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UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

UNITED STATES OF AMERICA

V. Cr. No. 09-30-01-GZS

EDWARD BROWN and

ELAINE BROWN

GOVERNMENT’S SENTENCING MEMORANDUM

The United States submits this Sentencing Memorandum in

response to Defendant Edward Brown’s Sentencing Memorandum with

Request for Criminal History Departure and Non-Guideline Sentence

(Docket #238).

The defendant raises four issues. First, he asks the Court

to depart downward based upon Section 4A1.3 of the United States

Sentencing Guidelines (“USSG” or “Guideline”), claiming that the

PSI overstates his criminal history. Second, he objects to the

three point enhancement included in the PSI pursuant to Section

3C1.1 of the Guidelines, claiming that he was not “on release” at

the time he committed man of the crimes of which he stands

convicted. Third, he objects to the fact that he did not receive

a two point reduction for acceptance of responsibility. And

fourth, he asks the Court to grant a Booker variance from the

putative guideline range of 570 to 622 months (range of 210 to

262 plus 360 equals 570 to 622; see PSI at ¶¶ 121 & 123), as

found in the PSI, to 361 months, thirty days more than the

minimum sentence required on Count Three. None of the

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defendant’s arguments have merit and they should be overruled.

4A1.3 Downward Departure

The first guideline issue raised by the defendant is a

request for a downward departure, pursuant to Guidelines Section

4A1.3(b), which states:

(b) Downward Departures.--

(1) Standard for Downward Departure.--If reliable

information indicates that the defendant's criminal

history category substantially over-represents the

seriousness of the defendant's criminal history or the

likelihood that the defendant will commit other crimes,

a downward departure may be warranted. 

USSG §4A1.3(b).

A Court may departure if it “finds that there exists an

aggravating or mitigating circumstance of a kind, or to a degree,

not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result in a

sentence different from that described.” 18 U.S.C. § 3553(b). 

“The defendant bears the burden of proving that he is eligible

for a downward departure.” United States v. Craven, 358 F.3d 11,

15 (1 Cir. 2004)(citing United States v. Sachdev, 279 F.3d 25, st

28 (1st Cir.2002)).

In support of this departure, the defendant points out that

his 6 criminal history points “all arise from [his] conduct

leading to his conviction in the underlying tax case or from

conduct alleged in the instant indictment” (Defendant’s

Sentencing Memorandum (docket #238) at p. 1), and that he had no

Case 1:09-cr-00030-GZS Document 239 Filed 01/10/10 Page 2 of 9
 Paragraph 100 of the PSI notes that the defendant was 1

convicted of Armed Assault to Rob in 1960 for which a pardon was

granted in 1976.

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criminal convictions between the ages of 17 and 65. Id.

1

There is no factual dispute that the defendant was engaged

in serious criminal conduct, for which he was convicted and

sentenced to 63 months in April of 2007, which resulted in the

assessment of 3 criminal history points (PSI at ¶ 101). He

committed the crimes for which he is now to be sentenced “while

under a criminal justice sentence” which resulted in the

assessment of an additional 2 criminal history points (PSI at ¶

103). Additionally, he “committed the instant offense while ...

under escape status” for which another 1 criminal history point

was assessed. He has earned 6 criminal history points. 

 The defendant states nothing but the obvious. The fact

that the six criminal history points are all related to his

recent criminal course of conduct is a factually correct

statement, but it is not the basis for a departure. The

defendant has provided no facts or argument that would encourage

this Court to find that there exists a “mitigating circumstance

of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission.” 18 U.S.C. §

3553(b).

3C1.1 3 Point Enhancement

The PSI states “[p]ursuant to USSG §3C1.3, there is a three

Case 1:09-cr-00030-GZS Document 239 Filed 01/10/10 Page 3 of 9
 At trial the government introduced a certified copy of 2

the Release Order which set conditions of release for the

defendant in the tax trial, U.S. v. Edward Lewis Brown. See

government trial exhibit 1a-2. 

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level increase because the defendant committed the instant

offense while on release for the federal tax offenses in Dkt.

#06-CR-71-02-SM.” PSI at ¶¶ 59, 65, 72 & 79. 

Section 3C1.1 of the Guidelines, which replaced Section

2J1.7, simply states “[i]f a statutory sentencing enhancement

under 18 U.S.C. § 3147 applies, increase the offense level by 3

levels.” USSG § 3C1.3.

Title 18, United States Code, Section 3147 states: 

§ 3147. Penalty for an offense committed while on

release

A person convicted of an offense committed while

released under this chapter shall be sentenced, in

addition to the sentence prescribed for the offense

to--

(1) a term of imprisonment of not more than ten years

if the offense is a felony; or 

(2) a term of imprisonment of not more than one year if

the offense is a misdemeanor. 

A term of imprisonment imposed under this section shall

be consecutive to any other sentence of imprisonment.

18 U.S.C. §3147. (Emphasis added).

The defendant does not contest that he was released on bail

during his tax trial, rather he argues that because an arrest 2

warrant was issued while he was on release, somehow he was no

longer on release. He was released on bail pursuant to Chapter

207 of Title 18. See government trial exhibit 1a-2. He failed

to appear for the continuation of his trial and for his

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sentencing. He thereafter, while still on release, engaged in

the numerous other crimes of which he has now been convicted. 

The defendant cavalierly suggests that the Probation

Department has misconstrued 18 U.S.C. § 3147. It has not. If

someone commits an offense while on release that defendant’s

sentence is enhanced. See U.S. v. Randall, 287 F.3d 27 (1 Cir. st

2002)(applying USSG § 2J1.7, which was moved to, and became, USSG

§ 3C1.3); see also, U.S. v. Dison, 573 F.3d 204 (5 Cir. th

2004)(defendant convicted of failing to surrender for service of

sentence under 18 U.S.C. § 3146 and Fifth Circuit affirmed USSG

3C1.3 and 18 U.S.C. § 3147 3 level enhancement).

Acceptance of Responsibility

The defendant contends that notwithstanding the nine months

he defied the Courts, amassing arms and threatening to kill any

law enforcement officer(s) who attempted to effectuate the lawful

orders of the Court, and the lengthy trial that he forced rather

than pleading guilty, he should be rewarded with a 2 level

reduction in his offense level for “acceptance of

responsibility.” Defense counsel claims that Edward Brown’s

reason for going to trial “is exactly the situation envisioned by

Commentary Note 2 to U.S.S.G. § 3E1.1 and therefore the defendant

should receive a two point downward adjustment.” Defendant’s

Memo at p. 3. Defense counsel could not be more wrong.

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Application Note 2 to USSG § 3E1.1 states:

2. This adjustment is not intended to apply to a

defendant who puts the government to its burden of

proof at trial by denying the essential factual

elements of guilt, is convicted, and only then admits

guilt and expresses remorse. Conviction by trial,

however, does not automatically preclude a defendant

from consideration for such a reduction. In rare

situations a defendant may clearly demonstrate an

acceptance of responsibility for his criminal conduct

even though he exercises his constitutional right to a

trial. This may occur, for example, where a defendant

goes to trial to assert and preserve issues that do not

relate to factual guilt (e.g., to make a constitutional

challenge to a statute or a challenge to the

applicability of a statute to his conduct). In each

such instance, however, a determination that a

defendant has accepted responsibility will be based

primarily upon pre-trial statements and conduct.

USSG § 3E1.1 Application Note 2.

The defendant did not go to trial to preserve a

Constitutional issue, nor did he in good faith go to trial to

challenge the applicability of a statute to his conduct. He went

to trial on all counts claiming that he was not guilty of any

crimes. He denied, and still denies, his guilt. Although he

testified at trial, in so doing he did not admit all of the

elements of the crimes charged. He repeatedly, and specifically,

denied, through his testimony and through arguments of counsel,

that he had the mens rea required to be convicted. Such is

inconsistent with the clearly established case law in the First

Circuit, which holds to the contrary even where a defendant

pleads guilty but contests a sentencing issue. See e.g. U.S. v.

Garrasteguy, 559 F.3d 34 (1 Cir. 2009)(defendant plead guilty st

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but contested drug weight); U.S. v. Gorsuch, 404 F.3d 543 (1st

Cir. 2005)(District Court reversed for awarding acceptance credit

post trial where District Court found defendant lacked mens rea);

U.S. v. Mikutowicz, 365 F.3d 65 (1 Cir. 2004)(District Court st

found defendant had admitted essential factual elements of guilt

before trial and went to trial to contest willfulness; grant of

acceptance credit reversed as clearly erroneous); U.S. v. Bello,

194 F.3d 18 (1 Cir. 1999)(defendant did not deny actus reas but st

unsuccessfully denied criminal responsibility on ground of self

defense).

The defendant has consistently denied acting with any

culpable mental state. His theory of defense at trial was that

after his comrade at arms, Daniel Riley, was taken into custody

he was some how authorized to take up arms against the

government. However, he has never articulated a theory for his

massing of arms and his failure to self surrender, all of which

predated the event involving Mr. Riley.

Booker Variance

Among the factors that the Court must consider in

determining a reasonable and just sentence are the nature and

circumstances of the offense and the defendant's history and

characteristics, the need for the sentence imposed to reflect the

seriousness of the offense, to promote respect for the law, to

provide just punishment, to afford adequate deterrence to

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criminal conduct, to protect the public from further crimes of

the defendant, and to provide the defendant with needed medical

care or other correctional treatment. 18 U.S.C. § 3553(a). 

Although the Court clearly has the legal authority to impose a

sentence below the advisory guideline range, which as suggested

in the PSI, before the minimum mandatory sentence of 360 months

for Count Three, is 210 to 262 months (see PSI at ¶¶ 121 & 123),

there is nothing in this case that would support such a variance. 

The government will address this issue at sentencing.

Conclusion

The government respectfully requests that the defendant’s

arguments be overruled and that the Court impose a sentence

within the advisory guideline range of 210 and 262 months,

followed by a consecutive minimum mandatory sentence of 360

months, for a total sentence of between 570 and 622 months.

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January 10, 2010

Respectfully submitted,

John P. Kacavas

United States Attorney

By: /s/ Arnold H. Huftalen

Arnold H. Huftalen

Assistant U. S. Attorney

NH Bar No. 1215

53 Pleasant St., 4th Floor

Concord, New Hampshire 03301

(603) 225-1552

By: /s/ Terry L. Ollila

Terry L. Ollila

Assistant U. S. Attorney

NH Bar No. 560603

53 Pleasant St., 4th Floor

Concord, New Hampshire 03301

(603) 225-1552

Certificate of Service

I certify that on this date a copy of this Memorandum has

been served upon defense counsel of record, through ecf filing

notice, and that a copy is being forwarded to the Probation

Department via .pdf e-mail attachment. 

 

/s/ Arnold H. Huftalen

Arnold H. Huftalen

Assistant U. S. Attorney

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