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THOMAS E. HIGGINS, ESQ.

LAW OFFICE OF

THOMAS E. HIGGINS, P.L.L.C.

325 West Franklin Street

TUCSON, ARIZONA 85701

(520) 624-8663 

Arizona State Bar No. 04324

Attorney for: Roger Dale Godwin 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,

Plaintiff,

CR-17-01620-RCC-1

VS.

ROGER DALE GODWIN,

Defendant.

SENTENCING

MEMORANDUM 

Defendant, ROGER DALE GODWIN, by and through his undersigned attorney,

hereby submits to this Honorable Court his Sentencing Memorandum requesting that this

Court impose a sentence of 36 months of imprisonment followed by 36 months of home

confinement as to Count 2 of the indictment and 5 years of probation as to Count 1 of the

indictment which is consistent with the sentencing range as provided by the United States

Sentencing Guidelines, 18 U.S.C. §3553(a) and the plea agreement. This request is fully

set forth in the accompanying Memorandum of Points and Authorities.

RESPECTFULLY SUBMITTED this 17th day of December , 2018.

By: /s/Thomas E. Higgins___

 THOMAS E. HIGGINS

 Attorney for Mr. Godwin

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MEMORANDUM OF POINTS AND AUTHORITIES

STATEMENT OF FACTS

A. A History of the Defendant's Arrest and Detention.

 Roger Dale Godwin was charged in a three count indictment with: Count 1- threats

against the President of the United States, Count 2-mailing threatening communications

and Count 3-false information and hoaxes for events occurring on June 1, 2016 in the

District of Arizona. 

On June 28, 2018, Mr. Godwin plead guilty to Count 1 and 2 of the indictment

pursuant to a plea agreement. The terms of the plea agreement provide that the parties

stipulate to a sentencing range not to exceed 84 months of imprisonment on Count 2 of

the indictment to be served consecutive to any other existing or active case followed by

3 years of supervised release. As to Count 1, the parties stipulate that Mr. Godwin will

sentenced to a concurrent term of 5 years of probation. However, Mr. Godwin is not

precluded from requesting a variance to the stipulated sentencing range. (See, PSR ¶¶ 3,

4).

On June 1, 2016, a corrections officer accepted outgoing mail from Mr. Godwin

in the form of four envelopes with the return address on the envelopes identifying Mr.

Godwin as the sender with the address of the Special Housing Unit of the U.S.

Penitentiary in Tucson, Arizona. The corrections officer noted a white powder coming out

of one the envelopes and immediately isolated himself along with two other staff members

in the mail room. The FBI, Tucson Police Department Bomb Squad and the Tucson Fire

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Department Haz-Mat team were called to the scene as the prison was placed on lock-down 

status. The letter and the substance within the envelope were field tested with negative

results. Subsequently, all the letters were throughly tested with no finding of any chemical,

biological agents or hazardous materials. 

The letter with the white powder was found to be addressed to then U.S. Attorney

General Loretta Lynch in which Mr. Godwin complained he was being harassed and

mistreated by Bureau of Prisons (“BOP”) staff. Mr. Godwin threatened harm to one staff

member if he was not moved to another correctional facility. Mr. Godwin also threatened

harm to then President Obama indicating that the letter had exposed them to anthrax. 

When interviewed, Mr. Godwin readily admitted he wrote the letters stating that

he believed it was a good idea because of the mistreatment he was receiving from BOP

staff. (See, PSR ¶¶ 6, 7). 

During his presentence interview, Mr. Godwin agreed with the factual basis in the

plea agreement. Mr. Godwin expressed he committed these offenses because he was being

harassed by a BOP employee and he was not receiving appropriate medical care. Because

he was frustrated with the lack of response to his complaints, Mr. Godwin believed that

these threats would cause the government to respond to his complaints. (See, PSR ¶ 11).

B. ARGUMENT AND RECOMMENDATION:

Mr. Godwin contends that the pronouncements of the United States Supreme

Court in United States v. Booker, 125 S.Ct. 738 (2005), Kimbrough v. United States,

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128 S.Ct. 558, 169 L.Ed.2d 481 (2007), Rita v. United States, 127 S.Ct. 2456 (2007)

and United States v. Gall, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), that this Court must

consider the sentencing guidelines as advisory in nature and that the Court is free to

impose a sentence that is just and fair under the circumstances of the case. District

courts after Booker, can justify consideration of factors such as family responsibilities,

age, education and vocational skills, mental and emotional conditions and employment

record. 

1. Sentencing Factors Pursuant to § 3553 (a):

Sentencing is now governed by the factors outlined in 18 U.S.C. § 3553 (a). 

Any District Court has the authority to depart from the Federal Sentencing Guidelines

when “an aggravating or mitigating circumstance of any kind, or to a degree, not

adequately taken into consideration by the Sentencing Commission” is present in a

case before the Court at the time of sentencing. See also 18 U.S.C. § 3553(b); U.S.S.G.

§ 5K2.0. This authority allows the court to remain “. . . free to consider [a defendant’s]

individual circumstances.” See also, United States v. Estrada-Plata, 57 F.3d 757, 763

(9th Cir. 1995).

In United States v. Ministro-Tapia, 470 F.3d 137 (2nd Cir. 2006), the Second

Circuit, ruled that a district court must impose a sentence sufficient, but not greater

than necessary, to comply with the purposes set forth in paragraph (2) of 18 U.S.C.

§3553(a). The Second Circuit unequivocally ruled that "if a district court were

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explicitly to conclude that two sentences equally served the statutory purpose of §

3553, it could not, consistent with the parsimony clause, impose the higher" one. In

United States v. Williams, 475 F.3d 468, 476-477 (2nd Cir. 2007), the Second Circuit

stated:

We have recognized that district courts are to impose sentences pursuant

to the requirements of § 3553(a)-including the requirements of §

3553(a)'s parsimony clause-while appellate courts are to review the

sentences actually imposed by district courts for reasonableness. See

Ministro-Tapia, 470 F.3d at 141 (noting “our general agreement with this

dichotomy”); see also United States v. Foreman, 436 F.3d 638, 644 n. 1

(6th Cir.2006) (“[A] district court's job is not to impose a ‘reasonable’

sentence. Rather, a district court's mandate is to impose ‘a sentence

sufficient, but not greater than necessary, to comply with the purposes' of

section 3553(a)(2). Reasonableness is the appellate standard of review in

judging whether a district court has accomplished its task.”).

Mr. Godwin acknowledges that he was involved in the criminal activity set forth

in the presentence report but urges this Court to sentence of 24 months of

imprisonment followed by 36 months of home confinement as to Count 2 of the

indictment and 5 years of probation as to Count 1 of the indictment which is consistent

with the sentencing range as provided by the United States Sentencing Guidelines, 18

U.S.C. §3553(a) and the plea agreement. Mr. Godwin asks the Court to take into

account the following factors:

2. The Nature and Circumstances of the Offense:

As set out in the presentence report, Mr. Godwin was motivated to commit these

offenses primarily out of his need to have BOP staff respond to his complaints about

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his medical treatment. Mr. Godwin was extremely frustrated that his medical

conditions were not properly being addressed and he was upset that his complaints

were being ignored or plainly being rejected. (See. PSR ¶¶ 5,6 &11). 

Mr. Godwin’s misguided calculation to address the problem compounded not

only his status within the prison but further exacerbated his own health and mental

illness problems. 

There is no questions that Mr. Godwin suffers from long term physical and

mental issues as documented in the PSR and by the attached Appendix. (See, PSR

¶¶57-90). His health issues have not gotten better since this incident as Mr. Godwin

faces more serious medical procedures and treatment in the future. In fact, as of today,

December 17, 2018, Mr. Godwin is both throwing up and defecating blood.

Unfortunately, Mr. Godwin has a long history of mental illness, substance

abuse, and criminal conduct that he needs to overcome in order to insure that he will

not re-offend or commit any other criminal acts in the future.

 There is likely no criminal behavior that represents as much of a challenge for

our system of justice than those crimes that are a direct result of one’s addiction to

drugs or alcohol. The balance between the correct amount of punitive action that

should be taken versus the amount of rehabilitative efforts that should be provided has

vexed societies for time immemorial. This balance must require that the policy

addresses ways that will increase public protection that is based upon research and

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evidence. An evidence-based approach ensures that society is able to find that vexing

balance between sequestration of the offender while also affording treatment and

effective supervision. 

The statistics have long shown the difficulties that we as a society face when

dealing with drug offenders. The statistics also show that imprisonment has never been

a long term solution to treating drug addicts who commit crimes. The following

snapshot of a sample of those statistics represent the Roger Dale Godwin’s of the

population, that is, those people who are mentally ill, addicted to drugs, and are guilty

of drug and property crimes.

• Among state prisoners 30% of property offenders and 26% of drug

offenders committed their crimes for money. 1

• Among state prisoners 44% of drug offenders and 39% of property

offenders committed their current offense while under the influence. 2

• Among state prisoners that are mentally ill, 76% are dependent on or

abused alcohol or drugs. 3

• Among inmates in jails, 82% who have a mental illness report having

used alcohol or drugs in the month before the offense. 4

1BJS, Drug Use and Dependence, State and Federal Prisoners, 2004, October 2006.

2

Id.

3BJS, Mental Health Problems of Prison and Jail Inmates, September 2006.

4

Id.

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• Between 1997 and 2004 the rates of drug abuse for all drugs but those

classified as amphetamines remained the same. “State prisoner reports of

stimulant use went up on all measures. Stimulant use in the month before

the offense increased from 9% in 1997 to 12% in 2004, and use at the

time of offense rose from 4% to 7%. The increase in the use of

stimulants were attributable to the rising use of methamphetamines. 5

• Despite the universal increase in punitive measures for dangerous drug

offenses, “drug offenders made up the same percentage of prisoners in

both 1997 and 2004.” 6

• Among drug offenders, 78% had a prior sentence to incarceration or

probation. 7

• Among drug offenders in prisons between 1997 and 2004, those serving

time for violations involving amphetamines rose from 10% to 19%.8

• Among drug offenders in prisons between 1997 and 2004, the number

who had received treatment at any time in their lives decreased from an

abysmal 14.6% to 14.1%.9

5BJS, Drug Use and Dependence, State and Federal Prisoners, 2004, October 2006.

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• Within 5 years of release from prison, 82% of property offenders and

77% of drug offenders were arrested for a new crime.

10

Despite these facts, access to effective treatment is rarely utilized unless the

offender can afford to pay for their own inpatient rehabilitation. The Office of National

Drug Control Policy reports that only 40% of inmates receive any type of treatment

while incarcerated. The quality of that treatment varies greatly between the states. This

is unfortunate as it is universally accepted that real treatment options for drug

offenders, specifically long term inpatient treatment, is extremely efficacious in not

only reducing recidivism, but it is also much less expensive than prison. As stated

above 82% of property offenders and 77% of drug offenders were arrested for a new

crime within 5 years of release from prison. Brooklyn’s DTAP program mirrors the

successes of similar programs throughout the United States. The program allows drug

addicted defendant’s to plead guilty and then enter a 15 to 24 month “residential,

therapeutic community treatment system as an alternative to a prison sentence.” These

participants are 67 % less likely to return to prison than groups not receiving such

treatment.11 Mr. Godwin has never had the benefit or privilege of being able to attend

any type of meaningful treatment for his drug addiction, much less inpatient treatment. 

10BJS, Recidivism of Prisoners Released in 30 states in 2005: Patterns from 2005 to 2010, April 2014.

11 Justice Policy Institute, Treatment or Incarceration? National and State Findings on the Efficacy and

Cost Savings of Drug Treatment Versus Imprisonment, January 2004.

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3. The History and Characteristics of the Defendant:

The PSR documents in lengthy form the history and characteristics of Mr.

Godwin beginning from his first contacts with the court system, first civilly as he was

being adopted by his biological uncle and aunt and continuing through his current

contact with the criminal justice system when he was indicted for the present offenses

while in custody after recently being convicted of similar federal offenses in the

Western District of Wisconsin, Docket No. 3:13-cr-00051-RTR-1. (See, PSR ¶¶ 34-42,

49-64).

Mr. Godwin was born on December 4, 1978 in Temple, Texas, as the only child

of the relationship between William Earl Mann and Doris O’Dell. Mr. Godwin never

established a relationship with his father and has no idea of his whereabouts. Mr.

Godwin’s mother lives in Oklahoma and only recently reconnected with him after

being separated from Mr. Godwin for most of his life. Mr. Godwin has a maternal half

brother, Randy Godwin, age 32, living in Pennsylvania with whom he recently has

exchanged some brief correspondence after finding him in April, 2018.

Mr. Godwin’s mother was 14 years of age when he was born and she was

unable to care for him. As a result, she gave Mr. Godwin up for adoption by her cousin

Buddy Godwin and his then wife, Donna Hall. As documented in the PSR, Mr.

Godwin alleged that his adoptive parents were physically abusive alcoholics and that

he would run away from their house and stay at Joseph and Barbara Jordan’s home in

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nearby Monroeville, Alabama. The Jordans were Donna Hall’s parents. 

Eventually, Mr. Godwin’s adoptive parents divorced when he was in his early

adolescence. It was about this same time that Mr. Godwin began abusing drugs and

associating himself with biker and white supremacy gangs. Mr. Godwin was placed

into the Alabama State Boy’s Ranch by his adoptive father due to him being unable to

control Mr. Godwin’s behavior. Mr. Godwin remained in this facility for one year and

thereafter left in search for his father. Reportedly, Mr. Godwin lived in Texas,

Alabama, Mississippi and Louisiana during 2001. In 2002 he moved to Wisconsin

where he received his first felony conviction. Mr. Godwin has been in custody almost

continuously since then. (See, PSR ¶¶ 50-52).

4. The Need for the Sentence To Be Imposed:

Generally, sentencing guidelines exist 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. 

As provided herein, Mr. Godwin respectfully urges this Honorable Court to find

the combination of these factors to support a just sentence of 24 months of

imprisonment followed by 36 months of home confinement as to Count 2 of the

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indictment and 5 years of probation as to Count 1 of the indictment which is consistent

with the sentencing range as provided by the United States Sentencing Guidelines, 18

U.S.C. §3553(a) and the plea agreement. 

C. Mitigating Factors To Consider Departing Downward or for a Variance

1. Mr. Godwin’s Mental and Emotional Condition 

Pursuant to U.S.S.G. § 5H1.3 and U.S.S.G. § 5K2.0, this Court may depart

downward based on mental and emotional conditions, if these conditions, individually

or in combination with other characteristics, are present to an unusual degree and

distinguish the case from the typical cases covered by the guidelines. Such an

extraordinary mental and emotional condition may be a reason to depart downward;

e.g., in the case of a seriously infirm defendant, home detention may be as efficient as,

and less costly than, imprisonment.

“Clinical studies confirm that exposure to stress early in life –specifically, to

inadequate or abusive parenting – changes in emotional circuitry of the brain

and the neuroendocrine mechanisms underlying allostasis [the inherent flexibility that

allows functions such as rate and respiration to increase or decrease to counter

potentially destabilizing events] in enduring and often compromising ways.” Debra

Niehoff, Ties that Bind: Family Relationships, Biology, and the Law, 56 DePaul

L.Rev. 847, 855, 861. (2007). 

Thus, for example in United States v. Rivera, 192 F.3d 81, 84 (2d Cir. 1999),

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the Second Circuit commented when on a downward departure for child abuse: “It

seems beyond question that abuse suffered during childhood – at some level of severity

– can impair a person's mental and emotional conditions...in extraordinary

circumstances... district courts may properly grant a downward departure on the

ground that extreme childhood abuse caused mental and emotional conditions that

contributed to the defendant's commission of the offense” but here, defendant “failed

to allege and show, as required for a §5H1.3 departure, that any abuse he may have

suffered rose to the extraordinary level that can be assumed to cause mental or

emotional pathology.” See also, United States v. Pullen, 89 F.3d 368 (7th Cir. 1996)

(in light of Koon v. U.S., 518 U.S. 81 (1996), sentence remanded for determination of

whether childhood abuse was extraordinary to enable judge to exercise discretion to

depart downward); United States v. Walter, 256 F.3d 891 (9th Cir. 2001) (combination

of brutal beatings by defendant's father, introduction of drugs and alcohol by his

mother, and, most seriously, the sexual abuse by his cousin which defendant suffered

at young age constituted the type of extraordinary circumstances justifying

consideration of the psychological effects of childhood abuse and diminished mental

capacity under §5K2.13; remanding for evidentiary hearing so that defendant can

substantiate claims of abuse and expert’s conclusions); United States v. Brown, 985

F.2d 478 (9th Cir. 1993) (where defendant offered letter recounting severe childhood

abuse and neglect and psychologist's report concluded that childhood trauma was

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primary cause of his criminal behavior, court could grant downward departure); United

States v. Hubbard, 369 F. Supp. 2d 146 (D. Mass 2005) (imposing 108 month sentence

instead of 188-235 career offender range based on defendant’s diminished capacity

from childhood trauma including sexual molestation and death of siblings in fire);

United States v. Ayers, 971 F. Supp. 1197 (N.D. Ill. 1997) (granting departure based

upon cruel childhood with relentless physical, sexual and psychological abuse over

course of years).

As documented in this sentencing memorandum and the attached appendix, in

Mr. Godwin’s case, a prison sentence could well be a “death sentence” as the prison

facility could not adequately deal with all of his complex and serious medical and

mental health issues. 

2. Mr. Godwin’s Reduced Mental Capacity

Pursuant to U.S.S.G. § 5K2.13, this Court may depart downward if Mr. Godwin

committed the offense while suffering from a significantly reduced mental capacity

and Mr. Godwin’s reduced mental capacity contributed substantially to the commission

of the offense. See, e.g., Tennard v. Dretke, 124 S.Ct. 2562, 2571 (2004) (“impaired

intellectual functioning is inherently mitigating”); Atkins v. Virginia, 536 U.S. 304, 318

(2002) (“Mentally retarded persons...have diminished capacities to understand and

process information, to communicate, to abstract from mistakes and learn from

experience, to engage in logical reasoning, to control impulses, and to understand the

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reactions of others... often act on impulse rather than pursuant to a premeditated plan,

and... are followers rather than leaders. Their deficiencies do not warrant an exemption

from criminal sanctions, but they do diminish their personal culpability.”); Penry v.

Lynaugh, 492 U.S. 302, 322 (1989) (O’Connor, J., concurring) ("mental retardation

may render a defendant "less morally culpable than defendant who have no such

excuse"); United States v. Alemenas, 553 F.3d 27 (1st Cir. 2009) (in prosecution for

selling crack, judge granted a downward variance of 43 months from an already

reduced Guideline range, citing defendant’s mental and emotional condition plus his

chronic neck pain).

3. A Long Sentence Would Impair Mr. Godwin's Rehabilitation

Any sentence that is longer than necessary can impede rehabilitative goals of

incarceration, See, United States v. Collington, 461 F.3d 805 (6th Cir. 2006) (in

drug/gun case for which guidelines advised 188-235 months, a 120-month sentence

was upheld because it sufficiently reflected the seriousness of the offenses while

allowing the possibility for defendant to reform and go on to a productive life upon

release in his mid-thirties); United States v. Autrey, 555 F.3d 864 (9th Cir. 2009)

(district court’s finding that man convicted of one count of child porn possession

would not be adequately accommodated in prison and would be better served by

outpatient psychiatric treatment supported reasonableness of imposing five years

probation rather than a guideline term of 41-51months); United States v. Moreland,

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568 F.Supp.2d 674 (S.D. W.Va. 2008) (after rejecting career offender guideline range

of 30 years to life, court imposes statutory mandatory minimum of 120 months for a 34

year old defendant whose educational record reflected a rehabilitative hope the judge

decided should not be quashed by a sentence leaving little to hope for beyond

imprisonment); United States v. Stern, 590 F.Supp.2d 945 (N.D. Ohio, Dec. 19, 2008)

(in imposing 12 months and a day on child porn defendant who had never engaged in

physical misconduct with an actual child, court observed that lengthier term might

negatively impact the rehabilitation Stern commenced prior to his arrest); United States

. v. Pallowick, 364 F. Supp. 2d 923 (E.D. Wisc. 2005) (defendant convicted of six

armed bank robberies sentenced to 46 months, rather than guideline range of 70-87

months, because no one was hurt, defendant made no direct threats, his only prior was

a burglary committed shortly before, his severe mental illness of major depressive

disorder and anxiety disorder played a major role in the offenses, after arrest he

completed in-patient treatment, enrolled in counseling, and took medication, he was

not dangerous and unlikely to re-offend, and judge concluded that a lengthier period

would not aid rehabilitation but might hinder his progress in counseling, contrary to §

3553(a)(2)(D))

Finally, without direction or encouragement from defense counsel, Mr. Godwin,

on his own, completed drug and alcohol classes as CCA as well as completed a course

in cognitive skills. Numerous occasions, more than counsel can remember, Mr.

Law Office of THOMAS E. HIGGINS, 325 W. Franklin Street, Tucson, Arizona 85701

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Godwin has initiated and followed through with discussions involving drug and

alcohol abuse and recognizes his mental, and criminal, behavior is a direct outgrowth

of his addictions.

III. CONCLUSION:

For the foregoing reasons, Mr. Godwin respectfully requests that this court

review the record, the facts and arguments contained in this memorandum, all the

exhibits and letter of recommendations and find that substantial mitigating factors

have been presented to warrant the imposition of a sentence of 24 months of

imprisonment followed by 36 months of home detention under the circumstances of

this case. 

RESPECTFULLY SUBMITTED this 17th day of December, 2018

/ss/Thomas E. Higgins

THOMAS E. HIGGINS 

Attorney for Roger Dale Godwin

Original copy of the foregoing mailed this 

day of December, 2018, to:

Court

AUSA Micah Schmidt

Law Office of THOMAS E. HIGGINS, 325 W. Franklin Street, Tucson, Arizona 85701

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