IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Criminal Case No. 11-cr-355-MSK-1

UNITED STATES OF AMERICA,

Plaintiff,

v.

1. WAUNITA WEINGART

2. JOHN PHILLIP GALLEGOS

3. ALOIS CRAIG WEINGART,

Defendants.

_____________________________________________________________________

GOVERNMENT’S RESPONSE TO DEFENDANT ALOIS 

CRAIG WEINGART’S MOTION FOR VARIANCE

(DOC. #294)

_____________________________________________________________________

The United States of America, by United States Attorney John F. Walsh and

Assistant United States Attorneys Linda Kaufman and Martha Paluch, hereby responds to

Defendant Alois Craig Weingart’s Motion For Variance (Doc. #294). The government’s

position is that a downward variance is not warranted in this case, as explained below.

In the plea agreement, the government agreed to recommend a sentence at the

bottom of the applicable advisory guidelines sentencing range as determined by the

parties. (Doc. #249, Page 2). The parties calculated the advisory guidelines range as 27-

33 months. (Id. at Pages 6-7, ¶ H). The probation department also arrived at this same

guidelines range. (PSR, Doc. #288, Page 11, ¶ 62). Accordingly, at defendant’s July 8,

2013 sentencing hearing, the government intends to recommend a sentence of 27 months

in prison, consistent with the plea agreement.

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History and Characteristics of the Defendant

Defendant argues that the Court should vary from a guidelines sentence in this

case due in part to the fact he is 60 years old. (Doc. #294 at Pages 4 and 6). The

defendant also presented to the Court documentation pertaining to his eye condition. 

While the government agrees with defendant that pursuant to 18 U.S.C. § 3553(a)(1), the

Court may consider a defendant’s “history and characteristics” to include age and medical

condition, it disagrees that defendant’s characteristics warrant the variance requested in

this case.

First, the defendants in the cases cited by the defendant had significantly more

serious and debilitating medical conditions than he. See United States v. Chase, 560 F.3d

828, 829 (8 Cir. 2009) (two prior back surgeries and substance abuse problems related

th

to defendant’s use of pain medication after a car accident); United States v. Gray, 453 F.3d

1323, 1324 (11 Cir. 2006) (heart condition and history of other health problems); United th

States v. Collins, 122 F.3d 1297, 1307 (10 Cir. 1997) (heart disease, high blood pressure, th

ulcers, arthritis, and prostatitis). The records produced by the defendant relating to the

condition of his eye do not establish the degree of his impairment or the degree of medical

treatment, if any, which would be required during his incarceration. 

Second, although a defendant’s advanced age may, in some cases, support a

variance, it is the government’s position that it does not in this case. There is simply no

compelling reason to treat this defendant more favorably than other white collar defendants

who defraud a lender of over $465,000 because he is now 60 years old. The government

notes that the probation department, having met with the defendant, and being fully aware

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of his age, declined to include his “advanced” age as a factor that should bear any weight

in determining the sentence to be imposed under § 3553(a).

Cost of Incarceration

Defendant argues that the Court should impose a variant sentence due in part to

the cost of incarceration. The government’s position is that the cost of incarceration is not

an appropriate factor to be considered in determining whether a variant sentence should

be imposed.

“Although sentencing courts are required to consider the sentencing factors set out

in 18 U.S.C. § 3553(a), the cost of imprisonment is not among them.” United States v.

Molina, 563 F.3d 676, 678 (8 Cir. 2009) (citations omitted). Indeed, it is not clear that

th

sentencing courts “have the authority to impose lesser sentences based on the cost of

imprisonment.” Id.; see also United States v. Wong, 127 F.3d 725, 728 (8 Cir. 1997) th

(holding pre-Booker, Gall and Kimbrough that “[t]he decision whether tax dollars should be

used to pay for lengthy sentences is a congressional determination, not one to be made

by federal courts”).

The Ninth Circuit reached the same conclusion in United States v. Tapia-Romero,

523 F.3d 1125 (9 Cir. 2008). There, the court held that neither § 3553(a)(2)(D), which th

requires courts to consider the need for the sentence imposed “to provide the defendant

with needed educational or vocational training, medical care, or other correctional

treatment in the most effective manner,” or § 3553(a)(3), which requires courts to consider

“the kinds of sentences available,” allowed or required a court “to consider the cost of

imprisonment in determiningthe appropriate length of a defendant’s term of imprisonment.” 

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Id. at 1127.

It is significant to note that when Congress has intended to include the cost of

incarceration as a factor the courts should consider, it has done so very clearly, as it did

in 18 U.S.C. § 3572. Tapia-Romero, 523 F.3d at 1128. This section provides in relevant

part that “[i]n determining whether to impose a fine, and the amount, time for payment, and

method of payment of a fine, the court shall consider, in addition to the factors set forth in

Section 3553(a) . . . (b) the expected costs to the government of any imprisonment,

supervised release, or probation component of the sentence . . . . 18 U.S.C. § 3572(a),

(a)(6).” Id. at 1127 (emphasis added). As that court reasoned, § 3572(a) “expressly

incorporates the §3553(a) factors, but then finds it necessary to list additional factors for

the court to consider, including the additional factor of the ‘expected costs to the

government of any imprisonment . . . .’ 18 U.S.C. § 3572(a)(6).” Tapia-Romero, 523 F.3d

at 1127-28. “If the cost of the defendant’s imprisonment was a factor to consider under §

3553(a), it would not be necessary to add it as an additional factor in § 3572(a).” Id. at

1128.

Conclusion

For these reasons, the government asserts that neither the defendant’s

characteristics nor the cost of incarceration warrants a variance in this case from a 27-

month sentence to a sentence of 12 months and one day.

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Respectfully submitted,

JOHN F. WALSH

United States Attorney

By: s/ Martha A. Paluch 

 Martha A. Paluch

Assistant United States Attorney

1225 Seventeenth Street, Suite 700

Denver, Colorado 80202

Telephone: (303) 454-0100 

Facsimile: (303) 454-0404

E-mail: Martha.paluch@usdoj.gov

By: s/ Linda Kaufman 

Linda Kaufman

Assistant United States Attorney

1225 Seventeenth Street, Suite 700

Denver, Colorado 80202

Telephone: (303) 454-0100

Facsimile: (303) 454-0404

E-mail: Linda.kaufman@usdoj.gov

Attorneys for Government

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CERTIFICATE OF SERVICE

I certify that on this 24th day of June, 2013, I electronically filed the foregoing

GOVERNMENT’S RESPONSE TO DEFENDANT ALOIS CRAIG WEINGART’S MOTION

FOR VARIANCE (DOC. #294) with the Clerk of the Court using the CM/ECF system which

will send notification of such filing to the following e-mail addresses:

Martin Adam Stuart

E-mail: martinstuartlaw@solucian.com

William Lewis Taylor

E-mail: wltaylorpc@gmail.com

Darlene Ann Bagley

E-mail: bagley@ridleylaw.com

Paula M. Ray

E-mail: paulamray@earthlnk.net

and I hereby certify that I have mailed or served the document or paper to the following

non-CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the

non-participant's name:

Nicole D. Peterson - U.S. Probation Officer

E-mail: Nicole_Peterson@cod.uscourts.gov

 By: s/ Solange Reigel 

SOLANGE REIGEL

Legal Assistant

United States Attorney's Office

1225 - 17th Street, Suite 700

Denver, CO 80202

Telephone: (303) 454-0244

Fax: (303) 454-0402

E-mail: Solange.Reigel@usdoj.gov

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