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Case 1:09-cr-01239-PKC Document 318

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Crim. No. S3-09-cr-1239 (PKC)

DEFENDANTS MOTION FOR DOWNWARD DEPARTURE AND SENTENCING MEMORANDUM The Defendant, Anthony Arillotta (Arillotta), hereby requests that the Court depart downward pursuant to U.S.S.G. 5K1.1. Arillotta requests that the Court impose a sentence of 60 months imprisonment.1 As grounds therefor, Arillotta states that he has provided substantial

Section 5K1.1 states: Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines. (a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following: (1) the court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (3) the nature and extent of the defendant's assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; (5) the timeliness of the defendant's assistance.

U.S.S.G. 5K1.1 The government has moved for a departure for Arillotta based on his extraordinary assistance.

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assistance to the government at great risk to the safety of his family and himself. Arillotta submits the following memorandum in support of his motion. DISCUSSION Following United States v. Booker, 543 U.S. 220 (2005), the Sentencing Guidelines are no longer mandatory but, rather, advisory. Post-Booker sentences, therefore, should be crafted with the primary sentencing mandate of 18 U.S.C. 3553(a) in mind, which states that courts must impose the minimally-sufficient sentence to achieve the statutory purposes of punishment justice, deterrence, incapacitation, and rehabilitation. That is: The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [18 U.S.C. 3553(a)(2)]. 18 U.S.C. 3553(a)(emphasis added). In Gall v. United States, 552 U.S. 38 (2007), the Supreme Court outlined the procedures to be followed in the post-Booker sentencing regime. First, the sentencing court must correctly calculate the Guidelines to determine a starting point. Id. at 49. This includes consideration of departure grounds. Having calculated the guidelines sentencing range, the sentencing court must next consider the factors delineated in 18 U.S.C. 3553(a) in determining what sentence is sufficient, but not greater than necessary to accomplish the goals of sentencing. Those factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed; (3) the kinds of sentences of available; (4) any relevant policy statement issued by the Sentencing Commission; (5) the need to avoid unwarranted sentencing disparity; and (6) the need to provide restitution. 18 U.S.C. 3553(a); Gall, 552 U.S. at 50 n.6.

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A significant departure from the guidelines is warranted based on Arillottas degree of assistance. Arillotta made the decision to cooperate immediately after his arrest and before he reviewed any discovery materials in the case. At that point, Arillotta made a conscious decision to change his life, fully understanding the safety risks that such a decision carried. Despite known risks to his familys and his own safety, Arillotta provided extraordinary assistance to the government. The governments sentencing memorandum sets forth in detail the significance and usefulness of Arillottas assistance. In addition to information relating to the crimes for which he was originally charged, Arillotta provided information that resulted in charges against others, as well as charges against him, for crimes previously unsolved. This alone speaks volumes about Arillottas sincerity in changing his life and providing complete and truthful assistance to the government.2 Arillotta has been in a secluded Witness Security Unit of his institution with greater restrictions than the general population. He will remain in this unit until he is released. As a result, Arillotta has suffered a greater hardship than an inmate in the general population. A protected witness sentenced inmate, in terms of hardship of sentence, serves 3 days in equivalent for every 1 day of the general population prisoner. If a Prisoner-Witness serves (5) five years it is compared to a (15) fifteen year sentence of a prisoner in general population prison. Witness Security Program, Hearings before the Permanent Subcommittee on Investigations of the Committee on Governmental Affairs, United States Senate, 96th Congress, Second Session,

Arillotta has also taken multiple courses during his pretrial detention that further evidence his efforts to change his life. He has completed 24 hours of anger management training, 16 hours of effective communication training, 20 hours of victim impact training, 10 hours of recidivism training, 20 hours of small business training, and 12 hours of sales & retail management training. 3

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December 15-17, 1980. Arillotta requests that the Court consider his conditions of incarceration in determining an appropriate sentence. Placement in the Witness Security Program has drastically altered Arillottas relationship with his children. Because of the safety risks associated with this level of cooperation, Arillottas decision has been life-altering. Arillotta will be in the Federal Witness Security Program for the foreseeable future. Since his arrest, Arillotta has not seen his children, which is due in part to his divorce that occurred after his arrest. Both Arillotta and his former wife decided that any contact between Arillotta and his children might put them in danger. Arillotta has not even spoken to his children in the three years that he has been in the Witness Security Unit of his institution. Upon his release from prison, Arillotta will receive a new identity and be relocated. His children will not be entering the Witness Security Program with him. For their safety, Arillotta will likely have no contact with them for the foreseeable future. In what is the most significant consequence of his decision to cooperate, Arillotta may never have a meaningful place in the lives of his children. In short, Arillotta submits that, given the devastating impact upon his family, and the degree of assistance that he provided the government in this and other cases, a sentence of 60 months is appropriate under the circumstances. This type of sentence is consistent with sentences given in this and similar cases. CONCLUSION For the foregoing reasons, Arillotta requests that the Court impose a sentence of 60 months imprisonment.

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ANTHONY ARILLOTTA By his attorneys, /s/ Thomas J. Butters Thomas J. Butters (pro hac vice) BUTTERS BRAZILIAN LLP One Exeter Plaza Boston, Massachusetts 02116 Phone617-367-2600 Fax: 617-367-1363 Email:

/s/ Richard S. Berne Richard S. Berne SDNY Bar Code RB0816

March 5, 2014 CERTIFICATE OF SERVICE I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on this date.

/s/ Richard S. Berne Richard S. Berne