I. Objections to Pre-sentence Investigative Report

Source document: I. Objections to Pre-sentence Investigative Report; document type: Defense sentencing position with four attachments, 10 pages.

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

UNITED STATES OF AMERICA,

v.

Case No.:
1:21-cr-005 (RDA)

ROBERT S. STEWART, JR.,

POSITION OF THE DEFENDANT
WITH RESPECT TO SENTENCING FACTORS

Pursuant to Section 6A1.2 of the Federal Sentencing Guidelines the defendant, ROBERT
S. STEWART JR, comes now and submits the following:
I.
Objections to Pre-sentence Investigative Report

The defendant has reviewed the pre-sentence investigative report and does not object to any of the
facts or factors contained therein which may impact the calculation of the advisory guideline range.
II.
Sentencing Factors
A sentencing court is required to consider the guidelines ranges, see 18 U.S.C.A 3553(a)(4)(Supp.
2004), but is permitted to tailor the sentence in light of other statutory concerns as well.  Specifically,
18 USC 3553(a) notes:
The court shall impose a sentence sufficient, but not greater than necessary, to
comply with the purposes set forth in paragraph (2) of this subsection.  The court, in
determining the particular sentence to be imposed, shall consider—
(1)
the nature and circumstances of the offense and the history and
characteristics of the defendant;
(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;
(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;
(3)
the kinds of sentences available;
(4)
the kinds of sentence and the sentencing range established for—
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(A)
the applicable category of offense committed by the applicable
category of defendant as set forth in the guidelines issued by
the Sentencing Commission pursuant to section 994(a)(1) of
title 28, United States Code, and that are in effect on the date
the defendant is sentenced; or
(B)
in the case of a violation of probation or supervised release, the
applicable guidelines or policy statements issued by the
Sentencing Commission pursuant to section 994(a)(3) of title
28, United States Code;
(5)
any pertinent policy statement issued by the Sentencing Commission
pursuant to 28 U.S.C. 994(a)(2) that is in effect on the date the
defendant is sentenced;
(6)
the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct; and
(7)
the need to provide restitution to any victims of the offense.

The Supreme Court has described the process for imposing a sentence under the advisory
sentencing guidelines as follows:
[A] district court should begin all sentencing proceedings by correctly calculating the
applicable [United States Sentencing] Guidelines range.  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 [18 U.S.C.]
§3553(a) factors to determine whether they support the sentence requested by a
party.  In so doing, he may not presume that the Guidelines range is reasonable.  He
must make an individualized assessment based on the facts presented.  If he decides
that an outside-Guidelines sentence is warranted, he must consider the extent of the
deviation and ensure that the justification is sufficiently compelling to support the
degree of the variance…[A] major departure should be supported by a more significant
justification than a minor one.  After settling on the appropriate sentence, he must
adequately explain the chosen sentence to allow for meaningful appellate review and
to promote the perception of fair sentencing.

Gall v. United States, 128 S.Ct. 586, 596-97 (2007)(citations and footnote omitted; see also Kimbrough
v. United States, 128 S.Ct. 558, 569-70 (2007).
A. Advisory Sentencing Guidelines
This Honorable Court must consider the advisory sentencing guidelines.  The defendant
submits the appropriate guideline sentencing range is 21-27 months.  For the reasons detailed below,
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the defendant submits a probationary sentence with a special condition that the defendant serve a period
of home and/or intermittent confinement would be sufficient but not greater than necessary.
B. § 3553(a) Sentencing Factors
In addition to considering the advisory sentencing range recommended under the federal
sentencing guidelines, and statutory restrictions this Honorable Court must also consider the
sentencing factors set forth in § 3553(a).  In light of the history and characteristics of the defendant,
need for deterrence, and the available sentencing options a sentence of probation with a special
condition that the defendant serve a period of home and/or intermittent confinement would be
sufficient but not greater than necessary.
1. History and Characteristics of the Defendant
The PSR details much of Mr. Stewart’s background.  The defendant is a father of a minor child.
He is currently enrolled in law school.  While pursuing his law degree the defendant provides emotional
and financial support for his son.  They have a close relationship notwithstanding his estrangement
from the child’s mother.  As described in his letter to the Court, and those attached from friends and
supporters, he is an active father.  His involvement in his son’s life is of paramount importance to Mr.
Stewart.  In fashioning an appropriate sentence, Mr. Stewart prays that this Honorable remain mindful
of his role in his son’s life and impose a sentence that would least impact this important family
relationship.
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Mr. Stewart fully understands and appreciates the nature of his criminal conduct.  In particular,
he recognizes the dishonor he brought to himself in relation to the false statements concerning his
military service.  Nevertheless, these transgressions do not tell the complete story of his service to this
country.  It is beyond debate that he faithfully served in the military.  And in
 doing so, Mr. Stewart’s contributions and accomplishments were duly noted.  He earned multiple
service awards.  See Attachment 1.  Mr. Stewart concedes his crimes should not go unpunished.
However, he humbly requests that any sentence imposed accounts for the sacrifice he made in service
to this country.
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As noted above, since the commission of the offenses which bring him before this Honorable
Court Mr. Stewart has begun his pursuit of a law degree.  It is his intent to use his life experience,
including the unfortunate circumstances surround the instant matter, to serve as an example that while
anyone can make poor judgments such failures need not define who we are.  It is noteworthy, that
while confronting his past conduct Mr. Stewart has managed to perform admirably in law school.  See
Attachment 2.  He is fully aware that the instant convictions while likely serve as another obstacle to
his ultimate goal of being admitted to the bar.  However, he remains undeterred.  The sentence
recommended by the defense would permit Mr. Stewart to continue on his productive pathway.  It
would afford him the opportunity to improve his life and serve as an example to others who stray from
the law abiding path.  Redemption is within the reach of all.

As the PSR rightfully notes, this defendant has fully satisfied all outstanding restitution.  As
this Court is all too familiar, this is extraordinary.  In the vast majority of fraud prosecutions before
their Court, it is rare such a defendant does so.  More often than not financial victims are forced to wait
years to ever obtain full compensation.  The PSR also reflects the manner in which Mr. Stewart
accomplished this feat.  He was forced to liquidated assets intended for the support of his family and
his future needs.  In light of his felony conviction status and the speculative nature of any future earning
potential it is noteworthy for this Court to acknowledge this fact.
The attached letters from supporters also provide further justification for a less serve sentence
than recommended by the government, 24 months, or the advisory range, 21-27 months.  The letters
acknowledge Mr. Stewart’s wrongdoings while still urging this Court to be mindful of his caring and
loving nature. Attachment 3.
2. Need to Deter

The defendant submits there is no legitimate reason to believe any period of incarceration
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would provide any further deterrence to him. The defendant fully appreciates the consequences
of his criminal conduct. Most importantly, he understands his criminal conduct exposed him to the
possibility of a very lengthy period of incarceration. There is no evidence to support the need  to
impose a lengthy period of incarceration in order to deter him further.

Need to Protect the Public

It is equally clear that due to his education, age at the time of the offense and offense of
conviction there is no need to impose a period of incarceration in order to protect the public.
Available data all support the conclusion that given Mr. Stewart’s (1) offense of conviction; (2) age;
and (3) lack of criminal history all evidence the remote likelihood that Mr. Stewart would re-offend.
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-
publications/2016/recidivism_overview.pdfhttps://www.ussc.gov/sites/default/files/pdf/rese
arch-and- publications/research-publications/2016/recidivism_overview.pdf

Mr. Stewart is a college graduate. According to the United States Sentencing Commission,
hereinafter USSC, is by virtue of education in the lowest category for recidivism, 7.5%. Id.  His
age at the time of sentencing supports the same conclusion.
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Mr. Stewart stands convicted of fraud offenses. According to the USSC the rate of
recidivism for such offenders is only 13.6%. Id.

Mr. Stewart is a criminal history category I.
This places him among the lowest
offenders likely to re-offend. Id.
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8
3. Kinds of Sentences

Mr. Stewart’s offenses do not require a mandatory period of incarceration.  The law permits
this Court to fashion an appropriate sentence in light of the advisory guideline range, and the 3553(a)
factors.  Th guiding principle is a sentence “sufficient, but not greater than necessary.”
A sentence within the advisory range or that recommended by the government would prevent
Mr. Stewart from continuing his active involvement in his child’s life.  It would also disturb his path
to completion of law school.  And it would ignore all the positive contributions he has made to this
country and others.
The sentence recommended by the defendant would also be consistent with many imposed in
fraud related cases in this district it.  As Attachment 4 indicates many such cases involve far more
substantial losses to victims, higher advisory guideline ranges, and offenders with more serious
criminal histories.
III.
Conclusion
Wherefore, Mr. Stewart respectfully requests that this Honorable Court impose a probationary
sentence.  As a special conditions the defendant submits a period of home confinement and/or
intermittent commitment would be sufficient but not greater than necessary.
Respectfully submitted,
ROBERT S. STEWART, JR.,
By Counsel

_____________/S/_________________
Robert L. Jenkins, Jr.

Bynum & Jenkins Law
Virginia State Bar No.:  39161

1010 Cameron Street

Alexandria, VA  22314

703 309 0899 Telephone
703 549 7701 Fax
RJenkins@BynumAndJenkinsLaw.com
Counsel for Defendant ROBERT S. STEWART, JR.
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9
CERTIFICATE OF SERVICE

I hereby certify that on June 10, 2021, I caused a true and accurate copy of the foregoing was
not served on all counsel of record via ECF.

_____________/S/_________________
Robert L. Jenkins, Jr.

Bynum & Jenkins Law

1010 Cameron Street

Alexandria, VA  22314

703 309 0899 Telephone
703 549 7701 Fax
RJenkins@BynumAndJenkinsLaw.com
Counsel for Defendant ROBERT S. STEWART, JR.

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