Case 3:10-cr-00227-EBB Document 991

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA

v.

RYAN MOORE

: : : : : : :

Case No. 3:10cr227 (EBB)

October 3, 2011

GOVERNMENTS MEMORANDUM IN AID OF SENTENCING The Court has scheduled sentencing in this matter for October 5, 2011. For the reasons set forth below, the Government respectfully submits that a sentence within the advisory guideline range of 46 to 57 months is necessary in light of the sentencing factors set forth at 18 U.S.C. 3553(a). I. BACKGROUND From about August 2010 through October 2010, the defendant, an admitted member of a violent street gang known as R2, purchased re-distribution quantities of crack cocaine from a drug trafficking organization led by Joseph Jackson. In particular, the defendant arranged these purchases by calling Jackson and Jayquis Brock, who were then the subjects of a long-term wiretap investigation. During this time period, the defendant purchased a weekly average of seven grams of crack cocaine, which he then sold to his crack customers. On November 10, 2010, the defendant was charged in a 20-count indictment with one count of conspiracy to possess with intent to distribute and to distribute cocaine base, in violation of 21 U.S.C. 846, 841(a)(1) and (b)(1)(C). On March 9, 2011, he pled guilty to that offense pursuant to a written plea agreement. The parties agreed that, under U.S.S.G. 2D1.1(c)(7), the defendant has a base

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offense level of 26 because the amount of cocaine base involved in his offense was at least 28 grams but not more than 112 grams. The parties also agreed that three levels should be subtracted, under U.S.S.G. 3E1.1, for acceptance of responsibility. The defendant reserved his right to qualify for safety valve relief, which would result in an additional two-level reduction. The parties agreed that the defendant is in Criminal History Category I. The parties agreed that, absent a safety valve reduction, the defendants guideline range is 46 to 57 months imprisonment. The Pre-Sentence Report (PSR) dated May 17, 2011, concluded that, absent a safety valve reduction, the defendants total offense level is 23. PSR 39. The PSR calculated that the defendant is in Criminal History Category I, resulting in an advisory sentencing range of 46 to 57 months imprisonment. PSR 76. II. FACTS The Government incorporates herein and refers to the facts set forth in the PSR at 126. III. DISCUSSION In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the United States Sentencing Guidelines, as written, violate the Sixth Amendment principles articulated in Blakely v. Washington, 542 U.S. 296 (2004). As a remedy, the Court severed and excised the statutory provision making the Guidelines mandatory, 18 U.S.C. 3553(b)(1), thus declaring the Guidelines effectively advisory. Booker, 542 U.S. at 245. Booker modified the existing sentencing scheme into a system in which the sentencing court, while required to consider the Guidelines, may impose a sentence within the statutory maximum penalty for the offense of 2

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conviction. Any sentence imposed by the district court is subject to appellate review for reasonableness. Id. at 261-262. After the Supreme Court's holding in Booker rendered the Sentencing Guidelines advisory rather than mandatory, a sentencing judge is required to: "(1) calculate[] the relevant Guidelines range, including any applicable departure under the Guidelines system; (2) consider[] the Guidelines range, along with the other 3553(a) factors; and (3) impose[] a reasonable sentence." See United States v. Fernandez, 443 F.3d 19, 26 (2d Cir.), cert. denied, 127 S. Ct. 192 (2006); United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005). The 3553(a) factors include: (1) the nature and circumstances of the offense and history and characteristics of the defendant; (2) the need for the sentence to serve various goals of the criminal justice system, including (a) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment, (b) to accomplish specific and general deterrence, (c) to protect the public from 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; (4) the sentencing range set forth in the guidelines; (5) policy statements issued by the Sentencing Commission; (6) the need to avoid unwarranted sentencing disparities; and (7) the need to provide restitution to victims. See 18 U.S.C. 3553(a). In United States v. Rattoballi, 452 F.3d 127 (2d Cir. 2006), the Second Circuit emphasized that Booker did not signal a return to wholly discretionary sentencing. Id. (citing United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005)). While district courts enjoy discretion following Booker, that discretion must be informed by the 3553(a) factors; a district court cannot import its own philosophy of sentencing if it is inconsistent with the 3553(a) 3

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factors. Id. (internal quotations omitted). More succinctly, Rattoballi impressed that the circuit courts review for reasonableness, though deferential, will not equate to a rubber stamp. Id. Recently, the Supreme Court held that: [A] district judge must give serious consideration to the extent of any departure from the Guidelines and must explain his conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications. For even though the Guidelines are advisory rather than mandatory, they are, as we pointed out in Rita [v. United States,127 S.Ct. 2456 (2007)], the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions. Gall v. United States, 128 S.Ct. 586, 594 (2007). The Rita Court noted that the Sentencing Commission has attempted to embody in the Guidelines the factors and considerations set forth in 3553(a) both in principle and practice. 127 S.Ct. at 2463. Calculating the applicable Guideline range is the starting point and the initial benchmark, but the district court must then consider all the sentencing factors in Section 3553(a) and make an individualized assessment based on the facts presented. Id. at 596-97. If the district court imposes an outside the Guidelines range sentence, it must consider the extent of the deviation and ensure that justification is sufficiently compelling to support the degree of the variance. Id. at 597. The district court must then adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. Id. The sentence imposed, whether a Guideline or non-Guideline sentence, is reviewed under an abuse of discretion standard. Id. In Gall, the Supreme Court held that a reviewing court must first satisfy itself that the sentencing court committed no significant procedural error. 128 U.S. at 597. If there is no procedural error, the appellate court may then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. Id. 4

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A.

The Defendants Eligibility for Safety Valve Relief Under U.S.S.G. 5C1.2

The defendant asserts that he is entitled to a two-level reduction under the safety valve provision set forth at 5C1.2. The Government respectfully disagrees. In order to qualify for the safety valve reduction, the defendant must prove, inter alia, that: (2) the defendant did not . . . possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; ... (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement U.S.S.G. 5C1.2. On January 18, 2011, the defendant engaged in a safety valve proffer with the Government. During that proffer, the defendant provided some truthful information about his drug activities and the conspiracy to which he pled guilty. However, the parties were not able to address all relevant aspects of the defendants offense, including the extent to which the defendant possessed any firearms in connection with his offense. In particular, the parties did not address a telephone call intercepted on August 23, 2010, during which the defendant acknowledged the fact that he possessed a firearm. He said, Niggas smuggled the pistol, my nigga. On the dead villain . . . niggas got to play it smart, my nigga. Second Addendum. The Government requested that the defendant meet again with the Government to continue his safety valve proffer and to provide complete information about the extent to which he possessed firearms in connection with his offense. The defendant refused. The Government respectfully 5

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submits that because the defendant refused to address relevant aspects of his involvement in this offense, he cannot demonstrate that (1) he did not possess a firearm in connection with his offense, see U.S.S.G. 5C1.2(a)(2), or (2) he has provided to the Government all information and evidence concerning his offense. See U.S.S.G. 5C1.2(a)(5). B. The Sentencing Factors

The Government respectfully submits that the nature and circumstances of the offense, the defendants history and characteristics, the need for specific and general deterrence and the need to protect the public weigh in favor of a sentence within the advisory guideline range. First, the defendants offense is quite serious. He was actively engaged in the business of drug dealing between at least August 2010 through October 2010. During that time period, the defendant was buying and selling significant quantities of crack cocaine. In particular, the defendant was buying approximately seven grams of cocaine base per week, which he then broke down and sold in 0.1-0.2 gram quantities. As this Court is well aware, the defendants repeated distribution of crack cocaine, a deadly and addictive toxin, is not a victimless offense. Many in our community suffer from addiction to crack cocaine. This addiction tears families and communities apart, while causing long-term suffering and even death to those individuals who are struggling with addiction. The defendant sought to profit from and participate in this societal ill by selling crack cocaine on the streets of New Haven. Second, the defendants history and characteristics are somewhat mixed. He is relatively young, and has never been convicted of a criminal offense. While his family has encountered financial difficulties in the past, it appears that his material needs have always been met and that his mother encouraged his education. Against this backdrop, it is very unfortunate that he 6

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elected to pursue criminal activities and disturbing criminal associations. In the Governments view, the most salient feature of the defendants history and characteristics is his affiliation with R2. As this Court is well aware, R2 is a violent street gang, operating in the Newhallville section of New Haven. R2 members have been involved in narcotics trafficking and numerous acts of violence, including homicides, shootings, robberies and burglaries. The defendants long-term membership in this criminal gang is troubling. Yet, when the defendant was released on bond following his federal arrest, he had an opportunity to demonstrate to the Court that he had withdrawn from the harmful activities and associations that contributed to his offense in the first place. He failed to do that. Instead, the defendant put himself in an extremely dangerous situation when, contrary to the conditions of his release, he was associating with a group of people on Lilac Street. The group was the target of a drive-by shooting, which resulted in the shooting of the defendants god-brother. The defendant did not cooperate with the officers investigating the shooting, and did not report this police contact to the probation officer as required by the conditions of his release. The Government respectfully submits that this episode highlights what his offense already made clear, i.e., that there is a need for the Courts sentence to deter the defendant from committing crimes in the future and to protect the public from him. The Court's sentence should also reflect the need to provide general deterrence. Drug dealing, particularly in Connecticut's cities, continues to undermine communities and breed violence. In particular, the illegal activities of street gangs like R2 present a real and insidious threat to the communities in which such gangs operate. The Government respectfully submits that a guideline sentence will send an appropriate signal to others, including the defendants associates, that the organized distribution of poisonous drugs will be met with strict penalties in 7

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federal court. IV. CONCLUSION For the above reasons, the Government submits that a sentence within the advisory guideline range of 46 to 57 months imprisonment, followed by three years of supervised release, is reasonable, in light of all the section 3553(a) factors, and is sufficient but not greater than necessary to meet the goals of sentencing. Respectfully submitted, DAVID B. FEIN UNITED STATES ATTORNEY /s/ CHRISTOPHER M. MATTEI ASSISTANT UNITED STATES ATTORNEY 450 MAIN STREET HARTFORD, CT 06103 FEDERAL BAR NO. CT27500 Christopher.Mattei@usdoj.gov

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CERTIFICATION I hereby certify that on October 3, 2011, a copy of the foregoing Memorandum in Aid of Sentencing was filed electronically and served by mail on 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 or 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/ CHRISTOPHER M. MATTEI ASSISTANT UNITED STATES ATTORNEY