UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF ILLINOISWESTERN DIVISIONUNITED STATES OF AMERICA))v.)No. 12 CR 50027)Judge Philip G. ReinhardRITA A. CRUNDWELL )
UNITED STATES’ MOTION FOR UPWARD VARIANCE
The UNITED STATES OF AMERICA, by GARY S. SHAPIRO, United States Attorney for the Northern District of Illinois, respectfully submits the following motionfor upward variance:
I. DISCUSSION
In
United States v. Booker,
125 S.Ct. 738, 767 (2005), the Supreme Court heldthat the Sentencing Guidelines are advisory.
United States v. Alburay,
415 F.3d 782,785 (7th Cir. 2005).
Booker
further held that appellate courts must now reviewsentences for reasonableness.
United States v. Rodriguez-Alvarez
, 425 F.3d 1041, 1045(7th Cir. 2005) (
citing
Booker,
125 S.Ct. at 765-66).“Pursuant to
Booker
, the reasonableness of a sentence is guided by the factorsset forth in 18 U.S.C. § 3553(a).”
Alburay,
415 F.3d at 786. These factors include: (1)the nature and circumstances of the offense; (2) the history and characteristics of thedefendant; (3) the seriousness of the offense; (4) the sentence necessary to promoterespect for the law; (5) the sentence necessary to provide just punishment for theoffense; (6) the sentence that would provide adequate deterrence; (7) the sentenceneeded to provide defendant with needed educational training, medical care, etc.; (8)
Case: 3:12-cr-50027 Document #: 52 Filed: 01/31/13 Page 1 of 16 PageID #:324
the need to avoid unwarranted sentencing disparities among defendants with similarrecords who’ve been found guilty of the same offense(s); and (9) the sentencingguidelines range.
Rodriguez-Alvarez,
425 F.3d at 1045.“Although ‘[t]he concept of departures has been rendered obsolete in post-
Booker
sentencing,’‘the district court may apply those departure guidelines by way of analogy’when analyzing the factors in 18 U.S.C. § 3553(a).” ”
United States v. Lucas,
670 F.3d784, 791 (7th Cir. 2012) (
quoting
United States v. Miranda,
505 F.3d 785, 792 (7th Cir.2007))
; United States v. Guyton
, 636 F.3d 316, 320 n. 2 (7th Cir. 2011);
United Statesv. Rice,
520 F.3d 811, 821 (7th Cir. 2008)). The Seventh Circuit “‘will uphold an above-guidelines sentence so long as the district court offered an adequate statement of itsreasons, consistent with 18 U.S.C. § 3553(a), for imposing such a sentence.”
UnitedStates v. McIntyre
, 531 F.3d 481, 484 (7th Cir. 2008).
But see
United States v. Jackson,
547 F.3d 786, 792-93 (7th Cir. 2008)(stating: “An above-guidelines sentence is morelikely to be reasonable if it is based on factors ‘sufficiently particularized to theindividual circumstances of the case’ rather than factors ‘common to offenders with likecrimes.’
Wachowiak,
496 F.3d at 750”). The district court’s duty is to properlycalculate the guidelines range and then come up with a reasonable sentence under §3553(a).
Id.
(
citing United States v. Munoz
, 610 F.3d 989, 994 (7th Cir. 2010)).If a district court decides that an outside the Guidelines sentence is warranted,it must consider the extent of the deviation and ensure that the justification issufficiently compelling to support the degree of the variance.
Gall v. United States
, 552
2
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U.S. 38, 50 (2007). A sentence above the range is more likely to be reasonable if it isbased on factors sufficiently particularized to the individual circumstances of the caserather than factors common to offenders with like crimes.
United States v. Aljabari
,626 F.3d 940, 952 (7th Cir. 2010).In the plea agreement, defendant pleaded guilty to wire fraud as charged in theindictment and stipulated to committing money laundering in violation of 18 U.S.C.§ 1956(a)(1)(B)(i). R. 45, ¶¶ 6-7. The PSR has calculated defendant’s offense level for
1
the wire fraud conviction as 35. PSR at 33. This calculation includes a base offenselevel of 7 provided by Guideline § 2B1.1(a) and enhancements as follows: 24 levelspursuant to Guideline § 2B1.1(b)(1)(M) because the loss as a result of the offense wasmore than $50,000,000, 2 levels pursuant to Guideline § 2B1.1(b)(10)(C) because theoffense involved sophisticated means, and 2 levels pursuant to Guideline § 3B1.3because defendant abused a position of public trust. PSR at 27-31. The PSR hascalculated the offense level for the stipulate offense of money laundering offense as 37.PSR at 40. This calculation includes a base offense level of 35 pursuant to Guideline§ 2S1.1(a)(1) and a 2 level increase pursuant to Guideline § 2S1.1(b)(2)(B) because thestipulated offense constitutes a violation of 18 U.S.C. § 1956. PSR at 34-35. Pursuantto Guidelines §§ 3D1.2(c) and 3D1.3(a), the offense of conviction and the stipulatedoffense are grouped together resulting in a total offense level of 37. PSR at 26, 41. The
All citations to the record are denoted "R" and followed by the applicable
1
document number. All citations to the Pre-Sentence Investigation Report are denoted "PSR" andfollowed by the applicable paragraph number.3
Case: 3:12-cr-50027 Document #: 52 Filed: 01/31/13 Page 3 of 16 PageID #:326
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Prosecution Motion
Federal prosecutors' motion for an upward variance in the sentencing of former Dixon Comptroller Rita Crundwell.
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