Case 4:09-cr-00188-RP-RAW Document 65 Filed 06/11/10 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

UNITED STATES OF AMERICA, )

)
Plaintiff, ) Criminal No. 4:09-cr-00188
)
vs. )
) DEFENDANT’S SENTENCING
JASON LEE BOWERS, ) MEMORANDUM
)
Defendant. )

Defendant, Jason Lee Bowers, through counsel, hereby submits this memorandum for

the Court’s consideration at sentencing. Mr. Bowers reserves the right to present additional

witness statements and testimony at the sentencing hearing presently scheduled for July 8,

2010.

CONTENTS

Factual and Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Objections to the Presentence Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Application of United States v. Booker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

FACTUAL AND PROCEDURAL BACKGROUND

Jason Lee Bowers was charged in an eight-count indictment with violations of 18

U.S.C. Sections 2113(a) and (d)(armed bank robbery) in counts 1, 3, 5, and 7, and violations

of 18 U.S.C. Section 924(c) (possession of a firearm in furtherance of and use and carry in

relation to a crime of violence) in counts 2, 4, 5 and 8. Jury trial commenced on March 8, 2010
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and on March 10, 2010 the jury found Mr. Bowers guilty on all counts 1 and 2. Additional facts

relevant to Mr. Bowers’ objections to the presentence report and for a sentence below the

range recommended in the advisory United States Sentencing Guidelines appear in the body

of the following argument.

OBJECTIONS TO THE PRESENTENCE REPORT

1. The Mandatory Penalties of 18 U.S.C. 924(c)(1)(C) do not apply to Mr. Bowers.

The draft presentence report correctly does not apply the 18 U.S.C. § 924(c)(1)(C)(ii)

enhanced sentences for a second and subsequent conviction under 18 U.S.C. § 924(c). In its

response to the presentence report, however, the government argues that Mr. Bowers should receive

consecutive sentences of seven, 25, 25 and 25 years incarceration on counts two, four, six and eight.

The enhanced sentences should not be imposed in this case.

Section 924(c)(1)(C)(I) provides that, “[i]n the case of a second or subsequent conviction

under this subsection, the person shall . . .be sentenced to a term of imprisonment of not less than

25 years.” It is correct that in Deal v. United States, 508 U.S. 129 (1993), the Supreme Court held

that application of the enhancement does not require a final conviction to render other convictions

in the same prosecution “second or subsequent.” A finding of guilt on count two, for example,

precedes (even if only by moments) a finding of guilt on count four. Thus, the conviction of count

four is subsequent to count two.

The recent decision of the Court in United States v. O’Brien,--- S.Ct. ----, 2010 WL

2025204, U.S., May 24, 2010 (NO. 08-1569), however, raises a separate issue. In O’Brien the

Court employed the five-step test of Castillo v. United States, 530 U.S. 120 (2000) and

determined that another 18 U.S.C. § 924(c) enhancement, the 18 U.S.C. § 924(c)(1)(B)(ii)

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for use of a machine gun, is an element of the offense, and not a sentencing factor. Thus, it

must be charged in the indictment and found by a jury beyond reasonable doubt.

Mr. Bowers believes that the O’Brien reasoning applies equally to § 924(c)(1)(C)(ii).

He was not indicted under that section for having a second or subsequent conviction and,

other than entering verdicts on each of the charged § 924(c) counts, the jury did not make a

§ 924(c)(1)(C)(ii) finding.

One arguable distinction is that § 924(c)(1)(C)(ii) involves an enhanced sentence based

upon a prior conviction. The second Castillo factor in determining whether a factor is an

element or a sentencing factor is legal tradition and past congressional practice. The Court

in O’Brien noted that sentencing factors, as opposed to elements, “traditionally involve

characteristics of the offender,” and specifically mentions recidivism. O’Brien, slip op. at

8.

While, at first glance, the fact that Mr. Bowers has multiple convictions of the same

offense, it does not fit within this rationale. Multiple convictions under § 924(c) in the same

charging document have nothing to do with recidivism. The Oxford English Dictionary

defines “recidivate” as “[t]o fall back, relapse; to backslide” and “to relapse into crime, to

reoffend.” These definitions apply to an individual who is convicted of an offense and then

relapses into crime, not to a defendant who commits similar multiple acts in the period of

several days, all prior to his arrest. Mr. Bowers’ four uses of firearms in furtherance of four

bank robberies go to the nature of the offense more than the characteristics of the offender.

Thus, the application of § 924(c)(1)(C)(ii) should be treated as an element and not a

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sentencing factor.

APPLICATION OF UNITED STATES V. BOOKER

On January 12, 2005 the United States Supreme Court published an opinion in United

States v. Booker, 125 S.Ct.738 (2005), in which a majority of the Court held that, because

the application of the United States Sentencing Guidelines in certain cases violates the Sixth

Amendment right to a jury determination on every element of an offense if the Guidelines

are binding on the sentencing court, the Guidelines are now advisory and not mandatory. The

Court’s task following Booker is to find a sentence that is sufficient, but not greater than

necessary, to effectuate the interests articulated in 18 U.S.C. § 3553(a).

Among the important factors in sentencing are the “history and characteristics of the

defendant,” 18 U.S.C. § 3553(a)(1) Mr. Bowers’ history is of an individual who spent his

first 22 years consumed by his addictions. His first exposure to controlled substances was

at the age of five, when his teenaged uncle introduced him to what appears to have been

marijuana. At the age of 12, he was abusing marijuana and, especially, alcohol. A year later,

a 16-year old girl introduced him to methamphetamine. According to Mr. Bowers, it “was

like finding my long lost twin, I felt as if a missing half of me had been put back and from

now on I knew what I wanted to do my life, crank and everything it took to get it, have it and

keep getting it. While living with my mom in Carlisle, Iowa I used LSD for the first time, I

liked it but I only did it once in a while because meth was all I really needed.”

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Mr. Bowers’ drug use continued to escalate during his teens. By the age of 18, he was

carrying a half-ounce of methamphetamine with him at all times, to assure that he had a two-

day supply on hand if necessary. Mr. Bowers abandoned every other aspect of his life,

including school, in pursuit of his addiction. His addiction was creating many relatively

minor legal problems for him.

June 18, 1999 was a very significant date in his life, as this was the date that Mr.

Bowers apparently made the conscious decision to straighten himself out. According to his

account, Mr. Bowers pursued his recovery with vigor, especially over the three years that

followed. During most of the last decade, Mr. Bowers was able to create for himself a decent

lifestyle, with constant employment and a wife and children.

Beginning in Summer, 2008, Mr. Bowers gradually began slipping back into his old

habits. By October of that year, his methamphetamine addiction had returned to haunt him

full-bore. In the year leading to the events that are the subjects of this prosecution, Mr.

Bowers lost everything he had gained for himself over the previous eight years.

In January, 2010 a mental status examination was conducted on Mr. Bowers, at

request of the defense, by Dr. Terry Davis, an Omaha, Nebraska psychiatrist. The report

confirms that Mr. Bowers suffers from amphetamine dependence and a history of

polysubstance abuse. There may ultimately be some discrepancy between his representation

to the F.B.I. after his arrest that he was abstaining from drug use during the charged offenses

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and some evidence that he continued to use during the period of the charged offenses.1 The

psychiatrist concluded, however, that “[i]n either event, it is my opinion that his chronic,

heavy use of methamphetamine during September and October of 2009 most likely clouded

his judgment and diminished his capacity to the point that his ability to fully understand and

appreciate the consequences of his actions at the time of the alleged offenses was

significantly impaired. . . While his Amphetamine Dependence certainly does not excuse his

behavior, it appears that ‘but for’ his drug use, the alleged offenses most likely would not

have occurred. Again, that does not excuse his behavior and does not meet the definition of

‘insanity,’ but it does indicate that his actions, as well as his judgment and mental capacity,

were adversely affected by his meth use.”

Dr. Davis also concluded that Mr. Bowers’ conviction makes him likely to engage in

future criminal acts “only if he resumes drug use.”

Absent the statutory minimum sentences prescribed for violations of 18 U.S.C. §

924(c), the psychiatrist’s conclusions would provide support for an argument under 18

U.S.C. § 3553(a) for a sentence substantially below that set out in the advisory sentencing

guidelines, or perhaps a formal departure from the guideline range. U.S.S.G. § 5K2.13.

Mr. Bowers’ life history is that of an individual who spent many years of his life

consumed by his addictions, but then was able to carve out a long period of recovery. The

1
The latter suggestion is bolstered by Mr. Bowers’ appearance in the days following his arrest, of
being an individual who was still coming down from intense drug use.
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final year before his arrest was marred by a major relapse which has put him in the position

he now finds himself.

FEDERAL PUBLIC DEFENDER’S OFFICE

Capital Square, Suite 340
400 Locust Street
Des Moines, IA 50309-2360
PHONE: (515) 309-9610
FAX: (515) 309-9625
E-MAIL: b._john_burns@fd.org

By: /s/ B. John Burns

B. John Burns
ATTORNEY FOR DEFENDANT

Copies to:

Deb Scorpiniti
United States Attorney’s Office
U.S. Courthouse Annex, Suite 286
110 East Court Avenue
Des Moines, Iowa 50309-2053

ATTORNEY FOR PLAINTIFF,

UNITED STATES OF AMERICA

CERTIFICATE OF SERVICE
I hereby certify that on June 11, 2010, I electronically
filed this document with the Clerk of Court using the
ECF system which will serve it on the appropriate
parties.
/s/ B. John Burns
John Burns