Sentencing Memorandum — United States v. Heaven West (S.D.N.Y., Dkt. 86, June 5, 2023)

Summary

A Sentencing Memorandum for Heaven West, Case 1:21-cr-00729-LAK, Document 86, filed June 5, 2023, in the Southern District of New York, by Kirton Law Firm (Marlon G. Kirton, Esq.). The cover letter to Judge Lewis A. Kaplan is dated June 5, 2023. The memorandum reviews Apprendi v. New Jersey, Blakely v. Washington, United States v. Booker and United States v. Crosby on sentencing under the Guidelines. It states an Adjusted Base offense level of 13, Criminal History Category I, and a Probation Department guidelines range of 12-18 months, with a probation recommendation of time served. It asks for a below guidelines sentence of time served, three years supervised release, and drug and alcohol testing and treatment.

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“Sentencing Memorandum — United States v. Heaven West (S.D.N.Y., Dkt. 86, June 5, 2023).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-21-cr-00729-dkt-86-s-d-n-y-4f0a781fa2/, SHA-256 78d0f5aa164f504ca6226b8e04f0ec603ae54ea20f3b4db0d49245da2f7c90e9.

Full text

Case 1:21-cr-00729-LAK Document 86 Filed 06/05/23 Page 1 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------x

UNITED STATES OF AMERICA, 21 cr. 729 (LAK)

- against -

HEAVEN WEST,

Defendant.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

SENTENCING MEMORANDUM

KIRTON LAW FIRM
Attorney for Defendant
HEAVEN WEST
175 Fulton Avenue, Suite 305
Hempstead, New York 11550
(516) 833-5617 ph
(516) 833-5617 fax
kirtonlawfirm@gmail.com email
By: Marlon G. Kirton, Esq.

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Case 1:21-cr-00729-LAK Document 86 Filed 06/05/23 Page 2 of 6

KIRTON LAW FIRM
______________________________________________________________________________

Marlon G. Kirton, Esq. Nassau County:
175 Fulton Avenue, Suite 305
________________ Hempstead, New York 11550
Tel. # (516) 833-5617
Fax # (516) 833-5620

June 5, 2023

VIA ELECTRONIC FILING

Honorable Lewis A. Kaplan
United States District Judge
Daniel Patrick Moynihan
United States Courthouse
Southern District of New York
500 Pearl Street
New York, NY 10007

Re: United States v. Heaven West, 21 cr. 729 (LAK)

Dear Judge Kaplan:

HEAVEN WEST 1

Heaven West (Heaven) is pretty easy to understand. She is a young woman forced to

improvise her entire life. Born of a single mom, whatever stability Heaven had disappeared with

the death of her paternal grandmother. Her grandmother was generous with her time, resources,

and love. When she died, so did her stability. Heaven's dad was never able to support Heaven

and her mom consistently. He has at least 20 children from several different women. He tried to

raise her, but Heaven has no consistent history with her father. Heaven’s mom had a difficult

emotional journey. She struggled financially to raise Heaven alone. She and Heaven moved

several times during her childhood. She lived in several apartments in New York City. She also

1
This section was sourced from the indictment, Rule 16 discovery, the Probation Report, employment records, and
Heaven West.

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Case 1:21-cr-00729-LAK Document 86 Filed 06/05/23 Page 3 of 6

spent time in Georgia and South Carolina. Her mom may also have been frustrated that things

didn’t work out with Heaven’s dad. They were like oil and water; the mouthy teenager and the

troubled mom had more arguments than they could count. Heaven found a way out of her mom's

house immediately.

Heaven is back in New York, and her maturity and her mom's career stability have

changed the dynamics of their relationship. Heaven works, attends school, and lives with her

mom in New York City.

Heaven regrets her association with the crimes in this case. She stands ready to pay

restitution and wants to continue her redemption pathway. Her goal is to be a net benefit to

society and give back to the community. Heaven works full-time as an onboarding specialist

making $18.00 per hour at Total Transportation Corporation. She is also enrolled in an online

bookkeeping program at Alliance Computing Systems. Heaven has had an extensive

employment history and has continued to work after her arrest in this case.

SENTENCING FACTORS

The United States Supreme Court, in Apprendi v. New Jersey, 530 US 466 (2000), focused

on sentencing factors that impact the defendant. Apprendi requires that "any fact that increases

the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved

beyond a reasonable doubt." 530 US at 490. The Supreme Court extended the logic of Apprendi

in the landmark Blakely case. Blakely v. Washington, 124 S. Ct. 2531 (2004). The Court

reviewed the constitutionality of a Washington State statute like the United States Sentencing

Guidelines (USSG). In Blakely, the trial court sentenced the defendant to more than three (3)

years above the 53-month statutory maximum for his offense. The basis of the enhanced

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Case 1:21-cr-00729-LAK Document 86 Filed 06/05/23 Page 4 of 6

sentence was based on a finding made solely by a judge without the jury's input. Blakely held

that the Washington State sentencing guidelines violated the defendant’s Sixth Amendment right

to a jury trial. The Court reasoned that the statutory maximum is any fact found by a jury or

admitted by a defendant. However, Blakely did not expressly apply to the USSG Blakely, supra

at footnote 9.

The Supreme Court then applied its Sixth Amendment analysis to the USSG. United States

v. Booker, 125 S. Ct. 738 (2005). In Booker (also included in the companion case of United

States v. FanFan), the Court applied the reasoning and holding of Blakely to the USSG. The

Supreme Court held that a statutory maximum for purposes of the Sixth Amendment was any

fact proved by a jury or admitted by a defendant. The Court reasoned that for the USSG to be

constitutional, it had to be advisory rather than mandatory. 18 USC 3553(b) directs that the court

"shall impose a sentence of the kind and in the range" established by the Guidelines. Booker,

supra. To the extent that this section of the statute was mandatory, the Court severed section

3553(b) and made the USSG advisory rather than mandatory on federal judges.

Furthermore, the Court also severed 18 USC 3742(e) as unconstitutional and held that the

standard of review for appellate courts reviewing sentencing issues is "reasonableness." Booker,

supra. Finally, Courts of Appeal were no longer entitled to review downward departures de

novo; the standard for review is reasonableness. Booker, supra.

The Second Circuit’s first attempt at applying Booker came in Crosby. United States v.

Crosby, 397 F.3d 103 (2nd Cir. 2005). In that case, the defendant pleaded guilty and was

sentenced to ten (10) years. He appealed, and the Court had to decide whether his sentence was

unreasonable, considering the Booker decision. The Court remanded the case for the district

court to apply the new standards in Booker, but it gave guidance to that Court and all district

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Case 1:21-cr-00729-LAK Document 86 Filed 06/05/23 Page 5 of 6

courts. A district court must consider the USSG when rendering a judgment. While

acknowledging that the USSG had become primarily advisory, the Court cautioned against

returning to a pre-guidelines world of marked sentencing disparities. The Circuit gave a checklist

for district courts to apply when implementing Booker, 1. The USSG is no longer mandatory, 2.

The district court must consider the USSG and the other factors in section 3553(a), 3. The

application of the USSG will usually require determining the applicable range for a particular

case, 4. After considering the USSG and all of the relevant factors in section 3553(a), the district

court must decide whether to impose a guidelines sentence or a non-guidelines sentence, and 5.

The district court is entitled to find all the facts appropriate for rendering guidelines or non-

guideline sentences.

APPLICABLE GUIDELINES RANGE 2

Given the guidance of Crosby, it is necessary to determine the appropriate guidelines range

for Heaven. Heaven was convicted of one count of wire fraud in violation of 18 USC 3571. The

Adjusted Base offense level is 13, and the Criminal History Category is I based on zero criminal

history points. According to The Probation Department, the applicable guidelines range is 12-18

months. Probation recommended a sentence of time served.

CLIENT’S ROLE IN THE OFFENSE 3

Heaven pleaded guilty to one count of wire fraud in violation of 18 USC 3571. She had

no leadership role, and her loss amount is between $40,000 and $95,000. Ms. Lewis pleaded

guilty to two counts of conspiracy to commit wire fraud in violation of 371. Ms. Lewis was an

organizer and leader of the scheme. Ms. Lewis directed subordinates, provided inside

2
Final PSR.
3
Based on the Rule 16 discovery, US PACER, the Government's sentencing memorandum, and the Final PSR.

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Case 1:21-cr-00729-LAK Document 86 Filed 06/05/23 Page 6 of 6

information about a government program to co-conspirators, misappropriated the personal

identifying information of healthcare workers, and submitted false documents. Her loss amount

is between $250,000 and $550,000. Ms. Benjamin pleaded guilty to one count of conspiracy to

commit wire fraud in violation of 371. Ms. Benjamin received an enhancement because she

either possessed or used an authentication device. Her loss amount is between $250,000 and

$550,000. Ms. Daniel pleaded guilty to one count of conspiracy to commit wire fraud in

violation of 371. Ms. Daniel received an enhancement because she either possessed or used an

authentication device. Her loss amount is between $250,000 and $550,000.

Heaven did not plead guilty to a conspiracy count and played no leadership role in the

offense. Finally, her loss amount is substantially less than that of her co-defendants. A below the

guidelines sentence of time served is appropriate.

CONCLUSION

The Defense requests a below guidelines sentence of time served, three years supervised

release, mandatory drug and alcohol testing, and drug and alcohol treatment as recommended by

probation.

Sincerely,

Marlon G. Kirton, Esq.

cc: Michael D. Neff, Assistant United States Attorney (via electronic mail)
Emilee Sahli, Esq. (via electronic mail)

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