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Case 1:17-cr-10300-RWZ Document 37 Filed 01/10/18 Page 1 of 10

UNITED STATES DISTRICT COURT


DISTRICT OF MASSACHUSETTS

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UNITED STATES OF AMERICA |
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v. | Docket No. 1:17-CR-10300-RWZ
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EVELYN MEDINA |
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DEFENDANT’S MEMORANDUM IN AID OF SENTENCING

Defendant Evelyn Medina (“Ms. Medina”), by and through undersigned counsel,

respectfully submits this memorandum in conjunction with her sentencing scheduled for January

17, 2017. Ms. Medina requests this Honorable Court accept the joint sentencing

recommendation set forth in her binding plea agreement, pursuant to Fed. R. Crim. P.

11(c)(1)(C), of fifteen (15) months imprisonment followed by two (2) years of supervised

release, in light of the considerations set forth in 18 USC § 3553(a)(2). In short, Ms. Medina

asserts the jointly recommended sentence is “sufficient, but not greater than necessary” to

achieve the purposes of the Sentencing Reform Act.

BACKGROUND

On October 25, 2017, Ms. Medina pleaded guilty to an information charging her with

producing a false identification document, in violation of 18 USC § 1028(a)(1). ECF # 27, 32.

There is a binding plea agreement in this case, pursuant to Fed. R. Crim. P. 11(c)(1)(C), in which

the parties have agreed upon both the calculation of the sentencing guidelines and the

recommended sentence. ECF # 33. Specifically, in exchange for Ms. Medina’s prompt

acceptance of responsibility, the government has agreed not to charge Ms. Medina with

aggravated identity theft, in violation of 18 USC § 1028A, and to jointly recommend a fifteen

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(15) months sentence of imprisonment.

ARGUMENT

I. Applicable Law

Under United States v. Booker, 543 U.S. 220, 259 (2005), the sentencing guidelines are

no longer mandatory. The Sentencing Reform Act requires the Court to consider guidelines

ranges, see 18 USC § 3553(a)(4), but permits it to tailor the sentence in light of other statutory

concerns. These concerns include reflecting the seriousness of the offense, promoting respect for

the law, providing just punishment, affording adequate deterrence, protecting the public, and

effectively providing the defendant with needed educational or vocational training and medical

care. 18 USC § 3553(a). Section 3553(a) further directs sentencing courts to consider the nature

and circumstances of the offense; the history and characteristics of the defendant; the kinds of

sentences available; the need to avoid unwarranted sentencing disparities among defendants with

similar records who have been found guilty of similar conduct; and the need to provide

restitution to any victims of the offense. Id.1

The sentencing court must compute the guidelines, which are the “starting point and the

initial benchmark,” but which may not be presumed reasonable. Gall v. United States, 552 U.S.

38, 49-51 (2007). Then, the court considers the parties’ arguments, after which it makes an

“individualized assessment based on the facts presented,” considering all of the factors under 18

USC § 3553(a). Id. Ultimately, the sentencing judge must select a sentence within the statutory

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Under Booker, this Court may consider certain factors that are rejected or ignored by the
guidelines. Sentencing courts previously were forbidden from considering, inter alia, a
defendant’s history and characteristics to the extent that they involved his mental and emotional
condition, USSG § 5H1.3; her education and vocational skills, id. at § 5H1.2; drug or alcohol
dependence, id. at § 5H1.2; socioeconomic status, id. at § 5H1.10; or lack of guidance as a youth,
id. at § 5H1.12. These factors can now support a sentence outside the guidelines.
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range that is “sufficient, but not greater than necessary” to satisfy the varied purposes of

punishment identified by Congress. 18 USC § 3553(a); see also 18 USC § 3553(a)(1)-(2).

The First Circuit has summarized the central principles of the post-Booker and -Gall

sentencing procedure described above:

This sequencing necessitates a case-by-case approach, the hallmark of which is


flexibility. In the last analysis, a sentencing court should not consider itself
constrained by the guidelines to the extent that there are sound, case-specific
reasons for deviating from them. Nor should a sentencing court operate in the
belief that substantial variances from the guidelines are always beyond the pale.
Rather, the court “should consider every convicted person as an individual and
every case as a unique study in the human failings that sometimes mitigate,
sometimes magnify, the crime and the punishment to ensue.”

United States v. Martin, 520 F.3d 87, 91 (1st Cir. 2008) (quoting Gall, 552 U.S. at 52).

II. Advisory Guidelines Calculation and Applicable Departures

The calculation of the sentencing range for a violation of 18 USC § 1028(a)(1) is

governed by USSG § 2B1.1. Pursuant to the plea agreement, the parties have agreed that Ms.

Medina’s Base Offense Level (“BOL”) is six (6) because the offense has a statutory maximum

term of less than twenty (20) years. USSG § 2B1.1(a). There is no adjustment for loss and/or

gain.2 Ms. Medina’s offense level is increased to twelve (12) because the offense involved the

unauthorized transfer of a means of identification in order to produce or obtain another means of

identification. USSG § 2B1.1(11). Her offense level is further increased by two (2) because her

offense conduct involved an abuse of a position of public trust in a manner which significantly

facilitated the crime. USSG § 3B1.3. Finally, her offense level is decreased by two (2) because

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Ms. Medina’s gain, which in appropriate circumstances can be used as a proxy for loss when
such loss cannot be properly calculated, did not exceed the threshold requirement of $6,500 in
order to trigger an adjustment under USSG § 2B1.1(b).
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of her prompt acceptance of responsibility.3 USSG § 3E1.1. As a result, Ms. Medina’s Total

Offense Level (“TOL”) is twelve (12). Having no prior convictions or, indeed, any former

arrests of any kind, Ms. Medina’s criminal history score is zero with a resulting Criminal History

Category (“CHC”) I. Pursuant to the federal sentencing table, a TOL 12 with a CHC I

corresponds to a guidelines sentencing range of 10-16 months imprisonment. U.S. Probation, in

its Presentence Report (“PSR”), has agreed with the parties’ calculation of Ms. Medina’s

sentencing guidelines. See PSR at ¶ 23-31.

III. The Requested Sentence Is Sufficient, But Not Greater Than Necessary, To Comply
With The Statutory Purposes Set Forth In Under the Sentencing Reform Act.

After determining the guideline range, this Court must consider whether the statutory

factors warrant an ultimate sentence above or below the guideline range. United States v.

Jiménez-Beltre, 440 F.3d 514, 518-19 (1st Cir. 2006). The Supreme Court has emphasized that

section 3553(a) is “more than a laundry list of discrete sentencing factors; rather, it is a tapestry

of factors, through which runs the thread of an overarching principle.” United States v.

Rodríguez, 527 F.3d 221, 228 (1st Cir. 2008) (citing Kimbrough, 552 U.S. at 101). That tenet –

the “parsimony principle” – instructs “district courts to ‘impose a sentence sufficient, but not

greater than necessary’ to accomplish the goals of sentencing.” Id. (quoting 18 U.S.C. §

3553(a)).

For the following reasons, and in light of the considerations set forth under section

3553(a), Ms. Medina requests this Court accept the binding plea agreement, and impose a

sentence of fifteen (15) months imprisonment followed by two (2) years of supervised release.

A. History and Characteristics of the Defendant

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Because Ms. Medina’s offense level prior to the two (2) point reduction for acceptance of
responsibility is less than sixteen (16), she is not eligible for a one (1) level reduction for her
timely notification of her intent to plead guilty, pursuant to USSG § 3E1.1(b).
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Ms. Medina is 56 years old and was born in the Dominican Republic, where she was

raised for most of her childhood. When she was approximately fifteen (15) years old, she, along

with her parents and siblings, immigrated to the United States with the hopes of finding a better

life with greater opportunities than could be found in her native country. Although Ms. Medina

had not yet learned the language of her new home, she quickly assimilated. While she was in

High School, she began dating Jose Rosa and from that relationship, her first daughter, Emely,

was born. Despite her unfamiliarity with the English language, her pregnancy and being thrust

into motherhood at a young age, Ms. Medina graduated from Jamaica Plain High School in 1981.

Unfortunately, her relationship with Mr. Rosa ended shortly thereafter due to infidelity on his

part. Ms. Medina’s family continued to grow when, approximately nine (9) years after the birth

of Emely, her second daughter, Lismany, was born. During this time, Ms. Medina went through

a failed marriage; Lismany’s father remains resident in the Dominican Republic. It is no small

wonder Lismany described Ms. Medina to U.S. Probation as a great parent and a “devoted,

sincere, strong, independent woman.” PSR at ¶ 51.

Currently, Ms. Medina’s primary focus in life is her family, particularly her mother, her

two (2) daughters, and her infant grandson. Her mother, Anna, is 82 years old. Anna, who

suffers from diabetes as well as high blood pressure stemming from heart issues, is primarily

cared for by Ms. Medina.4 As for her children, her daughter Emely gave birth three (3) months

prematurely to a boy, Nolan in September, 2017. Ms. Medina’s arrest and anticipated

incarceration has been extremely difficult for her children. Those stresses were further

compounded by Nolan’s premature birth after only six (6) months in utero; which necessitated

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Given her mother’s age, these health issues are almost certain to worsen as time goes on.
While incarcerated, Ms. Medina will struggle daily knowing she may lose her mother, or may
not be there should her health truly fail, which too will be powerfully deterring and punishing.
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his hospitalization until early December. There is no doubt Ms. Medina’s incarceration will be

both punishing and deterring in light of these present circumstances; she will not be able to care

for her aging mother; she will not be there as a “mother’s helper,” as had been planned, for

Emely not only during a difficult and critical time in Nolan’s young life, but also on a daily basis

once Emely is ready to return to work; she will not be there to bond with her newborn grandson.

Moreover, upon her release, Ms. Medina will face a host of new challenges. Until her

arrest and termination, she had been employed by the RMV since 1996, a tenure of over twenty

(20) years during which her retirement benefits vested. As a result of the offense conduct to

which she has admitted, those retirement benefits will almost certainly be forfeit. Because of the

manner through which she lost her job, unemployment compensation is also unlikely. As a

result, upon her release, Ms. Medina will be compelled to try to find a new way to support

herself, as well as an entirely new line of work, and to also start saving anew, at a time when

many in the work-force will be beginning to contemplate retirement. In sum, although collateral,

the financial consequences of her voluntary decision to plead guilty will have a long-lasting and

punishing effect on Ms. Medina’s future well-after her presumed sentence of incarceration has

been served.

In sum, Ms. Medina, who had never been charged, or even arrested, prior to the instant

prosecution is a hard-working, fiercely devoted daughter and mother of two (2) who has not had

the kind of support from the men in her life one might expect from a person so dedicated to her

family. Since coming to the United States, and becoming a naturalized citizen in 1999, she had,

until her arrest last summer, otherwise lived a laudable life which would give hope to any

immigrant coming to this country. Her offense conduct is serious. She will pay the price, not just

with a substantial fifteen (15) months sentence of incarceration, but also two (2) years of

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supervised release, a loss of her retirement benefits, a need to find new employment at the age of

56 after having worked in the same position for approximately twenty (20) years, as well as

losing the chance to see her first grandchild grow during the most tender months of his life. The

recommended sentence is therefore amply appropriate in light of her particular circumstances

and characteristics.

B. Nature and Circumstances of the Offense

In terms of the offense conduct, itself, Ms. Medina fully accepts responsibility for her

actions. She understands she was placed in a position of trust at the Registry of Motor Vehicles

(“RMV”) without which the alleged scheme would not have been possible. While she initially

attempted to justify her actions in her own mind by trying to convince herself, at the time, that

she was providing people like herself who were looking for a new life outside their native

country a quick and easy “route” of entry into the United States, she not only knew her actions

were both fraudulent and unlawful, but now fully appreciates that the results of her behavior

have far-reaching consequences. She recognizes what she did has had the opposite effect of her

originally misguided self-justification in that it has helped individuals, who unlike herself and

her own family who arrived here lawfully with the expectation of hard work and an unbridled

enthusiasm for full citizenship, to instead circumvent the rules of lawful immigration, evade the

authorities, avoid paying taxes, and effectively cheat those who are waiting patiently for

admission. Having come to this realization the hard way has had a profound impact on her and

has allowed her to fully understand the full extent of her own moral culpability in the alleged

scheme.

In so stating, undersigned counsel does not mean to suggest Ms. Medina’s conduct can,

or should, be excused. However, he respectfully notes that her own moral culpability is

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somewhat tempered, at least to a degree, in view of the limited “compensation” she received for

her participation in the unlawful documents scheme. Ms. Medina received between $300 and

$500 for each of the identification documents she helped procure, which the government alleges

totals at least fifteen (15). As such, it cannot be said that Ms. Medina was solely motivated by

greed or personal enrichment given that she received so little compensation in comparison to the

substantial risk she was taking. From the perspective of her experienced counsel, that she

undertook great risk and while receiving so little remuneration perhaps reflects her initial failure

to appreciate and/or confront the scope, impact and effect of her criminal conduct, the error of

which she has since acknowledged (and efforted to remediate) by voluntarily deciding to change

her plea to guilty. Still, that Ms. Medina earned a meager $2,400 a month salary while employed

at the RMV, owns virtually nothing in terms of real or personal assets, and has little in the way

of liquid savings (and simultaneously almost no debt, except for a car and student loans, both of

which were procured to assist her younger daughter, Lismany) may also be instructive. Again,

and to be clear, the limited nature of Ms. Medina’s “gain” certainly does not excuse her conduct

here. Nonetheless, it inarguably provides necessary context for her illegal activity and support

and justification for the agreed-upon sentence.

C. Sentencing Parity Considerations

The sentence jointly recommended by the parties not only reflects what is appropriate in

these particular circumstances, but was also determined with reference and comparison to other

similarly situated individuals who have also admitted their participation in the scheme. In

addition to Ms. Medina, there were three (3) other RMV clerks who have been charged with the

procurement and/or production of false identification documents. See U.S. v. David Brimage Jr.,

1:17-cr-10302-LTS; U.S. v. Annette Gracia, 1:17-cr-10301-IT; U.S. v. Kimberly C. Jordan, 1:17-

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cr-10297-DPW. Each of these defendants entered-into plea agreements with the government

similar to Ms. Medina’s. Each plea agreement was made pursuant to Fed. R. Crim. P.

12(c)(1)(C), and the Total Offense Level set forth in each plea agreement is the same. The

primary difference between them is the sentencing recommendation for each defendant: for

Brimage and Jordan, eight (8) months imprisonment; for Gracia, twelve (12) months and one (1)

day imprisonment; for Ms. Medina, fifteen (15) months imprisonment. These recommendations

were carefully crafted to reflect the relative culpability of each participant. Accordingly, by

accepting the jointly recommended sentence here ensures the aim of § 3553(a)(6) of sentencing

parity among defendants engaged in similar conduct with similar records is fully achieved.

CONCLUSION

Based on the foregoing, Ms. Medina respectfully requests this Honorable Court adopt the

plea agreement and sentence her to a term of fifteen (15) months imprisonment followed by two

(2) years of supervised release. Ms. Medina also asks for the opportunity to self-report in

approximately forty-five (45) days to the correctional facility so-designated for her by the

Bureau of Prisons, and that this Court make a judicial recommendation that she serve her

sentence at FCI Danbury so she may be as close to her family as possible during the term of her

sentence.

Date: January 10, 2018 Respectfully submitted,


EVELYN MEDINA
By and through her attorney,

/s/ R. Bradford Bailey


R. Bradford Bailey, BBO#549749
BRAD BAILEY LAW, P.C.
44 School St., Suite 1000
Boston, Massachusetts 02108
Tel.: (857) 991-1945
Fax: (857) 265-3184
brad@bradbaileylaw.com

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Certificate of Service

I, R. Bradford Bailey, hereby certify that on this, the 10th day of January, 2018, I caused
a true copy of the foregoing Defendant’s Memorandum in Aid of Sentencing to be served upon
all necessary parties by virtue of electronically filing the same via the court’s CM/ECF system.

/s/ R. Bradford Bailey


R. Bradford Bailey

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