Defendant’s Sentencing Memorandum 1

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Marc P. Friedman

Attorney for Defendant Troy Duane Herring

OSB #89244

Friedman Law Office, P.C.

245 W. 13th Ave.

P.O. Box 11167

Eugene, Or 97440

(541) 686-4890

Fax: (541) 344-6254

attyfriedman@yahoo.com

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,

vs.

TROY DUANE HERRING,

Defendant.

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Case No.: 15CR0263-AA

DEFENDANT’S SENTENCING 

MEMORANDUM

Sentencing Hearing July 21, 2016

Judge Anne Aiken

Comes now Defendant, Troy Duane Herring, by and through his attorney 

Marc P. Friedman, and respectfully submits the following information and requests 

the court consider the factors set forth below, and the materials submitted as 

attachments hereto.

Introduction

Mr. Herring is 49 years old. 

The pendency of this case has taken toil upon his health. He struggles 

with mental health and drug and alcohol issues. He carries a dual diagnosis for 

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depression and drug use. A copy of Mr. Herring’s jail medical records for his 

current incarceration in the Lane County jail was provided to Parole and Probation 

and is attached to the PSR.

 Mr. Herring has never received any specific or long term treatment for these 

conditions. However, most urgently Mr. Herring needs to receive proper care and 

treatment for his prosthetic leg.

ADDITIONAL RELEVANT FACTS 

Criminal Charge 

Mr. Herring acknowledges his role in the crime charged and to which he 

pled, as well as other uncharged conduct. He continues to struggle with leaving 

the associations and life which has drawn him into criminal conduct. He deeply 

regrets his conduct and hope to take steps to once and for all get set on the right

path.

SENTENCING CONSIDERATIONS

Criminal History

The PSR calculation is accurate. 

Offense Level Computation

Base Level - U.S.S.G §2K2.1 24

Obstruction of Justice - U.S.S.G §3C1.1 2

Acceptance of Responsibility (U.S.S.G §3E1.1) -3

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Other Adjustments:

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Substantial assistance for cooperation -3

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(70 - 87 months)

Additional adjustments under 18 UCS §3553(a):

Government joins in the recommendation of a downward departure to 60 

months.

Adjustments under 18 UCS §3553(a)

18 U.S.C. § 3553(a) POST-BOOKER

Pursuant to United States v. Booker, 125 S.Ct. 738 (2005), the Sentencing 

Guidelines are advisory. Sentencing post-Booker has been in some flux. See, Gall 

v. United States, 128 S.Ct. 586, 591 (2007). The United States Supreme Court, 

however, has finally put to rest the issue of how much discretion the District Court 

has when imposing a sentence. See id. at 600. 

Sentencing Post-Gall

The United States Supreme Court in Gall laid out the procedure to be 

undertaken by the District Court during sentencing: 

First, "a district court should begin all sentencing proceedings by correctly 

calculating the applicable guidelines range. As a matter of administration and to 

secure nationwide consistency, the guidelines should be the starting point and the 

initial benchmark. The guidelines are not the only consideration, however." Id. at 

596. 

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Second, "after giving both parties an opportunity to argue for whatever 

sentence they deem appropriate, the district judge should then consider all of the 

§ 3553(a) factors to determine whether they support the sentence requested by a 

party. In so doing, he may not presume that the guidelines range is reasonable . . . 

He must make an individualized assessment based on the facts presented." Id. at 

596-97. 

Third, "if [the District Court] decides that an outside-guidelines sentence is 

warranted, he must consider the extent of the deviation and ensure that the 

justification is sufficiently compelling to support the degree of the variance. We 

find it uncontroversial that a major departure should be supported by a more 

significant justification than a minor one." Id. at 597. 

Fourth, "[a]fter settling on the appropriate sentence, [the District Court] must 

adequately explain the chosen sentence to allow for meaningful appellate review 

and to promote the perception of fair sentencing." Id. 

Appellate Review post-Gall

The Court in Gall then set out the standards for review of a District Court's 

sentence as: 

First, "[r]egardless of whether the sentence imposed is inside or outside the 

guidelines range, the appellate court must review the sentence under an abuse of 

discretion standard." Id. 

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Second, in so doing, "[the Appellate Court] must first ensure that the district 

court committed no significant procedural error, such as failing to calculate (or 

improperly calculating) the guidelines range, treating the guidelines as mandatory, 

failing to consider the § 3553(a) factors, selecting a sentence based on clearly 

erroneous facts, or failing to adequately explain the chosen sentence." Id. 

Third, "[a]ssuming that the district court's sentencing decision is 

procedurally sound, the appellate court should then consider the substantive 

reasonableness of the sentence imposed under an abuse of discretion standard. 

When conducting this review, the court will, of course, take into account the 

totality of the circumstances, including the extent of any variance from the 

guidelines range." Id. 

Fourth, a sentence, however, "[I]f the sentence is outside the guidelines 

range, the [appellate] court may not apply a presumption of unreasonableness. side 

the guidelines range is not be presumed unreasonable. It may consider the extent of 

the variation, but must give due deference to the district court's decision that the § 

3553(a) factors, on a whole, justify the extent of the variance." Id. 

Fifth, appellate courts cannot substitute their judgment for the sentencing 

judge. "The fact that the appellate court might reasonably have concluded that a 

different sentence was appropriate is insufficient to justify reversal of the district 

court." Id. 

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18 U.S.C. § 3553(a) -- Factors to be considered in imposing a sentence. 

The Court shall impose a sentence sufficient, but not greater than necessary, 

to comply with the purposes set forth in paragraph (2) of this subsection. 

The Court, in determining the particular sentence to be imposed, shall 

consider: 

(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 

(D) to provide the defendant with needed educational or vocational training, 

medical care, or other correctional treatment in the most effective manner. 

Because of the Booker and Gall decisions, the Sentencing Guidelines' 

limitations on factors a court may consider in sentencing-e.g., the impermissible 

grounds for departure set forth in U.S.S.G. § 5K2.0(d), no longer restrict the court's 

discretion. See United States v. Zavala, 443 F.3d 1165, 1171 (9th Cir. 2006). 

Judges must consider the goals and purposes of 18 U.S.C. §3553(a) and impose a 

sentence that furthers those objectives. Id. 

APPLICABLE MITIGATING SENTENCING FACTORS

We ask the court to consider Mr. Herring’s role in these circumstances, his 

medical condition and as well as other appropriate factors.

SENTENCING RECOMMENDATION

When the 18 U.S.C. § 3553(a) factors are considered the court must find that 

the nature and circumstances of the offense and Mr. Herring’s history and 

characteristics; the seriousness of the offense in light of the need to promote 

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respect for the law and to provide just punishment for the offense; the desire to 

afford adequate deterrence to criminal conduct; to protect the public from further 

crimes of the defendant; and to provide the defendant with medical care all suggest 

a sentence well below the guidelines. 

Mr. Herring acknowledges the negotiations in his case and accepts the fact 

that a sentence of 60 months will be imposed. He understands that he will serve a 

60 month sentence less credit for time served (approximately 12 months) and good 

time (approximately 9 months). 

He asks the court to follow the recommendations of the parties and impose a 

sentence of 60 months. He further requests that the court make the 

recommendations for placement contained in the PSR – Danbury FCI for the 

Resolve Program for Men. If Mr. Herring is not placed in the treatment program 

in Danbury FCI, we request that he be sent to a camp facility other than Sheridan. 

Mr. Herring would further welcome the opportunity to enter an RDAP program. 

Upon release and while on post-prison supervision he would like to participate in 

the court’s Reentry Program. 

Additional Request

Mr. Herring has an additional request. We are hopeful that Mr. Herring may 

be permitted a period of pretrial release to deal with the fitting of his prosthetic leg. 

However, if he is unable to receive required treatment for his prosthetic leg during 

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a period of pretrial release, we request that the court permit Mr. Herring to selfreport. Specifically, Mr. Herring must have his prosthetic leg adjusted before he 

goes into BOP custody. This will require multiple trips to the prostheses provider. 

A letter from Hanger Clinic is attached:

Hanger Clinic: Prosthetics & Orthotics 

445 Harlow Road

Springfield, OR 97477

We request the court release Mr. Herring following sentencing and direct 

that he turn himself in within 3-4 weeks.

It is best that Mr. Herring improve his health and become a valuable and 

productive individual. It will serve the community, the injured party and the court 

well if he is permitted to his as a productive community member. 

Dated this 18th day of July, 2016.

Respectfully Submitted,

/s/ Marc Friedman________

Marc P. Friedman, OSB #89244

Attorney for Troy Duane Herring

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