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PageID #: 161
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION
UNITED STATES OF AMERICA, Plaintiff, v. FRANK M. PIGNATELLI, Defendant.
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CASE NO. 5:09CR374 JUDGE DONALD C. NUGENT
GOVERNMENT’S SENTENCING MEMORANDUM
Now comes the United States of America, by and through counsel, Steven M. Dettelbach, United States Attorney, and Robert E. Bulford, Assistant United States Attorney, and respectfully files this Sentencing Memorandum to assist the court on the sentencing of the defendant.
Respectfully submitted, STEVEN M. DETTELBACH United States Attorney By: s/Robert E. Bulford Robert E. Bulford Assistant U.S. Attorney Reg. No. 0014679 801 West Superior Avenue, Suite 400 Cleveland, Ohio 44113 (216) 622-3774 Fax: (216) 522-7499 Robert.Bulford@usdoj.gov
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MEMORANDUM Frank M. Pignatelli pleaded guilty to a one count information charging him with conspiracy to launder monetary instruments. Pursuant to the plea agreement, as read in Court at the plea hearing, on September 25, 2009, the Government and defendant agree and stipulated that the applicable advisory Sentencing Guideline provisions are §§ 2S1.1(a)(2), 2B1.2(1)(h), and 2S1.1(b)(2)(B). The final advisory sentencing offense level is 22. The government agrees that the defendant is entitled to a three level reduction in his offense level for Acceptance of Responsibility pursuant to U.S.S.G. §§ 3E1.1(a) and (b). With that reduction the defendant’s advisory Sentencing Guideline offense level is 19. The calculations in the Presentence Report agree with these stipulations. The Government has agreed to move the Court for a reduction in the offense level five levels for Substantial Assistance, pursuant to U.S.S.G. § 5K 1.1, provided by Mr. Pignatelli in regards to the investigation and prosecution of others. The government has provided the Court with a description of that cooperation. Should the Court agree and credit the defendant with a five level reduction, the final offense level will be fourteen (14) . The sentencing range here is 15-21 months. It is the government’s position that the defendant should receive a sentence within that advisory sentencing Guideline Range. 18 U.S.C. § 3553(a) provides; (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
Case: 5:09-cr-00374-DCN Doc #: 23 Filed: 12/15/09 3 of 5. PageID #: 163
training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentences 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 issued by the Sentencing Commission pursuant to section 994(1) of Title 28, United States Code, and that are in effect on the date the defendant is sentenced; or (B) --------(5) any pertinent policy statement issued by the Sentencing Commission pursuant To 28, United States Code, 994(a)(2) that is in effect on the date the defendant is sentenced; (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. The nature and circumstances of the offense, Conspiracy to Launder Monetary Instruments, here involves the defendant, an attorney, explaining to members of an ongoing drug trafficking conspiracy a method by which they could take drug trafficking proceeds and funnel them through an antique and artifacts business. He gave suggestions on how they could “clean” the proceeds of an unlawful activity. Advice that would help them take proceeds of drug trafficking and make them appear to be from legitimate business activity. The defendant is well educated and was at the time of the offense a practicing attorney. A great portion of his law practice was criminal defense work. A criminal defense lawyer is tasked to zealously defend his clients against criminal charges. He is to work to ensure that all of his client’s rights are protected. Defense attorney’s must preform that function to guard the integrity of the criminal justice system. When an attorney advises a person about how to commit a crime and or how to commit it in such a way as to better avoid detection by law enforcement, that attorney steps out of the role of an attorney and into a criminal mix as a conspirator. That action perverts the criminal justice system and threatens its foundation.
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The government here asserts that in order to promote respect for the law, it is necessary to sentence the defendant to a period of incarceration within the guideline range. Such a punishment will also provide a deterring message to others who would consider entering into the same quagmire as the defendant. The properly calculated Sentencing Guidelines are the starting point and initial benchmark at all sentencing proceedings Gall v. United States, 552 U.S. 38, 128 S.CT. 586 (2007). The Court should begin all sentencing hearings by correctly calculating the applicable Guidelines range. (Id. 49-50). The Guidelines are not all that is to be considered. After considering the arguments of both parties, the Court must consider all of the § 3553(a) factors to determine the sentence to impose. The Court must make an “individualized assessment based on the facts presented.” (Id.). If the Court determines an outside of the Guidelines sentence is warranted the decision must be justified in the context of the § 3553(a) factors. A major departure requires more significant justification. In the process of determining the appropriate sentence no one § 3553(a) factor is inherently more important than any other such factor. United States v. Phinazee 515 F. 3d 511 (6th Cir. 2008). In this matter the government recognizes that the defendant is not likely to commit this crime again. The focus of the government’s position is the nature and circumstances of the offense combined with the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to afford adequate deterrence to criminal conduct.
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For those reasons the defendant should be sentenced within the Guideline range provided in the plea agreement and discussed in Court at the plea hearing. Respectfully submitted, STEVEN M. DETTELBACH United States Attorney
s/Robert E. Bulford Robert E. Bulford Assistant U.S. Attorney Reg. No. 0014679 400 United States Court House 801 West Superior Avenue Cleveland, Ohio 44113 (216) 622-3774 Fax: (216) 522-7499 Robert.Bulford@usdoj.gov
CERTIFICATE OF SERVICE I hereby certify that on this 15th day of December, 2009, a copy of the foregoing Government’s Sentencing Memorandum was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular U.S. mail. Parties may access this filing through the Court’s system.
s/Robert E. Bulford Robert E. Bulford Assistant U.S. Attorney
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