Sentencing Memorandum by Brandon Jamal Thurmond — USA v. Thurmond et. al. (Dkt. 71, S.D. Ga.)

Record facts

U.S. District Court for the Southern District of Georgia · No. 1:23-cr-00021-JRH-BKE · Doc. 71 · 2024-04-29 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
________________________________________
UNITED STATES OF AMERICA,
        )
Plaintiff,
        )
v.
        )
CASE NO: 1:23CR021
        )
BRANDON THURMOND,
        )
Defendant. 
        )
________________________________________)
SENTENCING MEMORANDUM ON BEHALF OF BRANDON THURMOND
The Defendant, Brandon Thurmond, by and through undersigned counsel and pursuant to
Rule 32(i)(4)(A)(I) of the Federal Rules of Criminal Procedure, hereby submits the following
Sentencing Memorandum, designed to assist the Court in arriving at an equitable disposition of the
instant matter.  Mr. Thurmond’s objectives are as follows:
1.
Supplement the second revised Presentence Investigation Report and
2.
Justify a Departure and/or Variance.
A.
Disputed Information:
Mr. Thurmond does not have objections to the Presentence Investigation Report, but asks the
Court to consider the sentencing approach of the United States Court of Appeals for the Third Circuit
in United States v. Banks (Nos. 19-3812 and 20-2235) (3rd Cir. 2022) and the Fourth, Sixth, Ninth,
and Eleventh Circuits that agree that the United States Supreme Court in Kisor v. Wilkie, 139 S. Ct.
2400 (2019),  applies a less deferential standard to Guideline commentary in contrast to the
deferential standard to Guideline commentary in Stinson v. United States, 508 U.S. 36 (1993). 
B.
Adjustments:
The probation officer determined that the offense level should be decreased by one level for
acceptance of responsibility pursuant to USSG §3E1.1(b).
Page 1 of  9
Case 1:23-cr-00021-JRH-BKE     Document 71     Filed 04/29/24     Page 1 of 10

C. 
Role Assessment: 
The probation officer did not allocate an adjustment for Mr. Thurmond’s role in the instant offense.
D.
Victim Impact:
The Government has verified the victims in this case as “various government agencies and
programs”. [PSI pages 7 – 8, no. 28, 29] They are as follows:
1)
Arizona Department of Economic Security,
2)
Harvest Small Business Finance, LLC,
3)
Small Business Administration, and 
4)
Georgia Department of Labor.
E.
Acceptance of Responsibility:
Mr. Thurmond provided a signed acceptance of responsibility statement. [PSI page 8, no. 30].
F.
Specific Offense Characteristics: 
Mr. Thurmond is responsible for a total actual loss of $130,228.00.  The total intended loss
is $234,442.00.  The probation officer relies upon USSG §2B1.1., Application Note 3(A), “loss is
the greater of actual loss or intended loss” to hold Mr. Thurmond accountable for $234,442.00,
jointly and severally, for Guidelines calculation purposes. 
G.
Downward Departure Considerations:
The probation officer has not identified any factors that may warrant a departure and/or
variance.  Application Note 21(C) of the Guidelines acknowledges that there may be cases where
the Offense Level determined under §2B1.1 of the Guidelines “...overstates the seriousness of the
offense.”  The United States Sentencing Commission used a  securities fraud example to illustrate
its point where the harm inflicted is relatively small, but the group of victims is relatively large.
While it is the Defendant’s burden to establish entitlement to a downward departure, United States
v. Cruz, 946 F.2d 122, 126 (11th Cir. 1991), the essence of Mr. Thurmond’s offense makes this
consideration appropriate.  United States v. Rodriquez, 64 F.3d 638 (11th Cir. 1995). Mr. Thurmond
Page 2 of  9
Case 1:23-cr-00021-JRH-BKE     Document 71     Filed 04/29/24     Page 2 of 10

respectfully requests that this Court grant his request for departure and/or variance based upon his
acceptance of responsibility for the offense, history of good works or charitable efforts, the effect
of incarceration on Mr. Thurmond's minor daughter, immediate family, and the adolescent boys that
he mentors as a partner with Village Strong Nonprofit Co., and his unilateral submission to mental
health therapy.
H.
Applicability:
The Sentencing Guidelines are one among several equally important factors that the Court
must consider in fashioning a sentence that, as stated in the introductory Comments to Chapter Five
of the Sentencing Guidelines (“Determining the Sentence”), is “...sufficient but not greater than
necessary...” to achieve the objectives designated in 18 U.S.C. § 3553. “A district court may
determine, on a case-by-case basis, the weight to give the Guidelines, so long as that determination
is made with reference to the remaining section 3553(a) factors that the court must also consider in
calculating the defendant's sentence.” United States v. Hunt, 459 F.3d 1180 (11 th Cir. 2006).  The
“justification for [a] variance must be ‘sufficiently compelling to support the degree of the
variance.’” United States v. Bell, 537 Fed. Appx. 883 (11th Cir. 2013)  “The weight to be accorded
any given §3553(a) factor is a matter committed to the sound discretion of the district court.” United
States v. Clay, 483 F.3d 739,743 (11th Cir. 2007).  In the instant case, the United States Probation
Office concluded that the Total Offense Level is 14 and the Criminal History Category is II, thereby
recommending a guideline imprisonment range of 18 months to 24 months.
 
APPLICATION OF THE 18 USC §3353 SENTENCING FACTORS 
I.
Nature and Circumstances of the Offense: 
Mr. Thurmond is 34 years of age and stands convicted of wrongdoing that he does not seek
to deny or minimize.  Mr. Thurmond has acknowledged that he was wrong for participating in the
illegal acts before the Court.  
J.
History and Characteristics of Mr. Thurmond:
Page 3 of  9
Case 1:23-cr-00021-JRH-BKE     Document 71     Filed 04/29/24     Page 3 of 10

Mr. Thurmond is a young man in the prime of his life.  A native of Augusta, Georgia, Mr.
Thurmond was reared by a single mother and has three maternal half-siblings and three paternal half-
siblings.  Mr. Thurmond was an excellent football player in high school and as a student athlete at
University of Arkansas Pine Bluff  he earned the Southwestern Atlantic Conference Defensive Player
of the Year.  In 2013 Mr. Thurmond signed with the Atlanta Falcons as a free agent affording him
the opportunity to play in the National Football League as a defensive end. Mr. Thurmond finished
his football career as a member of the Canadian Football League in 2016.
Mr. Thurmond is involved and engaged with the youth in his community.  He currently 
serves as a mentor for middle school boys as a Village Strong Nonprofit Co., partner.  He recently
held a free football training camp for approximately 50 middle school age boys to learn fundamental
football skills and provide guidance/mentorship i.e. maintaining good grades to ensure readiness for
college, provide them information about his life including good and bad decisions that he has made
and explain how bad decisions can have lifelong effects, and be a surrogate father figure for boys
who do not have active fathers in their lives. Mr. Thurmond understands first hand how it feels to
grow up in a home without a father and the trauma the lack of patriarchal guidance can have on a
adolescent boy’s physical, emotional, mental and spiritual health. The negative impact can and often
does continue to affect an adolescent boy into his adulthood.
Mr. Thurmond has a stable home environment and is thriving in his relationship with Brandi
Barkus.  (See character letter from Brandi Barkus dated April 17, 2024). Together they have moved
into a home and forged a family that includes Ms. Barkus’ 12 year old daughter, Dakota,  and Mr.
Thurmond’s 11 year old daughter, Laila, who regularly visits. The two girls are de facto sisters. 
Recently, the Department of Family and Children Services (“DFCS”) removed Laila from her 
biological mother’s residence due to alleged mental, emotional, and physical abuse. DFCS has
determined that Laila will greatly benefit from living with Mr. Thurmond full time, but temporarily
placed Laila with fictive kin while Mr. Thurmond files a Petition for Legitimation.  A hearing on the
Petition for Legitimation is scheduled for May 17, 2024, at the Juvenile Court of Dekalb County. 
Mr. Thurmond also actively seeks outlets to improve his personal growth and initiated mental
health therapy from TabulaRasa Integrative Health, Inc.  (See character letter from Kim Barkus dated
April 18, 2024). His initial appointment was held on Monday, October 2, 2024, with Kim Barkus,
Page 4 of  9
Case 1:23-cr-00021-JRH-BKE     Document 71     Filed 04/29/24     Page 4 of 10

a Licensed Clinical Social Worker, a Certified Alcohol and Drug Counselor, and a Certified Clinical
Trauma Professional Level II.  Mr. Thurmond began attending weekly sessions for one hour and over
a period of time has increased his weekly sessions to bi-weekly sessions.  
Ms. Barkus diagnosed Mr. Thurmond with Chronic Post-Traumatic Stress Disorder and
Moderate Generalized Anxiety Disorder. She recommends that Mr. Thurmond continue individual,
bi-weekly counseling.
“Mr. Thurmond initially presented as guarded, but was willing to engage in receiving
counseling services to improve emotional regulation, interpersonal relationships, and
processing unresolved trauma. In sessions, Mr. Thurmond has been open and candid
regarding his life experiences and in processing these experiences, he has gained
insight as to how emotionally damaging events of his past influenced his decision
making. Mr. Thurmond has also expressed remorse and regret for past decisions that
have negatively impacted others. In this writer’s opinion and experience, Mr.
Thurmond has put forth a great amount of effort into facilitating positive change in
his life.”
K. 
Seriousness/Respect/Punishment
A federal prosecution drives home to the community at large and, particularly, to Mr.
Thurmond, the seriousness of the instant offense.  Indictment, arraignment, change of plea hearing,
and a statutory maximum term of imprisonment of 20 years has Mr. Thurmond’s full attention. Mr.
Thurmond respects this Court and acknowledges that he will be punished for his offense. 
Mr. Thurmond has been a model defendant while on a pre-trial Appearance Bond.  He has
abided by the conditions set forth in the Order Setting Conditions of Release and the Additional
Conditions of Release.  Mr. Thurmond maintains full time employment at Publix Warehouse as a
selector, in addition to, mentoring youth, organizing a free football clinic for adolescent males,  and
actively shares his life story that includes the positive attributes of his life, as well as, shortcomings
that include he is a convicted felon and was incarcerated for five years. His behavior while awaiting
sentencing exemplifies that Mr. Thurmond respects this Court and is making great effort to
rehabilitate his life outside the confines of prison.
L.
Adequate Deterrence:
The process of federal prosecution affords prospective wrongdoers justification for abstaining
Page 5 of  9
Case 1:23-cr-00021-JRH-BKE     Document 71     Filed 04/29/24     Page 5 of 10

from criminal behavior.  Unlike its state counterpart, the federal conviction rate is substantially
higher, incarceration is generally longer, and expense is greater.  Courts have noted that the
deterrence factor “unquestionably envisions more severe sentences for defendants considered more
likely to commit further crimes and less severe sentences for those unlikely to commit [additional]
crimes.”  United States v. Rodriguez, 724 F. Supp. 1118, 1120 (S.D.N.Y 1989). 
At 34 years of age, Mr. Thurmond has spent the first half of his thirties incarcerated and/or
abiding by pre-trial bond conditions. Mr. Thurmond is solely focused on being present in his
daughter, Laila’s life.  The life that he has created with his girlfriend and their two daughters is the
most powerful deterrent. If Mr. Thurmond is incarcerated and Laila is unable to remain with fictive
kin, Laila may be lost in the throes of foster care and Mr. Thurmond’s worst nightmare will be
brought to fruition. 
M.
Public Protection
The public is not in need of protection from Mr. Thurmond.
N.
Treatment:
Mr. Thurmond needs additional mental health treatment to address his ongoing mental health
needs.
O.
Sentences Available:
The Guidelines recommend that a defendant in Zone D not be sentenced to terms of
probation. However, now that the guidelines are advisory, the restrictions the Guidelines used to
impose on probation, split sentences, and community or home confinement, no longer limit courts
in the same way. Courts now have the authority to impose these kinds of sentences in almost any
case.  Judges may place a defendant on probation or impose split sentences for a defendant whose
guidelines fall within Zone D, especially when Zone D ranges have low ends of at least 12 months
and 18 months. 
Page 6 of  9
Case 1:23-cr-00021-JRH-BKE     Document 71     Filed 04/29/24     Page 6 of 10

P.
Rehabilitation:
  18 U.S.C. §3553 (a)(2)(D) “requires a district court judge to ‘consider ... the need for the
sentence imposed ... to provide the defendant with needed educational or vocational training, medical
care or other correctional treatment in that the sentence provide rehabilitation and treatment in the
most effective manner.” Zunkel, Erica (2019) “18 U.S.C.  §3553(a)’s Undervalued Sentencing
Command: Providing a Federal Criminal Defendant with Rehabilitation, Training, and Treatment
in “the Most Effective Manner”,” Notre Dame Journal of International & Comparative Law: Vol.
9: Iss. 1, Article 5, page 49, 55. It is questionable if the Bureau of Prisons (“BOP”) has the resources
to provide rehabilitation and treatment.  The Department of Justice’s Inspector General and studies
reflect that the BOP “faces numerous hurdles to providing ‘the most effective’ care for defendants
due to overcrowding, staffing shortages, high medical costs, and budget cuts.” Id. at 72.
“Imprisonment is not an appropriate means of promoting correction and rehabilitation.” 18
U.S.C. §3582(a)(2012).  The holding in Tapia v. United States provided, in part, “judges have no
mechanism for requiring defendants to participate in BOP programs, nor for guaranteeing that such
programs will be available to defendants in BOP custody. To the contrary judges can require
participation in rehabilitative programs as a condition of probation or supervised release, which
supports the argument for non-incarceration sentence.” 564 U.S. 319, 331 (2011).
In the instant case, an out-of-custody alternative will provide Mr. Thurmond with
rehabilitation and treatment in the most effective manner.  Mr. Thurmond currently attends
individual, bi-weekly mental health therapy.  Incarceration will more than likely cause his mental
health therapy to come to a screeching halt. 
The BOP psychologists “are directed to give first priority to crisis intervention,
suicide prevention, treatment of severely mentally ill inmates, treatment of BOP
employees, and the initial screening of inmates. Brief counseling, individual
psychotherapy, and group therepy – the treatment options that an inmate can request
by self-referral – are all prioritized after these more emergent mental health issues.” 
U.S. Dep’t of Justice, Fed. Bureau of Prisons, Program Statement P5310.17,
Psychology 
Services 
Manual, 
at 
4 
– 
5 
(Aug. 
25, 
2016),
https://www.bop.gov/policy/progstat/5310_017.pdf. 
Page 7 of  9
Case 1:23-cr-00021-JRH-BKE     Document 71     Filed 04/29/24     Page 7 of 10

Q.
Sentencing Disparity:
There is a split in the federal circuit courts regarding the amount of deference that should be
given to United States Sentencing Guidelines commentary. Whereby deference is given to
commentary by some circuit courts, there are other circuit courts that do not extend such deference
when sentencing a defendant.  The issue of deference is highly important in white collar cases i.e.
wire fraud governed by Section 2B1.1 of the U.S. Sentencing Guidelines Manual.  
In 2022 the Third Circuit in United States v. Banks held that “ ‘loss’ under Section 2B1.1
refers only to the loss the victim actually suffered” and not the intended loss. (Nos. 19-3812 and 20-
2235 at page 20) (3rd Cir. 2022) The Court gave deference solely to the guideline and no deference
to the definition of loss found in the commentary “[b]ecause the commentary expands the definition
of ‘loss’”. Id.  The Third Circuit’s holding in Banks was based upon the United States Supreme
Court’s decision in Kisor v. Wilkie which held “before a court may defer to an agency’s interpretation
of its regulation, it must exhaust all the traditional tools of construction and find the regulation to
be ‘genuinely ambiguous.’” 139 S. Ct. 2400, 2415 (2019). The Third Circuit is joined by the Fourth,
Sixth, Ninth and Eleventh circuits who are in agreement that the United States Supreme Court should
also extend less deference to the commentary of the Guidelines. United States v. Dupree, 57 F.4th
1269, 1274 - 75 (11th Cir. 2023) (en banc).
CONCLUSION
“A sentence of imprisonment may work to promote not respect, but derision, of the law, if
the law is viewed as merely a means to dispense harsh punishment without taking into account the
real conduct and circumstances involved in sentencing.” Gall v. United States, 552 U.S. 38,  (2007),
Considering the factors enumerated in 18 U.S.C. §3553, we respectfully request that this Court give
deference to United States v. Dupree and sentence Mr. Thurmond to a term of probation, supervised
release, and restitution to sufficiently achieve the objectives of sentencing.  Such a disposition will 
not only allow Mr. Thurmond to work and remain productive in an effort to support and provide for
his family, but it will allow Mr. Thurmond to continue to pour into the community by serving as a
much needed mentor to adolescent age boys whose fathers are absent in their lives. 
Page 8 of  9
Case 1:23-cr-00021-JRH-BKE     Document 71     Filed 04/29/24     Page 8 of 10

POST-SENTENCING REQUESTS 
1.
Appeal Bond
Pursuant to 18 U.S.C. §3143(b)(1), should the Court impose a term of incarceration, Mr.
Thurmond respectfully requests he be allowed to remain at liberty pending an appeal.  The appeal
is not for purpose of delay.
2.
Voluntary Surrender
In the event incarceration is imposed and the Court refuses to set an appeal bond, given the
manner in which Mr. Thurmond has conducted himself pursuant to the Appearance Bond, Mr.
Thurmond respectfully requests he is allowed to voluntarily surrender to the designated institution.
When appropriate, voluntary surrender benefits both the Government as well as Mr.
Thurmond. The former avoids the cost of housing and transportation to the designated facility, while
the latter avoids the stress such transfer generally involves.
3.
Facility Recommendation
Recognizing it is not binding upon the Federal Bureau of Prisons, in the event incarceration
is imposed, Mr. Thurmond requests the Court recommend FCI Atlanta.  The facility is close to Mr.
Thurmond’s home, would minimize the hardship of visitation upon his family, and is a low security
federal correctional institution with a detention center.
Submitted this 29th day of April, 2024.
    s/Michon Walker                                                    
    Michon Walker, Attorney for Brandon Thurmond
    Arthur L. Walker and Associates, LLC
    P.O. Box 64
    Sandersville, GA 31082
    478-552-0552
    mwalker@arthurlwalker.com
Page 9 of  9
Case 1:23-cr-00021-JRH-BKE     Document 71     Filed 04/29/24     Page 9 of 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
________________________________________
UNITED STATES OF AMERICA,
        )
Plaintiff,
        )
v.
        )
CASE NO: 1:23CR021
        )
BRANDON THURMOND,
        )
Defendant. 
        )
________________________________________)
CERTIFICATE OF SERVICE
I hereby certify that on April 29, 2024, a true and correct copy of the above and foregoing
Sentencing Memorandum was forwarded to all counsel of record via Notice of Electronic filing.
Submitted this 29th day of April, 2024.
     s/Michon Walker                                                    
     Michon Walker, Attorney for Brandon Thurmond
     Georgia Bar No: 732413
     P.O. Box 64
     Sandersville, GA 31082
     478-552-0552
     mwalker@arthurlwalker.com
Case 1:23-cr-00021-JRH-BKE     Document 71     Filed 04/29/24     Page 10 of 10

File and source

File

gov.uscourts.gasd.89394.71.0.pdf

Size

135,683 bytes

SHA-256

2b22b68d0b67f8e153be02eb7b1542b6d348587254e65ccd955b3afc0822cbd9

Our copy

gov.uscourts.gasd.89394.71.0.pdf

Original

PACER (login required)