IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

 v. : CRIMINAL NO. 05-157

MARVIN GOLDBERG :

GOVERNMENT'S SENTENCING MEMORANDUM

I. BACKGROUND

Marvin Goldberg was the owner and operator of a veterinary prescription drug

supply business that repeatedly ignored warnings from the Food and Drug Administration

("FDA") regarding the illegal nature of his business involving the sale of veterinary prescription

drugs without a valid prescription or order from a licensed veterinarian who had a legitimate

veterinarian-client-patient relationship with the customer or animal. In addition to warnings from

the FDA, Goldberg received letters from various state regulatory agencies in California,

Kentucky, Louisiana, Maryland, and Texas ordering him to cease and desist his illegal

distribution of veterinary prescription drugs. In spite of all the warnings, Goldberg continued to

operate his business and convinced Jack Wilkes, D.V.M., an elderly veterinarian whom Goldberg 

had never met, that Goldberg's business was a licensed wholesale drug distributor, in order to get

Dr. Wilkes to lend Goldberg his veterinary license so that Goldberg could obtain veterinary

prescription drugs from pharmaceutical wholesalers. Goldberg also obtained Dr. Wilkes' DEA

number to order and receive controlled substances from pharmaceutical wholesalers without Dr.

Wilkes' knowledge and consent. 

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In furtherance of the fraud scheme, Goldberg used Dr. Wilkes' name and

veterinary license to obtain prescription veterinary drugs from pharmaceutical companies by

falsely represented to these companies that the drugs he was purchasing were for use by Dr.

Wilkes in his veterinary practice and were not for resale. The false representations caused the

pharmaceutical companies to ship the drugs to Goldberg. Goldberg marketed the drugs through

an internet website and unsolicited facsimiles to animal owners. Goldberg also sold certain

prescription veterinary drugs to an undercover FDA agent without a prescription. 

A search warrant executed at Goldberg’s residence/place of business on February

17, 2005 resulted in the seizure of approximately $40,000 in prescription injectable veterinary

drugs, business documents pertaining to Goldberg’s interaction with the pharmaceutical

companies which contain the false representation that a licensed veterinarian had or would

prescribe the drugs being ordered and Goldberg’s drug transactions with customers across the

country, and multiple vials of Stanozolol, an equine steroid which is a controlled substance

which Goldberg obtained using the veterinarian's DEA number.

Following the search, FDA Special Agent Greg Tremaglio visited Dr. Wilkes'

home. During the visit, Dr. Wilkes showed the agent documents that he had just received from

Goldberg which purported to be treatment logs that Goldberg had created for Dr. Wilkes in the

event he was visited by law enforcement officers. A consensually recorded telephone

conversation between Dr. Wilkes and Goldberg revealed that Goldberg had duped Dr. Wilkes

about the legality of Goldberg's business, Goldberg had created the fictitious treatment logs in

response to the FDA investigation, and that Goldberg used Dr. Wilkes' DEA number to acquire

Stanozolol on numerous occasions without Dr. Wilkes' knowledge and consent.

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A financial analysis of Goldberg's business and bank records has demonstrated the

illegal veterinary prescription drug business yielded a total of $1,772,955 in sales and a total of

$1,187,879 in profits.

II. SENTENCING CALCULATION

A. Statutory Maximum Sentence.

Goldberg was convicted of wire fraud, in violation of 18 U.S.C. § 1343 (Count 1);

mail fraud, in violation of 18 U.S.C. § 1341 (Counts 2 through 28); possession with intent to

distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1) (Counts 29 through 36);

introduction of misbranded drugs into interstate commerce, in violation of 21 U.S.C. § 331(a)

(Counts 37 and 39); and, misbranding drugs, in violation of 21 U.S.C. § 331(k) (Counts 38 and

40). Goldberg faces a statutory maximum sentence of 612 years imprisonment, a $10,000,000

fine, three years supervised release, and a $4,000 special assessment. 

B. Sentencing Guidelines Calculation.

In imposing sentence, the Court must take into account the considerations of

sentencing set forth in 18 U.S.C. § 3553(a). United States v. Booker, 543 U.S. 220, 261 (2005). 

First, as stated in Section 3553(a)(4), the Court must determine and consider the sentencing range

established in the Sentencing Guidelines. The Third Circuit has confirmed: “In consideration of

the § 3553(a) factors, a trial court must calculate the correct guidelines range applicable to a

defendant’s particular circumstances.” Cooper, 437 F.3d at 330. This Court must make findings

pertinent to the guideline calculation by applying the preponderance of the evidence standard, in

the same fashion as was employed prior to the Booker decision. Id.; see also United States v.

Giaquinto, 441 F.3d 195, 196 (3d Cir. 2006) (court may continue to determine by a

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preponderance of the evidence and consider the defendant’s relevant conduct in determining the

guideline range). In short, the guideline range should be calculated in the same manner as it was

prior to Booker. 

[W]e emphasize that the sentencing courts in this Circuit should continue to follow the

requirement to “consider” the Guidelines by calculating a Guidelines sentence as they

would have before Booker, including formally ruling on the motions of both parties and

stating on the record whether they are granting a departure and how that departure affects

the Guidelines calculation, and taking into account this Circuit's pre-Booker caselaw,

which continues to have advisory force.

United States v. King, 454 F.3d 187, 196 (3d Cir. 2006).

In this case, as stated in the presentence report (PSR), the correct guideline

calculation is as follows. Pursuant to Sentencing Guidelines § 2B1.1, Goldberg, who received

profits totaling between $1,000,000 and $2,500,000 and continued to operate his business in spite

of notices from federal and state agencies that he was in violation of the law or ordering him to

cease and desist, has a total offense level of 25. He also has a criminal history category of I. 

Thus, the guideline range for imprisonment is 57 to 71 months.

Once the Court has properly calculated the guideline range, the Court must next

consider all of the sentencing considerations set forth in Section 3553(a). Those factors are:

(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 

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 (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 . . . issued by the Sentencing Commission .

. . that . . . is in effect on the date the defendant is sentenced; . . . 

(5) any pertinent policy statement . . . issued by the Sentencing Commission . . . that . . .

is in effect on the date the defendant is sentenced. 

(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.

18 U.S.C. § 3553(a).

A full review of all pertinent factors supports the conclusion that a withinguideline sentence is appropriate in this case. The most pertinent factor is the loss amount.

In theft and fraud cases, Sentencing Guideline § 2B1.1(b)(1) sets out a graduated

scale of progressively increasing offense levels based upon the "loss" resulting from the crime. 

"Loss" is defined as the greater of actual or intended loss. U.S.S.G. § 2B1.1, comment. (n.2(A)). 

In this instance the question is the "actual loss," which is defined is in the guidelines as "the

reasonably foreseeable pecuniary harm that resulted from the offense." Id. In calculating this

figure, the Guidelines require the district court to do no more than "make a reasonable estimate

of the loss." U.S.S.G. § 2B1.1, comment. (n.2(c)); see United States v. Schaeffer, 384 F.3d 326,

334 (7th Cir. 2004) ("[A]ccording to the Guidelines, in order to pass muster, loss calculations

only need to be a reasonable estimate.") The district court's estimate should be "based on

Case 2:05-cr-00157-JCJ Document 42 Filed 12/07/06 Page 5 of 16
 Since the drugs sold to the defendant's customers were illegally obtained, they had no 1

cognizable value insofar as these drugs were contraband and thus subject to seizure upon

discovery by the FDA.

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available information, taking into account, as appropriate and practicable under the

circumstances, factors such as . . . the fair market value of the property unlawfully taken." 

U.S.S.G. § 2B1.1, comment. (n.2(C)(i)).

In theft cases, use of retail value has long been recognized as a reasonable means

to estimate loss amounts for sentencing purposes, particularly when the goods at issue were

illegally obtained from the marketplace. See, e.g., United States v. Carrington, 96 F.3d 1, 6 (1st

Cir. 1996) ("it was reasonable for the court to adopt the retail rather than the wholesale value of

the cars, since all of the dealerships from whom Carrington obtained the cars were engaged in

retail sales of automobiles."); United States v. Williams, 50 F.3d 863, 864 (10th Cir. 1995)

(affirming use of retail value to establish loss because "jewelry was stolen from a retail

establishment, not a wholesaler"); United States v. Shea, 984 F.2d 1339, 1345 (3d Cir. 1992)

(rejecting defendants' contention that loss amount was not retail value, but 25% discounted price

victim would have accepted or even lower wholesale replacement cost).

However, in fraud cases, the monetary table in the guideline is intended to reflect

"the harm to the victim and the gain to the defendant." U.S.S.G. § 2B1.1, comment. (backg'd)

(emphasis added). Federal agencies may be the victims of fraud in misbranding drugs. There is

no meaningful distinction between the government as victim and individual consumer victims

because it is possible for either or both to be defrauded. In this case, Goldberg intended to and

did profit from his activity and at least the FDA was defrauded by his actions. Adjusting the 1

guideline range based on the amount involved, that is, the defendant's profit, is therefore

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appropriate. See, United States v. Marcus, 82 F.3d 606, 610 (4th Cir. 1996) (the defendant's

gross sales were the appropriate measure of the actual loss). 

In this case, inasmuch as the veterinary prescription drugs were illegally obtained 

by the defendant, they were contraband, therefore, any sale of the illegally obtained drugs

constituted gain to the defendant. The FDA has analyzed Goldberg's business and banking

records (Sky Bank) from July 17, 2002 until February 17, 2005. The bank deposit analysis

revealed revenue in the amount of $1,772,955 for Equihealth, c/o Marvin and Mark Goldberg. 

Marvin Goldberg wrote all of the checks drawn on the account. Marvin Goldberg executed

checks payable to Mark Goldberg totaling approximately $108,000, including a check in the

amount of $20,000 the day after Marvin Goldberg's home and his business location was

searched. Checks totaling approximately $62,000 were made payable to Dr. Jack Wilkes. All of

the other checks were made payable to Marvin Goldberg's creditors. 

Based on the cost of the illegally purchased veterinary prescription drugs from

Equihealth's suppliers, in comparison to the price Equihealth sold the drugs to its customers, the

FDA determined that Goldberg had an average profit margin of approximately 67%. Thus,

Goldberg ultimately earned profits totaling approximately $1,187,879 as a result of his illegal

veterinary prescription drug business. Therefore, the government submits that Goldberg's gain in

the amount of $1,187,879 is the appropriate measure of loss for purposes of the Sentencing

Guidelines.

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C. The District Court's Construction of the Sentencing Guidelines

The Third Circuit has set forth a three-step process which the district courts must

follow in compliance with the Supreme Court's ruling in United States v. Booker, 543 U.S. 220

(2005):

(1) Courts must continue to calculate a defendant's Guidelines sentence precisely as they

would have before Booker.

(2) In doing so, they must formally rule on the motions of both parties and state on the

record whether they are granting a departure and how that departure affects the

Guidelines calculation, and take into account our Circuit's pre-Booker case law, which

continues to have advisory force.

(3) Finally, they are to exercise their discretion by considering the relevant § 3553(a)

factors in setting the sentence they impose regardless whether it varies from the sentence

calculated under the Guidelines.

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (quotation marks, brackets, and

citations omitted), citing United States v. King, 454 F.3d 187, 194, 196 (3d Cir.

2006); United States v. Cooper, 437 F.3d 324, 329-30 (3d Cir. 2006).

The Third Circuit has explained that the Court must consider the advisory

giudeline range along with all the pertinent considerations of sentencing outlined in 18 U.S.C.

§ 3553(a) in determining the final sentence. “The record must demonstrate the trial court gave

meaningful consideration to the § 3553(a) factors. . . . [A] rote statement of the § 3553(a) factors

should not suffice if at sentencing either the defendant or the prosecution properly raises ‘a

ground of recognized legal merit (provided it has a factual basis)’ and the court fails to address

Case 2:05-cr-00157-JCJ Document 42 Filed 12/07/06 Page 8 of 16
 In United States v. Grier, 449 F.3d 558, 574-75 (3d Cir. 2006), the panel held that the 2

solitary statement, “The Court believes that 100 months is reasonable in view of the

considerations of section 3553(a),” was insufficient to explain the district court’s reasoning, and

remanded for resentencing. This opinion was subsequently vacated and rescheduled for hearing

en banc on a separate issue in the case, regarding whether the preponderance standard applies at

sentencing to proof of additional uncharged crimes. The holding with respect to the sufficiency

of the sentencing explanation appears to represent the view of the Third Circuit, as made clear in

the other cases cited above.

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it.” Cooper, 437 F.3d at 329. See also United States v. Schweitzer, 454 F.3d 197, 205-06 (3d

Cir. 2006) (directing district courts to explain all guideline determinations and final sentences,

stating, “There is simply no substitute for on-the-record discussion and deliberation. It ensures

that the parties are fully informed of their rights and obligations and that the appellate court will

be able to assess the merits of the final judgment.”); United States v. King, 454 F.3d 187, 196-97

(3d Cir. 2006) (district courts “should observe the requirement to state adequate reasons for a

sentence on the record so that this court can engage in meaningful appellate review.”).

2

III. ANALYSIS.

A Importance of the Guideline Range.

The advisory guideline range carries considerable weight even after Booker. As

the Third Circuit stated, “a within-guidelines range sentence is more likely to be reasonable than

one that lies outside the advisory guidelines range . . . .” Cooper, 437 F.3d at 331. The Court

later noted: “The farther a sentence varies from the advisory guidelines range, the more

compelling the judge's reasons must be.” United States v. King, 454 F.3d 187, 195 (3d Cir.

2006), quoting United States v. Jordan, 435 F.3d 693, 696-97 (7th Cir. 2006).

The importance of the final guideline range has nothing to do with the guidelines’

former mandatory status, which was eliminated in Booker. Rather, the final guideline range is

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the starting point for determining reasonableness for three reasons: (1) only the guidelines

comprehensively examine the full panoply of sentencing considerations; (2) the guidelines

represent decades of nationwide experience and study; and (3) they are the only measure for

avoiding unwarranted sentencing disparities. Congress explicitly created the Sentencing

Commission and the guideline system to achieve these ends. 

First, the guidelines are much more comprehensive than any other Section 3553(a)

factor. Each of the other 3553(a) factors addresses only a single facet of the many issues posed

by sentencing. “[T]he factors the sentencing commission was required to use in developing the

Guidelines are a virtual mirror image of the factors sentencing courts are required to consider

under Booker and § 3553(a).” United States v. Shelton, 400 F.3d 1325, 1332 n.9 (11th Cir.

2005); Statement of Judge Ricardo H. Hinojosa, Chair of the United States Sentencing

Commission, quoted in United States v. Peach, 356 F. Supp. 2d 1018, 1020-22 (D.N.D. 2005). 

In formulating the guidelines, the Commission was required to and has considered all of the

Section 3553(a) factors. See 28 U.S.C. §§ 991(b)(1), 994(b)(1), (c), (f), (g), (m); U.S.S.G.

§ 1A1.1 Editorial Note.

Second, the guidelines are the product of years of nationwide experience and

sustained study. In drafting the original guidelines (which became effective with respect to

offenses committed on or after November 1, 1987), the Sentencing Commission canvassed prior

sentencing practice, identifying aggravating and mitigating factors. 28 U.S.C. § 994(m); U.S.

Sentencing Commission, Supplementary Report on the Initial Sentencing Guidelines and Policy

Statements 16-17 (1987). Since then, the Commission has continued to study district court and

appellate sentencing decisions, and has fine-tuned the guidelines to take them into account. 

Case 2:05-cr-00157-JCJ Document 42 Filed 12/07/06 Page 10 of 16
 Every opinion in Booker acknowledged the express national policy, as articulated by 3

Congress, that sentences be uniform across the country to the extent possible. See, e.g., Booker,

543 U.S. at 253 (majority opinion of Breyer, J.) (“Congress’ basic goal in passing the Sentencing

Act was to move the sentencing system in the direction of increased uniformity.”); id. at 744

(same) (“Congress’ basic statutory goal of diminishing sentencing disparity depends for its

success upon judicial efforts to determine, and to base punishment upon, the real conduct that

underlies the crime of conviction.”); id. at 292 (dissenting opinion of Stevens, J.) (“The

elimination of sentencing disparity, which Congress determined was chiefly the result of a

discretionary sentencing regime, was unquestionably Congress’ principal aim.”); id. at 303-04

(dissenting opinion of Scalia, J.) (“the primary objective of the Act was to reduce sentencing

disparity.”).

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U.S.S.G. App. C. Indeed, the Booker Court specifically affirmed that the Commission will

continue to study appellate and district court sentencing decisions, and “will continue to modify

its Guidelines in light of what it learns, thereby encouraging what it finds to be better sentencing

practices.” Booker, 543 U.S. at 263 (Breyer, J.). 

The Sentencing Commission’s incomparable flow of nationwide information, and

its years of concentrated study on this topic, merit strong consideration by judges who are

assigned the task of determining appropriate sentences for criminal conduct. United States v.

Wilson, 350 F. Supp. 2d 910, 914-25, reaffirmed on denial of reconsideration, 355 F. Supp. 2d

1269, 1271-88 (D. Utah 2005); United States v. Wanning, 354 F. Supp. 2d 1056, 1060-62 (D.

Neb. 2005); Peach, 356 F. Supp. 2d at 1020-22. 

Third, the correctly calculated guideline range is the only means to evaluate the

statutory sentencing goal on which Booker placed so much emphasis: “the need to avoid

unwarranted sentence disparities,” 18 U.S.C. § 3553(a)(6). Congress, the Court, and the 3

guidelines all seek to minimize such disparity compared to “all other similar sentences imposed

nationwide.” United States v. White, 406 F.3d 827, 837 (7th Cir. 2005). The Sentencing

Guidelines provide the comprehensive information and guidance about sentencing around the

Case 2:05-cr-00157-JCJ Document 42 Filed 12/07/06 Page 11 of 16
 In aiming for uniform sentencing, the appropriate focus is on sentences imposed in 4

federal court for like offenses. A panel of the Third Circuit correctly found “no merit in [the]

argument that the District Court should have considered what [the defendant]’s sentence would

have been had he been convicted of a similar state-law offense. Booker directs our

reasonableness review to the factors set forth under federal law for federal criminal offenses. 

That a separate sovereign chooses to implement its criminal sentencing scheme in a different

manner does not impact our analysis under § 3553(a)(6), which focuses on the need to avoid

unwarranted disparities among sentences issued by federal courts for violations of federal law.” 

United States v. Cropper, 2006 WL 372338, at *4 n.7 (3d Cir. Feb. 17, 2006) (not precedential).

Likewise, in imposing sentence, a district court need not focus on disparate sentences

imposed on co-defendants in the same case, as opposed to sentences imposed nationwide on like

offenders. United States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006).

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nation that is essential to accomplishing Congress’ goal of uniform federal sentencing. “The

only way of avoiding gross disparities in sentencing from judge-to-judge and district-to-district is

for sentencing courts to apply some uniform measure in all cases. The only standard currently

available is the Sentencing Guidelines.” Wilson, 350 F. Supp. 2d at 924; Wanning, 354 F. Supp.

2d at 1061-62 (“we have no meaningful substitute for the neutrality, coherence, and equality”

that the guidelines provide). Thus, measuring reasonableness in relation to the guideline range

serves “to minimize the wide disparity in sentencing across the country for similarly situated

defendants that led to the enactment of the Guidelines in the first place.” United States v. Paulus,

331 F. Supp. 2d 727, 733 (E.D. Wis. 2005).

Thus, the Third Circuit in Cooper stated that “‘[t]he Guidelines remain an

essential tool in creating a fair and uniform sentencing regime across the country,’ and provide a

natural starting point for the determination of the appropriate level of punishment for criminal

conduct.” Cooper, 437 F.3d at 331, quoting United States v. Mykytiuk, 415 F.3d 606, 608 (7th

Cir. 2005).4

Case 2:05-cr-00157-JCJ Document 42 Filed 12/07/06 Page 12 of 16
 See, e..g, United States v. Zapete-Garcia, 447 F.3d 57 (1st Cir. 2006); United States v. 5

Smith, 445 F.3d 1 (1st Cir. 2006); United States v. Davenport, 445 F.3d 366 (4th Cir. 2006);

United States v. Hampton, 441 F.3d 284 (4th Cir. 2006); United States v. Moreland, 437 F.3d

424, 434-37 (4th Cir. 2006); United States v. Duhon, 440 F.3d 711 (5th Cir. 2006); United States

v. Goody, 442 F.3d 1132 (8th Cir. 2006); United States v. Lazenby, 439 F.3d 928, 933 (8th Cir.

2006); United States v. McVay, 447 F.3d 1348, 1357 (11th Cir. 2006).

 “[T]he farther the judge’s sentence departs from the guidelines sentence . . . the more 6

compelling the justification based on factors in section 3553(a) that the judge must offer in order

to enable the court of appeals to assess the reasonableness of the sentence imposed.” United

States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). The Third Circuit cited this view with

approval in King. Accord United States v. Smith, 445 F.3d 1, 4 (1st Cir. 2006); United States v.

Gatewood, 438 F.3d 894, 896 (8th Cir. 2006); United States v. Moreland, 437 F.3d 424, 434 (4th

Cir. 2006).

The Supreme Court has granted certiorari to further clarify the significance of the

Sentencing Guidelines. In United States v. Claiborne, 439 F.3d 479 (8th Cir. 2006), cert.

granted, 2006 WL 2187967 (U.S. Nov. 3, 2006), the key issue presented is whether, as stated in

these cases, a sentence which constitutes a substantial variance from the guidelines must be

justified by extraordinary circumstances. The pendency of this case need not concern the Court

here, however, as the government asserts that a sentence within the guideline range is most

appropriate in this case, and there is no persuasive basis for any variance. In a second case

pending before the Supreme Court, United States v. Rita, 177 Fed. Appx. 357 (4th Cir. May 1,

2006) (per curiam; not precedential), cert. granted, 2006 WL 2307774 (U.S. Nov. 3, 2006), the

significant question presented is whether it is consistent with Booker to accord a presumption of

reasonableness to within-guidelines sentences. The resolution of that case also is not significant

here. The Third Circuit, as opposed to the Fourth Circuit and others, has already made clear that

no presumption of reasonableness applies to a guideline range. Cooper, 437 F.3d at 331-32. 

Thus, the government here does not advocate a guideline sentence based on any presumption, but

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Accordingly, while many appellate courts have reversed as unreasonable

sentences imposed outside the applicable guideline ranges, reversals of sentences imposed 5

within the guideline range have been extraordinarily rare, and have occurred only where the

appellate court found that the district court did not adequately explain the sentence. See, e.g., 

United States v. Carty, 453 F.3d 1214, 1220-21 (9th Cir. 2006). Moreover, the Courts of

Appeals have emphasized that the further outside the range, either above or below, a sentence

falls, the stronger must be the justification for such disparate sentencing.6

Case 2:05-cr-00157-JCJ Document 42 Filed 12/07/06 Page 13 of 16
rather based on the persuasive force of the guidelines and the other considerations of sentencing,

as set forth above.

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B. Application of the § 3553(a) Factors.

In this case, no unusual circumstances exist which warrant an exception to the

preference for guideline sentencing. Section 3553(a)(4) and (5) specifically direct the Court to

consider the applicable guidelines, and Section 3553(a)(6) commands that the Court strive to

avoid disparity in sentencing, which, as explained above, is best accomplished through faithful

application of the guidelines. The other 3553(a) factors also point to this conclusion. Here, the

defendant engaged in a crime with potentially serious consequences to the far too many animals

owned by those who availed themselves of the defendant's sale of veterinary prescription drugs. 

The defendant was repeatedly warned by federal and state agencies of the illegality of his

business practices, but the defendant's greed prevailed. Therefore, his crimes fall squarely within

the class of cases to which the applicable guidelines are addressed, and thus consideration of the

nature of the offense, § 3553(a)(1), counsels in favor of the guideline sentence.

Further, the defendant’s history supports the need for significant incarceration. 

He has demonstrated his unwillingness to conform his actions to the law, based on his own

perceived interpretation of the law and desires. It is clear that the recommended term of

imprisonment is required “to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense.” Furthermore, the recommended sentence of

incarceration affords adequate deterrence to others who would commit a similar offense, and

protects the public from further crimes of the defendant, for at least as long as he remains

incarcerated. § 3553(a)(2).

Case 2:05-cr-00157-JCJ Document 42 Filed 12/07/06 Page 14 of 16
 It is incumbent on the Court to address any defense argument in determining the final 7

sentence. See Cooper, 437 F.3d at 329 (directing that “[t]he record must demonstrate the trial

court gave meaningful consideration to the § 3553(a) factors. . . . [A] rote statement of the

§ 3553(a) factors should not suffice if at sentencing either the defendant or the prosecution

properly raises ‘a ground of recognized legal merit (provided it has a factual basis)’ and the court

fails to address it.”).

There is no need in this case to adjust the sentence in order “to provide the

defendant with needed educational or vocational training, medical care, or other correctional

treatment in the most effective manner . . . .” § 3553(a)(2)(D). Also, restitution is not an issue in

this case. § 3553(a)(7).

At the same time, the defendant has not set forth any persuasive argument for

leniency.7

Therefore, in sum, all of the appropriate considerations of sentencing favor the

imposition in this case of a within-guideline sentence. For all of these reasons, the government

respectfully recommends that the Court sentence the defendant within the guideline range

defined above.

Respectfully submitted,

PATRICK L. MEEHAN

United States Attorney

 /S/ Anita Eve 

ANITA EVE

Assistant United States Attorney

Case 2:05-cr-00157-JCJ Document 42 Filed 12/07/06 Page 15 of 16
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Government's Sentencing

Memorandum has been served by me, this date, by electronic filing upon the following:

THOMAS IVORY, Esquire

THOMAS IVORY LAW OFFICE 

834 CHESTNUT ST. 

SUITE 206 

PHILADELPHIA, PA 19107 

 /S/ Anita Eve 

ANITA EVE

Assistant United States Attorney

DATED: December 7, 2006

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