Case 3:10-cr-00060-VLB Document 213

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA PLAINTIFF V.

JAMES CANAVAN DEFENDANT

: : : : : : : :

CRIMINAL NO.: 3:10cr60 (VLB)

JUNE 1, 2011

MEMORANDUM IN AID OF SENTENCING

The Defendant, JAMES CANAVAN, pursuant to Rule 32 of the Federal Rules of Criminal Procedure, submits this Memorandum in Aid of Sentencing. The Defendant, JAMES CANAVAN, through Counsel, respectfully requests that the Court consider a sentence of a period of home confinement and probation based upon the following analysis and requests for departures:

THE PRE-SENTENCE REPORT OBJECTIONS: A) The Defendant, James Canavan, objects to Paragraph 26 of the Pre Sentence Report as it adds an additional two levels to his offense conduct pursuant to 2D1-1(b)(12). This section was added to the United States Sentencing Guidelines effective November 1, 2010. The Defendant James Canavans plea was entered March 12, 2010. The Court is respectfully moved to give the plea agreement effect pursuant to United States v. Fernandez 877 F.2d 1138, 1145 (2nd Cir. 1989). The Defendant, James Canavan and the Government

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agreed that the Sentencing Guidelines was between 51-63, a serious sentence that will deter future criminal conduct. B) The Defendant, James Canavan, objects to Paragraph 30, as the Adjusted Offense Level should be 26. C) The Defendant, James Canavan objects to paragraph 25 as the total Offense Level should be 23 as reflected in the Plea Agreement. D) Accordingly, the Defendant, James Canavan, objects to Paragraph 58 and 59 of the Pre-Sentence Report as his guideline imprisonment range should be 51 63 months. STANDARD The Second Circuit in United States v Crosby, 397 F. 3d 103 (2d Cir. 2005), has laid the groundwork for the District Courts to follow in determining sufficient but not greater than necessary sentence. The Court must establish a guideline range pursuant to the Sentencing Guidelines. Then the Court is to determine what departures if any are appropriate. The Court then must analyze the factors set forth in 18 U.S.C. 3553(a). After this work is done, the Court must determine whether to impose a guideline sentence or a non-guideline sentence and set forth its reasons and conclusions. Id. (See also, United States v Cavera, 550 F.3d 180, 2008 U.S. App. Lexis 24714(2008)). DEPARTURES I. Mandatory Minimum Departure Pursuant to the Defendant, James Canavans understanding that the government will file a U.S.S.G. 5K1.1 Motion, upon which the Defendant

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respectfully requests that the Court grant said motion and depart from the mandatory minimum of 120 months and sentence the Defendant below his Guideline range. II. Guidelines Departure A. Pursuant to U.S.S.G. 5H1.5, the Defendant, James Canavan moves for a downward departure as a result of his family ties and responsibilities. James Nicolas Canavan was born to Samantha Mosca and the Defendant James Canavan in May of 2010. Since his birth, the Defendant has provided the sole financial support for his son. (Samantha Mosca is a stay-at-home mother.) James Canavans service of a prison sentence within the range of 51-63 months will cause a substantial, direct and specific loss of financial support. There is no effective remedial programs available as the cost of day care will outweigh any earnings Samantha Mosca (age 21) could get with a high school education. James Canavans financial support and caregiving is irreplaceable to his family (See U.S.S.G. 5H1,6 Commentary B (i iv)) B. Pursuant to U.S.S.G. 4A1.3(b)(1) the Defendant, James Canavan

moves this Court for a downward departure based on Inadequacy of Criminal History Category. The Defendant James Canavans criminal history indicates two arrests and three convictions involving Possession of Marijuana and drug paraphernalia. The Defendant, James Canavan will be 27 years old by the date of sentencing and has two arrests involving his addiction to marijuana. The Defendant respectfully suggests that the Criminal History Category II over represents the seriousness of his criminal history or the likelihood that he will

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commit other crimes. The Defendant, James Canavan moves that the Court horizontally depart from Criminal History Category II to Criminal History Category I. This would result in a guideline range of 46-57 months. C. Pursuant to U.S.S.G. 5K2.0(2)(4) the Defendant James Canavan

moves for a downward departure based upon extraordinary post-arrest rehabilitation. As noted in the Pre-Sentence Report, the Defendant began abusing marijuana at the age of 14. This addiction led to the prior convictions for marijuana possession and paraphernalia. Upon his arrest in this matter, he has tested negative for any drug and has successfully fought this addition. Moreover, as his mother has relayed to Probation, James Canavan has done a complete three-sixty. Hes really turned into a terrific man and a wonderful father Hes doing great. (See Paragraph 41 of the Pre-Sentence Report. This complete change respectfully warrants consideration as Counsel for the Defendant suggests that, who would know the Defendant better than his mother. The Defendant, James Canavan has kept a job, remained drug-free and has supported his son and fiance without incident. Respectfully, this turnabout has not been contemplated by the Sentencing Guidelines and should be a factor considered in determining a warranted departure pursuant to U.S.S.G. 5K2.0.

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18 U.S.C. 3553 FACTORS: The Court is respectfully moved to consider the following factors pursuant to 18 U.S.C. 3553(c) in determining an appropriate sentence: 1. 2. his son; 3. 4. 5. free; 6. Defendants remarkable post-arrest changes regarding responsibility The irreplaceable role the Defendant has in his sons life;. Defendants prior drug addiction; Defendants post-arrest drug rehabilitation and ability to remain drug Defendants age of 27 years; Defendants care and necessary financial support of his fiance and

attitude and work ethic; 7. 8. Defendants assistance to the Government; Defendants remorse.

Based upon all of these factors the Defendant James Canavan prays that the Court sentence him to a lower than Guideline Sentence which will allow him to still amaze his mother, raise his son, marry his fiancee and give hope to all his family that his change and positive actions can and will continue.

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THE DEFENDANT JAMES CANAVAN

BY:

_________/s/___________________ KEVIN W. CONDON Condon & Savitt PC PO Box 570 Ansonia, Connecticut 06401 203-734-2511 condonsavitt@comcast.net Federal Bar #: ct12608

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CERTIFICATION I hereby certify that on June 1, 2011, a copy of the foregoing Motion for Extension of Time was filed electronically and served by mail* on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Courts electronic filing system or by mail* to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Courts CM/ECF System.

* VIA US MAIL TO : James Canavan 73 Highland Avenue Ansonia, Connecticut 06401

/s/ ____________________________ KEVIN W. CONDON