IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Robert E. Blackburn

Date: March 5, 2013

Courtroom Deputy: Sabrina Grimm

Court Reporter: Tracy Weir

Probation Officer: Gary Kruck

Criminal Action No. 11-cr-00422-REB-01

Parties: Counsel:

UNITED STATES OF AMERICA,

Plaintiff,

v.

M.J. Menendez

1. HA MAHN DO,

Defendant.

Harvey Steinberg

SENTENCING MINUTES

1:37 p.m. Court in session.

Court’s preliminary remarks.

This proceeding is a continued sentencing hearing from February 22, 2013.

Defendant is present on bond.

The court has considered all relevant matters of fact and law, including the following:

• The parties’ plea agreement under USSG § 6B1.2, including the parties’

written stipulation of facts relevant to sentencing under USSG § 6B1.4(a);

• The nature and circumstances of the offense(s) – focusing on “the real

conduct” – for which the defendant is being sentenced;

• The history and characteristics of the offender;

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• The authorized sentences under 18 U.S.C. § 3551;

• The presentence report and any addendum;

• The basic purposes of criminal punishment: deterrence; incapacitation;

just punishment; and rehabilitation as declared in the Sentencing Reform

Act of 1984;

• The purposes and goals of sentencing as prescribed by Congress at 18

U.S.C. § 3553(a)(2);

• The factors to be considered in imposing sentence pursuant to 18 U.S.C.

§§ 3582(a) and 3553(a)(1)-(7);

• The constitutional and relevant provisions of the advisory USSG;

• The kinds of sentence and the sentencing range established under the

USSG for the applicable category of offense committed by the applicable

category of defendant pursuant to 18 U.S.C. § 3553(a)(4);

• The need to avoid unwarranted sentencing disparities by “ensuring similar

sentences for those who have committed similar crimes in similar ways,”

Booker; 

• The need to restitute victims;

• The pertinent policy statements of the US Sentencing Commission;

• The need to impose sentences that satisfy the needs and requirements of

18 U.S.C. § 3553(a)(2);

• The advancement of the seminal congressional goals of honesty,

uniformity, and proportionality in sentencing; 

• The principle and requirement codified at 18 U.S.C. § 3553(a), to impose

a sentence that is sufficient, but not greater than necessary, to achieve the

congressional goals and purposes of sentencing; 

• The propriety or necessity of imposing concurrent or consecutive

sentences after considering the provisions of 18 U.S.C. § 3584(a) and (b);

• The position of the government, the defendant, and the probation

department;

• The evidence presented, reasons stated, arguments advanced, authorities

cited by the parties in their papers and during their oral argument and

presentation.

The court makes a sentencing statement pursuant to 18 U.S.C. § 3553(c) and enters

findings of fact, conclusions of law, judgment(s) of conviction, sentence(s), and orders.

IT IS ORDERED as follows:

1. That the plea agreement of the parties as presented in Court’s Exhibits 1

and 2 is formally approved;

2. That the pending motions are resolved as follows: Defendant’s Motion for

Variant Sentence [189] is GRANTED; Government’s Motion for Defendant

to Receive the Third Level for Acceptance of Responsibility under

U.S.S.G. §3E1.1(b) [190] is GRANTED; Government’s Motion to Dismiss

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Counts One and Two of Indictment [191] is GRANTED; Government’s

Motion for Downward Departure for Substantial Assistance under United

States Sentencing Guideline § 5K1.1 [194] is GRANTED;

3. That judgment of conviction under Fed. R. Crim. P. 32(k) is entered on

Count One (1) of the Information;

4. That pursuant to the Sentencing Reform Act of 1984, it is the judgment

and sentence of this court that the defendant is committed to the custody

of the Bureau of Prisons to be imprisoned for a term of time served;

5. That the defendant shall be placed immediately on supervised release for

a term of four (4) years;

6. That while on supervised release, the defendant shall comply with the

following conditions of supervised release:

• all mandatory conditions of supervised release, prescribed by law

at 18 U.S.C. § 3583(d) and USSG §5D1.3(a);

• all standard conditions of supervised release approved and

imposed by this court in all such cases and circumstances; and

• the following explicit or special conditions of supervised release:

• that the defendant shall not violate any federal, state, or

municipal statute, regulation, or ordinance in any jurisdiction

or place where defendant may be during the term of

supervised release;

• that the defendant shall not possess or use illegally

controlled substances;

• that the defendant shall not possess or use any firearm or

destructive device as defined under federal law at 18 U.S.C.

§ 921;

• that the defendant shall cooperate in the collection of a

sample of defendant’s DNA;

• that the defendant shall submit to one drug test within fifteen

(15) days from entry of formal judgment in this case, and

thereafter, to at least two periodic tests for the use of

controlled substances as directed and determined by the

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Court;

• that at defendant’s expense, the defendant shall, unless then

indigent, undergo a mental health evaluation/alcohol

substance abuse evaluation, and thereafter, at defendant’s

expense receive any treatment, therapy, counseling, testing

or education prescribed by the evaluation or as directed by

defendant’s probation officer or as ordered by the court; that

defendant shall abstain from the use of alcohol or other

intoxicants during the course of any such treatment, therapy,

counseling, testing, or education; provided, furthermore, that

to ensure continuity of treatment, the probation department

is authorized to release mental health records and reports of

the defendant and the PSR to any person or entity

responsible for or involved in the treatment, therapy,

counseling, testing, or education of the defendant;

• that the defendant shall reside in a halfway house for a

period of six (6) months to commence 21 days from today

and shall comply with all rules, regulations, policies,

directives, orders, and contractual provisions imposed by the

halfway house in which defendant resides;

• that after release from the halfway house the defendant shall

be placed on home detention for a period of twelve (12)

months, during which he shall be in his place of residence at

all times except for approved absences for gainful

employment, religious services, medical care, and such

other times and activities as may be authorized specifically

by his probation officer. This home detention shall be

enforced by electronic monitoring as directed by the

probation officer. The defendant, at his own expense, shall

make arrangements necessary to facilitate such electronic

monitoring and shall cooperate fully with his probation officer

to facilitate and implement home detention.

7. That no fine is imposed.

8. That the defendant shall pay forthwith a special victim’s fund assessment

fee of $100.00. 

9. That an order and judgment of forfeiture shall be entered pursuant to the

plea agreement of the parties and the admission of the defendant of the

forfeiture allegation of the Information and under the authority of Fed. R.

Crim. P. 32.2(b)(3) and the statutory provisions of 21 U.S.C. § 853(c), and

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that immediately after this hearing, the defendant and his attorney shall

confer with the probation officer present, in open court, to schedule an

appointment for Mr. Do to read, review, and execute the written conditions

of supervised released imposed by the Court.

Parties state they have no objections to the sentence imposed.

The defendant waives formal advisement of appeal.

2:13 p.m. Court in recess.

Total time in court: 00:36

Hearing concluded.

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