Case 5:13-cr-00277-NAM Document 10 Filed 11/19/13 Page 1 of 7 Page 1 of 7

United States District Court For The Northern District Of New York
______________________________________________ UNITED STATES OF AMERICA, DEFENDANTS FIRST SENTENCING MEMORANDUM v. Criminal Action Numbers: 05:13-CR-277 (NAM) ARTHUR HENNESSEY, Defendant. ______________________________________________

HISTORY, BACKGROUND, AND CHARACTERISTICS Broke, busted, disabled, in unremitting and gnawing pain, and in his own wayvery alone. People were around, but Arthur was on his own in every other desperate sense and meaning of the word.

With responsibilities piling, and nowhere to turn, Arthur knew he had no place to go. His back was completely against the wall. He was medicated by his doctors to try and stop the agony in his back. He was selfmedicating as well. Its the kind of constant pain that gets into your mind and into your soul. It breaks you down.

Arthur was about to lose his home. His home was the only thing he had that mattered. His last place to be with dignity, and where his daughters had come to live. He felt he had nothing other than that to give them, or any way to provide for them. He needed to hold on to that in any way he could.

He had no way to earn more money. He couldnt work. He was ashamed and finally felt driven to go back to what he had done so many, many years ago. This time it would only be for a short time and in a different and smaller role. He would make contacts for shipping. No guns. Not how he did things before. He would save his home.
Robert G. Wells, Attorney at Law, 120 East Washington Street, Syracuse, New York 13202

Case 5:13-cr-00277-NAM Document 10 Filed 11/19/13 Page 2 of 7 Page 2 of 7 Arthur had been totally out of any trouble at all since his last offense in 1995.That was seventeen years ago, with no other breach of the law.1

It was a lousy choice. A Hobsons Choice, it seemed to him. It was stupid. Arthur knew that. He felt defeated and powerless to do anything else.

Getting older can make you wiser, or in a particular circumstance, it can make you despairing, despondent, hopeless and miserable in a way you cannot overcome. Your judgment, and all of the good conduct you lived for years and years, can be overwhelmed and abandoned. You turn away from all you've learned, achieved, and that you had completely under control for the best part of twenty years.

To find Arthurs final two convictions, you have to go back to 1995, and before that to 1983.

Arthurs only jail offense was in 1995; a long time ago. That was so long ago that Forrest Gump was the movie that won the Oscar. San Francisco won the Super Bowl. Murphy Brown was still on television. Kids born in 1995 are almost nineteen years old now.

Before that, to find a conviction you have to go all the way back, some thirty years, to 1983 when Arthur was twenty. The Space Shuttle Challenger made its maiden voyage that year. Ronald Reagan was President then. That was a full twelve years before his last conviction in 1995. Not so much as a traffic ticket conviction after that. Arthurs criminal conduct ended then. It had been preceded by a long string of continuous criminal activity involving drugs. It was motivated by, and stemmed from, Arthurs addiction. It was followed by a long

See United States v. Sain, slip op., 2009 WL 1957485 (E. D. Mich. July 7, 2009) ( varying in part because priors were more than ten years old); United States v. Hodges, slip op., 2009 WL 366231 (E. D. N. Y. Feb. 12, 2009) (varying in part because the defendants only serious offense occurred 21 years previously, and all of his offenses were related to drug addiction); United States v. Moreland, slip op., 2008 WL 904652 **10-13 (S.D. W. Va.Apr. 3, 2008) (sentencing below the range in part because the priors lacked temporal proximity to each other or to the instant offense).
Robert G. Wells, Attorney at Law, 120 East Washington Street, Syracuse, New York 13202

Case 5:13-cr-00277-NAM Document 10 Filed 11/19/13 Page 3 of 7 Page 3 of 7 period with no criminal convictions over a period of years. That is a positive part of Arthurs history and characteristics.

And every conviction Arthur ever sustained was for a drug offense, a traffic offense, or a single petty offense of loitering. No convictions for violence. No convictions for weapons.

Arthurs motives were not venal or to accumulate luxury items. He was trying to keep his home.2

Arthur is a drug addict. Drugs, and most usually marijuana, have been the bane of Arthurs life.3 That is a negative part of his history and characteristics. He certainly has, over time, experimented with several different drugs. In the end, it appeared to Arthur that marijuana was the only thing he could use effectively to cope and to survive. He self-medicated to ease the inexorable and merciless pain he lived with from his disabling back injury. That was far more important than any social or recreational use. For this sixty-year-old man, drug abuse extended back to his teens.

Wisconsin v. Mitchell 508 U.S. 476, 485 (1993) (The defendant's motive for committing the offe nse is one important factor [in determining the sentence]. See 1 W. LeFave & A. Scott, Substantive Criminal Law 3.6(b), p. 324 (1986) (Motives are most re levant 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); U.S. v. Milne 384 F.Supp.2d 1309(E.D.Wis.,2005) (in bank fraud case a mitigating factor is that the defendant did not spend the bank's money on luxury items but rather to prop up a failing business. With their almost singular focus on loss amount, the guidelines sometimes are insufficiently sensitive to personal culpability.); Under 3553(a) and the decisions of the Supreme Court , a sentencing court may properly consider a defendant's motive. Wisconsin v. Mitchell, 508 U.S. 476 (1993) (stating that the defendant's motive for committing the offense is one important factor)); Under a courts mandatory analysis of the 3553(a) factors, motive is part of the nature and circumstances of the offense and must be considered.)
2 3

U.S. v. Garcia, 497 F.3d 964 (9th Cir. 2007) (where defendant convicted of drug conspiracy, sentence vacated in part because district judge erred in holding it had no power to consider to defendants drug addiction and resulting mental impairment as a mitigat ing factor under 18 U.S.C. 3553(a). Fact that guidelines preclude downward departure because of voluntary use of drugs under USSG 5K2.13 and 5H1.4 does not preclude judge from using same as mitigating factor under 3553(a)).
Robert G. Wells, Attorney at Law, 120 East Washington Street, Syracuse, New York 13202

Case 5:13-cr-00277-NAM Document 10 Filed 11/19/13 Page 4 of 7 Page 4 of 7 It appears that the only substance abuse treatment Arhtur had was way back in 2002. Having found himself where he is, Arthur very much wants to be afforded and enjoy the benefits of treatment so that his life, onward from here, will not involve illegal drug use.

There is no question that participating in a conspiracy to obtain and distribute marijuana is a serious offense. The public has an interest in deterring such criminal conduct. Arthurs prior criminal convictions are interrelated with his long history of drug addiction and they are temporally remote. They are given too much weight in considering his sentence, and also over-represent the seriousness of his prior criminal convictions.

The Sentencing Commission recognizes the potential harm of overstating a defendant's criminal history and thus exposing the defendant to punishment far in excess of what may be necessary.

Without the applicable mandatory minimum here of ten years, Arthurs advisory guideline calculation would be a Level 23 and a Criminal History Category II yielding a range of 51 to 63 months.

If reliable information indicates that a defendant's remote convictions substantially over-represent the seriousness of the defendant's conduct, a downward departure is warranted.

Additionally, Arthurs conduct in this conspiracy was only over a short period of time.4

U.S. v. Adelson 441 F.Supp.2d 506 (SDNY 2006) (below guideline sentence imposed in part because the defendant did not participate in the fraudulent conspiracy until its final months) .
4

Robert G. Wells, Attorney at Law, 120 East Washington Street, Syracuse, New York 13202

Case 5:13-cr-00277-NAM Document 10 Filed 11/19/13 Page 5 of 7 Page 5 of 7 LETTERS OF SUPPORT

Submitted under separate cover, the Court will find support letters from those who know Arthur best. They have known him longer than this Court, the prosecutor, the probation department, or myself. These letters speak more eloquently about Arthur then I ever could. Accordingly, I direct the Court's attention to these sincere and meaningful submissions. What is singularly impressive from the letters that are provided is that they form the undeniable conclusion that Arthur has, apart from his drug addiction, and since his release from prison, led a good and useful life that is laudable and that is family-based. These people also have witnessed Arthurs struggles with his physical maladies and pain. They understand Arthur. They are unhappy for what he did, but they know that for a very, very long time he was free of engaging in any criminal conspiracies or substantive crimes. He was living the life he should, in the manner he best could.

Title 18 United States Code 3553(a)

We seek a sentence which will be sufficient, but not greater than necessary, consonant with the purposes of sentencing as statutorily set forth in Title 18 United States Code 3553. This would be beneficial, advantageous and constructive given the nature and circumstances of Arthurs participation in this criminal offense; but also viewed in the context of the history and characteristics of this defendant as set forth above. 18 United States Code 3553(a)(1).

Robert G. Wells, Attorney at Law, 120 East Washington Street, Syracuse, New York 13202

Case 5:13-cr-00277-NAM Document 10 Filed 11/19/13 Page 6 of 7 Page 6 of 7 Such a sentence will reflect the seriousness of the offense. Incarceration will reflect, to all, that a deprivation of liberty, and continuing and ongoing supervision for a period of years, will result as a minimum for such conduct. 18 United States Code 3553(a)(2)(A). Such a sentence will promote respect for the law and provide just punishment for this offense and this offender. 18 United States Code 3553(a)(2)(A). Given the personal makeup and age of this defendant, such a sentence will afford adequate deterrence to future criminal conduct. 18 United States Code 3553(a)(2)(B). With ongoing supervision, and based upon all of the foregoing factors, the public will thereby be protected from further crimes of this defendant. 18 United States Code 3553(a)(2)(C). The defendant can therefore immediately focus on receiving, and participating in, the greatly needed correctional guidance and supervision, in the most effective manner. 18 United States Code 3553(a)(2)(D). This sentence would also demonstrate that sufficient consideration has been given to all of the kinds of sentences available. 18 United States Code 3553(a)(3). Such a sentence would take cognizance of the sentencing range established for this applicable category of offense and criminal offender. 18 United States Code 3553(a)(4)(A).

CONCLUSION

It is respectfully prayed that this Court sentence Arthur Hennessey to a term of federal imprisonment commensurate with each and all of the foregoing considerations, taking into account all aspects of the advisory sentencing guidelines, application of any departures therefrom, and in view of all of the factors contained in 18 United States Code 3553(a).
Robert G. Wells, Attorney at Law, 120 East Washington Street, Syracuse, New York 13202

Case 5:13-cr-00277-NAM Document 10 Filed 11/19/13 Page 7 of 7 Page 7 of 7 Alternatively, we pray this Court to impose a non-Guidelines sentence appropriate to all of the attendant circumstances, and consonant with this application. It is also respectfully requested that this defendant be allowed to participate in any and all relevant Bureau of Prisons programing for which he may be eligible, and that he be housed as close to his home and family as is possible.

Respectfully submitted,

Robert G. Wells
ROBERT G. WELLS, ESQ. Attorney for Defendant Bar Role Number: 505778 Office and Post Office Address The University Building 120 East Washington Street Syracuse, New York 13202

Robert G. Wells, Attorney at Law, 120 East Washington Street, Syracuse, New York 13202