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Robert J. McWhirter, Bar # 012283

Law Offices of Robert J. McWhirter

PO Box 26666

Tempe Arizona 85285

Robert.McWhirter@RobertJMcWhirter.com

Telephone: (480) 980-0696

Attorney for Defendant 

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

James Toadvine Jr., 

Defendant.

No: 2:15-cr-01535-DJH-1

MOTION TO MODIFY

SENTENCE

Mr. James Toadvine, though counsel, requests this Court clarify the 12-

month sentence imposed upon him on July 18, 2016. Under the Federal 

Sentencing Guidelines, this fits into Zone C allowing for a split sentence of 

imprisonment and other form of community confinement including home arrest. 

Mr. Toadvine requests this court allow for him to serve his sentence in this fashion.

The factors of sentencing at 18 USC § 3553(a) justify this clarification. 

Splitting Mr. Toadvine sentence would punish him sufficiently “but not greater 

than necessary, to comply with the purposes” of sentencing under the statute. Mr. 

Toadvine asked this court to consider the following:

(1)the nature and circumstances of the offense and the history and characteristics 

of the defendant;

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(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;

Mr. Toadvine has been punished severely already.

 

This is Mr. Toadvine’s first offense. He has served his country in the Coast 

Guard and up until this incident had a stellar work record with the Bureau of 

Prisons. What occurred here was a onetime incident that destroyed the life 

he had until that point built. 

At sentencing the victim, through her representative, asked the Court for 

probation. The government agreed. Undersigned counsel presumes the 

victim would not object to this motion. Mr. Toadvine is not a sexual 

predator. 

The victim gave conflicting accounts of what occurred her and the 

Presentence Report reflects the worse one for Mr. Toadvine. Part of her 

statement may be conflagrated with the rape she suffered from Officer 

Mendoza, not Mr. Toadvine. 

Mr. Toadvine thought this was a real friendship and he wanted to help the 

victim after her release. This does not minimize his crime but does put it in 

perspective. Undersigned counsel has contacted the victim’s representative 

to ask her position on this motion and if she wishes to clarify her statement 

as to what occurred with him. 

(B) to afford adequate deterrence to criminal conduct; (C) to protect the public 

from further crimes of the defendant

Mr. Toadvine must register as a sex offender. From all indications, 

including the PSR, this appears to have been a one-time incident. He 

thought he had a friendship with the victim and wanted to help her. He 

readily admitted to the inappropriate contact. But, nothing indicates Mr. 

Toadvine will ever repeat this conduct or that he will be anything other than 

a law abiding citizen. 

At sentencing it was clear that neither the victim, the PSR writer, nor the 

prosecutor believe he will committee another crime. 

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

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

Mr. Toadvine’s prospects for continued employment are much more difficult 

now. Mr. Toadvine may be able to get some training while incarcerated but 

in reality it will be very difficult for him, as with any incarcerated former 

officer. Mr. Toadvine’s whole family is better off with him spending part of 

his time in home detention or in a half-way house. From there he can seek 

employment and support his family. Given the victim’s position at 

sentencing, she would not oppose this. 

Mr. Toadvine does not request a lower sentence but merely that the Court allow 

him to spend half of his sentence in a halfway house or home confinement. This 

split sentence would serve the goals of §3553(a).

AUSA Galye L. Helart takes no position on this motion. 

RESPECTFULLY SUBMITTED August 10, 2016.

By “s/” Robert J. McWhirter

Law Offices of Robert J. McWhirter

Attorney for Defendant 

The foregoing was e-filed on August 10, 2016.

COPIES of the foregoing sent to:

Gayle L. Helart, AUSA

2 Renaissance Square

40 N. Central Ave., Ste. 1200

Phoenix, AZ 85004-4408

Case 2:15-cr-01535-DJH Document 28 Filed 08/14/16 Page 3 of 3