DEFENDANT’S SENTENCING 

MEMORANDUM - 1

USA V MCKENNEY #5:20-CR-00188-JKP

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THE HONORABLE JASON K. PULLIAM

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

UNITED STATES OF AMERICA

 Plaintiff,

vs.

DWAYNE ALLEN MCKENNEY

Defendant.

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No. 5:20-cr-00188-JKP

DEFENDANT’S SENTENCING 

MEMORANDUM

I. INTRODUCTION

As this Court is aware, Mr. McKenney pleaded guilty to Fraud and False Statements in 

violation of 26 U.S.C. §7206(1). Mr. McKenney has accepted responsibility for his actions 

by entering a plea of guilty to the offense. He has also authored a letter to this Court 

apologizing for his actions. Mr. McKenney knows that he broke the law and that there are 

consequences for his actions. However, when considering Mr. McKenney’s sentence, it is

requested that this Court consider Mr. McKenney’s difficult upbringing, service to our 

country and his serious mental and physical health issues. 

Mr. McKenney grew up in poverty. During his childhood, he and his siblings lacked 

many basic necessities such as food and shelter. Mr. McKenney even recalls a time when his 

family was evicted, and he and his siblings were separated for a year. Due to his 

socioeconomic status, Mr. McKenney was repeatedly bullied and abused not only by other 

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DEFENDANT’S SENTENCING 

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children, but by his older brother Joseph as well. However, instead of remaining in poverty, 

Mr. McKenney wanted better for himself. In 1995, Mr. McKenney joined the United States 

Army where he was stationed in South Korea, Texas, Germany, and Georgia. He received 

numerous awards for his service such as the Global War on Terrorism Service Medal, Korea 

Defense Service Medal and Army Commendation Medal. 

Mr. McKenney served his country proudly but also sacrificed greatly. As outlined within 

Exhibits A and B, this Court will note that Mr. McKenney has endured a multitude of 

physical injuries and his mental health has suffered extensively. Mr. McKenney suffers from 

a traumatic brain injury, diverticulitis, chronic shoulder pain, cervical and lumbar spine pain, 

osteomyelitis, and Cauda Equina Syndrome, which has caused him to lose control of his 

bladder and bowels. Mr. McKenney recently had surgery on his lumbar to help correct his 

spinal injury yet remains in a tremendous amount of pain. Mr. McKenney attends physical 

therapy throughout the week while still being supervised by a neurosurgeon. Despite 

multiple surgeries and procedures, Mr. McKenney is still 100% disabled and currently in a 

wheelchair. 

Along with his physical injuries, Mr. McKenney has been diagnosed with Post Traumatic 

Stress Disorder, Anxiety and Depression. In 2005, he was injured in an explosion during 

deployment and his battle with mental health began thereafter. Mr. McKenney has suffered 

from suicidal thoughts and has worked tirelessly to overcome the lasting effects of his time in 

the Army. Mr. McKenney has been dedicated to taking care of his mental health. He 

routinely sees a psychiatrist who assists him with his mental health disorders and his impulse 

control. However, along with his physical ailments, Mr. McKenney’s mental health has 

made it extremely challenging for him to work, spend time with his family, and enjoy life. 

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Despite all challenges, Mr. McKenney has remained a motivated individual. He has 

overcome many obstacles from poverty, to defending his county, to treating his physical and 

mental health. He has repeatedly shown resilience in the face of adversity. Mr. McKenney 

has chosen to better himself through hard work and commitment to his health. He desires to 

continue treatment for his mental and physical health and hopes to return to school and 

further his education upon recovery. 

II. THE OFFENSE

This Court has been tasked with considering “the nature and circumstances of the offense 

and the history and characteristics of the defendant.” 18 U.S.C. §3553(a)(1). Mr. McKenney 

knowingly and willingly filed false tax returns. He knew that by falsifying his returns he 

would gain financially. Mr. McKenney was the sole participant in this crime and fully 

recognizes his wrongdoings. 

The United States Code recognizes that a prison sentence is imposed to promote respect 

for the law, provide just punishment, deter criminal conduct, and protect the public. 18 

U.S.C. §3553(a)(2)(A-C). Mr. McKenney understands and acknowledges the role he played 

and has thus pleaded guilty. He understands that there are consequences for breaking the law. 

However, Mr. McKenney is disabled and suffering both mentally and physically. He is not a 

threat to the public and has shown remorse. He has been cooperative and respectful to the 

authorities throughout this process. He has been on pretrial probation for several months and 

has not had any violations. He has been timely with his notification of his intention to plead 

guilty to the crime and has in no way obstructed or attempted to obstruct justice in this 

matter. He has a criminal history score of one and has no record of any disciplinary action 

during his service. Yet Mr. McKenney is now a convicted felon – a label he is not proud of.

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Surely this Court has grappled with the proper response to the COVID pandemic in 

terms of sentencing offenders to prison – especially those with health conditions that put 

them at a higher risk of death. Based on his numerous health issues, Mr. McKenney very 

likely falls into the category of non-violent offenders whose health issues raise the question 

of whether incarceration is necessary. As this Court is aware, according to the Federal 

Register, in 2017, the cost to taxpayers to house federal inmates was $99.45 per day and 

$36,299.25 per year. Surely those costs have gone up. With the dangers of COVID 

transmissions and the higher risk of hospital stays, the hazards to prison and hospital workers 

housing offenders is worth considering when it comes to sentencing someone like Mr. 

McKenney. Such issues are exacerbated with the newly discovered COVID-19 Delta variant. 

III. CONCLUSION

It is therefore respectfully requested that this Court consider a sentence that does not 

include prison time. The Court can accomplish the goals of the Federal Sentencing 

Guidelines with a lengthy probation sentence and home confinement. After all, Mr. 

McKenney is a non-violent offender. He suffers from significant mental and physical health 

issues that were borne out of his eight years of service to this country. He needs to be seen 

regularly by doctors who have the time and resource to provide him the specialty care he 

needs. If incarcerated his health issues will be a burden on the prison staff, their medical team 

and the American taxpayer. 

Mr. McKenney has shown a history of resilience and commitment to bettering himself.

Mr. McKenney regrets his actions. He knows right from wrong and understands that he 

broke the law. Mr. McKenney has had to fight for a chance at life that many are simply 

given. He has devoted eight years of his life to sacrificing for his country. Mr. McKenney 

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now spends his days trying to control the pain he suffers from his physical and mental 

ailments. Mr. McKenney made a mistake but this mistake does not define his character. He 

has shown that he is motivated and committed to bettering himself. Mr. McKenney has goals 

to return to school, continue physical therapy and counseling, and re-enter the work force so 

he can pay down the substantial restitution amount he owes. Mr. McKenney can, and will be, 

a productive member of society upon his release.

We ask the Court to consider the sacrifice Mr. McKenney has made for his country, his 

physical condition, and his motivation to better himself. We ask this Court to consider a just 

sentence for Mr. McKenney and his state of wellbeing. Mr. McKenney’s health is crucial, 

and we ask that he can remain home and get the best care possible. It is requested that Mr. 

McKenney remain in his home and be sentenced to a term of home monitoring or probation 

rather than prison.

DATED August 5, 2021.

By: /s/ Casey M. Arbenz 

CASEY M. ARBENZ

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CERTIFICATE OF SERVICE

Susan Harsh, hereby certifies under penalty of perjury under the law of the State of 

Washington, that on the date set forth below, I electronically filed the foregoing with the Clerk of 

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

record for the plaintiff and co-defendants, if any, and hereby certify that a copy has been mailed to 

Dwayne Allen McKenney, defendant.

Signed at Tacoma, Washington this 5th day of August, 2021.

 /s/ Susan Harsh 

SUSAN HARSH

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