Case 1:10-cr-00510-MSK Document 31 Filed 02/23/11 USDC Colorado Page 1 of 9 CASE NO. 10-cr-00510-MSK IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO UNITED STATES OF AMERICA, v. Plaintiff, DONALD CURTIS DENNEY, Defendant. REQUEST FOR VARIANCE IN GUIDELINE SENTENCE PURSUANT TO 18 U.S.C. 3553(a) Comes now the Defendant, Donald Curtis Denney, by and through his attorney, Edward A. Pluss, and submits the following request for variance in guideline sentence pursuant to 18 U.S.C. 3553(a) as follows: I. Introduction. The Defendant was charged in a two count indictment charging the Defendant in Count 1 with Possession of Heroin with Intent to Distribute in violation of 21 U.S.C. 841(a)(1) and (b)(1)(c), and in Count 2 with Attempt to Provide Prohibited Object to Inmate in violation of 18 U.S.C. 1791(a)(1). On December 13, 2010, the Defendant entered pleas of guilty to both Counts 1 and 2 of the Indictment.
Case 1:10-cr-00510-MSK Document 31 Filed 02/23/11 USDC Colorado Page 2 of 9 The Probation Department in the Presentence Report ( PSI ) has calculated the Defendant s guideline as an offense level 23 (26 less 3 for acceptance of responsibility) and a criminal history category of II which advises a guideline range of 51 to 63 months. The Probation Department has recommended a sentence of 50 months imprisonment on Count 1 and 7 months imprisonment on Count 2 to be served consecutively for a total of 57 months, the middle of the guideline range. The Defendant requests a variance from the Guidelines, and asks the Court to sentence him to a sentence of 41 months as being a sentence that is sufficient but not greater than necessary to accomplish the goals of sentencing set forth in 18 U.S.C. 3553(a)(2). II. Sentencing Considerations On January 12, 2005, the United States Supreme Court invalidated the mandatory application of the Untied States Sentencing Guidelines. United States v. Booker, 125 S. Ct. 738 (2005). In so doing, the Court reaffirmed the holding of Blakely v. Washington, 124 S. Ct. 1493 (2004), rendering unconstitutional a system of guidelines that permits or requires a judge to increase a defendant s sentence based upon a fact not found by a jury beyond a reasonable doubt. Under the current scheme, the Sentencing Guidelines are effectively advisory. Booker, 2
Case 1:10-cr-00510-MSK Document 31 Filed 02/23/11 USDC Colorado Page 3 of 9 125 S. Ct. at 757. In Gall v. United States and Kimbrough v. United States, the Supreme Court directs sentencing courts to treat the Guidelines as a recommendation. Gall, 552 U.S. 38, 46 (2007); Kimbrough, 552 U.S. 85, 90-91 (2007). In determining an appropriate sentence, the Court must engage in a three step process: 1. The Court must calculate a defendant s guideline sentence. United States v. Booker, 543 U.S. 220 (2005). 2. The Court must then consider whether there are grounds for departure from the sentencing guidelines. 3. Lastly, the Court must exercise it s discretion by considering the relevant factors as provided in 18 U.S.C. 3553(a). In determining the particular sentence to be imposed under 18 U.S.C. 3553(a), the Court shall consider: 1. The nature and circumstances of the offense and the history and characteristics of the defendant; 2. The need for the sentence imposed to: (a) reflect the seriousness of the offense, promote respect for the law and provide just punishment of the offense; (b) to afford adequate deterrence to criminal conduct; (c) to protect the 3
Case 1:10-cr-00510-MSK Document 31 Filed 02/23/11 USDC Colorado Page 4 of 9 public from further crimes of the defendant; and (d) to provide the defendant with needed education and vocational training, medical care or other correctional treatment in the most effective manner; 3. The kinds of sentences available; 4. The sentencing range established for the applicable category of offense committed by the defendant; 5. Any pertinent policy statements issued by the Sentencing Commission in affect on the date the defendant is sentenced; 6. The need to avoid unwarranted sentencing disparities among defendants with similar records having been found guilty of similar conduct; and 7. The need to provide restitution to any victims of the offense. The court then must consider the over arching instruction contained in 18 U.S.C. 3553(a) (the parsimony clause ) that the court impose a sentence sufficient but not greater than necessary to accomplish the stated sentencing goals. In determining the sentence, the court may not assume the recommendation of the Guidelines is the correct sentence, but must make an individualized assessment based on the facts presented. Rita v. United States, 551 U.S. 338 at 347-48. After considering the factors in 18 U.S.C. 3553(a), there is no longer a 4
Case 1:10-cr-00510-MSK Document 31 Filed 02/23/11 USDC Colorado Page 5 of 9 limit... on the variances from the Guideline ranges that a District Court may find justified under the sentencing factors of 3553(a). Irizarry v. United States, 128 S. Ct. 2198, 2203. III. Argument A. Nature and Circumstances of the Offense and History and Characteristics of the Defendant. The Defendant believes in looking at the nature and circumstances of the offense and his offense coupled with his history and characteristics, there are a number of mitigating factors relevant to sentencing. Mr. Denney is 56 years old. Mr. Denney has spent most of his adult life addicted to methamphetamine. While he has some criminal history, most of it 1 occurred sometime ago. Most of Mr. Denney s convictions relate to his addiction, and involved either minor domestic violence misdemeanor convictions or possession of controlled substance convictions. His longest previous jail sentence was 180 days 15 years ago. Mr. Denney has maintained employment, except when injuries caused by work prevented him employment. 1 As noted in paragraph 39 of the PSI the Defendant suffered a conviction which he was sentenced to 60 days and 3 years probation which he successfully discharged. The circumstances of that case are shown by the Defendant s Additions and Correction to the PreSentence Report filed contemporaneously with this Motion. 5
Case 1:10-cr-00510-MSK Document 31 Filed 02/23/11 USDC Colorado Page 6 of 9 More importantly was Mr. Denney s motivation for committing this crime. He is the father of 2 twin six year old daughters. His wife left him with the two girls in 2009 and hasn t been heard from since. (See Par. 60 of the PSI). Because of injury while working in the San Diego shipyards working for General Dynamics/NASSCO Corporation he has been unemployed since 2009. During the 4 years he worked for General Dynamics/NASSCO Corporation he was drug free. However, because of his injuries he was proscribed narcotic painkillers for a year. When the doctors would no longer proscribe the medications he relapsed into methamphetamine use. He decision to commit this crime was made when he was under the influence of methamphetamine and was done to get money to help get his children out of the apartment complex they had been living in. While his choices cannot be lauded, his situation deserves compassion and empathy. More importantly, Mr. Denney is truly remorseful for his actions and his decisions. He has recognized that his addiction has to be addressed and he has begun to do so. He has attended and joined all therapeutic programs offered at the Jefferson County Jail and he is very much wanting to go through the Residential Drug and Alcohol Program ( RDAP ) in the Federal Bureau of Prisons. 6
Case 1:10-cr-00510-MSK Document 31 Filed 02/23/11 USDC Colorado Page 7 of 9 Lastly, Mr. Denney also appreciates the bad situation he put his daughters in by having them travel with him to Colorado for California to commit this offense. There is nothing he can say but he is sorry. B. To Reflect the Seriousness of the Offense, Promote Respect for the Law, Provide Just Punishment, Adequate Deterrence and To Protect the Public From Further Crimes of the Defendant. A 41 month sentence is a lengthy enough sentence to accomplish these goals. The Defendant under this sentence would be incarcerated for three and a half years. That is a heavy enough price to pay for his actions. That is even more heavy for a person who is 56 years old and would be almost 60 years old when returned to society. At that point he will be starting over. There is nothing to suggest that a lengthier sentence would better accomplish these goals in this situation. C. The Need to Provide the Defendant With Needed Correctional Treatment in the Most Effective Manner. The Defendant is desirous of taking advantage of the RDAP program while in the Bureau of Prisons. Mr. Denney should be a prime candidate for the RDAP program. A 41 month sentence is a lengthy enough sentence for him to complete the RDAP program prior to his release. Again, a lengthier sentence is not necessary to accomplish this goal 7
Case 1:10-cr-00510-MSK Document 31 Filed 02/23/11 USDC Colorado Page 8 of 9 III. Conclusion. For all the above reasons, Mr. Denney asks for a 41 month sentence. Respectfully submitted, RAYMOND P. MOORE Federal Public Defender s/ Edward A. Pluss Edward A. Pluss Assistant Federal Public Defender th 633 17 Street, Suite 1000 Denver, CO 80202 Telephone: (303) 294-7002 FAX: (303) 294-1192 Edward_Pluss@fd.org Attorney for Defendant 8
Case 1:10-cr-00510-MSK Document 31 Filed 02/23/11 USDC Colorado Page 9 of 9 CERTIFICATE OF SERVICE I hereby certify that on February 23, 2011, I electronically filed the foregoing REQUEST FOR VARIANCE IN GUIDELINE SENTENCE PURSUANT TO 18 U.S.C. 3553(a) with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Richard Hosley, AUSA email: Richard.Hosley@usdoj.gov and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant in the manner (mail, hand-delivery, etc.) indicated by the non-participant s name: Douglas Randolph, USPO (via Email) email: Doug.Randolph@cod.uscourts.gov Donald Denney (via Mail) s/ Edward A. Pluss Edward A. Pluss Assistant Federal Public Defender th 633 17 Street, Suite 1000 Denver, CO 80202 Phone: (303) 294-7002 FAX:(303) 294-1192 Edward_Pluss@fd.org Attorney for Defendant 9