Motion for Variance and Sentencing Memorandum — No. 4:22-cr-00140 (Dkt. 213, D.S.C.)

Summary

A defense motion for variance and sentencing memorandum filed April 17, 2023 as Entry Number 213 in United States v. Mohammad R. Faraj, Case No. 4:22CR00140-001, in the U.S. District Court for the District of South Carolina. Counsel asks the court to impose a sentence below the recommended guideline range after the government's 5K reduction is applied, citing 18 U.S.C. §3553(a). The four-page filing states that Faraj runs a legitimate business, has a criminal history score of zero and spent two months in jail before being granted a bond by consent of the government. It argues that society is served by his continuing to run a business that pays taxes and employs individuals.

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   4:22-cr-00140-JD       Date Filed 04/17/23      Entry Number 213         Page 1 of 4




                      IN THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF SOUTH CAROLINA

                               Case No.: 4:22CR00140-001



UNITED STATES OF AMERICA       )
                               )
                               )
vs.                            )
                               )              MOTION FOR VARIANCE AND
                               )              SENTENCING MEMORANDUM
Mohammad R. Faraj              )
                               )
                               )
            Defendant.         )
_______________________________)

       Now comes the defendant, Mohammad R. Faraj, by and through undersigned

counsel, and moves this Court to impose a sentence below the recommended sentence

guideline range after his 5K reduction is imposed by the Government. The Defendant

believes this Court justified for such reduction pursuant to the provisions of 18 U.S.C.

§3553(a), as applied to the circumstances surrounding this case. Counsel for the

Defendant wanted to make the Court aware of mitigating factors that are present as

pertains to 18 U.S.C. §3553(a) factors. Specifically that Mr. Faraj is a non violent family

owner who runs a successful legitimate business. Mr. Faraj also has a criminal history

score of zero. Additionally, Mr. Faraj has already done two months in jail before being

granted a bond by consent of the Government. . Mr Faraj was born in Jerusalem Israel

and after moving to the United States in search of the American Dream the family

suffered tragedy. Faraj’s father was shot and killed when their family business was

robbed and Faraj age 13 and his younger brother witnessed this horrific incident and his

father being shot and killed. After his father was murdered Faraj essentially raised

himself and his siblings. He dropped out of school to work and take care of his family at


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   4:22-cr-00140-JD       Date Filed 04/17/23      Entry Number 213        Page 2 of 4




a very young age. Through hard work they have run successful convenience store

businesses and it is not uncommon for him to work 15-20 hour days at his store. Faraj

and his wife have four children and they are both heavily involved in their young

children’s lives. Faraj is a family man and would do anything for his loved ones, in fact

he even donated a kidney to his ailing brother in 2009. Taking these circumstances into

account we are requesting the Court impose a variance below the 5k reduction submitted

by the Government.

       During the course of this case the Defendant signed a proffer agreement with the

U.S. Attorney’s office and accepted responsibility by signing a plea agreement and

pleading guilty to these instant charges before the Court. The Defendant not only signed

a proffer agreement but also met with law enforcement officers and gave what the

defense would submit as substantial assistance on multiple individuals.

                              Considerations of 18 U.S.C. §3553(a)

       Despite the recognition of the mandate of 18 U.S.C. §3553(a), this Circuit has

held that properly calculated sentences under the guidelines are entitled to a presumption

of reasonableness. United States v. Johnson, 445 F. 3 339, 345 (4 Cir. 2006). However,
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factors under §3553(a) may be present that rebut the presumption that a within guidelines

sentence is reasonable. Id. Accordingly, the Court must consider all factors, even factors

prohibited by the formerly mandated guidelines in determining the types of sentences that

satisfy the sentencing mandate of §3553(a). Now that the guidelines are merely advisory

pursuant to United States v. Booker, 543 U.S. 220 (2005), this Court has the ability and

discretion to impose a punishment that satisfies the goals of sentencing, without having to

defer to any mathematical equation set up in the guidelines. Accordingly, the Judge, after




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       4:22-cr-00140-JD       Date Filed 04/17/23        Entry Number 213    Page 3 of 4




considering §3553(a) factors (including the guidelines), has full discretion to impose a

sentence within the statutory range. United States v. Hughes, 396 F.3d 374, 377-78

(4 Cir. 2005). Further, a Court’s discretion to impose a statutory sentence outside of the
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guidelines is extremely broad and the resulting sentence will be upheld “as long as it is

within the statutorily prescribed range and is reasonable.” Hughes, 396 F.3d at 378; see

also United States v. Iskander, 407 F.3d 232 (4 Cir. 2005); United States v. Pierce, 409
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F.3d 228 (4 Cir. 2005). In the instant case factors are clearly present that demonstrate a
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lower sentence is sufficient to achieve sentencing goals.

                   Factors to be considered in imposing a sentence. 18 U.S.C. §3553(a)

          18 U.S.C. §3553(a) mandates: 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.

          First, as to promoting respect for the law, Mr. Faraj has demonstrated such

qualifying respect for the law by pleading guilty, signing a proffer and giving what we

submit was substantial assistance warranting a 5k. Mr. Faraj has also demonstrated

respect for the law by being excellent on bond, attending all court dates, and having a

criminal history category of zero in his lifetime.

Additionally, 18 U.S.C. §3553(a)(2)(B) states the Court shall impose a sentence that

affords adequate deterrence to criminal conduct. Seeing how the federal system works,

the difficult conditions of his extended detention center incarceration and his cooperation

with law enforcement has already been a deterrent to criminal conduct.




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   4:22-cr-00140-JD        Date Filed 04/17/23      Entry Number 213         Page 4 of 4




        Fourth, 18 U.S.C. §3553(a)(2)(C) requires the sentence to protect the public from

further crimes of the defendant. This is an isolated situation in which Mr. Faraj made bad

mistakes. He has been incarcerated and protected the public by fully cooperating as to the

situation and who was all involved. Additionally, Mr. Faraj will go from a criminal

history score of zero to a convicted felon as a result of this case regardless of the sentence

he receives. As to this factor Mr. Faraj specifically protected the public by cooperating

with law enforcement and providing substantial information as to much larger individuals

than him in illegal activity.

        Fifth, 18 U.S.C. §3553(a)(2)(D) provides that the Court impose a sentence that

will provide the defendant with needed educational, vocational, medical or other

correctional treatment in the most effective manner. Mr. Faraj has a criminal history

score of zero and provided substantial assistance to the Government. Society is served by

him being able to provide for his children and continue to run a business that pay taxes

and employs individuals. We submit each of the foregoing factors, do apply to Mr. Faraj

when analyzed suggest a variance is in Order for Mr. Faraj.

                                       Respectfully submitted,

                                       s/Seth Rose__________
                                       Seth Cole Rose #11034
                                       1528 Blanding Street
                                       Columbia, South Carolina 29201
                                       seth@sethroselaw.com
                                       803.851.4884
                                       ATTORNEY FOR THE DEFENDANT

Columbia, South Carolina
April 16, 2023




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