice is the amount of money she took out of the enterprise as salary, which was minimal.25
Mental Health Problems Contributed to the Crime. Ms. Gardner‘s ability to comply
with the contract and respond to the government‘s requests for additional information and
justifications was diminished by her bipolar condition and her Attention Deficit Disorder. Her
mental health issues contributed to the commission of the offense in that they exacerbated her
feelings of being overwhelmed and under siege. These feelings caused her, rather than to admit
that she was in over her head, in common parlance, to ―fake it to make it.‖ Ironically, as
discussed in her personal background above, one of Ms. Gardner‘s most compelling
characteristics, one which propelled her so powerfully into the small business work that she was
doing in this case, is her strong work ethic.26 Her extremely unfortunate childhood, as discussed
above, would have been more than enough to call it quits on life for most young girls. However,
Ms. Gardner affirmatively overcame those disadvantages and went on to a life of solid success
and achievement. A common factor among such emotionally afflicted over-achievers, however,
is that they often do not receive any mental health treatment. The very fact of Ms. Gardner‘s
25
As Ms. Gardner‘s maternal aunt, who helped raise her and as the surviving relative
who knows her best, told the PSR writer, Ms. Gardner‘s chief characteristic is that she is ―very
kindhearted and giving person‖ who is a ―wonderful mother, good businesswoman, and
extremely supportive‖ and ―is not at all a criminal.‖ PSR at p. 13 ¶ 44. Generosity and giving
of herself are two of Ms. Gardner‘s pre-eminent characteristics, according to numerous people
who know her best. (See Attached Letters).
26
Common among the chief characteristics attributed to her by her friends and
associates are such terms as ―hardworking‖ (See Attached Letters).
21
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social and economic successes threw her into constant contact with those whose prosperity and
social standing had been a given from the day of their births – an ironic and continuous reminder
to her of the poverty of her upbringing.27 As she wrote in her submission to the Probation
Office, ―one of the main things that I have learned from this experience is that when your selfesteem is high, your low perception of self-worth is so enhanced that there‘s no need to pretend
to be something you‘re not. There‘s no more need to feel sorry for yourself. There are no more
feelings of inferiority.‖ Ms. Gardner notes that during the contracting period, her thoughts were
often racing. She acted recklessly without considering the consequences. She recognizes that
her enhanced feelings of power and exuberance and subsequent bouts of depression were a
symptom of her now diagnosed Bipolar condition. She is glad to say she no longer feels
confused and disconnected from reality.
Of the Seven Deadly Sins, it was pride and envy fueling a desire to succeed – not greed
and anger – which drove Ms. Gardner to inflate her credentials. She saw this as an opportunity
to create a successful business at a high economic level that would earn her the admiration and
respect of those with whom she was in daily contact. Ms. Gardner chose the wrong avenue
toward an admirable goal. Unlike many clients sentenced under the fraud guidelines whose
crimes are purely opportunist and short-sighted, Ms. Gardner‘s comparatively minor
27
This is a common socio-economic phenomenon among all races, but it has
particularly sharp and defined edges in the American black community. See Lawrence O.
Graham, Our Kind of People: Inside America‟s Black Upper Class (N.Y.: Harper Collins,
1999) (The research of the black author from a privileged background found black society
―divided … into ‗non-elites‘ who hated black elites, … black elites who remain silent about
their backgrounds, and black elites who reinvent their backgrounds to placate hostile‖ critics).
22
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transgression was at least ―other-directed‖ toward providing employment security for others and
good service to the government.
(2)
Need for Punishment, Protection of the Public, and Deterrence
A sentence below the guidelines would be sufficient to reflect the seriousness of the
offense, promote respect for the law, provide just punishment for the offense, and afford
adequate deterrence to criminal conduct.
Punishment and Retribution. The need for retribution is measured by the degree of
―blameworthiness,‖ which ―is generally assessed according to two kinds of elements: the nature
and seriousness of the harm caused or threatened by the crime; and the offender‘s degree of
culpability in committing the crime, in particular, his degree of intent (mens rea), motives, role in
the offense, and mental illness or other diminished capacity.‖ Richard S. Frase, Excessive Prison
Sentences, Punishment Goals, and the Eighth Amendment: “Proportionality” Relative to What?,
89 Minn. L. Rev. 571, 590 (February 2005). The guidelines include none of the factors bearing
on Ms. Gardner‘s degree of culpability. They do not address her lesser criminal intent as
discussed herein.
Collateral Consequences. Ms. Gardner‘s prosecution for this offense has had a
tremendous impact on her, allowing her to recognize the damage that she has done not only to
the government but also to herself and to her family. She has lost a profession that she has
engaged in for much of her adult life. As a result of her conduct, she will now have a felony
conviction. This conviction will have significant consequences on her future -- most
significantly, it will limit her employment opportunities. She hopes to be able to complete her
sentence in a way that allows her to use her education and intelligence to do good in the
23
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community. However, these collateral consequences are additional punishment that she has
faced and provide additional deterrence for her and others.
As with consideration of a defendant‘s personal background, the Court is also entitled to
consider the losses which she has experienced as a result of the violation of the law. This Court
should consider Ms. Gardner‘s loss of profession and reputation. See, e.g., United States v.
Gaind, 829 F. Supp. 669, 671 (S.D.N.Y. 1993) (granting downward departure where defendant
was punished by the loss of his business); United States v. Vigil, 476 F. Supp. 2d 1231, 1235
(D.N.M. 2007) (finding variance appropriate where defendant was collaterally punished by loss
of his position and reputation, widespread media coverage, and emotional toll of two lengthy
public trials); United States v. Samaras, 390 F. Supp. 2d 805, 809 (E.D. Wis. 2005) (granting
variance in part because defendant lost a good public sector job as a result of his conviction).32
The business, financial, emotional, psychological, mental and physical health, familial and
reputational losses that Ms. Gardner has brought upon herself have been devastating. The dream
she had of a successful business career has vanished. She has lost her customers, enterprises,
and supporters, and her businesses have closed down. Most tellingly, the SDI crisis drove Ms.
32
See,e.g., United States Anderson, 533 F.3d 633 (8th Cir. 2008) (―suffered atypical
punishment such as the loss of his reputation‖); United States v. Pauley, 511 F.3d 468, 474-75
(4th Cir. 2007) (defendant lost teaching certificate and state pension as a result of his conduct,
consideration of which is consistent with ―just punishment‖); United States v. Gaind, 829 F.
Supp. 669, 671 (S.D.N.Y. 1993) (granting downward departure where defendant was punished
by the loss of his business); United States v. Vigil, 476 F. Supp. 2d 1231, 1235 (D.N.M. 2007)
(finding a variance appropriate where defendant was collaterally punished by ―incalculable
loss‖ of his position and reputation, and emotional toll involved); and United States v. Samara,
390 F. Supp. 2d 805, 809 (E.D. Win is. 2005) (variance granted in part because defendant lost a
good public sector job as a result of his conviction).
24
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Gardner to attempt suicide via prescription drug overdose in March of 2010.33 Fortunately, she
was discovered in time and rushed to Sibley Hospital, where she was revived. Since then she has
undergone extensive psychiatric treatment from three different physicians who have treated her
for Bipolar I Disorder, Panic Disorder, Depression, and other collateral symptoms.34 The
expenses of dealing with lost contracts, forfeited profits, cancelled lines of credit, loss of assets,
to say nothing of legal expenses before she could not afford them any longer, have reduced her
personal wherewithal.
Finally, but not least, Ms. Gardner has suffered a special loss. She has heretofore entirely
omitted mention of her current husband, who, because of his highly sensitive position as a trial
judge on the D.C. Superior Court, has experienced great anxiety, concern, and professional
embarrassment because of her conduct in this case. The fact that the Presentence Report brings
this fact to the attention of this Court prompts her to express her remorse for the impact this case
has had on him.36 As the PSR points out, he has, nevertheless, been wholly understanding, ―very
patient,‖ and ―100% supportive‖ of her in this travail. His chief concern is for his wife‘s safety
as a ―judge‘s wife‖ if she is required to serve any term of incarceration.
Protection of the Public. No period of incarceration is necessary to protect the public
from further crimes of Ms. Gardner – there is no reason to believe there will be further crimes.
The effect that this case has had on her life and the lives of her family members – absent any
33
PSR at p. 18 ¶ 61.
34
Id. at pp. 16-18 ¶¶ 54-60.
36
PSR at p. 14 ¶¶ 48-49.
25
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period of incarceration – is a sufficient guarantee that she will never commit another offense.
Moreover, as the United States Sentencing Commission has recognized, defendants without any
prior contact with the criminal justice system are unlikely to recidivate. See United States
Sentencing Commission, Recidivism and the “First Offender”, A Component of the Fifteen Year
Report on the U.S. Sentencing Commission‟s Legislative Mandate (May 2004) (offenders with
no prior arrests or convictions have the lowest recidivism rate).
Ms Gardner has an exceptionally low risk of recidivism. She is 56 years old, a first
offender, a woman with post high school education, has been employed throughout her adult life,
is married, and has no history of drug or alcohol abuse. All of these factors decrease
significantly her risk of recidivism. For male offenders in Criminal History Category I, the
recidivism rate is a 15.2%. For females it is significantly lower – only 10%. The remaining
statistics compiled by the USSC are not broken down by gender. For all offenders (combined
men and women) over age 50 at the time of sentencing, however, the recidivism rate in Category
I is only 6.2%. For those who are college graduates, the rate in Criminal History Category I is
just 7.1%; for those who have been employed, the rate is 12.7%; and for those who were ever
married, the rate is 9.8%. For those with no history of illicit drug use, the recidivism rate is half
that of those who do have a drug history. Undoubtedly, for those like Ms. Gardner who are
female, educated, have been employed, have been married, are drug free and over 50, the
combined rate is even lower. See U.S. Sent‘g Comm‘n, Measuring Recidivism: The Criminal
History Computation of the Federal Sentencing Guidelines, at Exh. 9, at 28; Exh. 10, at 29 (May
2004) [hereinafter Measuring Recidivism].
26
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When one looks at the nature of the offense, there is even more reason to believe there is
little risk of recidivism. For all Criminal History Category I defendants (combined men and
women) convicted of fraud, the recidivism rate is just 9.3%, the lowest of any offense category.
This rate is 45% below the rate for all other offenders. Id., Exh. 11, at 30. Finally, offenders like
Ms. Gardner with zero criminal history points have a rate of recidivism half that of offenders
with one criminal history point. See Sent‘g Comm‘n, Recidivism and the “First Offender,” at
13-14 (May 2004) [hereinafter First Offender].
The Commission has recognized the advisability of revising the guidelines to take age
and first offender status into account. See First Offender at 1-2 (identifying goal of ―refin[ing] a
workable ‗first-offender‘ concept within the guideline criminal history structure‖); Measuring
Recidivism at 16 (noting that ―[o]ffender age is a pertinent characteristic‖ that would ―improve
[the] predictive power of the guidelines ―if incorporated into the criminal history computation‖).
The Commission has not implemented any such revisions to the criminal history guidelines, but
has recently stated that age ―may be relevant‖ in granting a departure. USSG § 5H1.1.
In imposing the least sentence sufficient to account for the need to protect the public from
further crimes, this Court should consider the statistically low risk of recidivism presented by
Ms. Gardner. See, e.g., United States v. Darway, 255 Fed. Appx. 68, 73 (6th Cir. 2007)
(upholding downward variance on basis of defendant‘s first-offender status); United States v.
Hamilton, 323 Fed. Appx. 27, 31 (2d Cir. 2009) (―the district court abused its discretion in not
taking into account policy considerations with regard to age recidivism not included in the
Guidelines‖); United States v. Holt, 486 F.3d 997, 1004 (7th Cir. 2007) (affirming belowguideline sentence based on defendant‘s age, which made it unlikely that he would again be
27
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involved in a violent crime); United States v. Urbina, slip op., 2009 WL 565485, *3 (E.D. Wis.
Mar. 5, 2009) (considering low risk of recidivism indicated by defendant‘s lack of criminal
record, positive work history, and strong family ties); United States v. Cabrera, 567 F. Supp. 2d
271, 279 (D. Mass. 2008) (granting variance because defendants ―with zero criminal history
points are less likely to recidivate than all other offenders‖); Simon v. United States, 361 F. Supp.
2d 35, 48 (E.D.N.Y. 2005) (basing variance in part on defendant‘s age of 50 upon release
because recidivism drops substantially with age); United States v. Nellum, 2005 WL 300073 at
*3 (N.D. Ind. Feb. 3, 2005) (granting variance to 57-year-old defendant because recidivism drops
with age); United States v. Ward, 814 F. Supp. 23, 24 (E.D. Va. 1993) (granting departure based
on defendant‘s age as first-time offender since guidelines do not ―account for the length of time a
particular defendant refrains from criminal conduct‖ before committing his first offense).
Deterrence. Ms. Gardner has and will continue to be punished for her conduct. To the
extent that would-be thieves are deterred by the sentences of others, Ms. Gardner‘s damaged
reputation, along with the negative effects on her family and her ability to obtain employment,
and an order of restitution coupled with community service and home detention would
sufficiently deter any similarly situated individuals. Research has consistently shown that while
the certainty of being caught and punished has a deterrent effect, ―increases in severity of
punishments do not yield significant (if any) marginal deterrent effects.‖ Michael Tonry,
Purposes and Functions of Sentencing, 34 Crime & Just. 1, 28 (2006). ―Three National
Academy of Science panels . . . reached that conclusion, as has every major survey of the
evidence.‖ Id.; see also Zvi D. Gabbay, Exploring the Limits of the Restorative Justice
Paradigm: Restorative Justice and White Collar Crime, 8 Cardozo J. Conflict Resol. 421, 44728
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48 (2007) (―[C]ertainty of punishment is empirically known to be a far better deterrent than its
severity.‖). Typical of the findings on general deterrence are those of the Institute of
Criminology at Cambridge University. See Andrew von Hirsch et al., Criminal Deterrence and
Sentence Severity: An Analysis of Recent Research (1999), summary available at
http://members.lycos.co.uk/lawnet/SENTENCE.PDF. The report, commissioned by the British
Home Office, examined penalties in the United States as well as several European countries. Id.
at 1. It examined the effects of changes to both the certainty and severity of punishment. Id.
While significant correlations were found between the certainty of punishment and crime rates,
the ―correlations between sentence severity and crime rates . . . were not sufficient to achieve
statistical significance.‖ Id. at 2. The report concluded that ―the studies reviewed do not provide
a basis for inferring that increasing the severity of sentences is capable of enhancing deterrent
effects.‖ Id. at 1. Research regarding white collar offenders in particular (presumably the most
rational of potential offenders) found no difference in the deterrent effect of probation and that of
imprisonment. See David Weisburd et al., Specific Deterrence in a Sample of Offenders
Convicted of White Collar Crimes, 33 Criminology 587 (1995); see also Gabbay, supra, at 44849 (―[T]here is no decisive evidence to support the conclusion that harsh sentences actually have
a general and specific deterrent effect on potential white-collar offenders.‖). The collateral
consequences discussed above are sufficient to deter others from committing similar crimes.
Here, a lengthy period of probation coupled with community service would be most
appropriate. A sentence of probation itself is a ―‗substantial restriction of freedom.‘‖ Gall, 128
S.Ct. at 595 (citation omitted). As the Supreme Court has explained:
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we recognize that custodial sentences are qualitatively more severe than probationary
sentences of equivalent terms. Offenders on probation are nonetheless subject to several
standard conditions that substantially restrict their liberty. See United States v. Knights,
534 U.S. 112, 119, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (―Inherent in the very nature
of probation is that probationers ‗do not enjoy the absolute liberty to which every citizen
is entitled‘ ‖ (quoting Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S.Ct. 3164, 97
L.Ed.2d 709 (1987)). Probationers may not leave the judicial district, move, or change
jobs without notifying, and in some cases receiving permission from, their probation
officer or the court. They must report regularly to their probation officer, permit
unannounced visits to their homes, refrain from associating with any person convicted of
a felony, and refrain from excessive drinking. USSG § 5B1.3. Most probationers are also
subject to individual ―special conditions‖ imposed by the court.
Id.
(3)
Need to Provide Mental Health Treatment in the Most Effective Manner
No period of incarceration is necessary ―to provide the defendant with needed
educational or vocational training, medical care, or other correctional treatment in the most
effective manner.‖ See 18 U.S.C. § 3553(a)(2)(D). The assistance she is in need of can best be
offered during a period of probation. The Commission now recognizes that ―[m]ental and
emotional conditions may be relevant in determining whether a departure is warranted.‖ USSG
§ 5H1.3. (2010).
Indeed, Ms. Gardner is not likely to receive effective mental health treatment in a Bureau
of Prisons facility. A recent audit by the Office of the Inspector General found systemic
deficiencies in the Bureau of Prisons‘ delivery of health services. It found that at a number of
institutions, the Bureau of Prisons ―did not provide required medical services to inmates,‖
including inadequate treatment for chronic conditions, failure to properly monitor side effects of
medication, allowing unqualified providers to render medical services, and failure to meet
performance target levels on treatment of serious conditions, including diabetes. See U.S. Dep‘t
of Justice, Office of the Inspector General Audit Division, The Federal Bureau of Prison‟s
30
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Efforts to Manage Inmate Health Care ii-xix, 32-34 (2008), available at
www.justice.gov/oig/reports/BOP/a0808/final.pdf.
(4)
Kinds of Sentences Available and the Sentencing Guidelines
This Court must now consider all of ―the kinds of sentences available‖ by statute,
§ 3553(a)(3), even if the ―kinds of sentence . . . established [by] the guidelines‖ zones
recommend only a prison term. See Gall, 128 S. Ct. at 602 & n.11. Further, Congress directed
the Commission to ―insure that the guidelines reflect the general appropriateness of imposing a
sentence other than imprisonment in cases in which the defendant is a first offender who has not
been convicted of a crime of violence or an otherwise serious offense.‖ 28 U.S.C. § 994(j).
Congress issued this directive in the belief that ―sentencing decisions should be designed to
ensure that prison resources are, first and foremost, reserved for those violent and serious
criminal offenders who pose the most dangerous threat to society,‖ and that ―in cases of
nonviolent and nonserious offenders, the interests of society as a whole as well as individual
victims of crime can continue to be served through the imposition of alternative sentences, such
as restitution and community service.‖ See Pub. L. No. 98-473, § 239, 98 Stat. 1987, 2039
(1984) (set forth at 18 U.S.C. § 3551 note). Ms. Gardner is plainly not a ―violent and serious
offender‖ who ―pose[s] the most dangerous threat to society.‖ While she committed this offense,
her risk of recidivism is so low as to make her an appropriate candidate for an alternative to
incarceration. She needs continued mental health treatment, wishes to work in order to make
restitution, and should be allowed to remain in the community with community service.
When sentencing a defendant, the Court ―may not presume that the Guidelines range is
reasonable.‖ Gall v. United States, 128 S.Ct. 586, 596-597 (2007). Rather, the Court must treat
31
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the Guidelines ―as one factor among several‖ that § 3553(a) requires the Court to consider.
Kimbrough v. United States, 128 S.Ct. 558, 564 (2007). Once the Court correctly calculates the
sentence that the Guidelines recommend, the Court must then ―make an individualized
assessment,‖ considering the remaining factors sets forth in § 3553(a). Gall, 128 S.Ct. at 597.
Because the Guidelines merely reflect a ―wholesale‖ view ―rough[ly] approximat[ing] …
sentences that might achieve § 3553(a)‘s objectives,‖ Booker and § 3553(a) require the Court to
tailor an individualized sentence that actually does achieve § 3553(a)‘s objectives in the case
before it. Consequently, this Court must ―filter the Guidelines‘ general advice through §
3553(a)‘s list of factors.‖ Rita v. United States, 127 S.Ct. 2456, 2463, 2465, 2469 (2007); see
also Gall, 128 S.Ct. at 598 (―[i]t has been uniform and constant in the federal judicial tradition
for the sentencing judge to consider every convicted person as an individual and every case as a
unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and
the punishment to ensue‖ (quoting Koon v. United States, 518 U.S. 81, 113 (1996)). When the
Guidelines‘ ―rough approximation‖ conflicts with the Court‘s view of the sentence warranted by
other § 3553(a) factors, the Court may disregard the sentencing range recommended by the
Guidelines in favor of one that is tailored to the circumstances of the defendant. Rita v. United
States, 127 S.Ct. at 2463–2464 (―[t]he sentencing courts, applying the Guidelines in individual
cases may depart (either pursuant to the Guidelines or, since Booker, by imposing a nonGuidelines sentence)‖).
Here, we dispute the guideline range calculated by the Probation Office. Moreover,
regardless of the advisory sentencing guideline range the Court adopts, the remaining § 3553
factors demonstrate that a sentence below the guidelines would be appropriate.
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Advisory Guideline Range
The Probation Officer has calculated an advisory guideline range of 27 to 33 months,
resulting from an adjusted offense level of 18 and Criminal History Category I. The guideline
range offers no useful advice and should not be heeded because it (1) is the product of a
guideline that is not based on empirical evidence or national experience; (2) fails to take any
account of Ms. Gardner‘s culpability, low risk of recidivism, precarious mental health status and
need for effective mental health treatment, need to make restitution, and other collateral
consequences of her conviction; (3) would result in unwarranted disparity as compared with
sentences for similarly situated defendants; and (4) is far greater than necessary to promote the
goals of sentencing in this case.
The Probation Office erroneously adds a two-level increase for Ms. Gardner‘s role ―as a
leader or organizer of this conspiracy‖ under USSG § 3B1.1(c), resulting in a total offense level
of 18, rather than 16 as set forth in the Plea Agreement and concluding with an advisory
guideline range of 27-33 months. The government bears the burden of proving that the
enhancement applies by a preponderance of the evidence. See United States v. Shah, 453 F.3d
520, 523 (D.C.Cir. 2006). In that regard, it is bound by the terms of the plea agreement and may
not do so.38 Moreover, the defense has confirmed with the government that they will not be
seeking the enhancement in this case. In any event, the enhancement does not apply. Mere
―control over a scheme rather than over a participant in a scheme,‖ does not warrant a sentencing
38
United States v. Wolff, 127 F.3d 84, 89 (D.C. Cir. 1997) (re-sentencing required
where a prosecutor breached plea agreement); United States v. Gonczy, 357 F.3d 50, 54 (1st Cir.
2004) (same).
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adjustment pursuant to section 3B1.1(c).39 ―In determining whether to impose an aggravating
role enhancement under § 3B1.1, the District Court considers a number of factors, including:
‗[T]he exercise of decision making authority, the nature of participation in the commission of the
offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the
crime, the degree of participation in planning or organizing the offense, the nature and scope of
the illegal activity, and the degree of control and authority exercised over others.‘‖ United States
v. Hill, 398 Fed. Appx. 611, 612 (D.C.Cir. 2010) (citing USSG § 3B1.1 cmt. n.4 (2009)). The
government has not shown that Ms. Gardner recruited accomplices to engage in criminal
activity. See Shah, 453 F.3d at 523 (singling out recruitment of accomplices as a deciding factor
in leadership role enhancement determination) (citing United States v. Graham, 162 F.3d 1180,
1183 (D.C.Cir. 1998)). To the contrary, the only other actor involved in the offense was an
employee of Ms. Gardner‘s legitimate business, rendering the leadership role enhancement
inapplicable in this case. See United States v. Somerstein, 20 F. Supp. 2d. 454 (E.D.N.Y. 1998)
(finding enhancement did not apply where bookkeeper submitted false statements at direction of
business owner). Furthermore, Ms. Gardner did not exercise a high degree of control over
others. Instead, Ms. Gardner‘s conduct with her employees was limited to a single employee
(―Person A‖), to whom she gave instructions that resulted in several false statements. This does
not amount to the level of control required to apply the leadership enhancement. See United
States v. Forchette, 220 F. Supp. 2d. 914, 919 (E.D.Wis. 2002) (―The fact that defendant
39
See United States v. Bapack, 129 F.3d 1320, 1325 (D.C. Cir. 1997) (citing United
States v. Gort-DiDonato, 109 F.3d 318, 322 (6th Cir. 1997)).
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controlled these employees in their work duties does not mean that he controlled their criminal
activities.‖).
The leadership role enhancement is intended to punish more harshly those who ―exercise
a supervisory or managerial role in the commission of an offense,‖ as those persons ―tend to
profit more from it and present a greater danger to the public and/or are more likely to
recidivate.‖ USSG § 3B1.1 cmt. backg‘d. (2009). Where a defendant is at a low risk of
recidivism and is not likely to be a danger to the public, application of the enhancement does not
serve its intended purpose. See e.g., United States v. Samaras, 390 F. Supp. 2d 805, 810
(E.D.Wis. 2005) (declining to apply the enhancing and questioning ―whether . . . the imposition
of the enhancement served the purposes of § 3B1.1 – to more severely punish defendants who
tend to profit more and present a greater danger or likelihood of recidivism.‖). As Ms. Gardner
is clearly not a danger to the public and has since expressed remorse for her conduct, PSR ¶ 21,
she cannot be considered as the intended target of the leadership role enhancement.
Acceptance of Responsibility
The guidelines permit a decrease by as much as three offense levels for a defendant‘s
―acceptance of responsibility.‖40 Ms. Gardner‘s acceptance of responsibility is much more than
a mere recitation of the words, as is evidenced by her statement in the PSR: ―Perhaps the most
significant lesson I have learned from this unfortunate experience is that ‗acceptance of
responsibility doesn‘t simply mean waiting for that obligation to befall one; rather, it means
40
U.S. Sentencing Guidelines (U.S.S.G.) § 3E1.1; see, e.g., United States v. Kraig, 99
F.3d 1361, 1372 (6th Cir. 1996) (approval of three-level decrease notwithstanding the fact that
the defendant forced the government to go to trial); see also PSR at p. 10 ¶ 32.
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seeing responsibility coming and going out to meet it, in order to head off negative
consequences.‖
Ms. Gardner does not view this criminal prosecution as something that ―happened‖ to
her. Instead, Ms. Gardner admits that it was something that she did ―knowingly.‖ She does not
blame employees or others, claim ignorance, or feign unawareness, protesting that she was a
―victim of circumstances.‖ Although she has suffered for years from depression and other
psychological trauma, she does not raise it as a defense to violating the law; rather, she views it
as partial understanding as to why she led herself to do so.
Appropriately, ―the sentencing judge is in a unique position to evaluate a defendant's
acceptance of responsibility,‖ and it is therefore ―the province of the Court to determine factually
whether a defendant has accepted responsibility.‖42 The government would not agree as part of
the plea agreement to seek a third point off for acceptance of responsibility despite the fact that
Ms. Gardner pleaded guilty before any trial preparation. We continue to hope that the
government will file the motion even though it is not part of the plea agreement. Ms. Gardner
pleaded guilty pre-indictment and the failure of the government to file for a third point would be
highly unusual, if not unprecedented. In any event, in the absence of a motion by the
government, the Court can take her early acceptance of responsibility into account under 18
U.S.C. 3553(a).
II.
42
THE GUIDELINE RANGE PROVIDES LITTLE USEFUL ADVICE
BECAUSE IT IS NOT BASED ON EMPIRICAL EVIDENCE OR
United States v. Galbraith, 200 F.3d 533, 1006, 1015 (7th Cir. 2000) (FCA case).
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NATIONAL EXPERIENCE, AND FAILS TO PROMOTE ANY PURPOSE
OF SENTENCING.
When Congress enacted the Sentencing Reform Act of 1984, it directed the Commission
to promulgate guidelines that ―assure the meeting of the purposes of sentencing,‖ 28 U.S.C. §
991(b)(1)(A), and to use average sentences imposed and prison time actually served in the preguidelines period as a ―starting point.‖ 28 U.S.C. § 994(m). The Commission was then to
continually review and revise the guidelines in light of sentencing data, criminological research,
and consultation with front-line actors in the criminal justice system. See 28 U.S.C. §
991(b)(1)(C), 991(b)(2), 994(o), 995(13), (15), (16). The original Commissioners abandoned the
effort to design the guidelines based on the purposes of sentencing because they could not agree
on which purposes should predominate, and instead purportedly developed the guidelines based
on an empirical study of time served for various offenses before the guidelines. See USSG, Ch. 1
Pt. A(3); Justice Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises
Upon Which They Rest, 17 Hofstra L. Rev. 1, 7 (1988).
In Rita v. United States, 551 U.S. 338 (2007), the Supreme Court gave two reasons that it
may be ―fair to assume‖ that the guidelines ―reflect a rough approximation‖ of sentences that
―might achieve § 3553(a)‘s objectives.‖ First, the original Commission used an ―empirical
approach‖ which began ―with an empirical examination of 10,000 presentence reports setting
forth what judges had done in the past.‖ Second, the Commission can review and revise the
guidelines based on judicial feedback through sentencing decisions, and consultation with other
frontline actors, civil liberties groups, and experts. Id. at 348-50.
The Court recognized, however, that not all guidelines were developed in this manner.
See Gall v. United States, 552 U.S. 38, 46 & n.2 (2007); Kimbrough v. United States, 552 U.S.
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85, 96 (2007). When a guideline ―do[es] not exemplify the Commission‘s exercise of its
characteristic institutional role,‖ because the Commission ―did not take account of ‗empirical
data and national experience,‘‖ the sentencing court is free to conclude that the guideline ―yields
a sentence ‗greater than necessary‘ to achieve § 3553(a)‘s purposes, even in a mine-run case.‖ Id.
at 109-10.
The fraud guideline is not based on empirical data of past practice or on national
experience since then. Because the Commission failed to rely on empirical data or national
experience in promulgating or amending § 2B1.1 or its predecessor § 2F1.1, and thus failed to
fulfill its institutional role, this Court is free to disagree, on reasoned policy grounds, with its
recommendation. See Pepper v. United States, 131 S. Ct. 1229, 1247 (2011); Spears v. United
States, 129 S. Ct. 840, 843 (2009); Kimbrough, 552 U.S. 101-02, 109-10; Rita, 551 U.S. at 351,
357.
When the Commission adopted the original guidelines in 1987, it ―decided to abandon
the touchstone of prior past practice‖ with respect to white collar offenses. Breyer, supra, 17
Hofstra L. Rev. at 22-23. The Commission required some form of confinement for all but the
least serious cases, and adopted a fraud guideline requiring no less than 0-6 months and no more
than 30-37 months for defendants in Criminal History Category I. See USSG § 2F1.1 (1987).
The Commission explained that ―the definite prospect of prison, though the term is short, will act
as a significant deterrent to many of these crimes, particularly when compared with the status
quo where probation, not prison, is the norm.‖ USSG, ch. 1, intro., pt. 4(d) (1987); see also U.S.
Sent‘g Comm‘n, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the
Federal Criminal Justice System is Achieving the Goals of Sentencing Reform 56 (2004)
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[hereinafter Fifteen Year Report] (Commission sought to ensure that white collar offenders faced
―short but definite period[s] of confinement‖). The Commission‘s deterrence rationale was not
based on empirical evidence. The empirical research regarding white collar offenders shows no
difference between the deterrent effect of probation and that of imprisonment. See David
Weisburd et al., Specific Deterrence in a Sample of Offenders Convicted of White Collar Crimes,
33 Criminology 587 (1995). ―[T]here is no decisive evidence to support the conclusion that
harsh sentences actually have a general and specific deterrent effect on potential white-collar
offenders.‖ Zvi D. Gabbay, Exploring the Limits of the Restorative Justice Paradigm:
Restorative Justice and White Collar Crime, 8 Cardozo J. Conflict Resol. 421, 448-49 (2007).
Moreover, the Commission quickly abandoned its original goal of ensuring ―short but
definite‖ sentences. Beginning just two years after the Guidelines went into effect, prison
sentences for fraud offenders were steadily increased. The effect of those increases on this case
was that in 1987, Ms. Gardner‘s offense level before acceptance of responsibility would have
been an 13 (range of 12 to 18 months) (2F1.1), in 1989 it would have been a 15 (range of 18 to
24) (2F1.1), in 2001 it was increased to the level it currently is, an offense level 18 (range of 27
to 33). As a result, the guideline range for this offense is now considerably higher than it was
under the original 1987 guideline. The offense levels for white collar cases were increased over
time due to political pressures. At the Commission‘s Economic Crimes Symposium in 2000, at
which the issues and questions underlying the Economic Crimes Package were discussed by
judges, stakeholders, and academics over a two-day period, a formal question was posed and
provided in writing: ―[I]f there is a current problem with the guidelines that is in need of repair,
is it that fraud and theft are punished too leniently or that drug crimes are punished too harshly?‖
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U.S. Sent‘g Comm‘n, Symposium on Federal Sentencing Policy for Economic Crimes and New
Technology Offenses 54 (2000) [hereinafter Economic Crimes Symposium].
Speaking on behalf of the Department of Justice, and in response to the moderator‘s
question asking whether economic crimes should be ―punished in the same way that we punish
drug offenders,‖ id. at 55, Assistant Attorney General James K. Robinson stated that ―sentences
for economic crimes should not be set, in our view, to match sentences for drug crimes,‖ id. at
59, but should be set ―in terms of the need to fulfill the purposes of sentencing,‖ id. at 58. Judge
J. Phil Gilbert, speaking on behalf of the Criminal Law Committee of the Judicial Conference,
stated that drug crimes are ―punished too harshly,‖ high loss fraud offenses are punished ―too
leniently,‖ and they cannot be compared because they are ―apples and oranges.‖ Id. at 56. Dr.
Mark Cohen, Professor of Economics at Vanderbilt University, stated that ―drug offenses are
broke so they need to be fixed,‖ but that there was no ―evidence that fraud is broke,‖ and
summarized research presented at the symposium demonstrating that increasing sentences for
fraud would not serve the purpose of deterrence. Id. at 65-66, 69.
Nonetheless, as revealed by the question posed by the Commission and its reference to
―penalty levels for offenses of similar seriousness sentenced under other guidelines,‖ USSG,
App. C, Amend. 617 (Nov. 1, 2001), the Commission ratcheted up the guideline range based on
the guidelines for drug offenses. This alone demonstrates that the increase was unsound, for the
drug guidelines themselves were not based on empirical data or national experience. See Gall,
552 U.S. at 46 n.2; Kimbrough, 552 U.S. at 96. Instead, they were designed to be ―proportional‖
to statutory mandatory minimums, see § 2D1.1 comment. (backg‘d) (1987), lack any empirical
basis, and dramatically increased sentences for drug offenses ―far above what had been typical in
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past practice, and in many cases above the level required by the literal terms of the mandatory
minimum statutes.‖ Fifteen Year Report at 49. Moreover, contrary to the Commission‘s vague
assertion, the comments the Commission actually received did not indicate that the Commission
should increase fraud penalties to approach or match drug penalties.
The explanations offered by the Commission for the various amendments to the fraud
guidelines are deficient and inaccurate – the amendments were made not in the exercise of its
characteristic institutional role as an independent expert body, but instead based on unsupported
signals. The Commission ignored the overwhelming empirical research, discussed at length
above and at the Economic Crimes Symposium, demonstrating that increases in sentence
severity, as opposed to certainty, have no deterrent value, and it ignored the actual feedback from
the district courts. Though the Guidelines explicitly allowed (and still allow) for upward
departures when the amount of loss does not ―fully capture the harmfulness and seriousness of
the conduct,‖ see USSG § 2F1.1 comment. (n.11) (2000), the sentencing courts granted upward
departures in only 1.2 percent of cases sentenced under § 2F1.1 in the year 2000, while they
granted downward departures in 11.2% of cases and another 19% received departures for
substantial assistance. See U.S. Sent‘g Comm‘n, 2000 Sourcebook of Federal Sentencing
Statistics, tbl. 28 (2000); see also Economic Crimes Symposium at 63 (remarks of James Felman,
co-chair of the Commission‘s Practitioner‘s Advisory Group) (citing similar statistics for fiscal
year 1999, and also pointing out that in fraud cases, judges sentenced at the high end of the
applicable guideline range less frequently than average and at the bottom of the range in the
majority of cases). This feedback from judges, the institutional actor best suited to make
sentencing determinations, did not support any increase.
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The 1989 and 2001 increases in the fraud guideline led to the absurd result that first-time,
nonviolent fraud offenders were subject to sentences as high as, and sometimes higher than,
those imposed on the most violent and serious offenders. Compare USSG § 2B1.1 (2001)
(offense level 30 for loss over $7 million, sophisticated means, abuse of position of trust) with
USSG § 2A2.1 (2001) (offense level 28 for assault with intent to commit first degree murder); §
2A4.1 (2001) (offense level 24 for kidnapping), USSG § 2K1.4 (2001) (offense level 24 for
arson creating substantial risk of death or serious bodily injury), USSG § 2D1.1 (2001) (offense
level 30 for trafficking in 3 kilograms of cocaine and possessing a firearm), USSG § 2A1.3
(2001) (offense level 25 for voluntary manslaughter).
Moreover, while the amount of ―loss‖ is the primary determinant of the offense level for
fraud offenders, loss is a highly imperfect measure of the seriousness of the offense. See United
States v. Adelson, 441 F. Supp. 2d 506, 509 (S.D.N.Y. 2006) (criticizing ―the inordinate
emphasis that the Sentencing Guidelines place in fraud on the amount of actual or intended
financial loss‖ without any explanation of ―why it is appropriate to accord such huge weight to
[this] factor[ ]‖). The amount of loss is often ―a kind of accident‖ and thus ―a relatively weak
indicator of [ ] moral seriousness . . . or the need for deterrence.‖ See United States v.
Emmenegger, 329 F. Supp. 2d 416, 427-28 (S.D.N.Y. 2004). Defendants rarely set out to
defraud others of a specific amount of money; rather, the amount of loss is dependent on the
security procedures in place and the point in time when the fraud happens to be detected. Id.
―Had [the defendant] been caught sooner, he would have stolen less money; had he not been
caught until later, he would surely have stolen more.‖ Id. The loss amount is even less relevant
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here as an aggravating factor when it relates not to stolen money, but to a contract that the
government now asserts should not have been awarded.
The Commission has recognized this problem of ―factor creep,‖ in which ―more and
more adjustments are added to the sentencing rules, [making it] increasingly difficult to ensure
that the interactions among them, and their cumulative effect, properly track offense
seriousness.‖ Fifteen Year Report at 137. In 1999, Justice Breyer warned that ―[t]here is little, if
anything, to be gained in terms of punishment‘s classical objectives by trying to use highly
detailed offense characteristics to distinguish finely among similar offenders. And there is much
to be lost, both in terms of Guideline workability and even in terms of fairness (recall the
Guidelines‘ logarithmic numerical scales). . . . The precision is false.‖ See, e.g., Justice Stephen
Breyer, Federal Sentencing Guidelines Revisited, 11 Fed. Sent‘g Rep. 180, 1999 WL 730985, at
*11 (1999).
Widespread disagreement with the fraud guideline is further evidence that it is unsound.
In fiscal year 2010, sentences below the guideline range were imposed in 41% of all fraud cases;
18% were government-sponsored, 23% were non-government sponsored. See U.S. Sent‘g
Comm‘n, Preliminary Quarterly Data Report, Fourth Quarter FY 2010, tbl.5. ―[S]ince Booker,
virtually every judge faced with a top-level corporate fraud defendant in a very large fraud has
concluded that sentences called for by the Guidelines were too high. This near unanimity
suggests that the judiciary sees a consistent disjunction between the sentences prescribed by the
Guidelines for cases like these and the fundamental requirement of Section 3553(a) that judges
imposes sentences ‗sufficient, but not greater than necessary‘ to comply with its objectives.‖
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Frank O. Bowman III, Sentencing High-Loss Corporate Insider Frauds After Booker, 20 Fed.
Sent. R. 167, 169, 2008 WL 2201039, at *4 (Feb. 2008).
A variance is necessary to do justice in this case, and will also contribute to the evolution
of responsible guidelines. As the Supreme Court emphasized, when judges articulate reasons for
sentences outside the guideline range, they provide ―relevant information to both the court of
appeals and ultimately the Sentencing Commission,‖ which ―should help the Guidelines
constructively evolve over time, as both Congress and the Commission foresaw.‖ Rita, 551 U.S.
at 357-58.
(5)
Need to Avoid Unwarranted Sentencing Disparity
The Court must consider the need to avoid unwarranted disparities among defendants
with similar criminal histories convicted of similar criminal conduct. 18 U.S.C. 3553 (a)(6). Not
all disparities in sentencing are prohibited – only unwarranted disparities. See 18 U.S.C. §
3553(a)(6). The court should avoid unwarranted similarities in sentencing among defendants
who are different in ways not accounted for in the guideline range, see Gall v. United States, 552
U.S. 38, 55 (2007) (―need to avoid unwarranted similarities among other co-conspirators who
were not similarly situated‖); United States v. Ovid, 2010 WL 3940724 (E.D.N.Y. 2010)
(sentencing two defendants with similar guideline ranges to 60 months and 126 months
respectively based on distinctions in circumstances of the offenses and characteristics of the
defendants), and unwarranted differences among defendants whose conduct and characteristics
are similar. See United States v. Parris, 573 F. Supp. 2d 744, 753, 756-62 (E.D.N.Y. 2008). In
Fiscal Year 2010, sentences below the guideline range were imposed in 41% of all fraud cases.
44
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See U.S. Sent‘g Comm‘n, Preliminary Quarterly Data Report, Fourth Quarter FY 2010, tbl.5.
This Court should take into account the national sentencing trend exemplified by the
Commission‘s data. Here, a consideration of the § 3553 factors demonstrates that in this case a
sentence below the guidelines is appropriate.
(6)
Need to Provide Restitution
In determining the appropriate sentence, this Court must consider ―the need to provide
restitution to any victims of the offense.‖ See 18 U.S.C. §3553(a)(7); see also, e.g., United
States v. Menyweather, 447 F.3d 625, 634 (9th Cir. 2006) (acknowledging district court‘s
discretion to depart from guidelines to impose probationary sentence, since the ―goal of
obtaining restitution for the victims of Defendant‘s offense . . . is better served by a nonincarcerated and employed defendant‖); United States v. Peterson, 363 F. Supp. 2d 1060, 106162
(E.D. Wis. 2005) (granting a variance so that defendant could work and pay restitution).
The Government is seeking restitution in this case and Ms. Gardner wants to provide it to
the best of her ability. She is educated, hard-working, and capable of employment, even though
her employment opportunities will be more limited as a result of this conviction, there is every
reason to believe that she can obtain a reasonably well-paying job once she puts this sentencing
behind her. This Court should seek to maximize, rather than eliminate, Ms. Gardner‘s ability to
make restitution.
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CONCLUSION
As the foregoing discussion has shown, before the Court for sentencing in this case is a
first time offender who:
• pleaded guilty prior to indictment
• has overcome a ―horrendous‖ background of obscurity, poverty, and physical
and sexual abuse;
• developed a sense of self-reliance and a strong work ethic;
• achieved in high school and secondary education;
• became a licensed professional in her chosen field;
• went on to own and operate several successful business ventures;
• has maintained her role as a supportive wife and mother of two outstanding
daughters who became successful in their own careers;
• generated a reputation of honesty, caring, and giving;
• earned the admiration, loyalty, and support of friends and associates;
• participated actively in both public and private charitable acts and contributions;
• misrepresented her credentials only in order to obtain the means to provide
employment and services;
• had no motive to defraud the Government;
• paid herself a pedestrian salary throughout the life of the business;
• has no criminal record, either juvenile or adult;
• has never used illicit drugs of any kind;
• firmly and assertively takes responsibility for her actions, expressing deep
remorse for them;
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• has experienced devastating personal, emotional, health, family, social, and
economic losses as a result of her conduct;
• is eminently deserving of the Court‘s leniency;
• is eligible for probation;
• is fully compliant with her conditions of release;
• is an ideal candidate for substantial community service;
• acknowledges the propriety of restitution within her ability to pay; and
• has a record that would comport with such a sentence as ―just‖ under the
applicable statutory provisions.
For all of the foregoing reasons and such other reasons as may be presented at the
sentencing hearing, the Court should impose a sentence below the advisory guideline
sentencing range.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
____/s/______________________________
MICHELLE PETERSON
JONATHAN S. JEFFRESS
625 Indiana Ave., N.W., Suite 550
Washington, DC 20004
(202) 208-7500 x 125
[email protected]
47