Case 3:10-cr-00016-AVC Document 45 Filed 12/03/10 Page 1 of 9

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA : No. 3:10 CR 16 (AVF)

v. :

LUIS MELENDEZ : December 3, 2010

MEMORANDUM IN AID OF SENTENCING AND MOTION FOR

CONSIDERATION OF A NON-GUIDELINES SENTENCE

The defendant LUIS MELENDEZ, through counsel, hereby

submits his Memorandum In Aid Of Sentencing, now set for

December 14, 2010. Through this Memorandum, for the reasons

explained herein, the Defendant hereby requests that the Court

consider a non-guidelines sentence.

I. NATURE OF AND PARTICIPATION IN THE OFFENSES

On June 2, 2010 Mr. Melendez entered pleas of guilty to Once

Count of Access Device Fraud, in violation of Title 18, United

States Code, Sections 1029(a)(2) and one count of Aggravated

Identity Theft, in violation of Title 18, United States Code,

Section 1028(A)(a)(1).

The facts of this case are as follows: For a period of

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over a year before his arrest in July, 2009, Mr. Melendez had

obtained identity information and documents from Puerto Rico

of persons who had charge accounts with Walmart and Sam’s

Club. Mr. Melendez utilized this information when he went to

various Walmart and Sam’s Club facilities in the Northeast,

claimed he had lost his account card, and had a new Walmart or

Sam’s Club credit card issued in the name of the individual in

question, but bearing his photograph. Mr. Melendez then went

on to make purchases utilizing the credit balances of the card

he had just obtained.

II. PERSONAL CIRCUMSTANCES

Through the comprehensive personal history contained in

the Presentence Report and the report of the Psychological

Evaluation of the Defendant by Dr. Scott, the Court should

have an in depth picture of Luis Melendez.

As the Court may recall, when the Defendant first

appeared before Judge Smith to effectuate a change of plea,

the proceedings were terminated after Mr. Melendez responded

to Judge Smith’s inquiries by indicating he was depressed,

suffered from insomnia, and had periodic episodes of hearing

voices and suicidal ideations. After Mr. Melendez was led out

of the Courtroom, many of the Court personnel scoffed at his

statements and opined that Mr. Melendez was dishonest and a

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manipulator.

However, the above-mentioned reports verify and document

the real and substantial problems that Mr. Melendez suffers

from and the multitude of issues he has had to deal with

during his life, and give insight into his motivations and

involvement in the instant offense.

Luis had a tragic childhood. His father was physically

abusive to such an extent that his mother was forced to remove

the family from his presence. Dr. Scott opines that Luis

demonstrates indications of Post Traumatic Stress Disorder to

this date as a result of the beatings and other abuse. Luis’

social difficulties in associating with children his own age

propelled him to hang out with older men. This was the

inception of his gambling problem. While some of his

emotional and learning difficulties were recognized, he did

not receive substantial treatment at a young age, when the

problems could have best been addressed. By his teens, Luis

had dropped out of school, engaged in compulsive gambling, and

attempted suicide.

In his early adulthood, Luis’ depression continued, as

did his gambling and the resultant need for money. His prior

offenses involve the theft of wallets and credit cards. The

State Court systems he dealt with did not focus resources or

even attention to his problems. They merely gave him short

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periods of incarceration or virtually unsupervised probation.

In this offense, Luis got access to stolen identity

information and was able to go to Walmart or Sams Club to get

“substitute” credit cards in the name of the real customer.

He was photographed on each occasion. What he bought with the

false credit cards he sold and used most of the proceeds to

gamble. Indeed, the Presentence Report verifies that, during

the overall period of the offenses herein, the Defendant lost

well into the six figures at Foxwood Casino. The balance of

the proceeds were used by Luis to travel to visit with his two

children and provide a little support for them. He did not

spend the money on himself, and had nothing to show for all

his activities at the time of his arrest other than an old,

beaten up compact car that was worth less than the storage

fees it ran up in the police lot in New Jersey after Luis’

arrest. His other possessions had no monetary value.

III. SENTENCING RECOMMENDATION:

Application for a Non-Guidelines Sentence

In United States v. Booker and United States v. Fanfan,

125 S.Ct 738 (2005), the Supreme Court determined that the

Sentencing Guidelines are no longer mandatory, only advisory.

In United States v. Crosby, 397 F.3d 103 (2005) the Second

Circuit determined that this Court has the authority to impose

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a non-guidelines sentence.

We submit that the Court should impose a non-guidelines

sentence upon the Defendant as the guidelines sentencing range

(calculated to be 81-95 months) far exceeds a sentence which

is “sufficient but not greater than necessary” to comply with

18 U.S. C. 3553(a)(2).

18 U.S.C. 3553 provides in pertinent part:

(a) Factors to be considered in imposing a sentence –

The court shall impose a sentence sufficient, but not greater

than necessary, to comply with the purposes set forth in

paragraph (2) of this subsection. The court, in determining

the particular sentence to be imposed 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 –

(A) To reflect the seriousness of the offense, to

promote respect for the law, and to provide just punishment

for the offense;

(B) To afford adequate deterrence to criminal conduct;

(C) To protect the public from further crimes of 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;

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(3) The kinds of sentences available;

(4) The kinds of sentences and sentencing range

established…[in the Sentencing Guidelines];

(5) Any pertinent policy statement…issued by the

Sentencing Commission…;

(6) The need to avoid unwarranted sentence disparities

among Defendants with similar records who have been found

guilty of similar conduct; and

(7) The need to provide restitution to any victims of

the offense.

First and foremost, we submit that the Court should, at

the very least, consider a sentence that is 4 months below the

lower level of the Guidelines range. The normal guidelines for

access device frauds of similar types that the Defendant

committed would be 57 – 71 months. This includes enhancements

for the number of transactions and victims involved. However,

and additional 24 months is added to the Guidelines in this

case for the aggravated identity theft, yielding 81-95 month

Guidelines. We submit that the 24 month additional time

virtually double counts the enhancements utilized in

calculating the basic Guideline, so that, at the least, Mr.

Melendez should be sentenced at the bottom of the range.

In addition, the Court should note that Mr. Melendez was

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arrested in New Jersey for one of the underlying offenses in

July, 2009 and incarcerated there until he was transferred to

the custody of Federal authorities to be brought to

Connecticut in November, 2009. The Bureau of Prisons will not

credit those 4 months as time served, since he was not in

Federal custody. We request that the Court take this fact

into consideration and reduce his sentence a minimum of 4

months.

Second, in terms of punishment and rehabilitation, we

submit the following:

It is acknowledged that the defendant has numerous prior

convictions for “petty” theft types of crimes. In his

sentences from State Courts, he was provided no constructive

help. His probations did not afford him mental health

counseling nor any treatment for his gambling addiction. The

small amounts of incarceration given were unhelpful and non

productive. On an incremental basis, a moderate term of

incarceration “is sufficient but not greater than necessary”

in this matter, particularly when coupled with a period of

Supervised Release wherein the defendant can be required to

get the therapy and treatment he needs for rehabilitation and

his actions can be monitored by the Probation Department.

Third, in terms of general deterrence, we expect

that the Government will point out the large number of

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identities used by the Defendant, the large number of

transactions, and the large dollar loss to Walmart and Sam’s

Club. We would respond that the listed Guidelines range is

overly inflated by multiple enhancements to Mr. Melendez’s

base offense level, the (redundant) mandatory two year

additional consecutive term under Count two and a high

Criminal History unduly influenced by his prior petty

offenses. Thus, a sentence somewhat below the range will

still be substantial and will better reflect the true nature

of the offense that Luis committed.

Conclusion:

In conclusion, we request that the Court take into

account all of the circumstances before it in formulating a

fair and equitable sentence that will balance the nature of

the crime with the unique personal characteristics of the

defendant, and provide both the defendant, the defendant’s

children and the public at large with the best insurance that

Luis can obtain the treatment he needs and gain the stability

that will assist him in becoming a productive and law-abiding

citizen. We submit that a sentence with a moderate amount of

incarceration and a lengthy period of supervised release

thereafter, both the with requirements of counseling and

treatment, will optimize the goals of sentencing in this case.

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Respectfully Submitted
The Defendant, Luis Melendez

By:_________/s/________________
Elliot R. Warren
327 Riverside Avenue
Westport, CT 06880
Phone (203) 226-1716
Fed. Bar No. ct 07084
ewarrenlaw @aol.com
-His Attorney-

Certificate of Service

I hereby certify that on this date, a copy of the foregoing

was filed electronically and served by mail on any counsel unable
to accept electronic filing, and on the U.S. Probation Office.
Notice of this filing will be sent by e-mail to all parties by
operation of the Court’s 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 Court’s EM/ECF System.

Additional notice sent to:

Sandra Hunt
U.S. Probation Officer
157 Church Street
New Haven, CT 06510

_______/s/____________
Elliot R. Warren, Esq.