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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

UNITED STATES OF AMERICA ) CASE NO:1:18-CR-34

)

Plaintiff, ) HON. JUDGE SUSAN J. DLOTT

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-vs- )

)

IZMIR KOCH )

)

Defendant. )

DEFENDANT’S SENTENCING MEMORANDUM

I. PRELIMINARY STATEMENT.

Now comes, CORNELIUS “Carl” LEWIS, trial counsel for the defendant, Mr. Izmir

Koch, (hereinafter "Mr. Koch”), and hereby respectfully files the following Sentencing 

Memorandum setting forth factors this Honorable Court should consider in determining what 

type and length of sentence he should be given. Counsel believes that Mr. Koch should not be 

incarcerated but placed on probation. If this Honorable Court is inclined to incarcerate Mr. Koch 

it should be no more than 12 months. 

II. FEDERAL SENTENCING

A. Sentencing Under Booker (Guidelines Advisory)

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

v. Washington, 124 S. Ct. 2531 (2005) and Apprendi v. New Jersey, 530 U.S. 466 (2000),

applies to the Federal Sentencing Guidelines. United States v. Booker, 125 St. 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:

[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.

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Id. at 756.

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, making the Guidelines effectively advisory. 

B. 18 U.S.C. §3553

A person found guilty of an offense described in any Federal statute shall be sentenced in 

accordance with the provisions set forth in subparagraphs (A) thru (D) of 18 U.S.C. §3553(a)(2); 

U.S. v. Hanhardt, 424 F. Supp. 2d 1065, 2006 U.S. Dist. LEXIS 9715 (7

TH. Cir. 2006).

Instead of being bound by the Sentencing Guidelines, the Sentencing Reform Act, as revised 

by Booker, requires a sentencing court to consider Guidelines ranges but it permits the court to 

tailor the sentence in light of other statutory concerns as well. Thus, under Booker, sentencing 

courts must treat the guidelines as just one of a number of sentencing facts set forth in 18 U.S.C. 

§3553(a).

The primary directive in Section 3553(a) is for sentencing courts to impose a sentence 

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

18 U.S.C. §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 education or vocational training, medical care, 

or other correctional treatment in the most effective manner.

In determining the minimally sufficient sentence 18 U.S.C. §3553(a) further directs 

sentencing courts to consider the following factors:

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(1)The nature and circumstances of the offense and the history and characteristics of the 

defendant;

(2)The kinds of sentences available;

(3)The need to avoid unwarranted sentence disparities among defendants with similar 

records who have been found guilty of similar conduct; and

(4)The need to provide restitution to any victims of the offense.

C. No Limitation on Pertinent Information 18 U.S.C. §3661. 

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

background, character, and conduct of Mr. Koch which this Honorable Court may receive and 

consider for the purpose of imposing an appropriate sentence. U.S. v. Mays, 593 F.3d 603, 2010 

U.S. App. LEXIS 1771 (7th., Cir. 2010)

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 defendants age, education and vocational skills, mental and emotional 

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

Several courts have taken into account information that previously would not have been 

considered with the strict adherence and mandatory application of the sentencing guidelines. 

Court took into account the fact that the defendant, at the time of his sentencing, was 57 and that 

upon his release from prison would have a very low likelihood of recidivism since recidivism 

reduces with age. United States v. Nellum, 2005 WL 300073, 2005 U.S. Dist. LEXIS 1568 (N.D. 

Ind. Feb. 3, 2005)(Simon, J); In another case the federal court concluded that sentencing 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 difference in moral responsibility for 

crime between adults and juveniles. U.S. v. Naylor, ____ F. Supp.2d____, 2005 WL 525409, *2, 

2005 U.S. Dist. LEXIS 3418 (W.D. Va. Mar. 7, 2005)(Jones, J).

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III. IZMIR KOCH’ SENTENCING CONSIDERATIONS.

A. Accepted Full and Complete Responsibility.

The Government argues that Mr. Koch has not accepted responsibility for his actions because 

he maintains his innocence. The fact that Mr. Koch continues to maintain his innocence does not 

mean that he has not accepted responsibility for the terrible events that took place on or about 

February 4, 2017. To the contrary, Mr. Koch has made it very clear that Mr. Paul Marshall 

should never have been assaulted and that he would never subject any person to racist comments 

or hate filled actions. Mr. Koch and his family fled their native homeland because of persecution, 

hatred and racism.

Mr. Koch even voluntarily engaged the Federal Government by giving an innocence proffer 

with his counsel, which unfortunately caused him to be charged with making false statements, to 

which he takes objection. Mr. Koch has clearly accepted responsibility.

(i)No Good Deed Goes Unpunished.1

Counsel believes that the old phrase “No Good Deed Goes Unpunished” is applicable to Mr. 

Koch. Mr. Koch was at the Mirage restaurant with family and friends having a good time and 

admittedly may have drank a little too much but the fact that he was out for an evening of fun 

with family and friends has unfortunately placed him before this Honorable Court fighting for his 

freedom. Mr. Koch did not set out to be arrested, charged and convicted of these federal offenses 

when he went out with his family and friends on February 4, 2017.

 

1 The phrase “No good deed goes unpunished” is a sardonic commentary on the frequency with 

which acts of kindness backfire on those who offer them. In other words, those who help others are 

doomed to suffer as a result of their being helpful. It has been attributed to several luminaries, 

including Billy Wilder, writer Clare Booth Luce, American financier John P. Grier, banker Andrew W. 

Mellon, and Oscar Wilde, although its actual origin has never been established. Wikipedia.

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B. Employed, Family Man and Law Abiding.

As detailed in the Pre-Sentence Report (“PSR”), prior to his arrest and subsequent to his 

arrest Mr. Koch was working, running his own trucking company and avoiding any type of 

criminal activity. 

Mr. Koch is happily married and caring for his entire family, including his children and 

parents. 

Mr. Koch immigrated to the United States and was living the “American Dream” until this 

unfortunate incident at the Mirage restaurant. While he is on probation for a conviction, which is 

on appeal, in the Montgomery County, Ohio Common Pleas Court, he continues to live a law 

abiding life in Dayton, Ohio.

C. Sentence Should be No Period of Incarceration.

The Government’s position is that Mr. Koch be imprisoned for 51 to 63 months. Mr. Koch 

accepts and agrees whole heartedly that “hate crimes” of any type are deplorable. Mr. Koch is 

not an individual that should be incarcerated and have his life and his family’s life turned upside 

down. Mr. Marshall did not ask that Mr. Koch be incarcerated and even stated that “He feels 

sorry for the defendant’s family who may have to be without him for a period of time.” Final 

Pre-Sentence Report (“PSR”), pg. 7, §23.

Counsel respectfully urges this Honorable Court to reject the recommendation of 51 to 63 

months in prison and place Mr. Koch on probation or if this Honorable Court is inclined to 

incarcerate Mr. Koch give him no more than 12 months. 

Counsel submits that this Honorable Court has the authority, power and discretion to 

sentence Mr. Koch well below the guideline range of 51 months.

A sentence of probation or no more than 12 months will ensure that Mr. Koch is 

sufficiently punished, deterred and rehabilitated and a sentence of probation or no more thatn 12 

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months is sufficient and comports with the overriding purposes and principles of sentencing as 

set forth in 18 U.S.C. §3553(a).

D. Voluntary Surrender.

The PSR accurately states that Mr. Koch is an appropriate candidate for voluntary surrender2

and Counsel agrees. Mr. Koch, with the knowledge that he was facing imprisonment, has never 

failed to appear for any court hearing, including trial and the announcement of the verdict. Mr. 

Koch has maintained his residence in Dayton, Ohio with his family. Mr. Koch has continued to 

work. Mr. Koch has maintained contact and abided by all terms and conditions placed upon him 

during his pre-trial and post-conviction release. Mr. Koch has given this Honorable Court no 

reason to believe that he will flee the jurisdiction.

Mr. Koch needs time to ensure that his family and business will be maintained while he is 

incarcerated, if this Honorable Court does in fact impose prison.

IV. CONCLUSION.

Counsel respectfully urges this Honorable Court to impose no period of incarceration but if 

any period of incarceration is imposed to impose no more than 12 months as a fair and 

appropriate sentence.

Respectfully submitted,

/s/ Cornelius “Carl” Lewis

Cornelius “Carl” Lewis (#0055700)

THE LEWIS LAW FIRM, INC., LPA

119 East Court Street

Cincinnati, Oh 45202

(513) 632-9542/Office

(513) 721-5824/Fax

(513) 371-4520/Cell

e-mail:Carllewislaw@gmail.com

Counsel for Izmir Koch

 

2 PSR Sentencing Recommendation, pg. 2

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing sentencing memorandum

was served on all parties utilizing the CM/ECF system.

/s/ Cornelius “Carl” Lewis

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