Plaintiff,                )      3:05-CR-240-P


v.                                         )


XXXYYY,                )


              Defendant.                    )














                                                               F.Clinton Broden

                                                               Tx.Bar 24001495

                                                               Broden& Mickelsen


                                                               Dallas,Texas 75204




                                                               Attorneyfor Defendant









I.BACKGROUND             1


A.Mr. YYY’s Offense and Relative Culpability Compared to David Muns and LevoieBranam    1


B.Mr. YYY’s Health         2


C.XXX YYY’s Character            4


1.His Faith            4


2.His Remorse       5


3.His Being            6




A.Health       8


B.Sentence Disparities            10


III.CONCLUSION            11










YU-MINSHEN, M.D.                                                                           ...... A

KATHERINELIPSKY, LCSW                                                                  ...... B                                   

SUSANC. ZAPPA, RN                                                                          ...... C




KRISTINYYY (Wife)                                                                            ...... D

SCOTTMILLER (Father-in-Law)                                                            .................          E

LISAMILLER (Mother-in-Law)                                                               .................          F

DARWINMILLER (Grandfather-in-Law)                                                 .................          G                                          

STACYROGERS (Aunt-in-Law)                                                              .................          H

FREDYYY (Father)                                                                               ....... I

MAGADLENAYYY (Mother)                                                         J

SHIRLEYFEWELL (Grandmother-in-Law)                                               .................          K

DONNADUKE-MOYE (Aunt-in-Law)                                                     .................          L               

SHAWNBISHOP (Cousin)                                                                     .................          M              

WANDAMILLER (Grandmother-in-Law)                                               .................          N

MIKEROGERS (Uncle-in-Law)                                                               .................          O

ROBERTFEWELL (Grandfather-in-Law)                                                 .................          P



MISTYDAWN DAY (Friend for 5 years)                                                .................          Q

JEFFREYO’SHIELDS (Friend for 5 years)                                              .................                   R

ROGERDENGLER (Family friend for 20 years)                                     .................                   S

BRIELO’SHIELDS (Friend for 5 years)                                                  .................          T

FREDCOVEY (Longtime family friend)                                                 .................          U

RUTHCROSBY (Longtime family friend)                                              .................                   V

STEVENOLIVER (Longtime family friend)                                            .................                   W

DAVIDSWATEK (Friend for 3 years)                                                    .................          X

ERIKRODRIGUEZ (Matt’s “best friend”)                                                .................          Y

JENNIFERLYNN LITTLE (Friend for 5 years)                                         .................          Z

CURTISAND CHARLOTTE CARPENTER (Longtime family friend) .................                   aa

MARKBICKEL (Longtime family friend)                                               .................          bb

NICKDURHAM (Friend for 4 years)                                                     .................          cc

MICHAELE. EBERTH (Longtime family friend)                                     .................                   dd

FRANKL. MEANS, D.C. (Friend for 5 years)                                         .................          ee

SERGEANTFRANK FRAUSTO (Longtime family friend)                         .................          ff

ROBERTRUSSELL (Family friend)                                                         .................          gg

TOMMYMCROBERTS (Longtime family friend)                                    .................                   hh

RONNIEWALDEN (Family friend)                                                         .................          ii

JEFFREYEKSTROM (Longtime family friend)                                                 jjTABLE OF AUTHORITIES




Gilv. Reed, 2002 U.S. Dist. LEXIS 27128 (D.Wis. 2002)      9


Ritav. United States, 127 S.Ct. 2456 (2007)     8


UnitedStates v. Baron, 914 F. Supp. 660 (D. Mass.1995)           9


UnitedStates v. Booker, 125 S.Ct. 738 (2005)           8


UnitedStates v. Martinez-Guerrero, 987 F.2d 618(9th Cir. 1993)       8


UnitedStates v. Pressley, 473 F. Supp. 2d 1303(N.D. Ga. 2006)          10


UnitedStates v. Ranum, 353 F.Supp. 2d 984 (E.D.Mich. 2005).           8




18U.S.C. § 3553           1, 8, 11


U.S.S.G.§ 5H1.4  8


U.S.S.G.§ 5K1.1  11



         Defendant,XXX YYY, submits this Sentence Memorandum for purposes of assisting the Courtin fashioning a sentence under 18 U.S.C. § 3553(a) that is “sufficient but notgreater than necessary to comply with the purposes” of § 3553.  Mr. YYY’s offense level is currentlyset at Level 12 and he is in a Criminal History Category of I.  Based upon his health and in order to“avoid unwarranted sentence disparities among defendants with similar recordswho have been found guilty of similar conduct,” undersigned counsel submitsthat Mr. YYY should be sentenced based upon an Offense Level 10 and sentencedto two years probation with 200 hours of community service as a condition ofthat probation.



A.Mr. YYY’s Offense and Relative Culpability Compared to David Muns and LevoieBranam


         Duringhigh school Mr. YYY started to work part-time for Office Depot.  He was originally paid $7.00 per hourand received a raised to $7.20 per hour but he was not eligible for healthinsurance because of his part-time status. At that point, he still hadinsurance through Children’s Health Insurance of Texas.   In or about August 2001, when hewas eighteen years old and still working part-time for Office Depot, Joe Saranand his associates came into the Office Depot to buy office supplies.  Saran was so impressed with Mr. YYY’swork ethic and personality that he offered Matt a full-time warehouse job.  Most importantly, Mr. YYY was to beprovided private health insurance. Mr. YYY accepted the offer of full-time employment.

         Mr.YYY worked as a warehouse worker and a “gopher” for Saran.  In addition, he reported to David Munswho was a warehouse supervisor.  Atthe direction of Saran and Muns, Mr. YYY, from time to time, was directed topick up bottles of promethazine cough syrup from distributors and transportthem to the warehouse.  At thewarehouse, at the direction of Saran and Muns, Mr. YYY assisted other warehouseworkers in soaking the bottles of promethazine and peeling the labels off thebottles.  Mr. YYY had nothingfurther to do with the promethazine, although, on two occasions, he assisted inloading the promethazine onto a delivery truck so that another worker, LevoieBranam, could take them to Houston.

         AlthoughMr. YYY knew that what he was doing with the promethazine was illegal, he was,at all times, acting pursuant to the direction of Saran and/or Muns.  When Saran offered the warehouseworkers under-the-table money for their assistance in soaking the promethazine,Mr. YYY actually requested the money be put in his paycheck so that he could paytaxes on the money.

         Thegovernment has informed undersigned counsel that it views Mr. YYY as lessculpable than Muns or Branam.

         B.Mr. YYY’s Health

         Mr.YYY’s medical condition is fully explained in a letter from his hematologist,Dr. Yu-Min Shen.[1]  As Dr. Shen explains, Mr. YYY has acongenital bleeding disorder relating to a Factor IX deficiency.  “The normal range of factor IX producedby the body ranges from 50% to 150%. Mr. YYY is only able to produce 4% of the Factor IX needed forclotting.”

         Dr.Shen writes:

Twoaspects of hemophilia are important to understand.  First, because it is a life long illness, men with thisbleeding disorder get to be experts at when they are having a problem and,thus, when they need treatment.  Itis a critical that factor must be on hand and available for immediatetreatment.  In spite of Mr. YYY’shistory of conscientious treatment, he has suffered some permanent damage toseveral joints.  The joint sitesthat have been involved in repeated bleeds are termed “target joints”.  In Mr. YYY’s case, these include hisright ankle, right elbow, and both right and left knees. 


Thesecond important aspect is that men with hemophilia need to avoid being placedin situations where they night be exposed to physical trauma.  It is especially important in thisregard to avoid head trauma, where internal bleeding within the brain canoccur.  This means avoiding contactsports, such as football or soccer, as well as avoiding group situations whereaggression might be taken out in the form of physical altercation or violence.


         Asto the cost for treatment, Dr. Shen notes that “each treatment episode costs atleast $5,000” and that “Mr. YYY may require more than an infusion of factor perepisode.”  Dr. Shen’s statementsare reiterated by the Social Worker for the Adult Comprehensive TreatmentProgram, Katherine Lipsky.

         Matt’swife, Kristin YYY, further explains Mr. YYY’s medical condition in her letterto the Court:

Matthas hemophilia.  As one ofJehovah’s Witnesses, Matt feels that it is important to “abstain from blood” asthe Bible commands in Acts 15:28, 29 and 21:25.  Even as a young child, he made this decision, and that meantthat until he was about twelve he would not take the injections used to treathis excessive bleeding because they contained blood fractions.  This resulted in several months ofpainful bleeding and time spent resting in the house.  Yet he stood up for what he felt was right, despite thepain.  That is the kind of personhe is, and although he has made this mistake, I have seen his determination tobe honest in even seemingly minor things ever since.


Sincethe synthetic form of the medicine he needed was made available, he has beenable to keep his bleeding at a fairly manageable level, typically taking 2doses per month which total around $10,000.  However, there are often times when he takes more than 2injections per month.  Occasionallya bleed will not stop, and he may need total rest, ice, and elevation alongwith an injection every day for a few days.  Keeping these serious bleeds to a minimum requires that Matttake medicine as soon as he can tell a bleed is beginning.  This often requires that he come homefrom work or take medicine immediately after he thinks he might have injuredhimself.


Matthas a job now that he loves and that provides him with excellent insurance thatwe can afford.  Also, if he knowshe is having a bleed, Matt can take a day off with little notice and no problemat all.  If Matt is sent to prison,he will lose all of that, and I fear it will be difficult for him to getinsurance coverage later on.  I amvery fearful that Matt will have serious, possibly life threatening bleeds ifhe goes to prison and of course I am terrified of him not being able to receivethe expensive medicine he might need.


         C.XXX YYY’s Character


              1.His Faith


         Severalletters explain Matt’s abiding conviction to his religion and the steps he hastaken within his church to make amends.

•“Mattimmediately went to [the overseers in the congregation] and related to them hisinvolvement in this situation. This resulted in a public announcement to our congregation that Matt hadbeen given counsel and discipline but was also very sorry for his actions.”(Kristin YYY, wife)


•“Oneof the things that I really love about XXX is his deep love for God andfellowman.  Many times I’ve seenhis eyes light up with excitement as he relates a conversation he has had witha friend or workmate about the Bible....Immediately after his arrest he went tothe Elders in his congregation to tell them what happened and seek help for hisdisturbed conscience.  He has sincemet many times with these men.  Webelieve XXX has indeed been helped and has shown heartfelt appreciation forforgiveness.  This was after manytears, much agonizing remorse and untold prayers”  (Lisa Miller, mother-in-law).


•“Mattis deeply contrite over his actions. He fully realizes the harm his actions have caused to others.  He often expressed to his family andfriends the shame he feels and the sorrow he has for the pain caused to all whoknow him.  But of utmost importanceto Matt is the reproach he has brought on the God he worships.  He has endeavored to live a life thatbrings honor to God.  He is deeplypained that his actions have detracted from that.”  (Scott Miller, father-in-law)


•“XXXwas brought up in a very spiritual household where he was raised to follow theBible’s commands to the best of his ability.  He volunteers his time each week to talk to people about thebible and the hope it contains.  Hehas done this since he was a small child and will continue to do this his wholelife, his faith is very important to him.”  (Magdalena YYY, mother)


•“Infact because of the seriousness of this wrong XXX has been disciplined by thecongregation.  They felt he wasrepentant.  He has been honest inadmitting his wrong.”  (Shirley AnnFewell, grandmother-in-law)


•“It’scommendable on [Matt’s] behalf that he approached me early on in reference tohis legal predicament along with other elders who have responsibilities in ourcongregation.  His primary concernwas that his situation might shed a bad light on Jehovah’s Witnesses.....”(Steven C. Oliver, long time family friend).


                  2.His Remorse


         Numerousletter writers explain Matt’s sincere remorse for his actions and hisnaivete.  All of the letters givegreat insight into Matt’s character:

•“Weare both better and changed people because of this terrible situation and nowmore than ever Matt is the person I admire most....He had been devastated by thethought that his actions hurt anyone. I know this because he has cried and been in anguish so much the pasttwo years.”  (Kristin YYY, wife)


•“Whatmakes me especially proud of Matt, however, is his willingness to own up to hisculpability in this matter.  Matthas lead a somewhat naive life.  Hehas hemophilia and due to this, his parents sheltered him.  He had little experience in life untilthe time he was employed by Mr. Saran. As one gets to know Matt, you quickly see that he looks for the best ineveryone.  I honestly believe thatthis positive outlook blinded Matt somewhat as to what was taking place.  Having said that, however, Matt takesfull responsibility for his role at the company and all of the family,including Matt, realizes that a penalty must be paid.  (Scott Miller, father-in-law)


•“XXXhas always been such a trusting person and sometimes that has caused him to bea bit naive.  He has always beensuch a loving husband to my friend Kristin and I am so proud of the courage andresponsibility that he has shown through this trying time.....He understandsthe part that he played in all this and he is so sorry for it.  I truly believe that this has taughthim such a valuable life lesson that he incorporates into his everydaylife.  This has made him so muchwiser about the world and the fact that there is never a gray area betweenright and wrong....Your honor, if you need to know anything about the characterof XXX YYY just look at the amazing people in his life that love, trust andcherish him.”  (Misty Dawn Day,friend for 5 years)


•“Mattseems to have made some bad decisions while employed for Saran.  He was asked to do things that werewrong and he did them anyway.  Wehave talked about what he did, and he expressed his sorrow and deep regret thatit ever happened.  He is ashamed,embarrassed, and ready to put this behind him.”  (Jeffrey O-Shields, friend for 5 years).


                  3.His Being


         Whileundersigned counsel is hopeful that the Court will read the attached letters infull, various comments made in the letters highlight and give keen  insight into Matt YYY:

•“Mattand Kristin moved from Arlington to Corsicana when his problems caused loss ofemployment and he has found a job at a local distribution center.  He is at work every day at six o’clockevery morning in spite of his serious health problems that have plagued Mattsince birth.  Matt suffers fromhemophilia which causes a lot of pain at times and requires numerous injectionswhich are very expensive.  Up tillnow, Matt has obtained these through various forms of insurance.  This has proved to be a real problemfor Matt and his family for his entire life and because of this, Matt has beenraised in a sheltered position to avoid bleeding injuries that could prove tobe life threatening.  Because ofthis condition we feel that Matt was naive as to the ways of the world.  And though Matt does not deny wrongdoingwe know how he and Kristin have suffered and in coming to know Matt well we areabsolutely certain Matt will never be involved in wrongdoing again.”  (Darwin Miller, grandfather-in-law)


•“Welove Matt deeply.  He is such akind person.  He is so goodhearted.  There have been times Ihave seen his naivete, but of course he is young.  Matt has such endearing qualities, I have personally seenhim being so sweet to children and they are crazy about him.  Then I have watched him have aconversation with the elderly and see the genuine kindness on his face.  His is very sweet and one of the mostgood-natured persons I have ever met. Matt has been a wonderful addition to our family.  We are honestly grateful to him.”  (Stacy Rogers, aunt-in-law)


•“Atpresent, he has a job that, while not prestigious or high paying, is honesthard work which provides adequate health insurance to cover his costly monthlyinjections.  He is a good anddependable worker and as such as [sic.] already been considered for asupervisory position although having been employed at this job for a littleover a year.  Also the volunteerwork that he is involved with serves a great need and benefit to thecommunity.  This works helps peoplemake positive changes in line with Bible standards.  They thus become better neighbors, family members andcitizens.”  (Lisa Miller,mother-in-law).


•“Hiswork ethic speaks for it self [sic.], from the age of 14 he started to workfirst in the school cafeteria during the day and at a grocery store at nightand he has worked steadily to this day. He is trust worthy [sic.] and that is what draws people to him.  Before XXX was able to walk he would bewith his mother and I in volunteer work and he continues this work today.  His love for his neighbors moved him totalk to others about Jehovah God and his purpose for the human family.”  (Fred YYY, father).


•“BeforeXXX was hired to work for [Saran’s] company, he always chose to associate withothers of good character.  He shiedaway from the usual teenage temptations and I never heard anything discouragingabout his activities.  Even XXX’slanguage was exemplary.  He spokeof serous matters, his mind was on upbuilding things, and he refrained fromusing bad language.  XXX was anindustrious young man who held several jobs during his high school years.”  (Roger D. Dengler, family friend for 20years)


•“Myhusband liked a CD [Matt] had and wanted to copy it.  Matt said ‘No.’ Angered a tad my husband wanted to know why.  [Matt] explained basically that he thought of that asstealing, and his conscience would not allow him to agree to it.  He got our respect and admiration.  It took courage to stand up to a friendabout something seemingly small, but he was right and it helped change ourviews.”  (Briel O'Shields, friendfor 5 years).


•“[Matthas always been truthful, serious, chase, gentle, and lovable.  He has been considerate and kind tothose who are elderly and disadvantaged. I have seen him many times approach elderly ones to inquire about theirhealth and talk with them.”  (FredCovey, longtime family friend)


•“XXX,along with his family has been involved in a [sic.] volunteer community servicework on a regular basis since I have known him.  He graduated from high school to become an independent youngman who continues to this day to take responsibility seriously and to volunteermany hours of his time in addition to holding a full time job to support hisfamily.”  (Ruth Crosby, longtimefamily friend).


•“Asa favor to his future father-in-law, I checked into [Matt’s] background withsome of my friends of varying age that I had known for decades that also knewMatt and his family.  I soonlearned that he wasn’t a typical young guy.  Each person with whom I spoke was impressed with Matt’sinitiative, sense of responsibility and concern for those around him.  He didn’t engage in any unlawful orimmoral acts so often associated with young men his age.  I didn’t get any negative reports.  After his marriage we saw each otheroccasionally at various events. The way he handled himself - without foolishness, disrespect orrecklessness - continued to raise my opinion of him.”  (David M. Swatek, friend for 3 years)





         Asthis Court is aware, its sentencing obligation since the decision in UnitedStates v. Booker, 125 S.Ct. 738 (2005) isto impose “a sentence sufficient, but not greater than necessary” to comply with the factors set forth in 18 U.S.C. §3553.  As one Court has explained:

Sentencingwill be harder now than it was [prior to Booker]. District courts cannot just add up figures and pick a number withina narrow range. Rather, they must consider all of the applicable factors,listen carefully to defense and government counsel, and sentence the personbefore them as an individual. Bookeris not an invitation to do business as usual.


UnitedStates v. Ranum, 353 F.Supp. 2d 984, 987(E.D. Mich. 2005).[2]


         Even prior to Booker, U.S.S.G. § 5H1.4allowed for a downward departure for a defendant with “extraordinary” healthproblems.  Moreover, since Booker, courts must consider a defendant’s need for medicalcare “in the most effective manner”when setting a sentence.  18 U.S.C.§ 3553(a)(2)(D) (emphasis added). In determining whether a departure or variance is warranted based uponhealth, “the ability of the Bureau of Prisons to accommodate a disability is afactor that can be considered.”  UnitedStates v. Martinez-Guerrero, 987 F.2d 618,620 (9th Cir. 1993).  Indeed, indetermining whether a defendant's physical conditions justifies downwarddeparture from Sentencing Guidelines, a sentencing court should considerwhether impairments are serious and imminent medical threats, which could bemade worse by incarceration, and/or which Federal Bureau of Prisons could notadequately treat.  UnitedStates v. Baron, 914 F. Supp. 660, 662-64(D. Mass. 1995).

            Simplyput, if Mr. YYY bleeds and he does not have immediate access to extremelyexpensive medicine, he could die or suffer serious and permanent healthproblems.  Moreover, as explainedin the letter from his hematologist, he needs to avoid group situations wherethere is a potential for violence that could produce a bleed.  There is at least one case found bycounsel where a hemophiliac, who did not even require the expensiveversion of treatment medicine that is required by Mr. YYY, had problems beingcared for while in the custody of the Bureau of Prisons.  Gil v. Reed, 2002 U.S. Dist. LEXIS 27128, *19 (D. Wis.2002)  (“Walker, an inmate withhemophilia was occasionally denied a clotting protein when he claimed to besuffering internal bleeding.”).

            Insum, Mr. YYY’s medical condition could be life threatening without the propercare.  Moreover, his situation ismade much more difficult as a result of his religious convictions.  Consequently, he will need almostimmediate access to medication costing approximately $10,000 per month.  There is some indication that theBureau of Prisons cannot offer consistent care to hemophiliacs that are notJehovah's Witnesses.  There isabsolutely no assurance that the Bureau of Prisons could adequately care forMr. YYY and respect his religious convictions.  Moreover, even if the Bureau of Prisons was somehow able toadequately care for Mr. YYY while respecting his religious convictions, thecost to taxpayers would be exorbitant. Finally, being put in a prison will likely increase Mr. YYY’s likelihoodof suffering bleeds.

            Mr.YYY’s medical condition is such that it is both out of the ordinary and“extraordinary.”  Likewise,providing medical care “in the most effective manner” certainly dictatesallowing Mr. YYY immediate access to his expensive medicine that is now paidfor by private insurance.  In otherwords, a downward departure and/or a downward variance is certainly appropriatein this case based upon Mr. YYY’s health problems and need for expensive medication.

            B.Sentence Disparities

         As noted above, David Muns was Mr. YYY’s immediatesupervisor.  Levoie Branam actuallydelivered the promethazine cough syrup to Houston for sale.  Both accepted under the table paymentsfor their roles in the conspiracy. Indeed, as also noted above, the government has informed undersignedcounsel that it views Mr. YYY as less culpable than Muns orBranam.

            Perversely,because Muns and Branam where higher up in the chain, both had information thatresulted in the government filing a downward departure motion in their behalfunder U.S.S.G. § 5K1.1.  On theother hand, while Mr. YYY met with the government and was completely debriefed,his role in the conspiracy did not allow him sufficient intelligenceinformation to qualify for a downward departure under U.S.S.G. § 5K1.1.[3]

            Branam,who supervised Mr. YYY, was sentenced to four years probation, with 180 days ofhome confinement and a requirement to perform 100 hours of communityservice.  Muns received anidentical sentence.  It would beutterly perverse if Mr. YYY received a harsher sentence than hissupervisor.  Moreover, undersignedcounsel submits that, even if Mr. YYY is given an identical sentence as hissupervisor, it would be a mockery of the justice system.


         As initially noted, this Court’s responsibility isto impose a sentence that is “sufficient but not greater than necessary” tocomply with the purposes set forth in 18 U.S.C. § 3553.  There should be no question that, inthe case of XXX Fred YYY, “sufficient but not greater than necessary”translates into a probationary sentence. The character letters attached hereto speak volumes as to the type ofperson Mr. YYY is and reflect the fact that his actions in this case are anaberration.  Mr. YYY is culpablefor his behavior and has accepted responsibility for that behavior both beforethis Court and his God. Ironically, part of what got him involved in this offense is hisgoodness and his desire to see the best in everybody.  Of course, his desire for health insurance also contributedto his participation.

            Inthe end, “the characteristics of the defendant,” the fact that it is completelyunnecessary to “protect the public form further crimes by the defendant” andthe need to provide the defendant with “needed...medical care...in the mosteffective manner” cry out for a probationary sentence in this case.  Moreover, the need to avoid unwarranteddisparities should dictate that Mr. YYY’s sentence be less harsh than that ofthe more culpable Muns and Branam. Consequently, undersigned counsel urges this Court to place Mr. YYY on“straight probation” and for a term of two years rather than four years.  Nevertheless, Mr. YYY, because heregularly contributes to his community, welcomes the opportunity to performcommunity service to repent for his criminal activity and undersigned counselsuggests that 200 hours (double the amount of community service required ofMuns and Branam) is appropriate.








                                                      F.Clinton Broden

                                                      Tx.Bar 24001495

                                                      Broden& Mickelsen


                                                      Dallas,Texas 75204




                                                      Attorneyfor Defendant


            I,F. Clinton Broden, certify that on November 8, 2007, I caused the foregoingdocument to be hand delivered, on:


UnitedStates Attorney’s Office

1100Commerce Street

Dallas,Texas 75242


MontgomeryJ. Unruh

UnitedStates Probation Department          

1100Commerce Street          

Dallas,Texas 75242              





                                                      F.Clinton Broden




[1]        Thisletter along with numerous other letters in support of Matt YYY are attachedhereto as Attachments A-jj.

[2]          Seealso Rita v. United States, 127 S.Ct. 2456,2465 (2007) (Presumption that the guidelines are reasonable is an “appellate presumption.” “[T]he sentencing court does not enjoy the benefit of a legalpresumption that the Guidelines sentence should apply.” (emphasis in original))

[3]        SeeUnited States v. Pressley, 473 F. Supp. 2d1303 (N.D. Ga. 2006) (Awarding downward variance to a defendant who did notqualify for a U.S.S.G. § 5K1.1 departure to avoid variance with more culpabledefendants who received U.S.S.G. § 5K1.1 departure.)