Case: 1:12-cr-00927 Document #: 64 Filed: 10/27/14 Page 1 of 12 PageID #:575

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
LA SHAWN FORD,
Defendant.

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No. 12-CR-927
Judge Rebecca R. Pallmeyer

DEFENDANTS POSITION PAPER AND

COMMENTARY ON SENTENCING FACTORS
Defendant, LA SHAWN FORD, by and through his attorneys, THOMAS ANTHONY
DURKIN and JOSHUA G. HERMAN, pursuant to Rule 32(c) of the Federal Rules of Criminal
Procedure, the opinions of the United States Supreme Court in United States v. Booker, 543 U.S.
220 (2005), Rita v. United States, 551 U.S. 338 (2007), Gall v. United States, 552 U.S. 38
(2007), Kimbrough v. United States, 552 U.S. 85 (2007), and Nelson v. United States, 555 U.S.
350 (2009), as well as 18 U.S.C. 3553(a), respectfully submits Defendants Position Paper and
Commentary on Sentencing Factors.1
I.

POSITION PAPER AND COMMENTARY ON SENTENCING FACTORS.

A.

Introduction.
Counsel concur with the guidelines calculations set forth in the PSR and also in the

Governments Version. The total offense level for this misdemeanor offense is 6, which when
combined with a criminal history category of I results in an advisory Sentencing Guidelines
range of 0 to 6 months imprisonment. (PSR, p. 5, 16-24; Govt. Version, p. 3). This guideline
range falls within Zone A of the Sentencing Table. As this Court is no doubt well aware,
however, these guideline calculations serve only as a starting point and initial benchmark in
1

Counsel and Defendant have no objections to the Presentence Report (PSR).

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the determination of a just and appropriate sentence. See Gall, 552 U.S. at 49-51. The question
of what is just and appropriate in this case turns on the consideration of all of the 3553(a)
factors in order to arrive at a sentence that is sufficient but not greater than necessary to
achieve the purposes of sentencing. 18 U.S.C. 3553(a). As such, and as will be demonstrated
more fully below, counsel believe this is the extraordinary case involving a rather extraordinary
defendant that not only cries out for a non-custodial sentence, but just as easily might well be a
case in which the imposition of a fine may satisfy the sufficient but not greater than necessary
requirement of 3553(a).2
B.

The Nature and Circumstances of Offense (3553(a)(1)).

In determining what sentence to impose, the Court must, of course, consider the

nature and circumstances of the offense. 18 U.S.C. 3553(a)(1). The Plea Agreement
(Dkt. #60) describes the factual basis for the offense, and states that on or about August
29, 2008, Mr. Ford:
willfully delivered and disclosed, and caused to be delivered and disclosed, to the
Internal Revenue Service a U.S. Individual Income Tax Return (From 1040 with
schedules and attachments) for calendar year 2007, which return was known by
him to be false as to a material matter in that the return falsely stated that the total
cost or other basis for the property at 5700 W. Erie in Chicago was $166,979,
when in fact, as [Mr. Ford] knew, the total cost or other basis for that property
was materially lower than $166,979.
(Plea Agreement, Dkt. #60, p. 2, 6). This basis of $166,979, which was reflected on Mr. Fords
tax return, included $74,226 of rehabilitation costs. (Id., p. 3). This resulted in a capital gain of
2

Section 7207 provides that a violation may be punished by fine, up to a year imprisonment, or both. The
guidelines provide that a fine may be the sole sanction, even in lieu of probation, when it can be paid in
full at sentencing. Specifically, Application Note 1 to Section 5E1.2, which is entitled Fines for
Individual Defendants states as follows:
A fine may be the sole sanction if the guidelines do not require a term of imprisonment.
If, however, the fine is not paid in full at the time of sentencing, it is recommended that
the court sentence the defendant to a term of probation, with the payment of the fine as a
condition of probation.

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$124,278. The rehabilitation costs were actually $51,160, which was $23,066 less than stated on
the tax return. (Id.) This resulted in a tax loss of approximately $3,782. (Id.)
The property located at 5700 W. Erie was one of a number of properties that Mr. Ford
owned as part of a real estate business. As described in more detail below, Mr. Ford purchased,
rehabilitated, and leased or sold properties on the impoverished West Side of Chicago in large
part to advance the community and economic development of that area, which is where he grew
up and still resides. The property at 5700 W. Erie was one of these properties. At any given
time, Mr. Ford had several rehabilitation projects in progress at the same time, in addition to the
sale and purchases of other properties. Not unlike many young entrepreneurial businessmen in
the real estate development field, bookkeeping and attention to detail was not Mr. Fords
specialtysomething that he now deeply regrets and is determined to remedy in his personal and
professional life. While Mr. Ford worked with an accountant to ensure that expenses such as
rehabilitation costs were properly allocated, ultimately it was his responsibility, and his alone, to
ensure that these costs were accurately stated on his tax returns. And for failing to do that, Mr.
Ford accepts full responsibility. Nevertheless, as is clear from a description of the offense, it can
be attributed more to Mr. Fords failure to exercise proper controls and oversight rather than
greed as is the case with most tax offenses.
C.

The History and Characteristics of the Defendant (3553(a)(1)).

In its sentencing analysis, the Court must also consider the history and characteristics of

the defendant. 18 U.S.C. 3553(a)(1). In this regard, and to put it bluntly, it is difficult for
counsel to recall another case in which a defendants history and characteristics provide such
strong mitigation evidence. As counsel noted early on in this case, Mr. Fords Horatio Alger-

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esque arc prior to the indictment virtually personifies the American Dream. (Motion to
Dismiss, Dkt. #21, p. 3, footnote 3).
Mr. Ford was born on February 28, 1972, in Chicagos now-razed Cabrini Green housing
projects. His mother was an unwed teenager. He never knew his father. Without a father or
mother to raise him, Mr. Fords grandmother adopted him at birth and, to say the least, did an
incredible job. Mr. Fords biological mother has had a long history of drug addiction and abuse
that caused her to be absent from most of his life. Mr. Ford nevertheless is still dedicated to her,
and has made efforts to try and help her recover from addiction. In fact, as noted in the PSR, his
mother has recently participated in in-patient substance abuse counseling at a drug treatment
facility.3 (PSR, p. 7, 39). The only person remotely close to a father figure in Mr. Fords life
was his grandmothers husband, whose life was tragically shortened when he committed suicide
after struggling with drug addiction. (PSR, p. 7, 37).
When he was just two years old Mr. Ford moved with his grandmother from Cabrini
Green to the Austin neighborhood on the West Side of Chicago. (PSR, p. 7, 38). Mr. Ford
attended elementary school at Our Lady Help of Christians School on the West Side, and then
attended Weber High School, a well known Catholic high school on the Northwest side of
Chicago. While in high school Mr. Ford played basketball, studied, and worked part-time at Our
Lady Help of Christians Catholic Church doing janitorial work. (Letter from Rev. K.F.)4 After
graduating from Weber in 1990, Mr. Ford became the first in his family to attend a four-year

This treatment facility is the Womens Treatment Center on the Near West Side of Chicago. Mr. Fords
mother has since been discharged from that facility and is now attending meetings to address her
addiction. As noted in the PSR, the recent period of sobriety is the longest period that Mr. Fords mother
has abstained from using controlled substances. (PSR, p. 7, 39).

Copies of this and other letters in support of Mr. Ford will be submitted under separate cover and also
provided to the government and Probation Office.

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college when he enrolled Niles College Seminary at Loyola University in Chicago with the
initial goal of becoming priest.
After one year at Niles, Mr. Ford left the seminary and began studying in the
undergraduate program Loyola where he took night classes. During the day Mr. Ford was a
teachers aide at Ronald E. McNair Elementary School in Chicago. Mr. Ford graduated from
Loyola in 1995 with a Bachelor of Science in Education and a minor in Political Science. To
this day, Mr. Ford is the only person in his family who has attended and graduated from a fouryear college. Following his graduation from Loyola, Mr. Ford became a Chicago Public School
teacher, and taught history for six years at Norman A. Bridge Elementary school on the
Northwest side of Chicago.
During his six years as a public school teacher, Mr. Ford started to become actively
involved in community politics and development. This service began with acting as a Precinct
Captain in the Austin neighborhood where he grew up. Mr. Ford also became a licensed Real
Estate Broker. In 2001 he left teaching at CPS in order to open his own real estate business. Mr.
Ford used that business to focus on community and economic development in the Austin
neighborhood. See Letter from Rev. K.F. (Located in Austin and focused on Austin, Ford
Desired Realty rehabbed many houses and apartment buildings in that area, transforming failed
properties into beautiful, affordable housing for the community.) He also helped employ
realtors and other members of the community on rehab projects. See Id. ([Mr. Ford] provided
employment for other realtors.)
After five years focusing on real estate development, in 2006 Mr. Ford won election as
the State Representative seat for the Eighth Legislative District, which covers a stretch of urban
and suburban areas including: the Austin neighborhood of Chicago; Oak Park; Berwyn;

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Riverside; Forest Park; Brookfield; La Grange Park; and Western Springs. Mr. Fords desire to
help to the West Side community he grew up in led to his decision to seek political office. See
Letter from Rev. K.F. (That commitment to his community and its future led LaShawn to seek
office as a State Representative. Since 2006 he has very ably and effectively served his
constituents.) Mr. Ford assumed his seat in January 2007, and has held it since, winning reelections in 2008, 2010, and 2012.5
As a representative in the State legislature, principles of Catholic social justice teaching
honed at Weber and Loyola, human dignity, and dedication to community have been the
touchstones of Mr. Fords political career and agenda. This is evident both in the bills he has
drafted and sponsored, as well as in the impressions of those who know him best, including his
constituents, colleagues, and people from the Catholic community that he has been involved in
for his entire life. To this day, Mr. Ford remains an active member at St. Martin de Porres
Catholic Church on Chicagos West Side. See Letter from Rev. T.W.
In his letter, Rev. K.F. puts it far more clearly than counsel would attempt when he
writes: Its in LaShawns DNA to give back to his community. (Letter from Rev. K.F.).
Similarly, Mr. Fords grandmother and adoptive mother describes how while Mr. Ford has
received many awards, recognitions, and honorshis purpose is to concentrate on how he can
continually fight and stand with others, for the rights that they deserve. All of this comes from
my heart, and from the heart of his family. (Letter from J.F.). See also Letter from S.F.
(Representative Ford is a true community advocate and fiercely advocates for his district.)
In her letter, Sister R.M. writes that Mr. Ford is a dedicated, professional person who
understands others and wants them to be treated respectfully as human beings. He translates this

Mr. Ford is seeking another term in the upcoming 2014 election.

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understanding into support of legislation that enhances the lives of others. See also Letter from
J.N. (I have always found [Mr. Ford] to be intelligent, passionately representing the people
living in his district, and willing to compromise to find solutions.) Rev. T.W., pastor of St.
Martin de Porres, describes how Mr. Ford shows the same love and concern for his community
that he shows for his daughter. (Letter from Rev. T.W.) Rev. T.W. also notes how the
Archdiocese of Chicago has recognized Mr. Fords community efforts with the Christifideles
Award and the Fr. August Tolton Award. Id. Mr. Fords direct engagement with his community
goes far beyond his responsibility as a legislator. Rev. T.W. recalled how Mr. Ford assisted with
the burial of a child who tragically died in a home fire and how Mr. Ford would also stand sideby-side with other community members on the street corner to help prevent acts of violence. Id.
See also Letter from Sister M.C. (La Shawn has come back to St. Angela school to address and
teach the scholars. Even though he has a hectic schedule, he has found time to GIVE BACK TO
AUSTIN!).
Mr. Fords legislative achievements likewise embody his dedication to social justice and
community improvement. See PSR, p. 10, 59. A complete list of Mr. Fords legislative and
community accomplishments is attached here to as Exhibit A, and available at:
http://www.lashawnkford.com/legislative-and-community-accomplishments/. To highlight but a
few of these accomplishments, Mr. Ford has supported and passed legislation designed to help
Disadvantaged Business Enterprises that faced tough opposition in Springfield. See Letter from
S.F. He has also been actively involved in supporting bills and policies concerning criminal and
restorative justice that are aimed at helping relieve some of the many burdens and barriers that
prevent ex-offenders from returning to society as productive members. See Letter from M.W.
Mr. Ford has also worked to secure funding for a Youth & Law Project run by a West Side non-

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profit that aims to provide positive experiences with the legal system for young people. Id.
This act had a lasting impact, as M.W., the executive director of the non-profit that runs that
program writes: [w]ith that single act, several hundred at-risk youth will be learning through
mock trial, networking, and will have the paid opportunity to mentor each other. Id.
Of all these important legislative and community accomplishments, it is also clear that
the most important part of Mr. Fords personal life is his young daughter, with whom he spends,
as noted in the PSR, every available minute and provides financial support. (PSR, p. 7, 41,
44). Letters submitted reflect the impression that Mr. Ford has made on others as a caring
father. See Letter from J.N. (I have also watched him as a father and know that he loves his
daughter very much and is committed to ensuring that she has every possible chance at
success.); Letter from Rev. K.F. (LaShawn is also a devoted father to his daughter T.); Letter
from T.H. (His ten-year old daughter T. comes first in his life and I have only seen T. receive
the highest level of concern and love from him.); Letter from Rev. T.W. (Representative Ford
has a 10 year old daughter, T., who is now in the 5th grade. He is directly involved in her life and
as a result she is doing well in school and other areas of her life which includes her faith
formation.); Letter from M.W. (And despite any issues he has been facing, he has continued to
provide the strong foundation that his daughter needs in her life.)
D.

A Sentence Imposing a Fine, Coupled with Restitution, Will be

Sufficient to Comply With the Factors Set Forth in 3553(a)(2).
After considering the nature and circumstances of the offense and the history and

characteristics of the defendant, the Court is charged with fashioning a sentence that is sufficient,
but not greater than necessarytaking into account the need for the sentence to reflect the
seriousness of the offense, promote respect for the law, provide just punishment for the offense,

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afford adequate deterrence (general deterrence), and protect the public from further crimes of
defendant (specific deterrence). 18 U.S.C. 3553(a)(2)(A)-(C).
In terms of the seriousness of the offense, counsel and defendant do not suggest that
providing false information to the IRS is not a serious offense. Nor do we mean to suggest that
a tax loss of $3,782.00 is insignificant. However, in a case such as this, fines, and penalties
pursuant to the Internal Revenue Code are sometimes deemed to be just punishment, rather than
imprisonment or even probation. See, e.g., 26 U.S.C. 6663(a).6 Thus, counsel submit, the
seriousness of the offense cannot simply be viewed in the abstract, but must be considered in
conjunction with what is deemed to be just punishment for that offense.7 Likewise, counsel
would submit that a custodial sentence, and even a sentence of probation, would be greater than
necessary to promote respect for the law in light of Mr. Fords extraordinary background and
characteristics.
This is true, notwithstanding the need to provide for deterrence as personal deterrence
cannot be said to be an issue. This tax offense stemmed from Mr. Fords 2007 tax return,
submitted in August of 2008more than six years ago. Mr. Ford has complied with all
conditions of pretrial release, and has in fact continued his positive work as a State
6

Section 6663(a) provides as follows: If any part of any underpayment of tax required to be shown on a
return is due to fraud, there shall be added to the tax an amount equal to 75 percent of the portion of the
underpayment which is attributable to fraud. See also 26 U.S.C. 6651 (delinquency penalty (not
exceeding 25 percent) for failure to file a timely return or to pay tax); 26 U.S.C. 6662 (accuracy-related
penalty, a 20 percent penalty for negligence or disregard of rules or regulations).

Also, in its instructions to the Sentencing Commission, Congress was clear that for a first-time offender
like Mr. Ford there is a strong preference for a sentence other than imprisonment. See 28 U.S.C. 994(j)
(The Commission shall 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). In enacting the Sentencing Reform
Act, Congress intended that prison resources [would be], 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 offenses, 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, 217(a), 239, 98 Stat. 1987, 2039 (1984).

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Representative notwithstanding his enduring the stress of the federal indictment and pressures of
preparing for trial to fight those charges. In terms of general deterrence, while counsel
acknowledge there is a certain value in some cases of sending a message to other taxpayers
concerning the importance of submitting truthful and accurate tax returns, counsel would also
submit that the publicity surrounding this offense and the fact that Mr. Ford will now carry this
embarrassing conviction, is significant punishment unto itself.
E.

The Kinds of Sentences Available (3553(a)(3)).

The Court must also consider the kinds of sentences available in fashioning an

individualized sentence that is sufficient but not greater than necessary. Probation is an available
sentence for this misdemeanor offense. See 18 U.S.C. 3561(c)(2). The guideline range of 0-6
months, which falls within Zone A of the Sentencing Table, indicates how any term of
imprisonment would be greater than necessary. More importantly, 7207 provides a range of
sentences and states that a defendant who violates its provisions shall be fined not more than
$10,000 ($50,000 in the case of a corporation), or imprisoned not more than 1 year, or both. 26
U.S.C. 7207.8 Thus, by its terms the statute authorizes the imposition of a fine alone as
sufficient punishment. Further, the Guidelines also state that a fine alone may be the sufficient
punishment. Application Note 1 to Section 5E1.2, which is entitled Fines for Individual
Defendants states: A fine may be the sole sanction if the guidelines do not require a term of
imprisonment. Thus, both the statute and the Guidelines provide that a fine only can be a
sufficient sanction. In light of the unique circumstances of this case, particularly the history and
circumstances of Mr. Fords personal story, counsel respectfully submit that a fine would be
sufficient here.

The maximum fine for a misdemeanor is $100,000. See 18 U.S.C. 3571(b)(5).

10

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F.

The Need to Provide Restitution (3553(a)(7)).

Restitution is also a factor to be considered under 3553(a). See 3553(a)(7) (the need

to provide restitution to any victims of the offense.) Mr. Ford will be prepared to pay full
restitution for the $3,782.00 tax loss at the time of sentencing, as well as any fine the Court
deems appropriate.
G.

Conclusion.
For the reasons stated above, counsel respectfully request that the Court impose a

sentence that is sufficient but not greater than necessary for this tax offense and the tax loss at
issue, and consider imposing a fine as authorized by 26 U.S.C. 7207 and the Guidelines.

Respectfully submitted,

/s/ Thomas Anthony Durkin

THOMAS ANTHONY DURKIN,

/s/ Joshua G. Herman

JOSHUA G. HERMAN,
Attorneys for Defendant.

DURKIN & ROBERTS

2446 N. Clark Street
Chicago, Illinois 60614
(312) 913-9300
tdurkin@durkinroberts.com
jherman@durkinroberts.com

11

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CERTIFICATE OF SERVICE
Thomas Anthony Durkin, Attorney at Law, hereby certifies that Defendants Position
Paper and Commentary on Sentencing Factors was served on October 27, 2014, in accordance
with Fed.R.Crim.P.49, Fed.R.Civ.P.5, LR 5.5, and the General Order on Electronic Case Filing
(ECF) pursuant to the district courts system as to ECF filers.

/s/ Thomas Anthony Durkin

THOMAS ANTHONY DURKIN
DURKIN & ROBERTS
2446 N. Clark Street
Chicago, Illinois 60614
(312) 913-9300
tdurkin@durkinroberts.com