Defendant’s, Tonye C. Johnson, Motion for Variance — United States v. Johnson (Dkt. 44, S.D. Fla.)

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A motion for variance filed July 7, 2021 as Document 44 by defendant Tonye C. Johnson, through counsel Andrew G. Gay, Jr., in United States v. Johnson, Case No. 21-CR-60017-RKA, in the U.S. District Court for the Southern District of Florida, under the court's order on sentencing procedures (ECF No. 41). It sets out the sentencing factors of 18 U.S.C. §3553(a), including the nature of the offense, the kinds of sentences available, avoiding unwarranted disparities and the need for restitution. The motion argues that Johnson's acceptance of responsibility allowed the court and government to conserve resources and asks the court to grant a variance. The service list includes Assistant U.S. Attorney David A. Snider and Philip Trout of the Department of Justice Fraud Section.

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Case 0:21-cr-60017-RKA Document 44 Entered on FLSD Docket 07/07/2021 Page 1 of 5




  ______________________________________________

                        IN THE UNITED STATES DISTRICT COURT
                       FOR THE SOUTHERN DISTRICT OF FLORIDA

  UNITED STATES OF AMERICA            :
                                      :
  V.                                  :     CASE NO. 21-CR-60017-RKA
                                      :
  TONYE C. JOHNSON                    :
  ______________________________________________

               DEFENDANT’S, TONYE C. JOHNSON, MOTION FOR VARIANCE

         Defendant, Tonye C. Johnson (hereinafter, “Johnson”), through his counsel, Andrew G.

  Gay, Jr., and pursuant to this Court’s Order on procedures for Johnson’s sentencing hearing (ECF

  No. 41), files the instant Motion for Variance. In support, Johnson avers as follows:

  I.     RELEVANT LAW

         In order to afford each defendant an individualized sentencing hearing, a district court must

  consider all sentencing factors, as enumerated in 18 U.S.C. §3553(a). United States v. Scott, 426

  F.3d 1324, 1329 (11th Cir. 2005).

         Section 3553(a) further directs sentencing courts to consider the following factors:

         1) “the nature and circumstances of the offense and the history and characteristics of the
         defendant” [§ 3553(a)(1)];
         2) “the kinds of sentences available” [§ 3553(a)(3)];
         3) “the need to avoid unwarranted sentence disparities among defendants with similar
         records who have been found guilty of similar conduct” [§ 3553(a)(6)]; and
         4) “the need to provide restitution to any victims of the offense.” [§ 3553(a)(7)].

         The primary directive in §3553(a) is for sentencing courts to “impose a sentence sufficient,

  but not greater than necessary, to comply with the purposes set forth in paragraph 2.” Section

  3553(a)(2) states that such purposes are:

         (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;

Case 0:21-cr-60017-RKA Document 44 Entered on FLSD Docket 07/07/2021 Page 2 of 5




           (C)      to protect the public from further crimes of the defendant; and
           (D)      to provide the defendant with needed educational or vocational training, medical
                    care, or other correctional treatment in the most effective manner.

           While district courts must consider the advisory guideline range, the guidelines do not

  trump the factors delineated in §3553(a). United States v. Booker, 543 U.S. 220, 245-46 (2005).

           Reasonableness is the encompassing theme with the imposition of a sentence, and the

  advisory guidelines are but one element for determining reasonableness. Kimbrough v. U.S., 552

  U.S. 85, 90 (2007).

  II.      ITEMS JUSTIFYING A VARIANCE

           Johnson stands before the Court with a Criminal History Category of I.

           Although Johnson has pled guilty to serious fraud charges, from the time of his arrest, he

  has accepted responsibility for his involvement in this matter.1 He provided a Mirandized

  statement to agents upon his arrest. Following his review of preliminary discovery materials

  provided by the Government, Mr. Johnson waived indictment and proceeded by way of

  Information.

           Thereafter, Johnson signed a Plea Agreement (ECF No. 30) and accompanying Factual

  Proffer (ECF No. 29), and entered a guilty plea on April 20, 2021, before the Honorable Patrick

  M. Hunt, United States Magistrate Judge.

           In his Plea Agreement and before Judge Hunt, Johnson agreed to restitution and forfeiture

  in the amount of $165,722.13.




  1
    Counsel acknowledges that United States Probation Officer Elizabeth Robert, in her draft PSR (EFC No. 38,
  Paragraphs 42 & 69), has recommended to the Court that Mr. Johnson not be afforded a three-point downward
  adjustment for Acceptance of Responsibility due to a positive urine test and his attempt to conceal his use of marijuana
  while on pre-trial release. This issue will be more fully addressed in counsel’s Sentencing Memorandum.

Case 0:21-cr-60017-RKA Document 44 Entered on FLSD Docket 07/07/2021 Page 3 of 5




         During a period in which courts are particularly strained, Johnson has made several

  decisions in the handling of his prosecution that has enable the Court and Government to conserve

  limited resources.

         WHEREFORE, Tonye C. Johnson respectfully requests this Court to grant a variance.

                                              Respectfully submitted,
                                              LAW OFFICE OF ANDREW G. GAY, JR., LLC

                                              _________________________________________
                                              ANDREW G. GAY, JR.*
                                              Attorney for Defendant
                                              PA Identification No. 83401
                                              1518 Walnut Street, Suite 807C
                                              Philadelphia, PA 19102
                                              (215) 545-7110
                                              (215) 545-7131 (facsimile)
                                              Email: AGGJR@AGGJR.com

  * Pro hac vice

Case 0:21-cr-60017-RKA Document 44 Entered on FLSD Docket 07/07/2021 Page 4 of 5




                                   CERTIFICATE OF SERVICE

         I, Andrew G. Gay, Jr., hereby certify that a true and correct copy of this document was

  served this 7th day of July 2021, in accordance with the Federal Rules of Criminal Procedure via

  notice of filing that is automatically generated by ECF to those counsel, or parties, who are

  authorized to receive Notices of Electronic Filing, to include, without limitation, the counsel listed

  on the attached Service List.



                                                 _________________________________________
                                                 ANDREW G. GAY, JR.*

  * Pro hac vice

Case 0:21-cr-60017-RKA Document 44 Entered on FLSD Docket 07/07/2021 Page 5 of 5




                                    SERVICE LIST
                          UNITED STATES V. TONYE C. JOHNSON
                               CASE NO. 21-CR-60017-RKA

  David A. Snider, Esquire
  Assistant United States Attorney
  United States Attorney’s Office
  Southern District of Florida
  99 N.E. 4th Street
  Miami, FL 33132

  Philip Trout, Esquire
  United States Department of Justice
  Criminal Division, Fraud Section
  1400 New York Avenue, NW
  Washington, DC 20530

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