canavan james sentencing memo

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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

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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