IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, Plaintiff, )
-vs- ) CASE NO. CR-08-272-C
PAUL L. SMITH, Defendant. )
OBJECTIONS TO REVISED PRESENTENCE
INVESTIGATION REPORT AND
COMES NOW, the Defendant Paul L. Smith,
through counsel and submits the following
Objections to the Revised Presentence
Investigation Report and Sentencing Memorandum in
support of his request for a variance in his
sentence based on 18 U.S.C. § 3553(a), factors to be
considered in imposing a sentence. In
furtherance thereof the Defendant would show this
Honorable Court as follows, to-wit:
By letter dated January 6, 2010, the
Defendant submitted to the United States Probation
Office written objections to the Presentence
Investigation Report dated December 23, 2009.
Thereafter, a revised report was prepared and
portions of the original report were modified
thereby mooting certain objections as
submitted by the Defendant and Government. This
document encompasses the objections that were
not previously mooted by the revised report.
Objection 1: Mr.
Smith objects to paragraphs 24 and 26 in the Revised Presentence
Investigation Report as double counting.
Paragraph 24 relates to an adjustment for sophisticated
means and paragraph 26 relates to an
adjustment for abuse of a position of trust. A total of four
level adjustment is made based on these two
almost identical enhancements. In essence Mr.
Smith is accused of creating a false company
and causing funds to be funneled through that
company (sophisticated means), which is
something that was possible only because he was the
executive director of Marie Detty (Abuse of a
Position of Trust
It should be noted that use of a special
skill is very similar to sophisticated means.
Sophisticated means is defined in §2B1.1,
Application Note (8) (B) as “especially complex
especially intricate offense conduct
pertaining to the execution or concealment of an offense.”
Use of a special skill in §3B1.3, relates to
the use of skill “in a manner that significantly
facilitated the commission or concealment of
the offense.” Both Specific Offense
Characteristics are defined in Application
Notes as facilitating the commission and/or
concealment of the offense.
Additionally, §3B1.3, specifically provides
that the adjustment of abuse of a position of
trust or use of a special skill may not be
applied if the position or skill was included in the base
offense or the specific offense
characteristic. “This adjustment may not be
employed if an
abuse of trust or skill is included in the
base offense level or specific offense characteristic.”
Under §2B1.1(b)(9)(C) that is a specific
offense characteristic which as described above is
virtually identical to a “special skill.” The
use of both the enhancement for sophisticated means
and special skill in this particular case
amounts to double counting.
Impermissible double counting or
impermissible cumulative sentencing occurs
when the same conduct on the part of the
defendant is used to support separate
increases under separate enhancement
provisions which necessarily overlap, are
indistinct, and serve identical purposes.
United States v. Rice, 52 F.3d 843, at
Based on impermissible double counting, Mr.
Smith’s total offense level should be
reduced to level 18 and his guideline
sentencing range should be from (27 - 33) months.
Section 3553 (a) Factors
Applying the guidance of Gall v. United
States, 552 U.S. 38, 128 S.Ct. 586, 169
L.Ed.2d 445 (2007) the guidelines are not the
only consideration relating to the imposition of a
As we explained in Rita, a
district court should begin all sentencing
proceedings by correctly calculating the
applicable Guidelines range. See 551 U.
S., at . As a matter of administration and to
secure nationwide consistency, the
Guidelines should be the starting point and
the initial benchmark. The Guidelines
are not the only consideration, however.
Accordingly, after giving both parties an
opportunity to argue for whatever sentence
they deem appropriate, the district
judge should then consider all of the
§3553(a) factors to determine whether they
support the sentence requested by a party.
Gall v. United States,
128 S.Ct. at 596-597.
As outlined in §3553(a) the Court should
consider the following factors when
determining the appropriate sentence for an
1. The nature and circumstance of the offense
and the history and characteristics of the
defendant. This is a non-violent offense by
an individual who has no prior contact with the
criminal justice system. Attached to this
Sentencing Memorandum are character letters from
prior employers and co-workers outlining Mr.
Smith’s professionalism, trustworthiness,
dedication and mentor type qualities.
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;
(B) To afford adequate deterrence to criminal
conduct; Defendant Smith is fiftyone
(51) years old and has no prior criminal
(C) To protect the public from further crimes
of the defendant; Defendant Smith
is fifty-one (51) years old and has no prior
(D) To provide the defendant with needed
educational or vocational training,
medical care, or other correctional treatment
in the most effective manner;
Defendant Smith is not in need of educational
or vocational training or medical
3. The kinds of sentence available:
4. The kinds of sentence and the sentencing
range established for the type of offense
committed when considering the advisory
5. The consideration of any pertinent policy
6. The need to avoid unwarranted sentence
disparities among defendants with similar
records who have been found guilty of similar
7. The need to provide restitution to any
victims of the offense.
In exercising its sentencing discretion the
Court is to impose a sentence sufficient, but not
greater than necessary, to comply with the
purposes set forth in paragraph 2 of 18 U.S.C.
As noted in Gall, 128 S.Ct. at
598, “[i]t has been uniform and constant in the federal
judicial tradition for the sentencing judge
to consider every convicted person as an individual
and every case as a unique study in the human
failings that sometimes mitigate, sometimes
magnify, the crime and the punishment to
Unique and individual to Mr. Smith’s case is
the reasonable conclusion that Mr. Smith is
not going to return to criminal behavior and
is not a danger to society. At the age of 51, Mr.
Smith has no prior criminal history.
1 See, Attached letters.
Additionally, when considering the mandates
of 18 U.S.C. § 3661, that “[n]o limitation
shall be placed on the information concerning
the background, character and conduct of a person
convicted of an offense which a court of the
United States may receive and consider for the
purpose of imposing an appropriate sentence.”
The substance and quantity of information about
the character, background, integrity and
quality of person that is presented about Defendant
Smith clearly make him an exemplary
individual deserving consideration by this Court of a
sentence of probation. Mr. Smith through
counsel presents this additional information and
evidence in the form of character letters1
to support the position
that he is an excellent candidate
for a term of probation.
WHEREFORE, Defendant Paul L. Smith requests
this Honorable after consideration of
the factors set forth in 18 U.S.C. §3553(a)
impose a sentence of probation, home confinement,
community service with conditions that will
provide the for restitution and other factors and
determined by the Court.
MARTIN LAW OFFICE
S/ Mack K. Martin
Mack K. Martin, OBA # 5738
125 Park Avenue
Oklahoma City, Oklahoma 73102
Telephone (405) 236-8888
Facsimile (405) 236-8844
Attorney for Defendant
Paul L. Smith
CERTIFICATE OF SERVICE
I hereby certify that on Friday, January 22,
2010, I filed this instrument under seal and
submitted a full true and complete copy to
Assistant United States Attorney, Ms. Vicki Zemp
Behenna, 210 West Park Avenue, Suite 400,
Oklahoma City, Oklahoma 73102.
S/ Mack K. Martin