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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA HARRISONBURG DIVISION UNITED STATES OF AMERICA v. PATRICK SCOTT SHEMORRY : : : : : : :

Case No. 3:09cr30

SENTENCING MEMORANDUM Comes now the defendant, Patrick Scott Shemorry (“Shemorry”) and respectfully requests that the Court impose a sentence of nine years, and in support thereof states the following. I. PROCEDURE Pursuant to a plea agreement, on September 22, 2009, the defendant, Patrick Shemorry (“Shemorry”) pleaded guilty to causing another person to travel in interstate commerce with intent to murder another, in violation of 18 U.S.C. § 1958. Pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, the written plea agreement stipulates a sentence of imprisonment between nine and ten years. Shemorry is scheduled to be sentenced on December 9, 2009. II. SENTENCING AUTHORITIES As this Court well knows, a district court should not determine the appropriate sentence by the mechanistic application of a given sentence to a given category of crime; rather, a sentencing court has the duty to ensure the sentence imposed is tailored to the individual before it: Punishment should fit the offender and not merely the crime. The belief no longer

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prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender. Williams v. New York, 337 U.S. 241, 247 (1949); see also United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)(citing Gall v. United States, 522 U.S. 38, 128 S.Ct.586, 597 (2007)(“When rendering a sentence, the district court ‘must make an individualized assessment based on the facts presented.’”). Indeed, with the watershed decision of United States v. Booker, 543 U.S. 220 (2005), the question of whether prison is necessary for a particular individual returns to a place of primacy in the sentencing decision. A court must impose the minimum term necessary to comply with the goals of sentencing, i.e., just punishment, deterrence, protection of the public and rehabilitation of the defendant, taking into consideration all factors set forth in 18 U.S.C. § 3553(a). 18 U.S.C. § 3553(a)(2). The Supreme Court recently directed that a “district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark. The Guidelines are not the only consideration, however.” Gall v. United States, 128 S.Ct. 586, 2007 WL 4292116, at *7 (Dec. 10, 2007). Although the Guidelines provide an initial benchmark, “the sentencing court may not presume that the Guidelines range is reasonable.” United States v. Pauley, 511 F.3d 468,473 (4th Cir. 2007)(citing Gall, 128 S.Ct. at 596). Further, while a court is required to give consideration to the Guidelines, “Booker ‘permits the court to tailor the sentence in light of other statutory concerns as well.’” Kimbrough v. United States, 128 S.Ct. 558, 2007 WL 4292040, at *10 (Dec. 10, 2007)(citing Gall, 2007 WL 4292116, and quoting United States v. Booker, 543 U.S. at 245-46).

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As set forth below, after considering the sentencing guidelines and the statutory sentencing factors, a sentence of nine years (108 months) is tailored to Shemorry’s particular circumstances and is sufficient but not greater than necessary to satisfy the purposes of sentencing. A. A sentence of nine years coupled with a period of federal supervision is a fair sentence that is sufficient, but not greater than necessary, to achieve legitimate goals of sentencing pursuant to 18 U.S.C. § 3553(a). 1. Nature and Circumstances of the Offense (18 U.S.C. § 3553(a)(1)) In approximately February, 2009, Shemorry and his wife, who had been living in Charlottesville, decided to take a vacation to New Orleans, Louisiana. In anticipation of the trip, Shemorry’s wife quit her job. Shemorry’s wife invited an acquaintance, Kirk Chauncey (“Chauncey”), from Richmond to join them, and the three then drove to New Orleans. Shortly after their arrival in New Orleans, while trying to obtain drugs, Shemorry’s wife met a man who introduced himself as Darius Hampton. Mr. Hampton’s real name, however, was Michael Terry (hereinafter referred to as “Terry”).1 Terry told the couple a sad story about how he came to New Orleans to get over the murder of his fiancee and her two children in Jacksonville, Florida. This story was also untrue. The couple and their acquaintances spent several days partying in New Orleans before the couple decided to move to New Orleans permanently. Shemorry and his wife felt sorry for and wanted to help Terry and invited him to return with them to Charlottesville. Chauncey warned the couple that Terry was not being honest with them. As a result, Shemorry’s wife became upset with Chauncey and decided that they did not have room in the car to return him to Richmond. He was then left homeless in New Orleans. He lived in a homeless shelter for Darius Hampton is apparently a cousin of Michael Terry’s whose identity Terry had assumed. 3
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a period of time until he could get a job and get on his feet in New Orleans. Terry conned and preyed upon the sympathies of Shemorry and his wife from the moment he met them and continued his fraud and deception of the Shemorrys and the rest of the Charlottesville community when he arrived in Charlottesville. While in Charlottesville prior to the breakup of Shemorry’s marriage, Terry was arrested for driving under the influence. He used his cousin’s identity and was convicted of the charge under his cousin’s name. Terry also used his cousin’s identity in numerous other situations while he was in Charlottesville. When this identity theft and fraud was discovered by law enforcement this fall, Terry was charged with over a dozen felony charges, including forgery and identity theft. These charges remain pending in Charlottesville General District and Circuit Courts at this time. Meanwhile, the couple and Terry returned to Charlottesville from New Orleans in late February/early March. Once back in Charlottesville, Shemorry quit his real estate agent job in anticipation of the move to New Orleans and tried to get the couple’s condominium ready to sell. The couple and Terry spent a lot of time partying and using excessive amounts of alcohol and other drugs during this time. Terry did not work at all during his stay in Charlottesville. He lived at the couple’s home and was supported by Shemorry and his wife. After a while, the couple’s relationship began to deteriorate. Ultimately, the couple decided to separate in April. Shemorry stayed in Charlottesville, while his wife left and went to New Orleans alone. Even after Shemorry’s wife left and returned to New Orleans, Terry stayed in Charlottesville with Shemorry. Shemorry was distraught over the deterioration and break up of his marriage and stated to Terry that he wished his wife would “just go away.” Terry first introduced the idea of killing his

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wife to Shemorry and told Shemorry on several occasions she was dangerous and evil. Terry also suggested to Shemorry that he get life insurance on his wife and offered to kill Shemorry’s wife for him. Shemorry rejected the idea of getting life insurance; however, he did eventually agree to the idea of killing his wife and provided Terry with money to travel to New Orleans for this purpose. Shemorry and Terry also talked about becoming involved in selling drugs, but this was a business venture that was separate from the agreement to kill Shemorry’s wife. Shemorry never sought out someone to kill his wife; rather, the con man who had come back from New Orleans with Shemorry and his wife volunteered his services. It is important to note that Terry did not go to the police immediately after he and Shemorry had a conversation about committing this serious offense. After Terry told Shemorry that he had killed Shemorry’s wife, Shemorry believed him for a short time and was shattered to know that he could have become involved in such a plot. Shemorry was arrested by the FBI in June and in a written statement he expressed remorse for his involvement in this terrible plan and expressed confusion as to how he became involved in this crime, stating “The events that lead up to my appalling decision are a blur to me. I can’t seem to put my finger on where I got so far off track.” He further expressed that for his wife and her family, there “are not enough sorries to atone for what I tried to commit.” Finally, he stated that knowing that his wife “is alive and well gives a great relief to me. I would rather be here writing this letter in hand cuffs not knowing my future than to live with her death on my [conscience].” When interviewed for his presentence report, Shemorry continued to express his remorse for his offense to the probation officer stating that he feels horrible about the hurt that he has caused to his wife and her family as well as to his own family and friends. He further stated that

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“To say I am sorry is an understatement. I cannot find words to express the sorrow I feel. I would rather be here in jail than to have her be dead.” Shemorry stated that his involvement in this offense was a complete mental lapse and he expressed an interest in participating in mental health counseling. 2. History and Characteristics of the Defendant (18 USC § 3553(a)(1)) Shemorry is 28 years old. He is the second of four children born to his parents and grew up with his parents and siblings in Tri Cities, Washington (Pasco, Richland, and Kenniwick). He had a normal childhood and enjoyed many outdoor activities with his family such as scouting, backpacking and camping. Shemorry graduated from Kamiakin High School in 2000. During high school, Shemorry was outgoing and volunteered at the Tri Cities Cancer Center. Within a year after graduating from high school, Shemorry enlisted in the United States Air Force and served in the Air Force until September, 2005. Among other places, Shemorry was stationed at Langley Air Force Base. While stationed at Langley, Patrick was honored as Volunteer of the Year in 2003 for his volunteer work at a local center for the mentally handicapped. It was during this time that Shemorry met his future wife, whom he married on November 12, 2004. The couple were married in Williamsburg, Virginia, and eventually relocated to Charlottesville. The couple was happily married until shortly before the instant offense. While in Charlottesville, Shemorry worked as a real estate agent for several years. He quit this employment earlier this year after he and his wife decided to relocate to New Orleans. Aside from two minor use of drug offenses in 2004, Shemorry has no criminal record. He has maintained regular employment and been a positive, contributing member of our

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community. Shemorry’s family is very supportive of him and will continue to support him as he serves his sentence and upon his release from incarceration back into the community. His family and friends all express shock that Shemorry could have become involved in such an offense and universally believe that such conduct is completely out of character for him. His father states that Shemorry was always the more “grown up” one of his kids who made the responsible choices and helped keep his siblings on the right path. His grandmother is in utter disbelief about Shemorry’s involvement in this offense because he has always been a person to help people and not be cruel. This sentiment of shock and disbelief is shared by Shemorry’s former co-workers and neighbors. A former co-worker described Shemorry as “personable, charming and witty” and she cannot make this crime “fit with the Patrick I knew.” The Hook, “The Husband, the Wife, and the Hitman...who wouldn’t,” September 24-30, 2009, p. 20. Another former neighbor stated that “the Patrick I know wouldn’t do anything like this.” Id., p. 23. Shemorry’s involvement in this crime is a complete aberration from the life he had lived up until this point. It is important to note that absent Terry’s influence in Shemorry’s life, it is unlikely that Shemorry would have committed this offense. This does not absolve Shemorry in any way for his responsibility for this offense, but it does explain how Shemorry became involved in a crime that is by all accounts completely out of character for him. 3. Deterrence (18 U.S.C. § 3553(a)(2)(B)) A sentence of nine years is sufficient to deter both Shemorry and the public from committing further crimes. Shemorry has only a minor criminal record and has never served any

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substantial sentence of incarceration in the past. Nine years is about a third of the length of life Shemorry has lived up to this point and is sufficient to deter him and others from future criminal activity. 4. Protection of the public from further crimes (18 U.S.C. 3553(a)(2)(C)) Shemorry's age2, his employment status3, his marital status4, and his past criminal record, among other things, all suggest that Shemorry is a low risk to re-offend. USSC, Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines, at 11-12 and Ex. 10 (2005). Since Shemorry is unlikely to re-offend, there is little need to protect society from further crimes by him by imposing more than nine years. The current annual cost of imprisonment in the Bureau of Prisons is $25,894.50 per inmate, which is eight times the cost of supervision, at $3,743.23 per inmate. http://www.uscourts.gov/newsroom/2009/costsOfImprisonment.cfm. In light of the slight need to protect the public from further crimes by Shemorry, it is appropriate to compare this financial cost of imprisonment to the questionable benefit of a ten-year versus a nine-year prison sentence. Both Shemorry and the public would be better served by imposing a period of supervised release after he completes a nine-year sentence. 5. Rehabilitation (18 U.S.C. § 3553(a)(2)(D))

Offenders between ages 26-30 have a recidivism rate of only 23.7%, as opposed to 35.5 % for offenders under age 21. Offenders with stable employment in the year prior to their instant offense are less likely to recidivate than those who are unemployed (32.4% versus 19.6%). Offenders who have never married are most likely to recidivate (32.3%). Those who have a legal marriage have a 13.8% recidivism rate and those who are divorced have a lower rate of recidivism (19.5%). Shemorry is currently still married. 8
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18 U.S.C. § 3553(D) requires the court to consider the need for the sentence to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. As the Presentence Investigation Report (“PSR”) documents, Shemorry has struggled with substance abuse, particularly alcohol abuse, in the past. PSR, p. 7. He has had only limited substance abuse treatment and has expressed a willingness to participate in treatment. In addition, Shemorry has never participated in mental health treatment and has expressed a desire to enter mental health counseling. PSR, p. 6. Clearly, review of the offense itself and the PSR suggests that Shemorry would be a good candidate for both substance abuse and mental health counseling. 6. Just Punishment (18 U.S.C. § 3553(a)(2)(A)) The present offense is a serious offense for which Shemorry needs to be punished. However, considering the circumstances surrounding his involvement in this offense as described above, a sentence of nine years is adequate to reflect the seriousness of his offense and justly punish him. A period of supervision following his incarceration will serve to allow him to have the appropriate guidance, discipline and structure that will help him rehabilitate himself and be a productive member of society B. Calculation and Consideration of the Sentencing Guidelines The presentence investigation report calculated the sentencing guidelines by determining that the base offense level found in U.S.S.G. § 2E1.4 was 32. Shemorry qualified for a three level reduction for acceptance of responsibility, and, accordingly, the total offense level was 29. Shemorry has a Criminal History Category of II. Based on a total offense level of 29 and a Criminal History Category of II, Shemorry’s

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sentencing guideline range is 97-121 months. This range is adjusted to 97-120 months to take the maximum statutory penalty into consideration. The Plea Agreement stipulates a sentence of between nine years (108 months) and ten years (120 months). A sentence of nine years, the low end of the agreed upon range, is the middle of the range that would otherwise be recommended by the guideline range and is sufficient punishment in this case. III. CONCLUSION A sentence of nine years (108 months) followed by a period supervised release is sufficient, but not greater than necessary, to accomplish the goals of sentencing embodied in 18 U.S.C. § 3553(a). Respectfully submitted, PATRICK SCOTT SHEMORRY By Counsel s/Andrea L. Harris VSB 37764 401 E. Market Street, Suite 106 Charlottesville, VA 22902 (434)220-3387 Andrea_Harris@fd.org Counsel for Defendant

CERTIFICATE

I hereby certify that on December 2, 2009, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: counsel of record; and I hereby certify that I have mailed by United States Postal Service the document to the following non-CM/ECF participants: none. S/Andrea L. Harris

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