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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

vs. ) CASE NO. 2:06cr193-MEF

 )

JOSHUA WAYNE HESTER )

JOSHUA WAYNE HESTER’S SENTENCING MEMORANDUM

Joshua Wayne Hester, by undersigned counsel, hereby sets forth the following as his

memorandum to the Court for use in fashioning a reasonable sentence under 18 U.S.C. § 3553(a),

as dictated by the decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738 (2005). It is Mr.

Hester’s position that the calculated advisory guideline sentence is greater than that necessary to

accomplish the goals of sentencing mandated under §3553(a).

Sentencing under Booker

On January 12, 2005, the Supreme Court ruled that its Sixth Amendment holding in

Blakely v. Washington, 124 S. Ct. 2531 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000)

applies to the Federal Sentencing Guidelines. United States v. Booker, 125 S. Ct. 738, 756 (2005).

Given the mandatory nature of the Sentencing Guidelines, the Court found “no relevant distinction

between the sentence imposed pursuant to the Washington statutes in Blakely and the sentences

imposed pursuant to the Federal Sentencing Guidelines” in the cases before the Court. Id. at 751.

Accordingly, reaffirming its holding in Apprendi, the Court concluded that:

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The fact-of-prior-conviction exception to the Apprendi rule is based on

Almendarez-Torres v. United States, 523 U.S. 224 (1998). But the continued vitality of this case

and the exception it created has been called into question not only by the broad reasoning of

Booker itself, which would seem to apply to all enhancement facts, including facts of prior

conviction, but also more recently by Shepard v. United States, 125 S. Ct. 1254 (2005). Shepard

sharply limits the Almendarez-Torres exception to the fact of prior conviction as determined by

the judicial record, and excludes facts about the conviction which are not contained in such

conclusive records. As Justice Thomas notes, moreover, five justices agree that

Almendarez-Torres was wrongly decided. 125 S. Ct. at 1264 (Thomas, J., concurring).

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[a]ny fact (other than a prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a plea of guilty or

a jury verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.

Id. at 756.1

 Based on this conclusion, the Court further found those provisions of the federal

Sentencing Reform Act of 1984 that make the Guidelines mandatory, 18 U.S.C. § 3553(b)(1), or

which rely upon the Guidelines’ mandatory nature, 18 U.S.C. § 3742(e), incompatible with its

Sixth Amendment holding. Booker, 125 S. Ct. at 756. Accordingly, the court severed and

excised those provisions, “mak[ing] the Guidelines effectively advisory.” Id. at 757. Instead of

being bound by the Sentencing Guidelines, the Sentencing Reform Act, as revised by Booker

“requires a sentencing court to consider Guidelines ranges, see 18 U.S.C.A. § 3553(a)(4) (Supp.

2004), but it permits the court to tailor the sentence in light of other statutory concerns as well, see

§ 3553(a).” Booker, 125 S. Ct. at 757. Under the Booker sentencing regime courts must treat the

Guidelines as just one of a number of sentencing factors set forth in 18 U.S.C. § 3553(a). 

 The primary directive in § 3553(a) is for sentencing courts to “impose a sentence sufficient, but

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not greater than necessary, to comply with the purposes set forth in paragraph 2.” Section

3553(a)(2) states that such purposes are:

(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.

 In determining the minimally sufficient sentence, § 3553(a) further directs sentencing

courts to consider the following factors:

a. “the nature and circumstances of the offense and the history and the history

and characteristics of the defendant” (§ 3553(a)(1));

b. “the kinds of sentences available” (§ 3553(a)(3));

c. “The need to avoid unwarranted disparities among defendants with similar

records who have been found guilty of similar conduct” (§ 3553(a)(6)); and

d. “the need to provide restitution to any victims of the offense” (§ 3553(a)(7))

 Other statutory sections also give the district court direction in sentencing. Under 18

U.S.C. § 3582, imposition of a term of imprisonment is subject to the following limitation: in

determining whether and to what extent imprisonment is appropriate based on the Section 3553(a)

factors, the judge is required to “recogniz[e] that imprisonment is not an appropriate means of

promoting correction and rehabilitation” (emphasis added).

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 Under 18 U.S.C. § 3661, “no limitation shall be placed on the information concerning the

background, character, and conduct of [the defendant] which a court of the United States may

receive and consider for the purpose of imposing an appropriate sentence” (emphasis added). 

This statutory language certainly overrides the (now-advisory) policy statements in Part H of the

sentencing guidelines, which list as “not ordinarily relevant” to sentencing a variety of factors

such as the defendant’s age, educational and vocational skills, mental and emotional conditions,

drug or alcohol dependence, and lack of guidance as a youth. See U.S.S.G. § 5H1. See also

United States v. Nellum, 2005 U.S. Dist. LEXIS 1568 (N.D. Ind. Feb. 3, 2005) (Simon, J.) (taking

into account fact that defendant, who was 57 at sentencing, would upon his release from prison

have a very low likelihood of recidivism since recidivism reduces with age; citing Report of the

U.S. Sentencing Commission, Measuring Recidivism: the Criminal History Computation of the

Federal Sentencing Guidelines, May 2004); United States v. Naylor, 2005 WL 525409, *2, 2005

U.S. Dist. LEXIS 3418 (W.D. Va. 2005) (concluding that sentence below career offender

guideline range was reasonable in part because of defendant’s youth when he committed his

predicate offenses – he was 17 – and noting that in Roper v. Simmons, 125 S. Ct. 1183, 1194-96

(2005), the Supreme Court found significant differences in moral responsibility for crime between

adults and juveniles).

 The directives of Booker and § 3553(a) make clear that courts may no longer uncritically

apply the guidelines. Such an approach would be “inconsistent with the holdings of the merits

majority in Booker, rejecting mandatory guidelines sentences based on judicial fact-finding, and

the remedial majority in Booker, directing courts to consider all of the § 3553(a) factors, many of

which the guidelines either reject or ignore.” United States v. Ranum, 353 F. Supp. 2d 984,

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985-86 (E.D. Wisc. 2005). As another court has correctly observed, any approach which

automatically gives “heavy” weight to the guideline range “comes perilously close to the

mandatory regime found to be constitutionally infirm in Booker.” United States v. Jaber, 2005

WL 605787 *4 (D. Mass. 2005).

 Justice Scalia explains the point well in his dissent from Booker’s remedial holding in

observing, “[T]hus, logic compels the conclusion that the sentencing judge, after considering the

recited factors (including the guidelines), has full discretion, as full as what he possessed before

the Act was passed, to sentence anywhere within the statutory range. If the majority thought

otherwise – if it thought the Guidelines not only had to be ‘considered’ (as the amputated statute

requires) but had generally to be followed – its opinion would surely say so.” Booker, 125 S. Ct.

At 791 (Scalia, J., dissenting in part). Likewise, if the remedial majority thought the guidelines

had to be given “heavy weight,” its opinion would have said so. The remedial majority clearly

understood that giving any special weight to the guideline range relative to the other Section

3553(a) factors would violate the Sixth Amendment. 

 In sum, in every case, a sentencing court must now consider all of the § 3553(a) factors,

not just the guidelines, in determining a sentence that is sufficient but not greater than necessary to

meet the objectives of sentencing. Where the guidelines conflict with other sentencing factors set

forth in § 3553(a), these statutory sentencing factors should trump the guidelines, lest the

guidelines again become mandatory, in violation of the Court’s teaching in Booker.

 SENTENCING IN THE PRESENT CASE

In the case before the Court, Mr. Hester entered a guilty plea to the offenses charged in the

information. By doing so, he recognized the gravity of the conduct in which he had engaged,

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accepted responsibility fo it and spared the young women with whom he had been involved the

trauma of appearing to testify at a public trial. Mr. Hester in no way minimizes or attempts to

diminish the seriousness of that to which he has entered his plea. Nevertheless, a sentence within

the range called for by the advisory guidelines is far greater than that necessary to accomplish the

goals of sentencing. 

The sentencing range calculated by the probation officer is 292-360 months. Under the

terms of the Rule 11(c)(1)(C) plea agreement entered into between the government and Mr.

Hester, the lowest sentence that can imposed upon Mr. Hester is 235 months, 5 months short of 20

years. It cannot be said that such a sentence is unreasonable, given the totality of the

circumstances surrounding Mr. Hester and the offense. As shown below, a sentence of 235

months will effectively meet the aims of sentencing and will certainly not be a sentence that can

be deemed to be a “lenient” sentence.

Mr. Hester is 22 years old and has seemingly been beset by psychological problems for

most of his life. He attempted to serve his country by enlisting in the United States Marine Corps

but was discharged after a brief stint in the service as a result of bipolar disorder. Indeed, Dr.

Renfro concluded,after his thorough testing and evaluation of Mr. Hester that he suffers from a

constellation of psychological problems, including Bipolar Disorder, Major Depressive Disorder,

Post-Traumatic Stress Disorder and Borderline Personality Disorder. Suffering from these

recognized, serious psychological disorders, it should come as no surprise to learn that Mr. Hester

smoked marijuana and drank alcohol daily, beginning at age 13 and added the potent hallucinogen

PCP to his drug repertoire a scant two years later. Many professionals in the field of psychology

ascribe the early onset of such chronic drug use as efforts at “self-medication”, frequently when

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the subject has no idea of the reasons for such activity. In addition, Dr. Renfro’s evaluation

demonstrated that Mr. Hester possesses a chronicity of “suicidal thoughts and occasional suicidal

gestures.” Clearly, Mr. Hester is a troubled young man.

The probation officer indicated that he sees no grounds for departure or variance, yet Mr.

Hester suggests that U.S.S.G. § 5K2.13 accurately describes a person in his situation. While that

section may not have supported a downward departure under a mandatory guidelines scheme, Mr.

Hester’s profound psychological condition certainly provides a basis for the Court’s informed and

guided discretion to impose a sentence of 235 months, below the range in the post-Booker,

advisory guidelines world but still a sentence that achieves the goals of sentencing, one that is

reasonable by being sufficient but not greater than necessary. Mr. Hester’s conduct was certainly

reprehensible and that is beyond dispute. While the psychological disorders from which he

suffers does not serve to excuse, it does give context to the conduct. Under U.S.S.G. §

3553(a)(1), the history and characteristics of Mr. Hester would militate toward a sentence of

nearly 20 years as a sentence that is reasonable.

Section 3553(a)(2)(A) requires the Court to fashion a sentence that “reflect[s] the

seriousness of the offense, to promote respect for the law, and to provide just punishment for the

offense[.]” Beyond doubt, if the Court were to impose a sentence of 235 months there could be

no valid accusation that the Court ignored § 3553(a)(2)(A). A sentence of that length cannot be

viewed as a “slap on the wrist” or a walk in the park. In reality, a sentence approaching 20 years

in duration condemns an individual to an enormous amount of time of being socially

incapacitated. Many lose sight of the actual length of time federal sentences involve since their

length is expressed in months and some may feel that the time passes as quickly as it takes an

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individual to count to the number. Reality should disabuse anyone of that notion. If the Court

were to set Mr. Hester’s sentence at 235 months it would be imposing a long, arduous stretch of

incarceration that would acknowledge the seriousness of Mr. Hester’s conduct, promote the law’s

respect and provide a reasonable and just punishment. A sentence within the calculated range of

292-360 months is simply greater than necessary to accomplish those goals and, therefore,

violative of the teachings of Booker when applied in the present case.

The deterrent effect of sentencing, the factor described in § 3553(a)(2)(B), will be realized

by the imposition of a sentence of 235 months. A sentence of that duration would serve to

illustrate that convictions for serious offenses receive serious punishment. No rational person, if

reading a hypothetical newspaper account of the imposition of almost 20 years of incarceration

(and a lifetime of supervised release), would react by believing that the sentencing court had made

a mockery of the criminal justice system by being “soft on crime”. Instead, the reaction would be

that the Court had been fair and just, meting out an appropriate sanction for the commission of

serious offenses. In addition, the goal of § 3553(a)(2)(C) would also be realized with a 235 month

sentence since the public would be protected from further crimes and Mr. Hester would not be

eligible for release from prison for a long, long time and by then would have been able to have

received necessary treatment. Even then, Mr. Hester will be required to spend the rest of his years

under the watchful eyes of post-release supervisors from the probation office so that there will

always be an element of protection for the public.

The imposition of a sentence of 235 months would allow Mr. Hester to receive the

treatment he needs to be able to overcome the psychological troubles from which he suffers. That

is ample time, and there will certainly be ample opportunity, for him to receive the necessary help

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while incarcerated. It is not necessary for the Court to impose a sentence within the calculated

advisory guideline range of 292-360 months for this sentencing goal, embodied in the language of

§ 3553(a)(2)(D), to be effectively achieved.

 CONCLUSION

Sentencing in the post-Booker environment returns the Court to the task of fashioning

reasonable sentences that are sufficient but not greater than necessary, instead of requiring it to

impose mechanistic, formulaic, one size fits all sentences. In many ways, this makes the Court’s

task more difficult since it requires it to carefully delve deep into the individualized characteristics

of the offender who comes before the Court to try to comprehend the myriad factors which make

up the individual and provide context for the criminal conduct. In Mr. Hester’s case, his many

individualized factors should lead the Court to conclude, for all of the foregoing reasons, that a

sentence of 235 months is a sentence that is reasonable, will accomplish all of the statutory goals

of sentencing and is sufficient, but not greater than necessary, to do so. The Court should impose

a sentence of 235 months upon Mr. Hester.

 Respectfully submitted,

s/Stephen R. Glassroth

STEPHEN R. GLASSROTH

Counsel for Joshua Wayne Hester

AL Bar Code: GLA005

Post Office Box 996

Macon, Georgia 31202-0996

Phone (478) 743-4747

Fax (478) 743-4749

E-mail steve_glassroth@fd.org

 

.

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CERTIFICATE OF SERVICE

 I hereby certify that on May 24, 2007, I electronically filed the foregoing with the Clerk of

the Court using the CM/ECF system which will send notification of such filing to all counsel of

record in this matter.

s/Stephen R. Glassroth

STEPHEN R. GLASSROTH

Counsel for Joshua Wayne Hester

AL Bar Code: GLA005

Post Office Box 996

Macon, Georgia 31202-0996

Phone (478) 743-4747

Fax (478) 743-4749

E-mail steve_glassroth@fd.org

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