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MOORE Ryan Sentencing Memo

MOORE Ryan Sentencing Memo

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Case 3:10-cr-00227-EBB Document 990

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UNITED STATES DISTRICT COURT DISTRICT COURT OF CONNECTICUT UNITED STATES OF AMERICA, PLAINTIFF v. RYAN MOORE, DEFENDANT : : : : : : : CASE NO.: 3:10-CR-227 (EBB)

SEPTEMBER 30, 2011

DEFENDANT RYAN MOORE’S MEMORANDUM IN AID OF SENTENCING Through counsel, Ryan Moore, respectfully files this memorandum as an aid to the Court in sentencing in the United States District Court, New Haven, Connecticut before the Honorable Ellen Bree Burns, U.S.D.J. The Presentence Report calculates the United States Sentencing Guidelines range for Mr. Moore as 46-57 months, based on an Offense Level of 23 and a Criminal History Category of I. However, should Mr. Moore qualify for safety valve relief, his offense level would be a level 21, subjecting him to a Guidelines range of 37 to 46 months. The defendant respectfully submits this memorandum in aid of sentencing in support of his request for either a sentence below the guidelines or for a non-guideline sentence. The defendant submits that there are more than sufficient grounds to warrant a departure and/or the imposition of a non-guideline sentence such that a sentence is “sufficient, but not greater than necessary” to satisfy the key purposes of sentencing. Defendant submits that the imposition of Probation is sufficient, but not greater than necessary, to satisfy the sentencing goals set forth in 18 U.S.C. § 3553 (a). Part I of this memorandum discusses Mr. Moore’s background and the circumstances; Part II discusses the post-Booker sentencing scheme; Part III presents the argument the safety valve reduction applies in this case; Part IV argues that a non-guideline sentence should be 1

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imposed in this case pursuant to 18 U.S.C. §3553 (a); Part V proposes a reduced Offender Level under Spears v. United States, 129 S. Ct. 840 (2009); finally, Part VI discusses a sentencing proposal for the Court’s consideration. I. BACKGROUND AND FACTUAL CIRCUMSTANCES

On March 11, 2009, the defendant, Ryan Moore, pled guilty to Count Three of the Indictment charging Conspiracy to Possess with Intent to Distribute and to Distribute Cocaine Base in violation of 21 U.S.C. § 8461 and 21 U.S.C. § 841 (a) (1) and (b) (1) (C).2 The undersigned counsel has received and reviewed the defendant’s Presentence Report (PSR) dated April 20, 2011, prepared by United States Probation Officer Robert Bouffard. Mr. Moore’s

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21 U.S.C. § 846 provides: “Attempt and Conspiracy. Any person who attempts or conspires to commit any offense defined in this title shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”
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21 U.S.C. § 841 provides in relevant part: “(a) Unlawful acts. Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally -“(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . . . . *** “(b) Penalties. Except as otherwise provided in section 409, 418, 419, or 420 [21 USCS § 849, 859, 860, or 861], any person who violates subsection (a) of this section shall be sentenced as follows . . . *** “[(1) (C)] In the case of a controlled substance in schedule I or II, gamma hydroxybutyric acid (including when scheduled as an approved drug product for purposes of section 3(a) (1) (B) of the Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 1999 [21 USCS § 812 note]), or 1 gram of flunitrazepam, except as provided in subparagraphs (A), (B), and (D), such person shall be sentenced to a term of imprisonment of not more than 20 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not less than twenty years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18, United States Code, or $ 1,000,000 if the defendant is an individual or $ 5,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 30 years and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18, United States Code, or $ 2,000,000 if the defendant is an individual or $ 10,000,000 if the defendant is other than an individual, or both. Notwithstanding section 3583 of title 18, any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a term of supervised release of at least 3 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 6 years in addition to such term of imprisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under the provisions of this subparagraph which provide for a mandatory term of imprisonment if death or serious bodily injury results, nor shall a person so sentenced be eligible for parole during the term of such a sentence.

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background information as set forth in the “Offender Characteristics,” ¶¶ 43-72 of the PSR, fairly and accurately describe Mr. Moore’s history and shall be incorporated by reference herein. II. POST-BOOKER: THE LAW TO BE CONSIDERED IN IMPOSING A “REASONABLE” SENTENCE The decision in United States v. Booker, 125 S. Ct. 738, 750 (2005) declared the Federal Sentencing Guidelines unconstitutional to the extent they are mandatory. Instead of being bound by the Sentencing Guidelines, the Sentencing Reform Act, as revised by Booker, requires a tailor-made sentence:
[the federal sentencing statute] requires a sentencing court to consider Guidelines ranges, see 18 U.S.C.A. § 3553 (a) (4), but it permits the court to tailor the sentence in light of other statutory concerns as well, see § 3553 (a).

United States v. Booker, supra, 125 S. Ct. 757. The overriding concern in § 3553 (a)3 is for sentencing courts to impose a sentence sufficient, but not greater than necessary in appreciating the goals of sentencing. The directives of Booker and § 3553 (a) make clear that courts may no longer uncritically apply the guidelines. The Supreme Court articulated in Rita v. United States, 551 U.S. 338,
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18 U.S.C. 3553 (a) provides in relevant part: “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; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for-(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . . (5) any pertinent policy statement-(A) issued by the Sentencing Commission pursuant to section 994 (a) (2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28) . . . (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct . . . .

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rehearing denied, 551 U.S. 1181 (2007) and again in Gall v. United States, 552 U.S. 38 (2007), that in sentencing, there is no presumption that the Guidelines must apply:
The sentencing judge, as a matter of process, will normally begin by considering the presentence report and its interpretation of the Guidelines. 18 U.S.C. § 3552 (a); Fed. R. Crim. Proc. 32. [She] may hear arguments by prosecution or defense that the Guidelines sentence should not apply, perhaps because (as the Guidelines themselves foresee) the case at hand falls outside the “heartland” to which the Commission intends individual Guidelines to apply, USSG § 5K2.0, perhaps because the Guidelines sentence itself fails properly to reflect § 3553(a) considerations, or perhaps because the case warrants a different sentence regardless. See Rule 32(f). Thus, the sentencing court subjects the defendant’s sentence to the thorough adversarial testing contemplated by federal sentencing procedure. See Rules 32 (f), (h), (i) (C) and (i) (D); see also Burns v. United States, 501 U.S. 129, 136, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991) (recognizing importance of notice and meaningful opportunity to be heard at sentencing). In determining the merits of these arguments, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply. Booker, 543 U.S., at 259-260.

Rita v. United States, supra, 551 U.S. 351. In Gall v. United States, supra, 552 U.S. 49, the Supreme Court further explained its decisions in Booker and Rita: “[T]he Guidelines should be the starting point and the initial benchmark. The Guidelines are not the only consideration, however.” The Second Circuit had previously issued similar instructions in its decision in United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005), cert. denied, 549 U.S. 915 (2006) :
First, the Guidelines are no longer mandatory. Second, the sentencing judge must consider the Guidelines and all of the other factors listed in section 3553 (a). Third, consideration of the Guidelines will normally require determination of the applicable Guidelines range, or at least identification of the arguably applicable ranges, and consideration of applicable policy statements. Fourth, the sentencing judge should decide, after considering the Guidelines and all the other factors set forth in section 3553 (a), whether (i) to impose the sentence that would have been imposed under the Guidelines, i.e., a sentence within the applicable Guidelines range or within permissible departure authority, or (ii) to impose a non-Guidelines sentence. Fifth, the sentencing judge is entitled to find all the facts appropriate for determining either a Guidelines sentence or a non-Guidelines sentence.

In sum, in every case, as the Court is no doubt aware, a sentencing court is to consider all of the §3553 (a) factors, not just the Sentencing Guidelines, in determining a sentence that is sufficient but not greater than necessary to meet the goals of sentencing.

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III.

THE DEFENDANT IS ELIGIBLE FOR THE SAFETY VALVE REDUCTION PURSUANT TO U.S.S.G. §§ 5C1.2 and 2D1.1(b)(11). Counsel for the defendant submits that he has satisfied the five requirements of U.S.S.G.

§ 5C1.2 whereby an additional two-level reduction would apply. requirements are as follows: (1) (2)

The five “safety valve”

(3) (4)

(5)

the defendant does not have more that 1 criminal history point, as determined under the sentencing Guidelines; the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; the offense did not result in death or serious bodily injury to any person; the defendant was not an organizer, leader, manager or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and 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.

It is submitted that the defendant meets the criteria as set forth above, and as such permits the Court to reduce his total offense level by an additional two levels pursuant to U.S.S.G. § 2D1.1(b)(11). Out of candor, Mr. Moore proffered once in the beginning of this matter but declined to proffer again. Nevertheless, the defendant believes this section still applies. IV. NON-GUIDELINE SENTENCE UNDER 18 U.S.C. 3553 (a) The Court may impose a non-guideline sentence if it determines that neither the guidelines nor the permissible departure authority permit the imposition of a sentence that accords with the goals and factors set forth in § 3553 (a). United States v. Booker, supra, 543 U.S. 259-60. Section 3553 (a) provides the overall framework within which a sentencing judge must determine the appropriate sentence for a defendant. While not all of the factors contained

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in the statue will apply in every case, many of them do here. In the present case, the court should consider the following factors because they are most directly relevant:
(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; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for-(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . . (5) any pertinent policy statement-(A) issued by the Sentencing Commission pursuant to section 994 (a) (2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28) . . . (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct . . . .

Thus, while a sentencing court must consider the applicable Guidelines sentence, there is no longer a presumption that such a sentence satisfies the objectives of § 3553 (a). Significantly, neither § 3553 (a) nor the majority opinion in Booker suggest that the sentencing court should give the Guidelines any greater consideration than any of the other factors contained in § 3553 (a). It bears repeating that § 3553 (a) provides that the Court “shall impose a sentence sufficient, but not greater than necessary” to achieve the goals of just punishment, specific and general deterrence, and to provide needed educational, vocational, medical care or other correctional treatment in the most effective manner. Each of these goals can be met in this case with a non-guideline sentence in this matter. Such a sentence would serve the goal of just punishment because it is a significant deprivation of liberty and it sufficiently punishes the

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defendant’s conduct in this case while providing him with the assistance he needs to become a productive and successful individual. A. 18 U.S.C. § 3553 (a) (1): Nature, Circumstances and History of the Defendant Mr. Moore was born in New Haven, CT on September 1, 1989. He is the only child born to Andre Moore and Audra Whittaby. PSR¶43. The defendant has a close relationship with his mother but no relationship to his father. Id. Mr. Moore’s father resides in New Haven and is unemployed. Id. The defendant, until his recent incarceration, has always resided with his mother. Id. The defendant was initially raised in a poor section of West Haven in low income housing. Id. The defendant’s mother and father ended their relationship when Mr. Moore was five (5). PSR¶45. The defendant’s mother always worked hard, leading a sweat of the brow existence to provide for her son as a nurse’s aide and lived in a poor section of New Haven in Fair Haven. PSR¶46- 47. Mr. Moore described the neighborhood as “not the best.” The defendant’s mother would remarry to Keith Moore with whom he would have a difficult relationship. PSR¶47. This relationship would last three (3) short years after which the family was forced to relocated due a lien being placed on the home due to Mr. Moore’s stepfather owning child support to another woman. PSR¶49. Mr. Moore was active in sports during high school, but due to poor grades was forced to abandon his pursuit of this game. PSR¶50. Regrettably, Mr. Moore has a substantial substance abuse history in his very young life. PSR¶56-58. He began using alcohol at age thirteen (13) and began using marijuana at the same age. PSR¶57. He reports literally smoking marijuana eight (8) to ten (10) times a day, which he uses to self medicate to relieve stress. Id. He has used cocaine and ecstasy as well. Id. Mr. Moore has attended family therapy, which he considered helpful and states that he benefitted from. From his drug use, poor grades, absent father figure, poor living environment, and the need

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for family counseling, we can conclude that Mr. Moore has been subject to a great degree of upheaval. B. 18 U.S.C. § 3553 (a) (2): Need For Sentence Imposed To Provide Just Punishment Section 3553 (a) (2) (A) requires judges to consider “the need for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” It is certainly appropriate that this Court properly weigh the seriousness of Mr. Moore’s offense as it deals with the distribution of crack, a drug typically associated with poor black males, of which he certainly is one, and the other attributes that he possesses and his experience, upbringing and background. As stated above, Mr. Moore reports a daily addiction to marijuana. Despite his low level involvement in the matter before the Court, Mr. Moore in no way minimizes the seriousness of this offense. He takes responsibility for his poor choices but believes he is a good person who is always willing to help others and likes to maintain consistent employment. PSR ¶61. In addition, Mr. Moore received a three (3) point reduction for his timely notification of his intent to enter a guilty plea and his acceptance of responsibility. Mr. Moore understands that he must be held accountable by the Court. It is not, however, necessary to sentence Mr. Moore to more than time served to effectuate just punishment. He has been incarcerated for a significant period of time in conjunction with this matter, has no criminal record, a supportive mother, has worked, is willing to work. It would seem that with rehabilitation, this is an individual that can and will be a productive member of society. He can accurately be described as a young man who simply fell into the wrong crowd. His lack of criminal record and employment history provide the support for this proposition. As for general deterrence, this Court’s sentence should be sufficient in order to send a

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message that involvement in illegal activity will carry consequences. No member of the public is likely to commit this crime based on the results of this case, especially after the number of convictions stemming from the overarching conspiracy related to this matter. Mr. Moore’s timely notification of his intent to enter a guilty plea and his acceptance of responsibility support the position that a sentence of time served is adequate to accomplish the necessary goal of general deterrence. As for specific deterrence, this experience has brought nothing but misery to Mr. Moore, as he has been taken from his job and family throughout the proceedings. Mr. Moore reports that However, Mr. Moore realizes that he must be punished for his violation of the law; a sentence of time served in this matter is a sufficient deterrent. He is a young man with no criminal background whatsoever. The many months that he has been in jail, a federal conviction and future federal supervision should be sufficient to deter him from future criminal conduct. While awaiting sentencing Mr. Moore has made some mistakes, for which he takes full responsibility. Unfortunately due to a misunderstanding Mr. Moore was not treated for his addiction, which is a shame. This is a problem that incarceration will not cure. Mr. Moore’s path should be paved by rehabilitation not by the warehousing of this defendant for the next several years. Furthermore, considering the need for the sentence imposed “to protect the public from further crimes of the defendant,” pursuant to § 3553 (a) (2) (C), Mr. Moore is unlikely to commit additional crimes once released from prison. Prior to this offense, he led a blameless life. It was this error and judgment and pressure of life “on the streets” that has brought him here. It is not truly possible to make the leap that a person with no criminal record is somehow likely to commit future crimes based on this one offense.

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While incarcerated Mr. Moore reportedly took the opportunity to reflect on the course of his life thus far. Mr. Moore realizes he needs to make changes. Over the past year Mr. Moore has began to make those necessary changes. With aid and care, he can no doubt continue to improve. C. A Sentence Of Time Served Considering the § 3553 (a) Factors is Reasonable and Sufficient. Considering all of the sentencing factors set forth in § 3553 (a) and the general purpose of sentencing, a sentence of time served is appropriate. It is obvious that he has the ability and intelligence, but he needs the rehabilitation, treatment, and counseling that the programs will provide. While not excusing his illegal conduct, Mr. Moore’s personal history and educational background have created a number of extreme obstacles for which he must overcome in order to be a productive member of society. He possesses the ability to continue to improve. Mr. Moore has pled guilty and recognizes he must be held accountable. In addition, he realizes he has made some mistakes during his pretrial release and, again, takes full responsibility. He is attempting to make the very best of this situation and the programs available to him. In view of the above, assuming Mr. Moore is given appropriate care, the Court should find that the risk that Mr. Moore will recidivate is not present on account of these factors and sentence Mr. Moore to time served.

V. In The Alternative, The U.S.S.G. 18:1 Ratio Between Powder Cocaine and Crack Cocaine Quantities Yields an Excessive Sentence In Light Of The Sentencing Factors Outlined in 18 U.S.C. § 3553 (a). “The crack/powder disparity originated in the Anti-Drug Abuse Act of 1986.”4 Kimbrough v. United States, 128 S. Ct. 558, 563 (2007). Furthermore, “[b]ased on additional

4 “Anti-Drug Abuse Act of 1986 . . . created a two-tiered scheme of five- and ten-year mandatory minimum sentences for drug manufacturing and distribution offenses. Congress apparently adopted the 100-to-1 ratio because it believed that crack, a relatively new drug in 1986, was significantly more dangerous than powder. Thus, the 1986 Act’s five-year mandatory minimum applies to any defendant accountable for 5 grams of crack or 500 grams of powder, and its ten-year mandatory minimum applies to any defendant accountable for 50 grams of crack or

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research and experience . . . the Commission . . . found the disparity inconsistent with the 1986 Act’s goal of punishing major drug traffickers more severely than low-level dealers, and furthermore observed that the differential fosters a lack of confidence in the criminal justice system because of a perception that it promotes an unwarranted divergence based on race.” Id. Moreover, “under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only.” Id., 564. Consequently, “[i]t would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence ‘greater than necessary’ to achieve § 3553 (a)’s purpose.” Id., 563. In Spears v. United States, supra, 129 S. Ct. 844, the Court clarified any question regarding the holding of Kimbrough and stated, “district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines.” In Spears, the United States Supreme Court upheld the District’s Court’s ability to recalculate the defendant’s offense level based on a 20:1 crack-to-powder ratio, resulting in a lower offense level. The Court further explained that the correct interpretation of Kimbrough is the one offered by the dissent in United States v. Spears, 533 F.3d 715, 719 (2008) (Colloton, J., dissenting) : “The Court thus established that even when a particular defendant in a crack cocaine case presents no special mitigating circumstances-no outstanding service to country or community, no unusually disadvantaged childhood, no overstated criminal history score, no post-offense rehabilitation-a sentencing court may nonetheless very downward from the advisory guideline range. The court may do this solely on its view that the 100-to-1 ratio embodied in the sentencing guidelines for the treatment of crack cocaine versus powder cocaine creates an unwarranted disparity within the meaning of § 3553 (a) and is at odds with § 3553 (a).” (Internal quotation marks omitted.)

5,000 grams of powder. In developing Guidelines sentences for cocaine offenses, the Sentencing Commission employed the statute’s weightdriven scheme, rather than its usual empirical approach based on past sentencing practices. The statute itself specifies only two quantities of each drug, but the Guidelines used the 100-to-1 ratio to set sentences for a full range of drug quantities.” Kimbrough v. United States, 128 S. Ct. 558, 563 (2007).

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Spears v. United States, supra, 129 S. Ct. 842. Although the Court does not does articulate a specific ratio that must be followed, it is clear a substantial decrease is permitted and perhaps necessary under § 3553(a). In order to avoid an excessive sentence in light of the sentencing factors outlined in 18 U.S.C. § 3553 (a), a ratio of 1:1 should be applied to Mr. Moore. Given the utter failure of the crack/cocaine disparity to accomplish the Commission’s intended goal of punishing major drug traffickers more severely than low-level dealers and the offensive nature of such a practice being perpetuated by the court system, even a 18:1 ratio is excessive. The defense proposes that a ratio of 1:1 is the only way to truly avoid an excessive sentence.5 The recalculation would result in a Base Offense Level of 13, calling for a range of 12 to 18 months. Assuming the Court will not sentence to Mr. Moore to time served, this would seem especially appropriate given Mr. Moore’s age and lack of criminal record.

5

The Honorable Janet C. Hall, U.S.D.J., applied a ratio of 1:1 in United States v. Williams, 3:08CR4 and United States v. Rawls, 3:08CR4 as did the Honorable Mark Kravitz, U.S.D.J. in U.S. v. Luis Serrano, 3:07CR289.

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VI.

CONCLUSION

Based upon the reasons set forth herein, the instant case is an appropriate case for a a sentence below the guidelines via a non-guideline sentence. Due to the history and characteristics of Mr. Moore and the unique facts and circumstances of his case, the appropriate sentence which will provide “just punishment” is no more than time served.

Respectfully submitted, THE DEFENDANT, RYAN MOORE _______________________________ By: /s/ Charles L. Kurmay Charles L. Kurmay, CT # 20180 1995 Main Street Stratford, CT 06615 Tel. (203) 380-1743 Fax (203) 380-0293 E-mail: ckurmay@snet.net

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 30, 2011 I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system and served by first class mail, postage prepaid, upon anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system and 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 CM/ECF system.

/s/ Charles L. Kurmay

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