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Case 2:05-cr-00080

Document 314-1

Filed 08/25/2006

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE UNITED STATES OF AMERICA v. JAMES WENDELL ROACH, JR., and PATRICK JAMES SHELDON ) ) ) ) ) )

No. 2:05-CR-80

SENTENCING MEMORANDUM Comes the defendant, James Wendell Roach, by and through defense counsel and submits this sentencing memorandum in support of a probationary sentence for the one-count misdemeanor conviction following the acquittal of felony conspiracy charges and a split verdict as to the remaining misdemeanor charges upon retrial following the mistrial. Such a sentence is appropriate in light of the difficulty the jury had in reaching a verdict, the Supreme Courts holding in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and the relevant sentencing factors set forth in 18 U.S.C. 3553(a). In support, counsel shows as follows:

LAW AND ARGUMENT In Booker v United States, the United States Supreme Court struck down the federal Sentencing Guidelines as unconstitutional under the Sixth Amendment of the United States Constitution as construed in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004). The Court reasoned that the federal Sentencing Guidelines violate the Sixth Amendment because the guidelines authorize a sentence based on a sentencing judges determinations of facts neither found by a jury or admitted by the defendant. The Court explained that the Sixth Amendment would not

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be implicated if the Guidelines as currently written recommended rather than required the selection of particular sentences in response to differing sets of facts. Booker, 125 S. Ct. 745 (2005). The Court determined that the appropriate remedy for the Sixth Amendment violation would be to sever and excise from the Federal Sentencing Reform Act of 1984 the provisions which make the federal Sentencing Guidelines mandatory, 18 U.S.C. 3553(b)(1) and 3742(e). So modified, the Federal Sentencing Act makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sentence in light of the other statutory concerns as well. Booker, 125 S. Ct. at 750 (citations omitted). Accordingly, this Court must decide what sentence is reasonable considering the factors set forth in 18 U.S.C. 3553(a), considering in an advisory rather than mandatory manner the applicable guideline range under the federal Sentencing Guidelines. Title 18, U.S.C. 3553(a) requires a sentencing court to 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 training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence 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 *** (5) any pertinent policy statement; (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.

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Counsel is aware of this Courts Memorandum Opinion and Order in the case of United States v. Gary Musick and Lita Musick, No. 2:03-CR-62 (E.D. TN, Greeneville, 2005). In Musick, this Court addressed the manner in which it will approach sentencing decisions post-Booker, so that counsel in that case and counsel in future cases would have some guidance on how to approach the issues. In that Memorandum Opinion and Order, this Court analyzes an issue it believes was left unaddressed by the Supreme Court in Booker, namely the weight to be given to the now advisory applicable guideline range. The Court ruled that it would afford significant weight to the range of imprisonment recommended by the guidelines but will deviate from the guidelines where there exist clearly identifiable and persuasive reasons consistent with the statute for doing so. In those cases where the court deviates from the applicable guideline range, the Court will explain on the record its reasons for doing so. Memorandum Opinion and Order at *6. In reaching this conclusion, this Court rejected two other viewpoints, (1) the guidelines are truly advisory returning courts to conduct sentencing under an indeterminate sentencing scheme, and (2) the guidelines, though advisory, establish a presumptively reasonable sentence and the departure from the guideline range should occur only in extraordinary cases. Post-Booker, this Court is no longer bound by the guideline range, which now is considered advisory. Therefore, this Court can consider the requested probationary sentence, keeping in mind the statutory obligation to impose a sentence that is sufficient but not greater than necessary to achieve the 3553(a) factors. Even when mandatory, the guidelines did not require that all of a sentence within the guideline range be served in custody. Rather, a mandatory guideline scheme if applied in this case required that one-half of the minimum (in this case 5 months) be served in custody with the remaining portion of -3-

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the sentence to be served in community confinement or home detention as a condition of supervised release. At worst, a sentence as provided by the then mandatory guideline range should constitute the outer limit of what could be considered reasonable, especially given the 3553(a) factors that weigh heavily in favor of a probationary sentence.

3553(a) FACTORS I. Circumstances of the Offense and Characteristics of Offender As this Court would expect following the invocation of the Sixth Amendment right to a jury trial, the circumstances of the offense remain a matter to be subjected to further appellate review. In any event, the Court presided over the trial and observed the witnesses who testified both for and against the defense. The Court heard conflicting testimony from one trial to the next. The Court witnessed the difficulty the jury had in reaching a verdict, first during the initial trial that resulted in an acquittal of the felony conspiracy charges and during the retrial which resulted in a split verdict of guilt as to one misdemeanor count only after the giving of an Allen charge. In a note from the jury during deliberations, the foreperson noted What if we are unable to reach a verdict? We dont believe we will be able to reach a verdict tomorrow, either. What should we do? Too much of the evidence is subjective & minds are fairly well settled. Attached as Exhibit 1. The next day after being given the Allen charge, the foreperson noted that the jury had reached a decision as to 3 of the 5 questions presented on the verdict form and stated, We have examined the evidence extensively & honestly seem to be at an impasse. What should be done? Attached as Exhibit 2. The Court should give due weight to the jurys deliberation process.

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In any event, the circumstances of the offense do not indicate a pattern of activity, as supported by the governments representation before trial that it had no 404(b)-type evidence to present at trial. Furthermore, the government at the time of the initial appearance reported to the Court that its case would not show that either Sheldon or Roach used their weapons and/or used force in the commission of the crimes. Quite the contrary, many lives have been saved at the hands of Jimmy Roach, either in his role as a Newport City Police Officer or as an EMT for the Cocke County Ambulance Service. According to Newport Chief of Police Maurice Shults, Jimmy had served honorably, honestly and bravely during his service to the community as a Newport Police Officer, (R. 266: Transcript 2/3/06 at pg. 41), rising to the rank of sergeant before being placed on administrative leave without pay following the jurys verdict. In fact, shortly before the charges were filed in this case, then Sergeant Roach along with other officers from the Newport Police Department and the Cocke County Sheriffs Department assisted during a hostage situation at CVS Pharmacy. Thanking him for his assistance and professionalism, Chief Shults notes that [s]ituations like this that are perpetrated by the worst types of people seem to bring out the best in law enforcement officers. See Attached Exhibit 3 - Chief Shults 9/21/05 Letter. Jimmy Roach is clearly not among the worst types of people deserving of a custodial sentence. The defense submits he is a worthy candidate for a probationary sentence combined with any conditions deemed appropriate to comply with the 3553(a) concerns. A probationary term would be sufficient but not more than necessary to satisfy the 3553(a) factors. At worst, the Court should impose no more than that provided under a mandatory guideline scheme, requiring that only one half of the minimum, five months, be served in custody, with the remainder to be served in -5-

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community confinement or home detention as a condition of supervised release. A longer supervision term in a community environment would be more suitable to the facts and circumstances of the case, especially given the positive role model Jimmy has been in his community service both on and off duty. As a police officer, Jimmy was active in local community projects, as evidenced by the attached article where he assisted Department of Childrens Services in collection Toys for Tots. See Attached Exhibit 4. Like father, like son, Jimmy Roach rose quickly in the ranks at the Newport Police Department earning the same rank as his father. The letter he writes to the Court1 paints the best picture of how much being a police officer means to him. It was a passion he grew to love as a child. He witnessed first hand the dangers associated with being a police officer, first as a child whose father was a police officer and then later himself when he followed in his fathers footsteps. Knowing how much being a police officer means to Jimmy Roach shows how the loss of this job alone is severe punishment. The loss of a job he dearly loves is great punishment in the eyes of Jimmy Roach. In addition to the remarks made by Chief of Police Shults regarding Jimmy Roachs tenure as a police officer, it appears he continues to be held in high regard by state officials in Cocke County. He continues to be subpoenaed before the grand jury in Cocke County in its prosecutions of defendants despite the outcome in this case. Aside from his dedication to his job, Jimmy Roach is a devoted father. His 6-year-old son, Donovan is his pride and joy. Jimmy has coached his sons t-ball team. Team photo attached as
1

The letter from Jimmy Roach will be forwarded upon its receipt in the mail next week. -6-

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Exhibit 5. Currently, Jimmy is coaching his sons football team with the season to end at the end of October. He is the parent responsible for dropping off and picking up his son, as his work schedule is more

amenable than his now ex-wifes banking schedule to assist in these parental duties. Though now divorced, he and his ex-wife continue to care and support for each other and jointly care for their son.

II.

Need for the Sentence to Reflect Sentencing Purposes The government has suggested in its filing of sentencing memorandum in other cases that

other cases yet to be sentenced are more deserving of more serious punishment. See Government Sentencing Memorandum, United States v. Christopher Smith, No. 2:05-CR-81 (Copy Attached as Exhibit 6). The Court may as urged by the government believe that a custodial term is necessary to reflect the seriousness of the offense, to promote respect for the law and to provide just punishment for the offense. Contrary to the governments position, though, two sets of jury has concluded that Jimmy Roach and Patrick Sheldon are not as culpable as Defendant Smith, specifically concluding unanimously beyond a reasonable doubt that the two conspired to commit the more serious felony conspiracy charge. Furthermore, this factor is but one of the four to be considered. A custodial term is not necessary to deter Jimmy Roach individually or others who might be similarly situated. In this regard, it cannot be ignored the extensive media coverage that has surrounded this and other Cocke County -7-

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cases. It has been an unusual case from beginning to end. Though the government has represented more than once that the present case is not a part of its 4-year investigation into corruption in Cocke County called Operation Rose Thorn, the case has been lumped with the other Cocke County cases in media coverage. Attached as Exhibit 7 is the myriad of new articles that have surrounded this case, to include a chronicle in the Knoxille News Sentinel providing a play by play of charges arising out of Cocke County dating back to the 1920's. The media coverage alone has served the deterrent purpose of 3553(a). Jimmy Roach has been placed on administrative leave without pay following the jury verdict pending further appellate proceedings. Thus, he is no longer in an authority figure position. There is nothing to suggest a need to protect the public from further crimes, as Jimmy Roach has never previously been charged with a crime. Jimmy Roach can receive the needed educational and vocational training only while on probation. As he notes in a letter to the Court, it is necessary for him to obtain continuing education hours to maintain his EMT licensure. His employment at Cocke County Ambulance Service provides even more income than he made as a sergeant with the police department, though paling in comparison to the stress and rigor of his duties as an officer. A probationary sentence would better serve these goals. He does not have a drug and alcohol problem as this Court often sees warranting the intensive residential drug and alcohol treatment program. He also is in good health, with the exception of the back problems he has experienced in recent years.

III.

Types of Sentencing Options Available

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The offense of conviction is not one for which a probationary term is statutorily prohibited. The advisory guideline range calls for a Zone C range of 10 to 12 months of which one half of the minimum (5 months) can be ordered to be served in custody with the remainder being served in community confinement or home detention as a condition of supervised release. Post-Booker, the sentencing ranges just like the guideline ranges are advisory. Defense counsel asks the Court to consider whether incarceration serves the purposes set forth in 3553(a). The defense suggests that a probationary sentence also benefits society, especially given his extensive community service efforts on and off duty.

IV.

Need to Avoid Unwarranted Sentencing Disparity A probationary term is necessary in this case to avoid unwarranted sentencing disparity when

considering like cases resolved in this Court and in the Chattanooga division. In May 2006, within two months of the verdict in this case, this Court sentenced Defendant Christopher Smith pursuant to his guilty plea entered on November 30, 2005, for the same misdemeanor offense for which the jury returned a guilty verdict in the present case. Pursuant to the plea agreement, the government agreed to dismiss the felony charge of conspiring to violate civil rights. The Court sentenced Defendant Smith to 3 years probation with special conditions that he (1) be placed on home detention for a period of 6 months with electronic monitoring, (2) pay towards restitution in the amount of $140, and (3) complete 250 hours of community service. Copies of the Court filed documents are attached as exhibits. Exhibit 8 - Indictment; Exhibit 9 - Plea Agreement; Exhibit *** - Factual Basis; Exhibit 10 - Government Sentencing Memorandum; Exhibit 11 - Judgment.

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Many similarities exist between the Smith case and the present case, namely the offenses of conviction and the amount of restitution to be ordered in the respective cases, $120 versus $100 to $200. Further, both defendants were not convicted of the more serious felony conspiracy charge, with that decision being made by the government in the Smith case and the jury having made the decision unanimously in the present case. That unanimous decision of not guilty should carry substantial weight in deciding the appropriate sentence in this case. The communications to the Court from the jury reflects in the second trial that the jury also had extreme difficulty reaching the decision it did in the retrial of the misdemeanor charges. Exhibits 1 & 2 - Communication 1 & 2 to the Court from Deliberating Jury. The mere fact that Jimmy Roach exercised his constitutional right to a jury trial should not be held against him, but instead by going to trial the Court now has a unanimous decision of 12 jurors that he did not conspire with Patrick Sheldon to violate the civil rights of either Marcos Mejia Vasquez or Wilder Gomez . Even more recently, Chief United States District Judge Curtis Collier in the Chattanooga Division of the Eastern District of Tennessee had occasion to impose sentences against two police officers convicted of the more serious felony of conspiring to violate civil rights of several Hispanic individuals. United States v. Frank James Goodwyn & ODell Draper III, No. 1:06-CR-20. Copies of relevant Court documents are attached as exhibits. Exhibit 13 - Bill of Information; Exhibit 14 Goodwyn Plea Agreement; Exhibit 15 - Draper Plea Agreement; Exhibit 16 - Factual Basis; Exhibit 16- Goodwyn Judgment; Exhibit 17- Draper - Judgment. The Court in that case imposed sentences of 18 months incarceration for each defendant, taking into account at sentencing the potential for harm to the officers while incarcerated, allowing the defendants to self-report to serve the sentences

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for their convictions upon their guilty pleas. No appeal has been filed in that case, likely given the guilty pleas. The factual basis for the Goodwyn/Draper case provides that had the case gone to trial, it would have presented proof that the two officers agreed to steal money of more than one Hispanic individual. On at least one occasion, Defendant Goodwyn stole approximately $400 from an individual and split the proceeds with Defendant Draper. Several complaints had been made by several Hispanic individuals which led to the federal investigation. Pursuant to the sentencing memorandum filed by Defendant Draper, more facts about the case are detailed in an effort to demonstrate that Defendant Draper was substantially less culpable than Defendant Goodwyn. It is represented that Defendant Goodwyn thought up this scheme and initiated all twelve of the incidents and was identified by the victims. Furthermore, Mr. Draper was only involved in receiving money in three of the twelve incidents. A total amount of money stolen is not detailed in the public records. In any event, the single incident totaling $400 taken far exceeds the amount involved in the present case. The district judge necessarily took into account the numerous incidents and the total amount taken in its decision to impose 18 months incarceration as to both defendants. This Court likewise must take into account sentencing decisions in other Courts and the facts and circumstances of those case. A probationary sentence is clearly warranted in light of the isolated incident presented by the government in support of a conviction in this case.

V.

Need to provide restitution to any victims of the offense. This factor can be better served if released into the community to continue to work.

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VI.

Defendants Recommendations In consideration of the foregoing, Jimmy Roach along with defense counsel respectfully

requests this Honorable Court to impose a probationary sentence along with any condition deemed appropriate by the Court to achieve the 3553(a) purposes. RESPECTFULLY SUBMITTED: FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC.

BY:

s/ Nikki C. Pierce Nikki C. Pierce BOPR No. 018181 s/Tim S. Moore Tim S. Moore BOPR No. 011071 Attorneys for James Wendell Roach, Jr. Federal Defender Services 129 West Depot Street, Suite 1 Greeneville, TN 37743 (423) 636-1301

CERTIFICATE OF SERVICE I hereby certify that on August 25, 2006, a copy of the foregoing 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 electronic filing system. s/ Nikki C. Pierce

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