Case 3:12-cr-00171-EBB Document 100 Filed 10/16/14 Page 1 of 8

UNITED STATES DISTRICT COURT

FOR THE
DISTRICT OF CONNECTICUT

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UNITED STATES OF AMERICA,
Plaintiff

CRIMINAL MATTER
NO. 3:12-CR-00141-EEB

Vs.

DAVID J. CRESPO,
Defendant

OCTOBER 16, 2014

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DEFENDANT DAVID J. CRESPOS
MEMORANDUM IN AID OF SENTENCING

Defendant David J. Crespo, in the above captioned criminal matter, through counsel, respectfully
provides to the Court his Memorandum in Aid of Sentencing in this case. His sentencing is scheduled for
September 16, 2014.
This Memorandum is to be considered by the Court along with the Presentence Report prepared
by the United States Probation Office (filed June 5, 2014 2014), any comments or objections or both
made previously by the Defendant to the Presentence Report, and any and all other arguments and
submissions that may be made by the Defendant at the sentencing hearing in this case.
Mr. Crespo submits this Memorandum with confidence that this Court will consider all factors
which lead to a sufficient, but not greater than necessary, sentence to comply with the statutory directive
set forth in 18 U.S.C. 3553(a).
At sentencing, Mr. Crespo will ask this Court to enter judgment as follows:

A non-custodial sentence;

A 5 year term of supervised release;

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If the Court were to impose a term of imprisonment, then a recommendation that the
Bureau of Prisons (BOP) assign Mr. Crespo to a Federal Correctional Institution near
Madison, Connecticut, where Mr. Crespo has family;

The Court to waive any fines (except the mandatory $100. 00 Special Assessment) due
to his being indigent and based on his statement of net worth as provided to the Probation
Office.

Such a sentence is warranted based on the following factors: the Sentencing Guidelines for fraud
are not based on historical data, have been inflated due to political influence, and do not further the goals
of sentencing; empirical data show that, given Mr. Crespos personal characteristics, an extended term of
incarceration is unlikely to have any significant additional deterrent effect; and, finally, given his personal
circumstances, a sentence other than incarceration is warranted.
I.

INTRODUCTION
Defendant David Crespo (David) is 58 years old. The current offense is his only conviction in

his lifetime. He has otherwise lived his life as a successful businessman, devoted family man, and a
contributing member of the communities in which he has lived. Since 1990 [?], David has devoted his
time being an art dealer in Madison, CT, doing business as The Brandon Gallery. He has pursued his
interest in art, and has sold fine art for many years.
David pleaded guilty to only one count of wire fraud (Count 12 of the Indictment). During his
plea colloquy, David acknowledged through counsel that he admitted to making a false statement.
For this offense, David and the Government agree that Sentencing Guideline 2B1.1 governs.
Under 2B1.1, a base offense level of 7 applies. An offense level of 7 with zero criminal history points
and a result Criminal History Category of I yields a guidelines range of 4 to 10 months imprisonment.
(check). U.S.S.G. Sentencing Table (Nov. 1, 20__). From here, however, David and the Government do
not agree any further.

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In addition to the 7 levels, 2B1.1 mandates additional Specific Offense Characteristic

enhancements including an enhancement ranging from 2 to 30 levels depending on the amount of loss
involved in the offense and an enhancement of 2 to 6 levels depending on the number of victims involved
in the offense. U.S.S.G. 2B1.1(b)(1) & (2). What conduct may be deemed to be a part of the offense,
therefore will largely be determined by applicable guidelines ranges and is indeed the very core issue that
must be addressed at sentencing. David has accepted responsibility for the offense of conviction the sale
of the artwork to the undercover agent.
The defense believes, and intends to show, that a frank consideration of the deficiencies and
failures of the fraud Guidelines, an analysis of Davids likely risk of recidivism, and a review of his
personal circumstances all serve to establish that a non-Guidelines sentence, one that does not include
incarceration, is a better option. One that is sufficient, but not greater than necessary, to serve the goals of
sentencing.
II.

The fraud Guidelines do not accurately reflect the goals of sentencing, imposing
unnecessarily long prison terms without attendant deterrent benefit.
The Sentencing Guidelines (hereinafter the Guidelines) sought to develop a system of

sentencing that reflected an empirical approach that used as a starting point data estimating preguidelines sentencing practice. U.S.S.G. A.1.3 (2013). To this end, the initial Guidelines used data
from 10,000 presentence investigations, the differing elements of various crimes . . . the United States
Parole Commissions guidelines and statistics, and data from other relevant sources. Id.
Despite this empirical, data-driven approach to construction of the initial Guidelines, not every
set of offenses was treated with equal care. With respect to certain economic offenses, including fraud,
the Guidelines explicitly deviated from the traditional practice of imposing probation, rather than
incarceration. U.S.S.G. A.4(d) (1987). The only explanation given was the Commissions view that
courts were imposing probation rather than incarceration at an inappropriately high percentage . . . . Id.

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Rather than basing the fraud Guidelines on empirical data, the Commission deviated from its own stated
goals for the Guidelines.
The result of this deviation was a sentencing framework for economic crimes that departed from
long-standing judicial practice, and ignored empirical data. This result has only been exacerbated by the
intervening years. The Guidelines pertaining to fraud and other economic crimes have suffered significant
bracket creep, steadily increasing prison sentences. This process was not the result of a data-driven
effort to effectively implement sentencing mandates, but rather via response to perceived political
pressure. The Commission itself noted that one former Commissioner [warned] that the [Sentencing
Reform Acts] promise of policy development through expert research was being supplanted by symbolic
signal sending by Congress. U.S. Sentg Commn, Fifteen Years of Guidelines Sentencing: An
Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing
Reform 56 (2004) (citation omitted).
During this period numerous adjustments were added the guidelines, increasing the penalties. In
particular, three specific amendments to the fraud guidelines were made in 1989, 2001, and 2003. These
amendments were largely aimed at high-value frauds and effectively multiplied several times the
recommended sentence applicable in 1987 for large-loss frauds, which itself was set higher than historic
sentences. US v. Corsey, 723 F.3d 366, 380 (2d Cir. 2013) (Dist. J. Underhill, concurring). Although
aimed at higher-value loss crimes, the multiplying effect of these amendments has also affected lowervalue crimes. For example, in 1987 a fraud involving a $400,000 loss, absent additional factors, would
have resulted in an offense level of 13. Today, a similar fraud would result in an offense level of 21.
For a defendant with no criminal history, the difference in Guidelines sentences is staggering. In
1987, such a defendant would have faced 12 to 18 months. Again, as noted by the Commission itself, this
sentencing far exceeded the historical and traditional sentences prior to enactment of the Guidelines.
Today, however, such a defendant would face 37 to 46 monthsa more than 200% increase. This
increase in punishment level appears unconnected to any deterrent effect of incarceration. In fact, in 2007
one author noted that there is no decisive evidence to support the conclusion that harsh sentences
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actually have a general and specific deterrent effect on potential white-collar offenders. Zvi D. Gabbay,
Exploring the Limits of the Restorative Justice Paradigm: Restorative Justice and White Collar Crime, 8
Cardozo J. Conflict Resol. 421, 448-49 (2007).
The Commissions own research shows a dramatic increase in fraud cases in the twenty years
following enactment of the Guidelines, at the same time as greater prison terms were being meted out.
From 1991 to 2007, the number of fraud cases more than doubled. U.S. Sentg Commn, Changing Face
of Federal Criminal Sentencing: Seventeen Years of Growth in the Federal Sentencing Caseload 9 (2008).
Increasingly harsh sentences for economic crimes, driven not by data but by political pressure, have not
served to reduce instances of such crimes. No empirical data exist to support the Guidelines approach to
economic crimes, or the argument that high prison sentences produce any general or specific deterrent
effect.
The Guidelines approach to sentencing economic crimes was flawed in 1987, and has only grown
more so over the past quarter-century. They failed to reflect historical practices at their inception, and
continue to ignore available data regarding the efficacy of lengthy prison terms. Further, the fraud
Guidelines specifically, and the economic crimes Guidelines more broadly, fail to serve the goals of the
Commission, the purposes of the Sentencing Reform Act, and the overall purposes of sentencing as
embodied in 18 U.S.C. 3553(a). Faced with these realities, this Court should disregard the Guidelines
or at least afford them little advisory weightin crafting a sentencing that is sufficient, but not greater
than necessary.
III.

Statistics show that, given his status as a first-time offender, his individual
characteristics, and his personal support network, David is highly unlikely to recidivate.
Research has repeatedly shown that certain personal factors are heavily related to reduced risk of

recidivism; many of these factors are present in the instant case. The presence of these factors, and the
corresponding reduced rate of recidivism, argue that a sentence other than incarceration is sufficient, and
that no additional deterrent effect is to be gained through a lengthy incarceration.

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Policy makers have long noted that first offendersthose criminal defendants with no prior
criminal historyare at a significantly lower risk of recidivism than other, repeat offenders. The
Sentencing Reform Act of 1984 embraces this approach, directing the Commission to insure that the
guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in
which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise
serious offense . . . . 28 U.S.C. 994(j). Despite this Congressional directive, the Commission has been
unable to adopt a framework regarding reduced sentences for first offenders. U.S. Sentg Commn,
Recidivism and the First Offender: A Component of the Fifteen Year Report on the U.S. Sentencing
Commissions Legislative Mandate 1 (2004). In that report, the Commission attempted again to formulate
a working definition for the first offender concept. In so doing, the Commission noted that first offenders
had a recidivism rate of only 11.7 percent.1 Id. at 26.
In its 2004 study, Measuring Recidivism: The Criminal History Computation of the Federal
Sentencing Guidelines (2004), the Commission found additional characteristics associated with low risks
of recidivism. Notably in the instant case, these include age, education, and marital status. David is 58
years old, has had two years of college education, and is currently married. For defendants with a criminal
history category of 1, like David, each of these characteristics is associated with a lower risk of
recidivism. Only 13.9 percent of such defendants with some college education recidivate, while only 9.8
percent of such defendants who are married recidivate. Most significantly, only 6.2 percent of defendants
over the age of 50 recidivate.
Given Davids status as a first offender, and his statistically low risk for recidivism, the Court
should consider a sentence other than incarceration in order to meet the purposes of sentencing.
IV.

Davids personal circumstances warrant a sentence other than incarceration.

It is well-established that in crafting a sentence which meets the goals of 3553(a), courts may

consider not only the personal characteristics of the defendant, but also any collateral consequences of
1 The Commission formulated three different definitions of first offenders. This is the combined recidivism rate
for all three definitions, along with other offenders not fitting into these definitions, but with zero criminal history
points.

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sentencing on the defendant and third parties, where such consequences are extraordinary. See, e.g., US v.
Cutler, 520 F.3d 136, 164 (2d Cir. 2008) (holding that extraordinary family circumstances can warrant
departure from the Guidelines); US v. Bortnick, Crim. A. No. 03-CR-0414 (E.D. Pa. Mar. 15, 2006) (nonviolent defendant with handicapped son and no criminal history warranted significant departure). But see,
US v. Smith, 331 F.3d 292, 294 (2d Cir. 2003) (some hardship is to be expected; mere fact of hardship due
to incarceration not extraordinary enough to warrant departure). Whether family circumstances warrant a
departure is a fact-specific determination, with no hard and fast rules.
In the present case, Davids circumstances should warrant a downward departure. David and his
wife have four children, two of whom still reside at home, and one of whom just began college. One of
Davids children, Brandon, suffers from a number of disorders, including Aspergers, an autism-spectrum
disorder. He requires specialized treatment and care, including the structure provided by David in the
home. This structure would be lost, and Brandon would likely be considerably negatively impacted were
David sentenced to a term of incarceration.
Prior to the instant prosecution, Davids family had been reliant on the income generated by his
business. Since the loss of this business, the family has suffered greatly. Their home is in foreclosure, and
the family was only just able, with the help the other children, to send their youngest to her first year of
college. Davids wife, at the age of 55, has taken a job as a waitress, just to help pay the bills. Sentencing
David to a period of incarceration would exacerbate an already difficult time for his family, and impose
further extraordinary hardship. Granting David a departure, and imposing a sentence other than
incarceration, would further the goals of sentencing, while avoid extraordinary collateral hardship on his
family.
VI.

CONCLUSION
Mr. Crespo asks this court to impose a sentence other than incarceration. Given the historical

context of the current fraud Guidelines, and the demonstrated inability of those Guidelines to serve the
overall goals of sentencing; given Mr. Crespos statistically low risk of recidivism; and given Mr.

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Crespos personal circumstances, he would argue a sentence other than incarceration is sufficient, but not
greater than necessary, to meet the goals of sentencing.

THE DEFENDANT,
DAVID J. CRESPO

By: /s/ Richard C. Marquette________________

Richard C. Marquette, Esq.
Goldblatt, Marquette & Rashba, PC
60 Washington Avenue, Suite 302
Hamden, Connecticut 06518
Tel: (203) 288-6293 Fax: (203) 288-0283
Juris: ct07585

CERTIFICATION
I hereby certify that a copy of the foregoing was filed electronically and served by mail on
anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by
operation of the Courts electronic filing systems 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 Courts
CM/ECF System.
/s/ Richard C. Marquette_____________________
RICHARD C. MARQUETTE
GOLDBLATT, MARQUETTE & RASHBA, PC