canavan james sentencing memo
TRANSCRIPT
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA : PLAINTIFF : CRIMINAL NO.: 3:10cr60 (VLB) : V. : : : JUNE 1, 2011 JAMES CANAVAN : DEFENDANT :
MEMORANDUM IN AID OF SENTENCING The Defendant, JAMES CANAVAN, pursuant to Rule 32 of the Federal Rules
of Criminal Procedure, submits this Memorandum in Aid of Sentencing.
The Defendant, JAMES CANAVAN, through Counsel, respectfully requests
that the Court consider a sentence of a period of home confinement and
probation based upon the following analysis and requests for departures:
THE PRE-SENTENCE REPORT
OBJECTIONS:
A) The Defendant, James Canavan, objects to Paragraph 26 of the Pre
Sentence Report as it adds an additional two levels to his offense conduct
pursuant to §2D1-1(b)(12). This section was added to the United States
Sentencing Guidelines effective November 1, 2010. The Defendant James
Canavan’s plea was entered March 12, 2010. The Court is respectfully moved to
give the plea agreement effect pursuant to United States v. Fernandez 877 F.2d
1138, 1145 (2nd Cir. 1989). The Defendant, James Canavan and the Government
Case 3:10-cr-00060-VLB Document 213 Filed 06/01/11 Page 1 of 7
agreed that the Sentencing Guidelines was between 51-63, a serious sentence
that will deter future criminal conduct.
B) The Defendant, James Canavan, objects to Paragraph 30, as the Adjusted
Offense Level should be 26.
C) The Defendant, James Canavan objects to paragraph 25 as the total
Offense Level should be 23 as reflected in the Plea Agreement.
D) Accordingly, the Defendant, James Canavan, objects to Paragraph 58 and
59 of the Pre-Sentence Report as his guideline imprisonment range should be 51
– 63 months.
STANDARD
The Second Circuit in United States v Crosby, 397 F. 3d 103 (2d Cir. 2005),
has laid the groundwork for the District Courts to follow in determining sufficient
but not greater than necessary sentence. The Court must establish a guideline
range pursuant to the Sentencing Guidelines. Then the Court is to determine
what departures if any are appropriate. The Court then must analyze the factors
set forth in 18 U.S.C. § 3553(a). After this work is done, the Court must determine
whether to impose a guideline sentence or a non-guideline sentence and set forth
its reasons and conclusions. Id. (See also, United States v Cavera, 550 F.3d 180,
2008 U.S. App. Lexis 24714(2008)).
DEPARTURES
I. Mandatory Minimum Departure
Pursuant to the Defendant, James Canavan’s understanding that the
government will file a U.S.S.G. § 5K1.1 Motion, upon which the Defendant
Case 3:10-cr-00060-VLB Document 213 Filed 06/01/11 Page 2 of 7
respectfully requests that the Court grant said motion and depart from the
mandatory minimum of 120 months and sentence the Defendant below his
Guideline range.
II. Guidelines Departure
A. Pursuant to U.S.S.G. §5H1.5, the Defendant, James Canavan moves for
a downward departure as a result of his family ties and responsibilities. James
Nicolas Canavan was born to Samantha Mosca and the Defendant James
Canavan in May of 2010. Since his birth, the Defendant has provided the sole
financial support for his son. (Samantha Mosca is a stay-at-home mother.)
James Canavan’s service of a prison sentence within the range of 51-63 months
will cause a substantial, direct and specific loss of financial support”. There is
“no effective remedial programs available as the cost of day care will outweigh
any earnings Samantha Mosca (age 21) could get with a high school education.
James Canavan’s financial support and caregiving is irreplaceable to his family
(See U.S.S.G. § 5H1,6 Commentary B (i – iv))
B. Pursuant to U.S.S.G. § 4A1.3(b)(1) the Defendant, James Canavan
moves this Court for a downward departure based on Inadequacy of Criminal
History Category. The Defendant James Canavan’s criminal history indicates two
arrests and three convictions involving Possession of Marijuana and drug
paraphernalia. The Defendant, James Canavan will be 27 years old by the date of
sentencing and has two arrests involving his addiction to marijuana. The
Defendant respectfully suggests that the Criminal History Category II over
represents the seriousness of his criminal history or the likelihood that he will
Case 3:10-cr-00060-VLB Document 213 Filed 06/01/11 Page 3 of 7
commit other crimes. The Defendant, James Canavan moves that the Court
horizontally depart from Criminal History Category II to Criminal History Category
I. This would result in a guideline range of 46-57 months.
C. Pursuant to U.S.S.G. § 5K2.0(2)(4) the Defendant James Canavan
moves for a downward departure based upon extraordinary post-arrest
rehabilitation. As noted in the Pre-Sentence Report, the Defendant began
abusing marijuana at the age of 14. This addiction led to the prior convictions for
marijuana possession and paraphernalia. Upon his arrest in this matter, he has
tested negative for any drug and has successfully fought this addition. Moreover,
as his mother has relayed to Probation, James Canavan has done a “complete
three-sixty. He’s really turned into a terrific man and a wonderful father… He’s
doing great”. (See Paragraph 41 of the Pre-Sentence Report.
This complete change respectfully warrants consideration as Counsel for
the Defendant suggests that, who would know the Defendant better than his
mother. The Defendant, James Canavan has kept a job, remained drug-free and
has supported his son and fiancée without incident. Respectfully, this turnabout
has not been contemplated by the Sentencing Guidelines and should be a factor
considered in determining a warranted departure pursuant to U.S.S.G. § 5K2.0.
Case 3:10-cr-00060-VLB Document 213 Filed 06/01/11 Page 4 of 7
18 U.S.C. §3553 FACTORS:
The Court is respectfully moved to consider the following factors pursuant
to 18 U.S.C.§ 3553(c) in determining an appropriate sentence:
1. Defendant’s age of 27 years;
2. Defendant’s care and necessary financial support of his fiancée and
his son;
3. The irreplaceable role the Defendant has in his son’s life;.
4. Defendant’s prior drug addiction;
5. Defendant’s post-arrest drug rehabilitation and ability to remain drug
free;
6. Defendant’s remarkable post-arrest changes regarding responsibility
attitude and work ethic;
7. Defendant’s assistance to the Government;
8. Defendant’s remorse.
Based upon all of these factors the Defendant James Canavan prays that
the Court sentence him to a lower than Guideline Sentence which will allow him
to still amaze his mother, raise his son, marry his fiancee and give hope to all his
family that his change and positive actions can and will continue.
Case 3:10-cr-00060-VLB Document 213 Filed 06/01/11 Page 5 of 7
THE DEFENDANT JAMES CANAVAN
BY: _________/s/___________________ KEVIN W. CONDON
Condon & Savitt PC PO Box 570 Ansonia, Connecticut 06401 203-734-2511 [email protected] Federal Bar #: ct12608
Case 3:10-cr-00060-VLB Document 213 Filed 06/01/11 Page 6 of 7
CERTIFICATION
I hereby certify that on June 1, 2011, a copy of the foregoing Motion for
Extension of Time 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 Court’s electronic filing system 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 Court’s CM/ECF System.
* VIA US MAIL TO :
James Canavan
73 Highland Avenue
Ansonia, Connecticut 06401
/s/ ____________________________ KEVIN W. CONDON
Case 3:10-cr-00060-VLB Document 213 Filed 06/01/11 Page 7 of 7