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Case 2:07-cr-20124-CM -JPO Document 422 Filed 01/11/11 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF KANSAS
(KANSAS CITY DOCKET)

UNITED STATES OF AMERICA, )


)
Plaintiff, )
)
v. ) No. 07-20124-CM
CARRIE NEIGHBORS )
)
)
Defendants. )

UNITED STATES’ RESPONSE TO DEFENDANT CARRIE NEIGHBORS’


SENTENCING MEMORANDUM

The United States, by and through D. Christopher Oakley, Assistant United

States Attorney, in response to defendant Carrie Neighbors’ Sentencing Memorandum

(Document 419), responds as follows:

FACTUAL ALLEGATION

The defendant was convicted, after jury trial, of one count of Conspiracy, twelve

counts of Wire Fraud and three counts of Money Laundering. The presentence report

(PSR) calculates a loss of $703,749.33, resulting in a base offense level of 21.

Because the offense involves 10 or more victims, four levels are added. Additionally,

the defendant receives two additional levels because the offense involved receiving

stolen property, and the defendant was in the business of receiving and selling stolen

property. Two more levels are added because she was convicted of money laundering

under 18 U.S.C. § 1956. Finally, she received four levels for her role in the offense,

and two levels for obstruction of justice, resulting in a final base offense level of 33.

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The defendant and government both filed objections to the PSR. The basis for

the objections, and the respective responses, are contained in the addendum to the

PSR, and will not be repeated here. However, the defendant has filed a separate

sentencing memorandum, to which the government responds as follows:

ARGUMENT

The sentence which is sufficient, but not greater than necessary to comply with

applicable federal law is a sentence of 168 months imprisonment. This sentence is the

low end of the applicable Sentencing Guidelines range, assuming the Court sustains

the Government’s lone objection and includes a 2 point enhancement for sophisticated

means, resulting in a base offense level of 35. Should the Court overrule the objection,

the recommended sentence is the high end of the guideline range. Regardless, a

sentence of 168 months complies with the advisory guidelines and the factors set forth

at 18 U.S.C. §3553(a).

UNITED STATES SENTENCING GUIDELINES

A. Post Rita, Gall, and Kimbrough

In 2007, the United States Supreme Court decided three cases that are crucial to

the current sentencing landscape. In United States v. Rita, 551 U.S. 338 (2007) the

Court held that a sentencing court may not presume that a sentence within the correctly

calculated Guideline range is reasonable. In United States v. Gall, 552 U.S. 38 (2007)

the Court held that a sentencing court is not required to find extraordinary

circumstances to justify a sentence outside the Guidelines, and although an appellate

court may take the degree of variance into account, it may not “employ a rigid

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mathematical formula” to determine whether the sentencing court has sufficiently

justified a particular sentence. In United States v. Kimbrough, 552 U.S. 85 (2007) the

Court upheld a variance from the Guidelines where the Sentencing Commission

(“Commission”) did not exercise its “characteristic institutional role” in formulating those

Guidelines.

It is clear from these cases that the Guidelines still play an important role in this

Court’s sentencing decisions. Although advisory, the Guidelines, “should be the

starting point and the initial benchmark.” Id at 108, quoting Gall. 55 The Commission

has been tasked with tailoring the Guidelines to carry out the objectives of 3553(a).

Rita, 551 U.S., at 348. In carrying out this mandate, the Commission has examined

10,000 presentence investigations and other relevant data. Id; U.S.S.G. §1A1.1, intro.

comment., Part A, ¶3, page 4 (2009 ed). Thus, “it is fair to assume that the Guidelines,

insofar as practicable, reflect a rough approximation of sentences that might achieve

§3553(a)’s objectives. Rita, 551 U.S., at 350; United States v. Angel-Guzman, 506

F.3d 1007, 1012 (10th Cir. 2007).

Further, although the Court specifically rejected the notion of a mathematical

formula or percentage standard in reviewing a non-guidelines sentence,

a district court must give serious consideration to the extent of any


departure from the Guidelines and must explain his conclusion that an
unusually lenient or an unusually harsh sentence is appropriate in a
particular case with sufficient justifications. For even though the
Guidelines are advisory rather than mandatory, they are, as we pointed
out in Rita, the product of careful study based on extensive empirical
evidence derived from the review of thousands of individual sentencing
decisions.

Gall, 552 U.S., at 46.

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Thus, an appellate court should look to the degree of variance and consider the

extent of the deviation from the Guidelines to determine the reasonableness of a

sentence that falls outside the advisory Guidelines range. Id, at 47.

Thus, even under the current sentencing landscape, this Court must consider the

Guidelines, and ensure that the justification for any deviation from the Guidelines is

sufficiently compelling to support the degree of the variance

B. 18 USC 3553(a)

This Court must consider all of the sentencing considerations set forth in §

3553(a). These include: (1) the nature and circumstances of the offense and the

history and characteristics of the defendant; (2) 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; (3) the need to afford adequate deterrence to criminal

conduct, and to protect the public from further crimes of the defendant; (4) the need to

provide the defendant with educational or vocational training, medical care, or other

correctional treatment in the most effective manner; (5) the Guidelines and policy

statements issued by the Sentencing Commission; (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.

18 U.S.C. § 3553(a).

Nature and characteristics of offense and history and characteristics of the


defendant

The defendant lead an organized scheme to defraud merchants and individuals

in the Topeka and Lawrence area to the tune of nearly three quarters of a million

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dollars. As proved at trial, the defendant showed a careless disregard for the property

rights of the merchants and the unwitting eBay consumers who purchased the stolen

items she sold. The defendant, by providing an outlet for stolen goods, enabled drug

users to fuel their addictions by sharing in ill-gotten gains.

The defendant’s criminal conduct occurred over a span of a significant period of

time. This is not a situation where someone committed an isolated crime. The

defendant did not cease her criminal activity after the she learned that law enforcement

and eBay were aware of her illegal activities. She found another eBay account and

continued to accept and sell items she knew to be stolen. Additionally, the defendant’s

conduct pending trial in this matter, by repeatedly violating the Court’s orders,

demonstrate her lack of respect for the legal system.

The defendant indicates that she will rely upon the previously performed mental

health evaluation to support a non-guidelines sentence. She identifies, as a basis for a

departure, U.S.S.G. §5H1.3. That Guidelines provision provides for a departure in

circumstances where the conditions “are present to an unusual degree and distinguish

the case from the typical cases covered by the guidelines.” Neither circumstance is

applicable here.

The defendant also cites 28 U.S.C. §994(d) which directs the United States

Sentencing Commission to take into account the “mental and emotional condition to the

extent that such condition mitigates the defendant’s culpability or to the extent that such

condition is otherwise plainly relevant.” The defendant’s mental condition did not play

a factor, much less a mitigating one, in her criminal conduct.

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Seriousness of defendants’ criminal activity

The defendant’s conduct in this case is serious. As previously mentioned, the

loss attributable to the defendant’s conduct is conservatively calculated at $703,749.33.

The defendant’s criminal conduct involved numerous victims and co-conspirators. Her

fraudulent scheme victimized merchants as diverse as nationwide chains such as

Walmart and Target to local merchants like Assay’s Sporting Goods and Hume Music

to college students whose Trek bikes were stolen at the defendant’s direction.

Deterrence

Deterrence is relative to not only the defendant personally, but also others who

are made aware of her sentence. A significant prison sentence would serve to deter

this defendant, but perhaps more significantly, a prison sentence would serve to deter

other individuals who might be inclined to engage in similar behavior, who learn of this

sentence. White collar cases present a unique opportunity to deter other individuals’

criminal conduct. More so than drug offenders or violent criminals, would be white

collar criminals are likely to be influenced by the prospect of a prison sentence. A

sentence of imprisonment would serve as a deterrence to other individuals who may

learn of the sentence.

Educational/Vocational training

This case does not present any need for rehabilitative vocational training, or any

need for medical treatment that would affect the Court’s sentencing analysis.

Guidelines and Policy Statements and need to avoid unwarranted disparities

As previously argued, these factors support a sentence of imprisonment.

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CONCLUSION

The sentence which is sufficient but not greater than necessary when taking into

account the factors of 18 U.S.C. 3553(a), the advisory Sentencing Guidelines and the

characteristics of the defendants and their crimes is a sentence168 months, which is

within the Guidelines range calculated by the PSR.

Respectfully submitted,

BARRY R. GRISSOM
United States Attorney

s/ D. Christopher Oakley
D. CHRISTOPHER OAKLEY
Assistant U.S. Attorney
500 State Avenue
Kansas City, Kansas 66101
(913) 551-6730
KS S. Ct. No. 19248

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the 11th day of January, 2011, I

electronically filed the foregoing with the clerk of the court by using the CM/ECF system

which will send a notice of electronic filing to all counsel of record

s/ D. Christopher Oakley
D. Christopher Oakley
Assistant U.S. Attorney