Court filing
Defendant's Sentencing Memorandum — United States v. Andre Lee Gaines (N.D. Ga.)
Filed September 29, 2021 in U.S. v. Andre Lee Gaines; one of 12 filings from this case.
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2021-09-29 |
U.S. District Court for the Northern District of Georgia · No. 1:21-cr-00206-JPB · Doc. 10 · 2021-09-29 · Docket on CourtListener
Full text
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA
)
)
v.
) CRIMINAL ACTION
)
NO. 1:21-CR-206-JPB
ANDRE LEE GAINES
)
______________________________________ )
SENTENCING MEMORANDUM
COMES NOW the Defendant, ANDRE LEE GAINES, by and through
undersigned counsel and hereby files this sentencing memorandum in support of
a reasonable sentence. Mr. Gaines asks that this Court impose a sentence of
probation.
I.
BACKGROUND
Mr. Gaines is 67 years old. Prior to this case, he had never been arrested or
charged with a crime. He joined the Navy a few years out of high school in 1973
and served honorably for 21 years. After the Navy, he worked for 14 years for the
United States Post Office. Due to a physical disability, he was forced to retire from
the Postal Service in 2004.
Mr. Gaines’s physical and mental condition has deteriorated over the years.
The presentence report indicates that he suffers from 19 different medical
conditions and takes 17 different medications. (PSR at ¶¶ 48 and 50). His
conditions are serious. He has suffered several strokes, has type 2 diabetes, atrial
Case 1:21-cr-00206-JPB Document 10 Filed 09/29/21 Page 1 of 16
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fibrillation, and seizure disorder. In addition, he suffers from chronic pain in his
back, neck, arms, and hands. As a result of his strokes, Mr. Gaines suffers from
vascular cognitive impairment.
A recent neuropsychological evaluation by Dr. Felicia C. Goldstein from the
Emory University Brain Health Center found that because of the cognitive
impairment, Mr. Gaines suffers from severe impairments in executive functioning
and memory. Executive function “refers to the higher-level cognitive skills you
use to control and coordinate your other cognitive abilities and behaviors.”
Executive Functions, University of California San Francisco, Weill Institute for
Neurosciences, https://memory.ucsf.edu/symptoms/executive-functions. (last
visited September 28, 2021). Deficits in executive function result in difficulty
organizing, difficulty in planning, inability to multitask, difficulty processing,
storing, and/or retrieving information, and difficulty with abstract concepts. Id. In
addition, Mr. Gaines’s overall intellectual functioning, along with his working
memory, processing speed, and verbal comprehension all fall between the second
and eighth percentiles for individuals who are his age. Mr. Gaines has been
suffering from these conditions for many years. He was physically frail and
mentally diminished at the time that the offense conduct occurred in the summer
of 2020.
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Mr. Gaines is before this Court because Darrell Thomas and John Gaines,
Mr. Gaines’s cousin and supposed friend, took advantage of the cognitively
impaired Mr. Gaines. Darrell Thomas is a fraudster and scam artist who used
business owners to defraud the Small Business Administration out of millions of
dollars in COVID relief money. John Gaines is an associate of Darryl Thomas.
John Gaines knew that Mr. Gaines had a dormant travel business that
existed in name only. John Gaines schemed with Darryl Thomas to trick Mr.
Gaines into allowing them to use the dormant business to apply for a Paycheck
Protection Program (PPP) loan. Andre Gaines did not know that they were going
to apply for a PPP loan, never saw any of the paperwork, and had no part in the
application process. After the loan was approved, most of the proceeds of the loan
were distributed to Thomas, John Gaines, and Carla Jackson, John Gaines’s wife.
Mr. Gaines only figured out what happened after the fact when he was contacted
by the FBI. Once he was contacted by the FBI, Mr. Gaines made a false statement
to the agent by repeating what he was told to say by Mr. Thomas. Mr. Gaines has
entered a plea of guilty to one count making a false statement to the FBI agent.
II.
ARGUMENT AND CITATION TO AUTHORITY
The presentence investigation report (“PSR”) calculates Mr. Gaines’s Total
Offense Level as 12. With a Criminal History Category I, this yields a guideline
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sentencing range of 10 to 16 months. Mr. Gaines asks that the Court impose a
sentence of probation.
Between the several grounds for downward departure under the guidelines
and downward variance pursuant to 18 U.S.C. § 3553(a) that Defendant will
discuss below, the Court has many avenues to justify a probated sentence. In this
memorandum, Defendant will first address the grounds for a downward
departure and then discuss the grounds for a downward variance. In the end,
however, the bottom line is that it would be cruel, unnecessary, and unreasonable
to put this medically fragile, cognitively impaired, and elderly man in prison in
light of his honorable personal history and the circumstances of this offense.
A.
Grounds for a Downward Departure Under the Guidelines
1.
Downward departure for age, mental condition, and
physical condition
Mr. Gaines’s age, mental condition, and medical condition provide a basis
for both a downward departure under the guidelines and a downward variance
pursuant to § 3553(a). Under the sentencing guidelines, age “may be relevant in
determining whether a departure is warranted if considerations based on age,
individually or in combination with other offender characteristics, are present to
an unusual degree and distinguish the case from typical cases covered by the
guidelines.” U.S.S.G § 5H1.1. The guideline further indicates that age provides a
ground for a downward departure where the defendant is elderly and infirm and
Case 1:21-cr-00206-JPB Document 10 Filed 09/29/21 Page 4 of 16
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where another form of punishment would be less expensive than incarceration. Id.
The guidelines contain similar downward departure provisions with similar
language for mental conditions and physical conditions. U.S.S.G. §§ 5H1.3 and
5H1.4.
It is hard to imagine a defendant who would be more aptly described by
these guideline downward departure provisions than Mr. Gaines. He is elderly,
disabled, medically fragile, and cognitively impaired. This rare combination of
advanced age, serious medical conditions, and cognitive difficulties, puts Mr.
Gaines far outside the heartland of the typical defendant who comes before the
Court.
At 67, Mr. Gaines would be among the oldest inmates in the federal prison
system if sentenced to a term of imprisonment. According to the Bureau of
Prisons, there are only 4,285 federal inmates who are over the age of 65. This is
just 2.8 percent of the federal prison population. In the prison context, anyone over
the age of 50 is considered elderly.1
1
“It is recommended that, in order to have a uniform reference point,
correctional agencies nationwide adopt age 50 as the chronological starting
point to define ‘older offenders.’ This is based on a number of factors
including socioeconomic status, access to medical care, and lifestyle of most
offenders.” Dr. Joann B. Morton, An Administrative Overview of the Older
Inmate, U.S. Department of Justice, National Institute of Corrections, 4
(1992), available at http://static.nicic.gov/Library/010937.pdf .
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Federal
Bureau
of
Prisons,
Inmate
Statistics,
Inmate
Age,
https://www.bop.gov/about/statistics/statistics_inmate_age.jsp (last visited
September 29, 2021).
The guidelines note that a downward departure for age, mental condition,
and physical infirmity would be appropriate in situations where alternatives to
incarceration are less expensive. The presentence report list the cost of
incarceration for Mr. Gaines at $44,258 per year. In 2004, the United States
Department of Justice’s National Institute of Corrections determined that the cost
of incarceration for older inmates is between $60,000 and $70,000 per year. See
National Institute of Corrections, Correctional Health Care: Addressing the Needs of
Elderly, Chronically Ill, and Terminally Ill Inmates, at 11 (2004). These cost are likely
Case 1:21-cr-00206-JPB Document 10 Filed 09/29/21 Page 6 of 16
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even higher today. A 2016 report by the Office of Inspector General of the
Department of Justice found that costs for incarcerating aging inmates (defined as
those over 50) is substantially higher than costs for younger inmates. Office of
Inspector General of the Department of Justice, The Impact of an Aging Inmate
Population
on
the
Federal
Bureau
of
Prisons,
February
2016,
https://oig.justice.gov/reports/2015/e1505.pdf (last viewed September 29, 2021).
The cost for medical care was 10 times higher for older inmates and medication
expenses was 14 times higher for older inmates. Id. These higher costs are the
result of the increased medical needs of this population. Mr. Gaines is already a
very ill man, as he continues to age, his medical needs will only increase. The cost
of probation is only $4,454 per year. This is a far less costly alternative.
2.
Downward departure for aberrant behavior
Pursuant to U.S.S.G. § 5K2.20, a downward departure is appropriate
because the offense conduct constitutes aberrant behavior for Mr. Gaines. Under
this policy statement, the court may downwardly depart “if the defendant
committed a single criminal occurrence or single criminal transaction that (1) was
committed without significant planning; (2) was of limited duration; and (3)
represents a marked deviation by the defendant from an otherwise law-abiding
life.” U.S.S.G, § 5K2.20(b).2 Mr. Gaines satisfies each of these factors. There was
2
Prohibitions of the application of this policy statement contained in
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little planning in this offense. The agent called Mr. Gaines out of the blue, Mr.
Gaines asked a codefendant how he should answer the agent’s questions, and Mr.
Gaines did that when the agent called back. All the conversations took place on
the same day and Mr. Gaines’s conversations with the agent were brief. This
offense is certainly a marked deviation from Mr. Gaines’s law-abiding life. He is
a senior citizen with no criminal record. He served his country honorably in the
Navy for 21 years and then worked for the Post Office for 14 years. Clearly, this is
aberrant behavior that qualifies for a downward departure under § 5K2.20.
B.
Grounds for a Downward Variance under 18 U.S.C. § 3553(a)
The ultimate command of 18 U.S.C. § 3553(a) is to impose a sentence that is
“sufficient, but not greater than necessary, to comply with” the sentencing
purposes stated in the statute. 18 U.S.C. § 3553(a). This parsimony provision
requires district courts to impose the minimum punishment needed to satisfy the
purposes of sentencing—just punishment, deterrence, protection of the public,
and rehabilitation of the defendant. Thus, although § 3553(a) requires the
sentencing court to consider the applicable guideline range, it is only one of several
factors, and it is the parsimony provision that serves as “the guidepost for
§ 5K2.20(a) and (c) do not have any impact or applicability to Mr. Gaines’s
situation.
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sentencing decisions post-Booker.” United States v. Ferguson, 456 F.3d 660, 667 (6th
Cir. 2006).3
Each of the reasons discussed above as grounds for a downward departure
under the guidelines are also grounds for a downward variance under § 3553(a).
In fact, because the Court does not have to jump through the hoops required for a
downward departure, the Court has more freedom to downwardly vary under §
3553(a). Defendant will discuss these and other grounds for a downward variance
within the § 3553(a) framework.
3
Congress has set forth the factors a sentencing court must consider in
determining a reasonable sentence, which include:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need to reflect the
seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to
provide the defendant with needed educational or vocational
training or medical care; (6) the kinds of sentences available; (7)
the Sentencing Guidelines range; (8) pertinent policy
statements of the Sentencing Commission; (9) the need to avoid
unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (summarizing 18
U.S.C. § 3553(a)).
Case 1:21-cr-00206-JPB Document 10 Filed 09/29/21 Page 9 of 16
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1.
Mr. Gaines’s history, medical, mental and physical
conditions, and circumstances of the offense
As the court considers Mr. Gaines’s history and the circumstances of the
offense, his age, medical conditions, physical disabilities, and intellectual and
cognitive deficits all justify a downward variance. He is so debilitated mentally
and physically that it is unlikely that he would be able to function in prison. Such
a fate would be inhumane for this man who made a false statement to an FBI agent
about a financial crime when the false statement did nothing to obstruct or impede
the investigation.
Mr. Gaines’s age and physical condition should be considered as a ground
for a variance because prison life is harder and harsher for older inmates. “Older
prisoners, even if they are not suffering illness, can find the ordinary rigors of
prison particularly difficult because of a general decline in physical and often
mental functioning which affects how they live in their environments and what
they need to be healthy, safe, and have a sense of wellbeing.” Human Rights
Watch, Old Behind Bars: The Aging Prison Population in the United States, at 45
(January 2012). Ordinary prison life may cause older inmates great difficulty. For
example, things like having to climb stairs, walking long distances for meals,
standing in lines for medication or meals, and sleeping on thin mattresses are all
part of everyday prison life, but can be extremely challenging for older inmates.
For someone like Mr. Gaines who is cognitively impaired and suffers from so
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many medical ailments, prison life would be so harsh and difficult that it would
be outside the realm of reasonable punishment.
A variance is also appropriate because Mr. Gaines would be extremely
vulnerable in prison because of his age, cognitive impairments, and physical
infirmities. Prisons are filled with men who are much younger and much stronger
than Mr. Gaines. Because of his age and poor physical and mental condition, he
could easily be targeted and victimized by other inmates. This makes prison a
much more difficult and dangerous place for Mr. Gaines. The Supreme Court has
recognized that vulnerability in prison is a valid ground for a downward
departure. Koon v. United States, 518 U.S. 81 (1996). Certainly, it is a valid ground
for the Court to considered under § 3553
2.
Recidivism, deterrence, just punishment, and aberrant
behavior
Mr. Gaines is 67 years old. Aside from this offense, he has never been in any
legal trouble. He has a long and productive work history and a stable family life.
Mr. Gaines has maintained a spotless record while released on bond in this case
and satisfied all of the requirements of pretrial supervision.
Mr. Gaines’s history of good behavior and his post-offense record of good
conduct demonstrates that the offense was aberrant behavior. It never would have
occurred if John Gaines had not taken advantage of Mr. Gaines and lured him into
Darrell Thomas predatory scheme. Mr. Gaines’s long history of living a straight
Case 1:21-cr-00206-JPB Document 10 Filed 09/29/21 Page 11 of 16
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and narrow life also undermines the need to impose a prison sentence for
deterrence purposes. Research by the United States Sentencing Commission
indicates that as age increases, recidivism decreases and that individuals with
lower criminal history are less likely to recidivate.
United States Sentencing Commission, Report at a Glance: Recidivism and Federal
Sentencing
Policy,
February
2021,
https://www.ussc.gov/sites/default/files/pdf/research-and-
publications/backgrounders/rg_recidivism-series.pdf (last visited 9/29/2021).
At his age and with no criminal history, Mr. Gaines is not a risk of recidivism and
prison is not necessary to protect the public from him. 18 U.S.C. § 3553(a)(2)(C).
Case 1:21-cr-00206-JPB Document 10 Filed 09/29/21 Page 12 of 16
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While certainly recidivism is not an issue with Mr. Gaines, § 3553(a)(2)(B)
suggests that the Court consider the need to deter others from criminal behavior
in determining a sentence. The government could argue that a prison sentence
would send a message to others and prevent them from committing an offense.
While this argument may have a gut level appeal, substantial social science
research has consistently shown that while the certainty of being caught and
punished has a deterrent effect, “increases in severity of punishments do not yield
significant (if any) marginal deterrent effects.” Michael Tonry, Purposes and
Functions of Sentencing, 34 Crime & Just. 1, 28 (2006). In fact, “there is no decisive
evidence to support the conclusion that harsh sentences actually have a general or
specific deterrent effect on potential white-collar offenders.” Zvi D. Gabbay,
Exploring the Limits of the Restorative Justice Paradigm: Restorative Justice and White
Collar Crime, 8 Cardozo J. Conflict Resol. 421, 448-449 (2007). The real deterrent
effect appears to occur when the criminal sanction is accompanied by informal
sanctions such as social censure, shame, and loss of respect. Id.
This prosecution has caused Mr. Gaines to experience tremendous shame.
He has always lived an honest life and it sickens him to think that this offense will
cause people to think differently of him. The humiliation that has come as a result
of being publicly identified as part of this case causes Mr. Gaines genuine pain
every single day.
Case 1:21-cr-00206-JPB Document 10 Filed 09/29/21 Page 13 of 16
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A sentence of probation is a severe and serious sanction that entails a
substantial loss of liberty. This sentence would promote respect for the law and
provide a just punishment for Mr. Gaines. 18 U.S.C. § 3553(a)(2)(A). As the
Supreme Court explained:
We recognize that custodial sentences are qualitatively more severe
than probationary sentences of equivalent terms. Offenders on
probation are nonetheless subject to several standard conditions that
substantially restrict their liberty. See United States v. Knights, 534 U.S.
112, 119, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (“Inherent in the very
nature of probation is that probationers ‘do not enjoy the absolute
liberty to which every citizen is entitled’” (quoting Griffin v. Wisconsin,
483 U.S. 868, 874, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987); internal
quotation marks omitted)). Probationers may not leave the judicial
district, move, or change jobs without notifying, and in some cases
receiving permission from, their probation officer or the court. They
must report regularly to their probation officer, permit unannounced
visits to their homes, refrain from associating with any person
convicted of a felony, and refrain from excessive drinking. USSG §
5B1.3. Most probationers are also subject to individual “special
conditions” imposed by the court.
Gall v. United States, 552 U.S. 38, 48, 128 S. Ct. 586, 595-96 (2007).
A sentence is only just and only promotes respect for the law when it is
proportionate. A sentence that is too severe for the offense or the individual
involved undercuts these goals and promotes public distrust for the system. The
public respects the criminal law only when the punishment fits the crime. A
sentence that is too high or too low promotes distrust and disrespect for the law.
This Court has described §3553(a)(2)(A) as encompassing the concept of
“just deserts” and indicated that this means that the sentence should “reflect the
Case 1:21-cr-00206-JPB Document 10 Filed 09/29/21 Page 14 of 16
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gravity of the defendant’s conduct,” but at the same time “should not be
unreasonably harsh under the circumstances of the case.” United States v. Pugh, 515
F.3d 1179, 1195 (11th Cir. 2008) quoting S.Rep. No. 98-225, at 75-76, 1984
U.S.C.C.A.N. 3182, 3258-59. Here, probation is a just punishment. Imprisonment
is not.
3.
The burden of restitution
Mr. Gaines did not spend any of the money that came from the PPP loan.
The money was all deposited into his business account and most of it was pulled
out by John Gaines and Darrell Thomas. The money that remained in Mr. Gaines’s
business account was seized by the Government at the time of his arrest. The chart
shows where all of the money from the PPP loan ended up.
Case 1:21-cr-00206-JPB Document 10 Filed 09/29/21 Page 15 of 16
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Despite spending none of the money, Mr. Gaines has agreed to $806,000 in
restitution – the entire amount of the loan. What this means is that for the rest of
his life, Mr. Gaines will be hounded by the Government to pay back an amount of
money that went through his account, but that he never actually spent or used.
This burdensome financial penalty is one more punishment that Mr. Gaines will
have to suffer and one more reason that sending him to prison is unnecessary.
III.
CONCLUSION
WHEREFORE, for all of the reasons set forth herein, Mr. Gaines respectfully
requests that the court impose a sentence of probation.
Dated: This 29th day of September, 2021.
Respectfully Submitted,
/s/ Brian Mendelsohn
Brian Mendelsohn
Georgia Bar No. 502031
Attorney for Andre Lee Gaines
Federal Defender Program, Inc.
Centennial Tower, Suite 1500
101 Marietta Street, N.W.
Atlanta, Georgia 30303
(404) 688-7530; Fax: (404) 688-0768
Brian_Mendelsohn@fd.org
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