Lawyer's argument for 60-year-old Syracuse pot dealer

8/13/2019 Lawyer's argument for 60-year-old Syracuse pot dealer

1/7

Page 1 of 7

Robert G. Wells, Attorney at Law, 120 East Washington Street, Syracuse, New York 13202

United States District ourtFor The Northern District Of New York

______________________________________________

UNITED STATES OF AMERICA, DEFENDANT’S FIRST

SENTENCING MEMORANDUM

v. Criminal Action Numbers:

05:13-CR-277 (NAM)

ARTHUR HENNESSEY,

Defendant.

______________________________________________

HISTORY, BACKGROUND, AND CHARACTERISTICS

Broke, busted, disabled, in unremitting and gnawing pain, and in his own way…very alone. People were

around, but Arthur was on his own in every other desperate sense and meaning of the word.

With responsibilities piling, and nowhere to turn, Arthur knew he had no place to go. His back was

completely against the wall. He was medicated by his doctors to try and stop the agony in his back. He was self-

medicating as well. It’s the kind of constant pain that gets into your mind and into your soul. It breaks you down

Arthur was about to lose his home. His home was the only thing he had that mattered. His last place to

be with dignity, and where his daughters had come to live. He felt he had nothing other than that to give them, or

any way to provide for them. He needed to hold on to that in any way he could.

He had no way to earn more money. He couldn’t work. He was ashamed and finally felt driven to go back

to what he had done so many, many years ago. This time it would only be for a short time and in a different and

smaller role. He would make contacts for shipping. No guns. Not how he did things before. He would save his

home.

Case 5:13-cr-00277-NAM Document 10 Filed 11/19/13 Page 1 of 7


2/7

Page 2 of 7


Arthur had been totally out of any trouble at all since his last offense in 1995.That was seventeen years

ago, with no other breach of the law.1

It was a lousy choice. A Hobson’s Choice, it seemed to him. It was stupid. Arthur knew that. He felt

defeated and powerless to do anything else.

Getting older can make you wiser, or in a particular circumstance, it can make you despairing, despondent

hopeless and miserable in a way you cannot overcome. Your judgment, and all of the good conduct you lived for

years and years, can be overwhelmed and abandoned. You turn away from all you've learned, achieved, and that

you had completely under control for the best part of twenty years.

To find Arthur ’s final two convictions, you have to go back to 1995, and before that to 1983.

Arthur’s only jail offense was in 1995; a long time ago. That was so long ago that Forrest Gump was the

movie that won the Oscar. San Francisco won the Super Bowl. Murphy Brown was still on television. Kids born

in 1995 are almost nineteen years old now.

Before that, to find a conviction you have to go all the way back, some thirty years, to 1983 when Arthur

was twenty. The Space Shuttle Challenger made its maiden voyage that year. Ronald Reagan was President

then. That was a full twelve years before his last conviction in 1995. Not so much as a traffic ticket conviction

after that. Arthur’s criminal conduct ended then. It had been preceded by a long string of continuous criminal

activity involving drugs. It was motivated by, and stemmed from, Arthur’s addiction. It was followed by a long

1 See United States v. Sain, slip op., 2009 WL 1957485 (E. D. Mich. July 7, 2009) (varying in part because priors were more thanten years old); United States v. Hodges, slip op., 2009 WL 366231 (E. D. N. Y. Feb. 12, 2009) (varying in part because the defendant’s

only serious offense occurred 21 years previously, and all of his offenses were related to drug addiction); United States v. Moreland

slip op., 2008 WL 904652 **10-13 (S.D. W. Va.Apr. 3, 2008) (sentencing below the range in part because the priors lacked temporal

proximity to each other or to the instant offense).



3/7

Page 3 of 7


period with no criminal convictions over a period of years. That is a positive part of Arthur’s history and

characteristics.

And every conviction Arthur ever sustained was for a drug offense, a traffic offense, or a single petty

offense of loitering. No convictions for violence. No convictions for weapons.

Arthur’s motives were not venal or to accumulate luxury items. He was trying to keep his home.2

Arthur is a drug addict. Drugs, and most usually marijuana, have been the bane of Arthur’s life.3 That is

a negative part of his history and characteristics. He certainly has, over time, experimented with several

different drugs. In the end, it appeared to Arthur that marijuana was the only thing he could use effectively to

cope and to survive. He self-medicated to ease the inexorable and merciless pain he lived with from his

disabling back injury. That was far more important than any social or recreational use. For this sixty-year-old

man, drug abuse extended back to his teens.

2 Wisconsin v. Mitchell 508 U.S. 476, 485 (1993) (“The defendant's motive for committing the offe nse is one important factor [in

determining the sentence]. See 1 W. LeFave & A. Scott, Substantive Criminal Law § 3.6(b), p. 324 (1986) (“Motives are most re levan

when the trial judge sets the defendant's sentence, and it is not uncommon for a defendant to receive a minimum sentence because he

was acting with good motives, or a rather high sentence because of his bad motives”); U.S. v. Milne 384 F.Supp.2d 1309(E.D.Wis.,2005

(in bank fraud case a mitigating factor is that the defendant did not spend the bank's money on luxury items but rather to prop up a

failing business. “With their almost singular focus on loss amount, the guidelines sometimes are insufficiently sensitive to persona

culpability.”); Under § 3553(a) and the decisions of the Supreme Court, a sentencing court may properly consider a defendant's motive

Wisconsin v. Mitchell, 508 U.S. 476 (1993) (stating that “the defendant's motive for committing the offense is one important factor”));Under a court’s mandatory analysis of the § 3553(a) factors, motive is part of the “nature and circumstances of the offense” and must

be considered.)

3 U.S. v. Garcia, 497 F.3d 964 (9th Cir. 2007) (where defendant convicted of drug conspiracy, sentence vacated in part because district

judge erred in holding it had no power to consider to defendant’s drug addiction and resulting mental impairment as a mitigat ing facto

under 18 U.S.C. § 3553(a). Fact that guidelines preclude downward departure because of voluntary use of drugs under USSG § 5K2.13

and 5H1.4 does not preclude judge from using same as mitigating factor under § 3553(a)).



4/7

Page 4 of 7


It appears that the only substance abuse treatment Arhtur had was way back in 2002. Having found

himself where he is, Arthur very much wants to be afforded and enjoy the benefits of treatment so that his life,

onward from here, will not involve illegal drug use.

There is no question that participating in a conspiracy to obtain and distribute marijuana is a serious

offense. The public has an interest in deterring such criminal conduct. Arthur’s prior criminal convictions are

interrelated with his long history of drug addiction and they are temporally remote. They are given too much

weight in considering his sentence, and also over-represent the seriousness of his prior criminal convictions.

The Sentencing Commission recognizes the potential harm of overstating a defendant's criminal history

and thus exposing the defendant to punishment far in excess of what may be necessary.

Without the applicable mandatory minimum here of ten years, Ar thur’s advisory guideline calculation

would be a Level 23 and a Criminal History Category II yielding a range of 51 to 63 months.

If reliable information indicates that a defendant's remote convictions substantially over-represent the

seriousness of the defendant's conduct, a downward departure is warranted.

Additionally, Arthur’s conduct in this conspiracy was only over a short period of time.4

4 U.S. v. Adelson 441 F.Supp.2d 506 (SDNY 2006) (below guideline sentence imposed in part because the defendant “did not

participate in the fraudulent conspiracy until its final months”).



5/7


6/7

Page 6 of 7


Such a sentence will reflect the seriousness of the offense. Incarceration will reflect, to all, that a

deprivation of liberty, and continuing and ongoing supervision for a period of years, will result as a minimum for

such conduct. 18 Uni ted States Code §3553(a)(2)(A) .

Such a sentence will promote respect for the law and provide just punishment for this offense and this

offender. 18 Uni ted States Code §3553(a)(2)(A) .

Given the personal makeup and age of this defendant, such a sentence will afford adequate deterrence

to future criminal conduct. 18 Uni ted States Code §3553(a)(2)(B) .

With ongoing supervision, and based upon all of the foregoing factors, the public will thereby be

protected from further crimes of this defendant. 18 Uni ted States Code §3553(a)(2)(C).

The defendant can therefore immediately focus on receiving, and participating in, the greatly needed

correctional guidance and supervision, in the most effective manner . 18 Uni ted States Code §3553(a)(2)(D)

This sentence would also demonstrate that sufficient consideration has been given to all of the kinds

of sentences available. 18 Un ited States Code §3553(a)(3).

Such a sentence would take cognizance of the sentencing range established for this applicable

category of offense and criminal offender. 18 Uni ted States Code §3553(a)(4)(A) .

CONCLUSION

It is respectfully prayed that this Court sentence Arthur Hennessey to a term of federal imprisonment

commensurate with each and all of the foregoing considerations, taking into account all aspects of the advisory

sentencing guidelines, application of any departures therefrom, and in view of all of the factors contained in 18

United States Code §3553(a).



7/7

Page 7 of 7


Alternatively, we pray this Court to impose a non-Guidelines sentence appropriate to all of the attendant

circumstances, and consonant with this application. It is also respectfully requested that this defendant be allowed

to participate in any and all relevant Bureau of Prisons programing for which he may be eligible, and that he be

housed as close to his home and family as is possible.

Respectfully submitted,

Robert G. WellsROBERT G. WELLS, ESQ.

Attorney for DefendantBar Role Number: 505778Office and Post Office Address

The University Building

120 East Washington Street

Syracuse, New York 13202


Lawyer's argument for 60-year-old Syracuse pot dealer

Documents

Transcript of Lawyer's argument for 60-year-old Syracuse pot dealer