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FACTUAL ALLEGATION
The defendant was convicted, after jury trial, of one count of Conspiracy, twelve
counts of Wire Fraud and three counts of Money Laundering. The presentence report
Because the offense involves 10 or more victims, four levels are added. Additionally,
the defendant receives two additional levels because the offense involved receiving
stolen property, and the defendant was in the business of receiving and selling stolen
property. Two more levels are added because she was convicted of money laundering
under 18 U.S.C. § 1956. Finally, she received four levels for her role in the offense,
and two levels for obstruction of justice, resulting in a final base offense level of 33.
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The defendant and government both filed objections to the PSR. The basis for
the objections, and the respective responses, are contained in the addendum to the
PSR, and will not be repeated here. However, the defendant has filed a separate
ARGUMENT
The sentence which is sufficient, but not greater than necessary to comply with
applicable federal law is a sentence of 168 months imprisonment. This sentence is the
low end of the applicable Sentencing Guidelines range, assuming the Court sustains
the Government’s lone objection and includes a 2 point enhancement for sophisticated
means, resulting in a base offense level of 35. Should the Court overrule the objection,
the recommended sentence is the high end of the guideline range. Regardless, a
sentence of 168 months complies with the advisory guidelines and the factors set forth
at 18 U.S.C. §3553(a).
In 2007, the United States Supreme Court decided three cases that are crucial to
the current sentencing landscape. In United States v. Rita, 551 U.S. 338 (2007) the
Court held that a sentencing court may not presume that a sentence within the correctly
calculated Guideline range is reasonable. In United States v. Gall, 552 U.S. 38 (2007)
the Court held that a sentencing court is not required to find extraordinary
court may take the degree of variance into account, it may not “employ a rigid
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justified a particular sentence. In United States v. Kimbrough, 552 U.S. 85 (2007) the
Court upheld a variance from the Guidelines where the Sentencing Commission
(“Commission”) did not exercise its “characteristic institutional role” in formulating those
Guidelines.
It is clear from these cases that the Guidelines still play an important role in this
starting point and the initial benchmark.” Id at 108, quoting Gall. 55 The Commission
has been tasked with tailoring the Guidelines to carry out the objectives of 3553(a).
Rita, 551 U.S., at 348. In carrying out this mandate, the Commission has examined
10,000 presentence investigations and other relevant data. Id; U.S.S.G. §1A1.1, intro.
comment., Part A, ¶3, page 4 (2009 ed). Thus, “it is fair to assume that the Guidelines,
§3553(a)’s objectives. Rita, 551 U.S., at 350; United States v. Angel-Guzman, 506
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Thus, an appellate court should look to the degree of variance and consider the
sentence that falls outside the advisory Guidelines range. Id, at 47.
Thus, even under the current sentencing landscape, this Court must consider the
Guidelines, and ensure that the justification for any deviation from the Guidelines is
B. 18 USC 3553(a)
This Court must consider all of the sentencing considerations set forth in §
3553(a). These include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to
reflect the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense; (3) the need to afford adequate deterrence to criminal
conduct, and to protect the public from further crimes of the defendant; (4) the need to
provide the defendant with educational or vocational training, medical care, or other
correctional treatment in the most effective manner; (5) the Guidelines and policy
statements issued by the Sentencing Commission; (6) the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty
of similar conduct; and (7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
in the Topeka and Lawrence area to the tune of nearly three quarters of a million
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dollars. As proved at trial, the defendant showed a careless disregard for the property
rights of the merchants and the unwitting eBay consumers who purchased the stolen
items she sold. The defendant, by providing an outlet for stolen goods, enabled drug
time. This is not a situation where someone committed an isolated crime. The
defendant did not cease her criminal activity after the she learned that law enforcement
and eBay were aware of her illegal activities. She found another eBay account and
continued to accept and sell items she knew to be stolen. Additionally, the defendant’s
conduct pending trial in this matter, by repeatedly violating the Court’s orders,
The defendant indicates that she will rely upon the previously performed mental
circumstances where the conditions “are present to an unusual degree and distinguish
the case from the typical cases covered by the guidelines.” Neither circumstance is
applicable here.
The defendant also cites 28 U.S.C. §994(d) which directs the United States
Sentencing Commission to take into account the “mental and emotional condition to the
extent that such condition mitigates the defendant’s culpability or to the extent that such
condition is otherwise plainly relevant.” The defendant’s mental condition did not play
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The defendant’s criminal conduct involved numerous victims and co-conspirators. Her
Walmart and Target to local merchants like Assay’s Sporting Goods and Hume Music
to college students whose Trek bikes were stolen at the defendant’s direction.
Deterrence
Deterrence is relative to not only the defendant personally, but also others who
are made aware of her sentence. A significant prison sentence would serve to deter
this defendant, but perhaps more significantly, a prison sentence would serve to deter
other individuals who might be inclined to engage in similar behavior, who learn of this
sentence. White collar cases present a unique opportunity to deter other individuals’
criminal conduct. More so than drug offenders or violent criminals, would be white
Educational/Vocational training
This case does not present any need for rehabilitative vocational training, or any
need for medical treatment that would affect the Court’s sentencing analysis.
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CONCLUSION
The sentence which is sufficient but not greater than necessary when taking into
account the factors of 18 U.S.C. 3553(a), the advisory Sentencing Guidelines and the
Respectfully submitted,
BARRY R. GRISSOM
United States Attorney
s/ D. Christopher Oakley
D. CHRISTOPHER OAKLEY
Assistant U.S. Attorney
500 State Avenue
Kansas City, Kansas 66101
(913) 551-6730
KS S. Ct. No. 19248
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 11th day of January, 2011, I
electronically filed the foregoing with the clerk of the court by using the CM/ECF system
s/ D. Christopher Oakley
D. Christopher Oakley
Assistant U.S. Attorney