Case 8:12-cr-00343-VMC-AEP Document 85 Filed 08/07/13 Page 1 of 7 PageID 1879

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION UNITED STATES OF AMERICA v. JOHN D. STANTON UNITED STATES RESPONSE TO DEFENDANTS SENTENCING MEMORANDUM The United States of America, by the undersigned, respectfully submits the following response to the Defendants sentencing memorandum (Doc 83). I. Defendants Factual Assertions Defendant Stanton begins his factual rendition (Doc 83, p. 1) by describing himself as a married man with six children, all of whom reside in Florida. However, in the first draft of the presentence report (PSR) he described himself as an unmarried man having two ex-wives. He has only recently revealed that he never legally divorced his first wife before marrying a second woman, apparently when the disclosure became beneficial to him in connection with his pending bankruptcy case.1 The Defendants introductory factual statement also refers to his present incarceration since September 2012. He does not mention why he has been subject to judicial detention for almost a year in this case. Fact is, Magistrate Judge Case No. 8:12-Cr-343-T-33AEP

See Declaration of Debtor, Doc 270, M.D. Fla. Bankruptcy Court Case 8:11-bk-22675-MGW . His present claim that he is a married man apparently refers to the marriage to his first wife (Susanne) from whom he claims was never judicially divorced, even though he subsequently married a second wife (Susan) knowing that he was still married to his first wife, and he also had two children in a third relationship.

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Porcelli found clear and convincing evidence that Stanton poses a serious risk of flight. (Doc. 15, p. 2). That judicial determination referred to Stantons flight and obstructionist conduct and was based on evidence showing that Stanton was a knowing fugitive in deliberate avoidance of the pending arrest warrants. (Id. at 1, 2). Stanton has never sought reconsideration or appellate review of that detention order. The Defendant observes that his criminal convictions in this case are his first criminal convictions, implying that his criminal conduct was an isolated departure from an otherwise law-abiding adult life. That is inaccurate. Aside from his unchallenged status as a criminal history II offender based on a State of Florida finding of criminal contempt2 the evidence presented in this trial showed that Stanton engaged in a years-long pattern of criminal conduct ranging from at least 2002 through 2008. In other words, he engaged in a studied, ongoing pattern of criminal conduct on a continuing basis throughout many years. II. Defendants argument Much of the Defendants argument is devoted to establishing that which is not in dispute, viz. the proposition that the sentencing guidelines are not mandatory, but only advisory. See Doc. 83, pp. 2-7. Title 18, United States Code, Section 3553(a) provides the factors to be considered by the Court in imposing a sentence. One of those sentencing factors is an accurate determination of the advisory guidelines. Section 3553(a)(4). The Defendants substantive arguments relating to the upward

See July 19, 2013 PSR, p. 8, 40, 41.

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adjustments are set forth as statements of position without supporting argument at Doc. 83, pp. 7, 8. The United States has addressed the sentencing guidelines adjustments in our sentencing memorandum (Doc. 82). The Defendant argues at Doc. 83, pp. 8-10 that the sentencing guidelines are presumptively unreasonable and should be disregarded given the advisory guideline range of 210-262 months; that the sentencing guidelines impermissibly suggest mandatory consecutive sentencing; and that a consecutive sentence would violate the constitutional proscription against double jeopardy. Stantons double jeopardy argument was raised in his Motion to Dismiss the Indictment (Doc. 18), which this Court rejected in its Order denying the Defendants motion (Doc. 27). Title 18, United States Code, Section 3584(a) confers judicial discretion to impose consecutive sentences when multiple terms of imprisonment are imposed at the same time.3 Title 18, United States Code, Section 3584(b) provides factors the Court shall consider in determining whether to impose consecutive or concurrent sentencesthe factors set forth in section 3553(a). Title 18, United States Code, Section 3553(a)(4), in turn, directs the Court to consider provisions in the sentencing guidelines. USSG 5G1.2 discusses sentencing involving multiple counts of conviction. The guidelines recognize that in most instances at least one of the counts in a multi-count conviction will have a statutory maximum sentence that is adequate to permit the Court to impose a sentence with the total punishment as the
Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. 18 U.S.C. 3584(a).
3

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sentence on that single count. In such instances, the guidelines counsel that the sentence on each of the other counts should be imposed concurrently with that longest sentence. When, however, no count carries an adequate statutory maximum to permit imposition of the total punishment as the sentence on that single count, consecutive sentences are to be imposed to the extent necessary to achieve the total punishment. See USSG 5G1.1(b), (c), (d), comment (n.1,3). In our case Stantons advisory guideline range is 210-262 months incarceration, a range exceeding the statutorily authorized maximum for each of the offenses of conviction. The statutory maximum sentences for each of those eight offenses together add up to 120 months; accordingly, the guideline term of imprisonment is 120 months. (See July 19, 2013 PSR, 83). This sentence will be achieved through consecutive sentencing. The Defendant argues for a substantial downward variance, amounting to a concurrent sentence of thirty-six months. (Doc. 83, p. 15). Accepting this argument severely understates the seriousness of Stantons criminal conduct, which deprived the United States Treasury of over $50 million and nearly drove a company that employed over 100 people into insolvency. Such a sentence would undermine the other sentencing factors in 18 U.S.C. 3553(a). As the Eleventh Circuit observed in United States v. Snipes, general deterrence, not only specific deterrence, is a critical factor in criminal tax cases. 611 F.3d 855, 872-73 (11th Cir. 2010) (affirming 36 month sentence where defendants three misdemeanor convictions for failure to file tax returns were sentenced consecutively). The sentence requested by Stanton is

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not sufficient to serve the ends of sentencing under Section 3553(a) and instead would confirm the belief by some in the business world that complying with the tax laws is an optional business decision.4 Stantons personal background (the history and circumstances of the defendant) also counsels in favor of a significant term of incarceration here. The Defendants impressive background, credentials, and education do not, as Stanton suggests, support a sentence of thirty-six months, or 174 months below the low end of his guideline range as computed by the probation office. In fact, such a significant downward variance would send a message that members of the professional, educated class receive preferential treatment as compared to criminals coming from more challenging environments. This outcome has been rejected by the Eleventh Circuit. In United States v. Kuhlman, the Court of Appeals made clear that economic and social status should not be used to reward a white collar defendant with a sentencing discount. 711 F.3d 1321, 1329-30 (11th Cir. 2013) (vacating and remanding health care fraud defendants probationary sentence as substantively unreasonable). Quite to the contrary, the nature and circumstances of John Stanton show a man who had every opportunity to conduct business in a lawful manner but who freely chose the path of obstruction, fraud, and deceit. He

Because economic and fraud-based crimes are more rational, cool, and calculated than sudden crimes of passion or opportunity, these crimes are prime candidate[s] for general deterrence. Stephanos Bibas, White-Collar Plea Bargaining and Sentencing After Booker, 47 Wm. & Mary L. Rev. 721, 724 (2005). Defendants in white collar crime often calculate the financial gain and risk of loss, and white collar crime therefore can be affected and reduced with serious punishment. U.S. v. Martin, 455 F.3d 1227 (2006).

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should not now be rewarded with a lenient sentence.5 A sentence of imprisonment of 120 months already provides the defendant with a de facto downward variance. Any further reduction would defeat the ends of sentencing. Respectfully submitted, A. LEE BENTLEY, III Acting United States Attorney

By:

s/ Matthew J. Mueller By: MATTHEW J. MUELLER Assistant United States Attorney Florida Bar No. 0047366 400 N. Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone: 813/274-6000 Facsimile: 813/274-6103 E-mail: matthew.mueller@usdoj.gov

s/ Robert T. Monk ROBERT T. MONK Assistant United States Attorney United States Attorney No. 026 400 N. Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone: 813/274-6000 Facsimile: 813/274-6103 E-mail: robert.monk@usdoj.gov

As Judge Posner stated in United States v. Stefonek: Business criminals are not to be treated more leniently than members of the criminal class just by virtue of being regularly employed or otherwise productively engaged in lawful economic activity. It is natural for judges, drawn as they (as we) are from the middle or upper-middle class, to sympathize with criminals drawn from the same class. But in this instance we must fight our nature. Criminals who have the education and training that enables people to make a decent living without resorting to crime are more rather than less culpable than their desperately poor and deprived bretheren in crime.

179 F.3d 1030, 1038 (7th Cir. 1999) (defendants purported service to the community did not warrant downward departure).
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U.S. v. JOHN D. STANTON, III

Case No. 8:12-Cr-343-T-33AEP

CERTIFICATE OF SERVICE I hereby certify that on August 7, 2013, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following: Paul DeCailly, Esquire

s/ Robert T. Monk ROBERT T. MONK Assistant United States Attorney United States Attorney No. 026 400 N. Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone: 813/274-6000 Facsimile: 813/274-6103 E-mail: robert.monk@usdoj.gov

s/ Matthew J. Mueller MATTHEW J. MUELLER Assistant United States Attorney Florida Bar No. 0047366 400 North Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone: 813/274-6000 Facsimile: 813/274-6103 E-mail: matthew.mueller@usdoj.gov

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