Case 3:12-cr-00074-WWE Document 1100 Filed 03/05/15 Page 1 of 16

UNITED STATES DISTRICT COURT

DISTRICT COURT OF CONNECTICUT
UNITED STATES OF AMERICA,
PLAINTIFF
v.
DONALD OGMAN,
DEFENDANT

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CASE NO.: 3:12CR74 (WWE)

MARCH 5, 2015

DEFENDANT DONALD OGMANS

MEMORANDUM IN AID OF SENTENCING
Through counsel, Donald Ogman, respectfully files this memorandum as an aid to the
Court in sentencing scheduled for Tuesday, March 10, 2015 in the United States District Court,
Bridgeport, Connecticut before the Honorable Warren W. Eginton, U.S.D.J. The Presentence
Report calculates the United States Sentencing Guidelines range for Mr. Ogman as 235-293
months, based on an adjusted Offense Level of 33 and a Criminal History Category of VI.
The defendant respectfully submits this memorandum in aid of sentencing in support of
his request for either a sentence below the guidelines or for a non-guideline sentence. The
defendant submits that there are more than sufficient grounds to warrant a departure and/or the
imposition of a non-guideline sentence such that a sentence is sufficient, but not greater than
necessary to satisfy the key purposes of sentencing. Defendant submits that the imposition of a
sentence of ten (10) years is sufficient, but not greater than necessary, to satisfy the sentencing
goals set forth in 18 U.S.C. 3553(a).
Part I of this memorandum discusses Mr. Ogmans background and the circumstances;
Part II discusses the post-Booker sentencing scheme; Part III presents the argument that a nonguideline sentence should be imposed in this case pursuant to 18 U.S.C. 3553(a); Part IV

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proposes a departure from the applicable guidelines, Part V discusses a 1:1 ratio sentence, Part
VI discusses a sentencing proposal.
I.

BACKGROUND AND FACTUAL CIRCUMSTANCES

The defendant, Donald Ogman, has pled guilty to one count of Conspiracy to Distribute
Cocaine Base on March 14, 2014. The undersigned counsel has received and reviewed the
defendants Presentence Report (PSR) dated February 3, 2015, prepared by United States
Probation Officer Meghan Nagy. Mr. Ogmans background information as set forth in the
Offender Characteristics of the PSR fairly and accurately describe Mr. Ogmans history and
shall be incorporated by reference herein.
II.

POST-BOOKER: THE LAW TO BE CONSIDERED IN IMPOSING A

REASONABLE SENTENCE
The decision in U.S. v. Booker, 125 S.Ct. 738 (2005) declared the Federal Sentencing

Guidelines unconstitutional to the extent they are mandatory. Id. at 750. Instead of being bound
by the Sentencing Guidelines, the Sentencing Reform Act, as revised by Booker, requires a
tailor-made sentence:
[the federal sentencing statute] requires a sentencing court to consider Guidelines ranges, see
18 U.S.C.A. 3553(a)(4), but it permits the court to tailor the sentence in light of other
statutory concerns as well, see 3553(a).

Booker, 125 S. Ct. at 757. The overriding concern in Section 3553(a) is for sentencing courts to
impose a sentence sufficient, but not greater than necessary in appreciating the goals of
sentencing.
The directives of Booker and 3553(a) make clear that courts may no longer uncritically
apply the guidelines. The Supreme Court articulated in Rita v. United States, 551 U.S. 338,

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rehearing denied, 551 U.S. 1181 (2007) and again in Gall v. United States, 552 U.S. 38 (2007),
that in sentencing, there is no presumption that the Guidelines must apply:
The sentencing judge, as a matter of process, will normally begin by considering the presentence
report and its interpretation of the Guidelines. 18 U.S.C. 3552(a); Fed. R. Crim. Proc. 32. [She]
may hear arguments by prosecution or defense that the Guidelines sentence should not apply,
perhaps because (as the Guidelines themselves foresee) the case at hand falls outside the
heartland to which the Commission intends individual Guidelines to apply, USSG 5K2.0,
perhaps because the Guidelines sentence itself fails properly to reflect 3553(a) considerations, or
perhaps because the case warrants a different sentence regardless. See Rule 32(f). Thus, the
sentencing court subjects the defendants sentence to the thorough adversarial testing
contemplated by federal sentencing procedure. See Rules 32(f), (h), (i)(C) and (i)(D); see also
Burns v. United States, 501 U.S. 129, 136, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991) (recognizing
importance of notice and meaningful opportunity to be heard at sentencing). In determining the
merits of these arguments, the sentencing court does not enjoy the benefit of a legal presumption
that the Guidelines sentence should apply. Booker, 543 U.S., at 259-260.

Rita v. United States, supra, 551 U.S. 351.

In Gall v. United States, supra, 552 U.S. 49, the Supreme Court further explained its
decisions in Booker and Rita: [T]he Guidelines should be the starting point and the initial
benchmark. The Guidelines are not the only consideration, however.
The Second Circuit had previously issued similar instructions in its decision in United
States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005):
First, the Guidelines are no longer mandatory. Second, the sentencing judge must consider the
Guidelines and all of the other factors listed in section 3553(a). Third, consideration of the
Guidelines will normally require determination of the applicable Guidelines range, or at least
identification of the arguably applicable ranges, and consideration of applicable policy statements.
Fourth, the sentencing judge should decide, after considering the Guidelines and all the other

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factors set forth in section 3553(a), whether (i) to impose the sentence that would have been
imposed under the Guidelines, i.e., a sentence within the applicable Guidelines range or within
permissible departure authority, or (ii) to impose a non-Guidelines sentence. Fifth, the sentencing
judge is entitled to find all the facts appropriate for determining either a Guidelines sentence or a
non-Guidelines sentence.

In sum, in every case, as the Court is no doubt aware, a sentencing court is to consider all
of the 3553(a) factors, not just the Sentencing Guidelines, in determining a sentence that is
sufficient but not greater than necessary to meet the goals of sentencing.
III. NON-GUIDELINE SENTENCE UNDER 18 U.S.C. 3553(a)
The Court may impose a non-guideline sentence if it determines that neither the
guidelines nor the permissible departure authority permit the imposition of a sentence that
accords with the goals and factors set forth in 18 U.S.C. 3553(a). Booker, 543 U.S., at 259-260.
18 U.S.C. 3553(a) provides the overall framework within which a sentencing judge must
determine the appropriate sentence for a defendant. While not all of the factors contained in the
statue will apply in every case, many of them do here. In this case, the factors most directly
relevant that the Court should consider are:
(1) the nature and circumstances of the offense and the history and characteristics of the
defendant;
(2) 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, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;

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(4) the kinds of sentence and the sentencing range established for
A) the applicable category of offense committed by the applicable category of defendant
as set forth in the guidelines;
(5) any pertinent policy statement-(A) issued by the Sentencing Commission;
(6) the need to avoid unwarranted sentence disparities

Thus, while a sentencing court must consider the applicable Guidelines sentence, there is
no longer a presumption that such a sentence satisfies the objectives of 3553(a). Significantly,
neither 3553(a) nor the majority opinion in Booker suggest that the sentencing court should
give the Guidelines any greater consideration than any of the other factors contained in 3553(a).
18 U.S.C. 3553(a) provides that the Court shall impose a sentence sufficient, but not
greater than necessary to achieve the goals of just punishment, specific and general deterrence,
and to provide needed educational, vocational, medical care or other correctional treatment in the
most effective manner. Each of these goals can be met in this case with a non-guideline sentence
in this matter. Such a sentence would serve the goal of just punishment because it is a significant
deprivation of liberty and it sufficiently punishes the defendants conduct in this case while
providing him with the assistance he needs to become a productive and successful individual.
A. 18 U.S.C. 3553(a)(1): Nature, Circumstances and History of the Defendant
Mr. Ogman was born in New Haven, CT on September 12, 1981 making him 33 years
old. He is the product of the union of Don Ogman and Julia McFaddden and is one of five (5)
children. Mr. Ogman has been a life-long resident of the Hill section of New Haven, CT, an
unstable and crime ridden neighborhood and spent his formative years in an extremely unstable
environment, surrounded by violence and drug trafficking while his mother struggled, vainly
perhaps, to raise her five (5) children. Mr. Ogman, unfortunately was a self-described terrible

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student and regrettably did not complete his high school education, dropping out in the eleventh
grade. The Government attempts to condemn Mr. Ogman over this fact, not taking into account
his upbringing while Mr. Ogman was experiencing, in his formative years, literally friends
getting killed and seeing his father caught up on drugs, particularly heroin. Clearly, Mr.
Ogman had zero guidance during his formative years and was left to fend for himself, which has
led to, and clearly explains his life of crime, being interred in one of the States jails in his junior
year of high school. In common parlance, that Mr. Ogman, simply never had a chance.
Indeed, Mr. Ogman has suffered from significant substance abuse issues and some
physical ailments, particularly a bullet literally lodged in his leg, causing it to swell periodically,
which he would like to remove. This only serves to underscore his station in life; he literally has
a bullet stuck in his leg and has never had the ability to get the care he needs to have it removed.
He began drinking alcohol at far too young an age, fourteen (14) and by the time of his arrest he
was drinking on a daily basis. He also first smoked marijuana at the same age, actively using it
until the time of his arrest. He obviously was raised in an extremely dysfunctional family, where
he had little by way of positive role models to speak of. Again, this demonstrates that Mr.
Ogman was left to the wolves so to speak and shows why his life would have been dominated by
crime, and hence his high criminal history score. He also has had a paucity of substance
treatment in his life, with the only interventions being offered to him in incarceration. The tier
programs that he attended in the Connecticut Department of Corrections do not constitute
treatment by any stretch of the imagination. The only intervention this man has ever really
received has been heaping amounts of incarceration, over and over again. The answer to fixing
this life of recidivism does not lay with adding more than a decade worth of incarceration upon
Mr. Ogman, essentially an uneducated man who was brought up inundated by crime and poverty.

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Equally important is the fact that, as the PSR describes, Mr. Ogman takes full
responsibility for his actions as he has described in detail his life of crime and does not dispute
his criminal record. He knows he needs to be punished for his activities but asks the court to
acknowledge that human beings can only overcome so much adversity, especially when they live
in poverty and are raised, almost exclusively, by the streets, as so many young men in Mr.
Ogmans situation, refer to them.
B. 18 U.S.C. 3553(a)(2): Need For Sentence Imposed To Provide Just Punishment
Section 3553(a)(2)(A) requires judges to consider the need for the sentence imposedto
reflect the seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense. It is certainly appropriate that this Court properly weigh the
seriousness of Mr. Ogmans offense versus the other attributes that he possesses and his
experience, upbringing and background.
Despite his apparent conspiratorial role in this offense, he should not be penalized
anymore than Mr. Sturdivant who actually supplied him, even taking into account his lower
criminal history score. Mr. Ogman asks that he be penalized equal to that of Mr. Sturdivant and
the other defendants in this conspiracy who have received the mandatory minimum for their
statutory convictions. Again, Mr. Ogman takes responsibility for his poor choices. Mr. Ogman
understands that he must be held accountable by the Court. It is not, however, necessary to
sentence Mr. Ogman to more than ten (10) years to effectuate just punishment. He has been
incarcerated for a significant period of time in conjunction with this thus far and the greatest
sentence he has ever done was a little over three (3) years from the undersigneds reading of the
PSR.
As for general deterrence, this Courts sentence should be sufficient in order to send a

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message that involvement in illegal activity will carry consequences. No member of the public is
likely to commit this crime based on the results of this case, especially after a significant
sentence imposed by the this Court. The Defendant pleads with this Court that it may impose a
significant sentence of ten (10) years, deterring others, taking into account Mr. Ogmans
horrific upbringing and substance use while not indulging the temptation of the Government to
essentially massacre this accused. Mr. Ogmans honest plea of guilty, his timely notification of
his intent to enter a guilty plea to appropriate charges and his acceptance of responsibility and
support the position that a sentence of ten (10) years is adequate to accomplish the
necessary goal of general deterrence.
As for specific deterrence, this experience has brought nothing but misery to Mr. Ogman,
as he will literally lose everything he has and may have for the next many, many years. As
stated beforehand, the most time in jail Mr. Ogman has ever done has been a little over three (3)
years; certainly ten (10) years more than doubling that number should be deterrent enough.
Furthermore, considering the need for the sentence imposed to protect the public from
further crimes of the defendant, pursuant to 3553(a)(2)(C), Mr. Ogman is unlikely to commit
additional crimes once released from prison. He has made many mistakes during the course of
his life but all persons are capable of redemption, even Mr. Ogman. It is not necessary to
essentially warehouse him for the majority of his adult life as the Government suggests. After a
decade of incarceration, with proper treatment and care, Mr. Ogman can reintegrate into society
and be productive.

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C. A Sentence Of Approximately Ten (10) Years Considering the 3553(a) Factors is

Reasonable and Sufficient.
Considering all of the sentencing factors set forth in 3553(a) and the general purpose of
sentencing, it is unfortunately clear that a significant sentenced is warranted. It need not be an
approximately twenty (20) year sentence as the Government suggests it ought to be. It is
obvious that Mr. Ogman has ability and intelligence, but he needs rehabilitation, treatment, and
counseling to succeed. While not excusing his illegal conduct, Mr. Ogmans personal history
and educational background have created a number of extreme obstacles, which he must
overcome in order to be a productive member of society. He possesses the ability to improve.
Mr. Ogman has pled guilty and recognizes he must be held accountable. In addition, he realizes
he has made some mistakes during his incarceration, for which he takes full responsibility and
for which he has been amply punished by the CT DOC. In view of the above, assuming Mr.
Ogman is given appropriate care, the Court should find that the risk that Mr. Ogman will
recidivate is not present on account of these factors and sentence Mr. Ogman to ten (10) years
prescribed by law.
IV.

SHOULD THE COURT IMPOSE A GUILDELINE SENTENCE, IT

SHOULD DOWNWARDLY DEPART AND NOT UPWARDLY ENHANCE
THE DEFENDANTS SENTENCE.

According to Probation, Mr. Ogmans guideline calculation begins as a Category VI and

an Offense level 30 but this shouldn't be the end of the calculation. Mr. Ogman contends that
this Court has the authority to, with respect to the Sentencing Guidelines, depart horizontally
regarding his criminal history category.

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In determining a departure, the Court is entitled to consider a number of factors, such

factors might include, for example, the amount of drugs involved in [the defendants] prior
offenses [and] his role in those offenses. United States v. Mishoe, 241 F.3d 214, 119 (2d Cir.
2001).
A strict application of the guidelines in this matter would unnecessarily increase both his
criminal history category and his offense level to a degree that substantially over-represents the
seriousness of his criminal history as well as his likelihood of recidivism.
A. Horizontal Reduction

Mr. Ogman requests that this Court consider a horizontal departure from the
calculated criminal offense category. This Court should depart downwardly because this
Defendants criminal history category overstates the seriousness of his criminal history.
Mr. Ogman specifically requests that this Court depart downwardly to criminal history
Category V, as the Guidelines limit the extent of horizontal departures, only allowing
courts to reduce the criminal history category by one level.

See U.S.S.G.

4A1.1(b)(3)(A).
The defendant submits that this Courts failure to grant Mr. Ogman a horizontal departure
to reduce his criminal history category would result in an unjustly harsh sentence. U.S.S.G.
4A1.3 applies when a defendants criminal history category significantly over-represents the
seriousness of a defendants criminal history or the likelihood that the defendant will commit
further crimes and may support a horizontal departure in a defendants criminal history category.
Further, Mr. Ogman relies on Mishoe, which states that a downward departure may be warranted
where the defendants criminal history category overstates the seriousness of his criminal
record. Mishoe, 241 F.3d at 215.

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While Mr. Ogman has racked up an unfortunate number of criminal history points, the
criminal history category overstates the seriousness of his criminal record. The bulk of his
convictions are for narcotics related activity, some crimes of violence, which no doubt stems
from his substance abuse issues and his poor upbringing. While undersigned counsel realizes
this isn't his strongest argument, he has put it forth out of an abundance of caution.
B. A Combination of Factors
The advisory Guidelines provide that the court may depart from the Guidelines range
based on a combination of two or more offender characteristics or other circumstances, none of
which independently is sufficient to provide a basis for departure, if the circumstances make the
case an exceptional one and each circumstance is present to a substantial degree and identified in
the Guidelines as a permissible ground for departure, even if such circumstances is not ordinarily
relevant to a determination of whether a departure is warranted. USSG 5K2.0(c) (2004).
The Second Circuit has determined that a combination of factors may constitute a
circumstance that has not been adequately taken into consideration by the Guidelines. See,
e.g., United States v. Jagmohan, 909 F.2d 61, 65 (2d Cir. 1990) (combination of employment
record and unusual circumstance of commission of offense); United States v. Broderson, 67 F.3d
452, 458 (2d Cir. 1995). See also United States v. Cook, 938 F.2d 149, 153 (9th Cir. 1991)
(There is no reason to be so literal-minded as to hold that a combination of factors cannot
together constitute a mitigating circumstance. [A] unique combination of factors may constitute
the circumstance that mitigates.)
In United States v. Rioux, the Second Circuit recognized that [i]n extraordinary cases,
the district court may downwardly depart when a number of factors that, when considered
individually, would not permit a downward departure, combine to create a situation that differs

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significantly from the heartland cases covered by the Guidelines. Rioux, 97 F.3d 648, 663 (2d
Cir. 1996) (citing USSG 5K2.0 cmt.).
Mr. Ogman acknowledges that certain factors, viewed under the restrictive mandates of
the advisory guidelines downward departure requirements, may not rise to the level of an
individual basis for downward departure. However, when viewed in conjunction, Mr. Ogmans
mitigating circumstances provide a compelling reason for this Court to downwardly depart to the
guideline sentencing range of 151-188 months. Such factors include Mr. Ogman family history,
the fact that he had an awful family life in growing up, was abandoned by his father at an early
age, did not have a stable father figure in his life, was steeped in a culture of gang activity and
crime throughout his adolescence into adulthood, and his lifelong drug addiction. These factors,
when considered together, warrant a departure to the guidelines sentencing range of 151-188
months. In the event that the Court will not entertain a non-Guideline sentence, the defendant
respectfully requests this Court downwardly depart and sentence Mr. Ogman to the low end of
that range, to 151 months.
C. THE COURT SHOULD NOT ENHANCE THE DEFENDANTS SENTENCE
AS PROPOSED BY THE GOVERNMENT.
The defendant takes exception to the proposed enhancement by U.S. probation and shares
the Governments view that pursuant to Fernandez supra, this Court should not enhance his
sentence due to his alleged leadership role. Without this two-level enhancement, the defendant's
offense level would be a 29.
Further, the Court should incorporate a two-level reduction of the drug quantity table
based on Proposed Amendment 782 which went into effect November 1, 2014.

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Accordingly, the defendant submits the proper guideline sentence is 100-125 months. This
accounts for base level of 30, minus a two-level reduction of the drug quantity table based on
Proposed Amendment 782, minus three levels for acceptance of responsibility and a horizontal
departure to Criminal Category V.
V.

THE RATIO BETWEEN POWDER COCAINE AND CRACK COCAINE

QUANTITIES YIELDS AN EXCESSIVE SENTENCE.

The crack/powder disparity originated in the Anti-Drug Abuse Act of 19861 Based on
additional research and experiencethe Commissionfound the disparity inconsistent with the
1986 Act's goal of punishing major drug traffickers more severely than low-level dealers, and
furthermore observed that the differential fosters a lack of confidence in the criminal justice
system because of a perception that it promotes an unwarranted divergence based on race.
Kimbrough v. United States, 128 S. Ct. 558, 563 (2007). The Court held, under Booker, the
cocaine Guidelines, like all other Guidelines, are advisory only. Id. at 564. It would not be an
abuse of discretion for a district court to conclude when sentencing a particular defendant that
the crack/powder disparity yields a sentence greater than necessary to achieve 3553(a)s
purpose. Id. at 563.
In Spears v. United States, 129 S.Ct. 840, 842-43 (2009), the Court clarifies any question
regarding the holding of Kimbrough and states, District Courts are entitled to reject and vary
categorically from the crack-cocaine Guidelines. In Spears, the United States Supreme Court
upheld the Districts Courts ability to recalculate the defendants offense level based on a 20:1
1 Anti-Drug Abuse Act of 1986 created a two-tiered scheme of five- and ten-year mandatory minimum sentences for drug
manufacturing and distribution offenses. Congress apparently adopted the 100-to-1 ratio because it believed that crack, a relatively new drug in
1986, was significantly more dangerous than powder. Thus, the 1986 Act's five-year mandatory minimum applies to any defendant accountable
for 5 grams of crack or 500 grams of powder, and its ten-year mandatory minimum applies to any defendant accountable for 50 grams of crack or
5,000 grams of powder. In developing Guidelines sentences for cocaine offenses, the Sentencing Commission employed the statute's weightdriven scheme, rather than its usual empirical approach based on past sentencing practices. The statute itself specifies only two quantities of each
drug, but the Guidelines used the 100-to-1 ratio to set sentences for a full range of drug quantities. Kimbrough v. United States, 128 S. Ct. 558,
563 (2007).

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crack-to-powder ratio, resulting in a lower offense level. In further explanation of Kimbrough,

the Court states:
The correct interpretation of [Kimbrough] is the one offered by the dissent in Spears II:
The Court thus established that even when a particular defendant in a crack cocaine case presents
no special mitigating circumstances-no outstanding service to country or community, no
unusually disadvantaged childhood, no overstated criminal history score, no post-offense
rehabilitation-a sentencing court may nonetheless very downward from the advisory guideline
range. The court may do this solely on its view that the 100-to-1 ratio embodied in the sentencing
guidelines for the treatment of crack cocaine versus poswer cocaine creates an unwarranted
disparity within the meaning of 3553(a) and is at odds with 3553(a).

Id. at 842, 533 F.3d, at 719 (opinion of Colloton, J.)(citations omitted). Although the Court does
not does articulate a specific ratio that must be followed, it is clear a substantial decrease is
permitted and perhaps necessary under 3553(a).
Therefore, in order to avoid an excessive sentence in light of the sentencing factors
outlined in 18 U.S.C. 3553(a), a ratio of 1:1 should be applied to Mr. Ogman. This
recalculation would result in an Offense Level of 24. With a three-level reduction for acceptance
of responsibility the guideline range would be 77-96 months. Even with a 2-level increases for a
firearm and role enhancement, the guideline range would be 110-137. Mr. Ogman would ask the
Court to look at the 3553(a) factors above in determining that a ratio of 1:1 should be applied.
Mr. Ogman sold crack cocaine because he associated with people who supplied and used that
particular drug. Had Mr. Ogman sold powder rather than crack cocaine- the same drug in a
different form- his corresponding guideline range is significantly decreased.

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VI.

CONCLUSION

Based upon the reasons set forth herein, the instant case is an appropriate case for a
a sentence below the guidelines via a non-guideline sentence. Due to the history and
characteristics of Mr. Ogman and the unique facts and circumstances of his case, the appropriate
sentence which will provide just punishment is no more than ten (10) years.

Respectfully submitted,
THE DEFENDANT,
DONALD OGMAN

____/S/ Charles L. Kurmay_____

By: Charles L. Kurmay
Charles L. Kurmay, CT # 20180
3000 Main Street
Stratford, CT 06615
Tel. (203) 380-1743
Fax (203) 380-0293
E-mail: ckurmay@snet.net

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on MARCH 5, 2015, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system and served by first class mail, postage prepaid,
upon anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all
parties by operation of the Courts electronic filing system and by mail to anyone unable to
accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this
filing through the Courts CM/ECF system.

/s/ Charles L. Kurmay