Sentencing Memorandum by Seth Downes — USA v. Simmerer et al (Dkt. 289, M.D. Fla.)
Summary
This Sentencing Memorandum by Seth Downes is Document 289 in Case 6:24-cr-00053-RBD-RMN, United States District Court, Middle District of Florida, Orlando Division. It argues that a guideline sentence cannot achieve a just result in Downes's case, and it criticizes the Presentence Report (PSR) and the government's customary call for a guideline sentence. It states that the Indictment alleged Downes conspired with Simmerer to commit wire fraud involving loans through the Paycheck Protection Program, and that the jury convicted Downes on the conspiracy charge and on Count 3, which involved the receipt of $194,000 into a joint account, while acquitting Downes of Counts 2, 4, & 5. It argues that Downes played a minor role in Simmerer's scheme, a fact it says was recognized by both the PSR and the Government.
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“Sentencing Memorandum by Seth Downes — USA v. Simmerer et al (Dkt. 289, M.D. Fla.).”
Original at ecf.flmd.uscourts.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/sentencing-memorandum-by-seth-downes-usa-v-simmerer-et-al-dkt-289-m-d-2561288ccc/
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
Case No.: 6:24-cr-00053-RBD-RMN
v.
SETH DOWNES
Defendant.
___________________________/
SENTENCING MEMORANDUM
Seth Downes submits this sentencing memorandum for this Honorable
Court’s consideration.
Introduction
plus ça change, plus c'est la même chose
The more things change, the more they stay the same.
Jean Baptiste Alphonse Karr (1849)
Once upon a time, the kingdom of federal sentencing was dictated by
mandatory guidelines whose hobgoblins were consistency and uniformity. 1 While
providing certainty, consistency and uniformity disregarded the unique
1 "A foolish consistency is the hobgoblin of little minds, adored by little statesmen and
philosophers and divines.” Ralph Waldo Emerson, Self-Reliance: An Excerpt from
Collected Essays, First Series (James Munroe and Co. 1841),
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circumstances of the defendant – “the human failings that sometimes mitigate[d],
sometimes magnify[ied], the crime and the punishment to ensue.” Koon v. United
States, 518 U.S. 81, 113 (1996). Federal sentencing was a kingdom of injustice since
the fate of every defendant was reduced to a sentencing matrix whose outcomes
solely reflected the individual’s criminal conduct and criminal history. In such a
realm, retribution became the predominant sentencing consideration despite its
human and societal costs. 2
Mandatory guidelines determined punishment in advance and in the
process sacrificed judicial discretion for bureaucratic fiat proselytized by unseen
sentencing commissioners. In such a realm, the Presentence Report (PSR) became
the ultimate arbiter of justice and federal judges became nothing more than
2 Concerning such human and social costs,
[defendants’] lives and their families’ lives were devastated, and millions
more continue to be today, as states and the federal government continue
to use mandatory minimums, three-strikes laws, and other sentencing
enhancements. And yet, evidence to support our retributive, punitive
approach is limited. In fact, we know this approach doesn’t make our
communities safer in the way proponents claim and the public assumes.
A 2021 meta-analysis of 116 studies found, for example, that custodial
sentences do not prevent reoffending—and can actually increase it. That’s
because incarceration destabilizes people’s lives. The brutality of U.S.
prisons, the difficulties securing employment and housing with a
conviction history, and the overall lack of financial security all negatively
impact people—and their ability to succeed—after prison.
Nicolas Turner, Research Shows That Long Prison Sentences Don’t’ Actually, Improve
Safety, Vera Instit (Feb. 13, 2023), see also Erin Kelly, The Limits of Blame: Rethinking
Punishment and Responsibility (Harvard Univ. Press 2020)(finding that “a punitive,
moralizing conception of individual responsibility provides, at the very least, a cover for
public acceptance of a harsh and unforgiving punishment culture”).
2
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scriveners. After all, someone is needed to memorialize the mandatory guideline
sentence on a paper judgment.
But a realm that replaces judicial discretion with an unwavering focus on a
defendant’s criminal conduct and criminal history is a realm that ignores the
“long” and “durable” tradition of sentencing judges “enjoying discretion in the sort
of information they may consider at an initial sentencing proceeding.” See
Concepcion v. United States, 597 U.S. 481, 482 (2022)(citation omitted). It is also
a realm which treats statutory mandates as interesting, but irrelevant, hurdles. See
e.g., 18 U.S.C. § 3661 (“[n]o limitation shall be placed on the information
concerning the background, character, and conduct of a person convicted of an
offense which a court of the United States may receive and consider for the purpose
of imposing an appropriate sentence”). And finally, it is a regime that determines
punishment based solely on a defendant at the moment of his offense rather than
the person he has become on the date of his sentencing. Compare Pepper v. United
States, 572 U.S. 476 (2011).
Once, we believed that Booker conquered the tyranny of the mandatory
guideline regime and restored judicial discretion in the sentencing process. Or at
least, we hoped it did. Such a belief is hard to maintain in a realm that continues
to entrust sentencing outcomes in the hands of non-judicial actors. Unique
circumstances that sometimes mitigate and durable traditions requiring broad
empirical considerations are still lost in a sentencing regime that is infected with
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the vestiges of the past mandatory guideline system. Sentences continue to be
dictated in advance by prosecutors who control sentencing outcomes 3 through
charging decisions and the use of minimum mandatories. 4 It doesn’t help the cause
that federal prosecutors continue to request guideline sentences. While such blind
allegiance to the guidelines provides certainty in sentencing outcomes and reflects
an unwavering faith in the United States Sentencing Commission, fidelity to the
guidelines is often fidelity to injustice.
The prosecutor’s predominant role at sentencing is bolstered by the second
vestige of the failed guideline regime – the PSR. This consequential document
emphasizes the importance of the Indictment in focusing on a defendant’s criminal
conduct and criminal history. 56
So, in the era after the mandatory guideline regime, nothing much has
changed. A defendant’s fate is often determined by a limited narrative that focuses
on his past sins. With such a focus, the Indictment and PSR present Downes’s
3 “Meet the new boss, same as the old boss.” The Who, Won’t Get Fooled Again, Who’s
Next (Track Records 1974).
4 “Sentence first – verdict afterwards” Lewis Carroll, Alice’s Adventures in Wonderland,
146 (Macmillan & Co. 1865).
5 The Indictment, as parroted by the PSR, tells a tale of sound and fury, signifying nothing.
See William Shakespeare, Macbeth, Act 5, Scene 5, 19-28 (1603)(“Life’s but a walking
shadow, a poor player, that struts and frets his hour upon the stage, and then is heard no
more. It is a tale . . . full of sound and fury, signifying nothing”).
6 Notwithstanding the limitations of a PSR, Probation Officer Natalie Holton did an
outstanding job in the instant case.
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criminal conduct as the primary sentencing factor under 18 U.S.C. § 3553(a).
According to this conception, the other § 3553(a) factors are reduced to rhetorical
niceties. They are nothing more and nothing less than tedious inconveniences to
the inevitable result – a sentencing outcome driven by a defendant’s criminal
conduct and criminal history. Such a sentencing outcome marks a ceaseless return
to the past 7 – a return to a time when the fate of every federal defendant was
reduced to a mandatory sentencing matrix.
Admittedly, if this Court’s sentencing consideration was limited to Downes’s
criminal actions, the government’s customary call for a guideline sentence is
alluring. At the very least, the limited story of the guidelines offers familiarity and
certainty. But limited narratives are often false ones (“Stop the Steal,” “Crack
Babies,” “Equal Protection under the Law”). 8 While tempting, then, a guideline
sentence cannot achieve a just result in Downes’s case.
Chapter I
Offense Conduct and History and Characteristics
It has been uniform and constant in the federal judicial tradition for
the sentencing judge to consider every convicted person as an
individual and every case as a unique study in the human failings
that sometimes mitigate, sometimes magnify, the crime and the
7 "So we beat on, boats against the current, borne back ceaselessly into the past" F. Scott
Fitzgerald, The Great Gatsby (Charles Scribners & Sons 1925).
8 Limited narratives have a profound and negative impact on decision-making. See, e.g.,
Dolan & Henwood, Five Steps Toward Avoiding Traps in Narrative Decision-Making,
Nat’l Inst. of Health (Aug. 12, 2021); see also Akira Kurosawa, Rashomon (Daiei Films
release on Dec. 26, 1951, in the U.S.). But born out of fear, such narratives satisfy the
human desire for certainty. See, e.g, Maria Konnikova, Why We Need Answers, The New
Yorker (Apr. 30, 2013).
5
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punishment to ensue.
Koon, 518 U.S. at 113.
Downes appreciates the seriousness of his convictions for wire fraud. He also
recognizes that he will forever bear the shame of being a convicted felon. See
Chapter 2, infra. Nevertheless, despite the allegations against Downes, certain
factors mitigate his crime.
A. Offense Conduct
The Indictment alleged that Downes conspired with Simmerer to commit
wire fraud involving loans through the Paycheck Protection Program (“PPP”). See
Doc. 115 at 1-8. It further alleged that Downes committed four substantive wire
offenses. See id. at 10-11. In addition to the conspiracy charge, the jury only
convicted Downes on Count 3, which involved the receipt of $194,000 into
Simmerer and Downes’ joint account at Notre Dame Credit Union. See id. at 10.
Because he was acquitted of the other substantive charges (Counts 2, 4, & 5), the
receipt of funds into the joint account was the only predicate supporting Downes’
conviction on the conspiracy charge. Notably, the jury’s verdict acquitted Downes
of any affirmative conduct or fraud concerning the submission of the loan
applications even though his name was on many of the loan documents. In finding
such, the jury had to conclude that Downes wasn’t involved in the fraudulent
preparation and submission of the loans.
This necessary determination was consistent with the evidence which
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established that Simmerer controlled the loan process, controlled the information,
controlled the finances and controlled Downes. Further evidence demonstrated
that Downes had no interaction with the banks and had little to no involvement
with Your 10 Life or its directors concerning the loan applications. Finally, the
testimony of the Government witnesses established Downes’ lack of sophistication
and his naivete.
Based on the foregoing, it is apparent that Downes played a minor role in
Simmerer’s scheme – a fact recognized by both the PSR and the Government.
Downes’s lesser role and lesser intent underscores his lesser culpability. Indeed,
the degree of a defendant’s culpability “is generally assessed according to two kinds
of elements: the nature and seriousness of the harm caused or threatened by the
crime; and the offender’s degree of culpability in committing the crime, in
particular, his degree of intent (mens rea), motives, role in the offense, and
mental illness or diminished capacity.” Richard S. Frase, Excessive Prison
Sentences, Punishment Goals, and the Eighth Amendment: “Proportionality”
Relative to What?, 89 Minn. L. Rev. 571, 590 (Feb. 2005)(emphasis added). While
Downes has been found liable for criminal actions, his lesser culpability calls for a
lesser sentence. Supreme Court precedent and the guidelines themselves recognize
this argument. See, e.g., Atkins v. Virginia, 536 U.S. 304, 305 (2002)(“As to
retribution, the severity of the appropriate punishment necessarily depends on the
offender's culpability”); see also USSG § 2G2.2 (reducing offense level by two-
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levels where the defendant does not intend to traffic in, or distribute child
pornography); USSG § 2L1.1(b)(1)(for passport offenses, if “the offense was
committed other than for profit” decrease the offense level by three levels); USSG
§§ 2D1.1 and 5C12 (reducing guideline level and eliminating minimum mandatory
based on safety valve which applies to less culpable and less dangerous offenders).
B. History and Characteristics
Surely, if ever a man is to receive credit for the good he has done, and
his immediate misconduct assessed in the context of his overall life
hitherto, it should be at the moment of his sentencing, when his very
future hangs in the balance. This elementary principle of weighing
the good with the bad, which is basic to all the great religions, moral
philosophies, and systems of justice, was plainly part of what
Congress had in mind when it directed courts to consider, as a
necessary sentencing factor, “the history and characteristics of the
defendant.”
United States v. Adelson, 441 F. Supp. 2d 506, 513-14 (S.D.N.Y. 2006).
Consistent with the trial testimony of the Government witnesses, the Letters
of Support demonstrate that Downes exhibits exemplary human qualities. In sum,
he is an exceedingly kind and decent man. See Letters of Support, attached hereto
as Exhibit 1. Aaron Klein states that Downes “is one of the most kind-hearted and
trusting people I have ever met. He is sweet, sincere, and deeply compassionate,
with a remarkable love for all living things and nature.” Ex.1, Letter of Aaron Klein.
See also id, Letter of Andres Perez (“In every interaction I have had with him, he
has demonstrated kindness, humility, and a desire to contribute positively to the
people around him”). Similarly, Nathan Mikkelson writes: “Throughout the time I
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have known Seth, he has consistently demonstrated every good character one
would hope to find in a person of virtue: honesty, integrity, kindness, and
responsibility.” Id., Letter of Nathan Mikkelson; see also id, Letter of Grace
Downs (“I believe the court has gotten to see the true Seth as I know him -
compassionate, caring, dependable and affable”).
The Letters of Support establish that Downes’ kindness extends to all he
encounters. Joseph Wolfert describes the support and care that Downes has
provided him over the years. Ex. 1, Letter of Joseph Wolfert; see also id, Letter of
Michael Kreiner (“Out of everyone I know, Seth is a person I hold in the highest
regard, and he is always the first to lend a helping hand”). Ruth Manges writes
about the profound impact Downes has had in her life.
He helped me to process some of the extreme trauma I faced as a child,
and to let it go. He taught me how to accept myself and my thoughts.
He was such a deep and abiding friend, and perhaps one of the deepest
friendships I have ever had.
Seth also applied action and effort to our friendship. During COVID I
had lost my job, and I was struggling to afford bills along with
groceries. Around this time Seth came to visit me, and he took me to
the store and bought my cats the largest container of food and litter
available. Along with that, he also gave me $40 – with no expectation
of being paid back. I will never forget this day, because had done more
for me during that situation than any of my family had.
Ex. 1, Letter of Ruth Manges.
Downes’ compassion to and commitment to others is demonstrated by his
charitable work. His sister, Joan Downes, states:
He developed a deep-seated desire to seek out purpose and help
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others. Following high-school, Seth worked as a missionary at a
religious organization in Ohio, where he helped set up weekly retreats
for families. He then spent several months volunteering for a ministry
that traveled across the United States mentoring troubled teens. The
fact that Seth chose to spend his young adulthood guiding at-risk
youth – despite the lack of guidance he received himself – is a
testament to his good-will and desire to help those around him.
Id., Letter of Joan Downes
The critical question case for this Court is how an individual like Downes,
who exhibits the best human qualities, succumbs to Simmerer’s fraudulent
machinations. As previously noted, the trial testimony of the Your Ten Life
employees and the Letters of Support demonstrate that Downes was
unsophisticated and naïve. Such qualities made Downes susceptible to Simmerer’s
manipulation.
But Downes’ susceptibility went far beyond naivete or a lack of
sophistication. The roots of his vulnerability are found in his childhood. Downes
was homeschooled in an environment where both physical and emotional abuse
was the norm. Joan Downes states: “We were homeschooled in a rigid religious
framework where questioning authority – specifically our father – was often met
with physical or mental abuse.” Id. Catherine Downes describes the hell that she
and her brother endured:
Our home environment was marked by neglect, fear, and volatility.
Our father was often emotionally disengaged except during periods of
anger. He frequently screamed at us, delivered lengthy lectures about
sin and obedience, and used physical punishment and intimidation.
Seth was naturally curious and thoughtful, and I specifically
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remember him being physically punished for asking questions that
were perceived as challenging authority.
Id., Letter of Catherine Downes.
In his letter, Andres Perez depicts how Downes’ past continues to haunt the
person he is today.
He simply was not used to being allowed to make decisions for
himself. I now see how, after leaving home and joining a program to
better himself, this same submissiveness made him vulnerable again
to someone very much like his father—someone who sought to
control him and use him—which contributed to his involvement in
the circumstances that led to his conviction.
Sara Manuel, who testified for the Government during trial, echoes Andres
Perez’s depiction. “The greatest weakness I saw in Seth was his inability to trust his
own wisdom and be easily swayed. While his first instinct was usually astute, he
was quick to lose confidence in his own judgement and defer to an outside
opinion.” Id. Letter of Sara Manuel. Ms. Manuel further describes how Downes’
insecurity affected his interaction with Simmerer. “[Seth Downes] was doubtful
about many things. I encouraged him to trust himself and his instincts, but every
time Shawn would have a great story to justify the decision and Seth would fold.”
Id. Still, Ms. Manuel concludes:
I can say without a doubt, Seth Downes is one of the most caring,
heartfelt individuals I know. While his inexperience and lack of self
confidence cause him to make some drastic misjudgments, to this day,
I still have the utmost faith and trust in him. I believe the world would
be a much better place with more people like him and I would be
happy to put my name and reputation on the line for him.
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Id.
Returning to Adelson, “the weighing of the bad and the good” in Downes
case proves that he is worthy of this court’s mercy – a concept foreign to a rigid
sentencing matrix that refuses to go beyond a defendant’s criminal conduct.
Chapter 2
Just Punishment
All in all, punishment hardens and renders people more insensible;
it concentrates; it increases the feeling of estrangement; it
strengthens the power of resistance.
Friedrich Nietzsche, The Genealogy of Morals, essay 2, aph. 14 (1887)
In imposing a just sentence, this Court should consider the significant
punishment resulting from the indirect consequences of Downes felony conviction.
Prior to the instant offense, Downes had no criminal felony record. Now, based on
his felony conviction, Downes will face an overwhelming number of consequences.
A congressional report authored by the United States Government Accountability
Office (GAO) demonstrates that there are 641 collateral consequences of a
nonviolent felony conviction. See GAO Report 17-691, NONVIOLENT DRUG
CONVICTIONS, Stakeholders Views on Potential, Actions to Address Collateral
Consequences, (Sept. 2017), summary excerpt attached hereto as Exhibit 2. Of
these 641 collateral consequences, 497 (78%) of them may last a lifetime. See id.
Chapter 3
Educational, Medical Care, or Other Correctional treatment
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Judges carry the heavy burden of depriving individuals of their
liberty. But the Bureau of Prisons shoulders the constitutional
burden of protecting the remaining rights of the incarcerated while
in custody.
United States v. Bardell, 634 F.Supp.3rd 1083, 1084 (M.D. Fla. 2022).
Gainfully employed and without a medical condition or substance abuse
issue, Downes does not require correctional treatment or education.
Chapter 4
Deterrence
“No punishment has ever possessed enough power of deterrence to
prevent the commission of crimes.”
Hannah Arendt, Eichmann in Jerusalem, Epilogue (1963)
The two aspects of deterrence of relevance in the instant case are general
and specific deterrence. As this section establishes, the former should be given
little weight, while the latter supports Downes’s request for a variance.
A. General Deterrence
The belief that prison sentences are effective in deterring crime is the last
refuge for the misled. As is the case with so many simple stories in our country, the
principle of general deterrence is a false narrative unsupported by empirical study
or evidence. 9
Indeed, the Department of Justice (DOJ) has concluded that incarcerating
defendants is not an effective means of deterrence. See U.S. Dept. of Justice, Nat’l
9 See fn. 8, supra.
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Inst. of Justice, Five Things About Deterrence (July 2014) attached as Exhibit 3.
The DOJ has further found that even increasing the severity of punishment does
little to deter punishment.
The DOJ’s findings are consistent with other empirical studies that have
determined there is no correlation between punishment and reductions in crime.
See Dr. Oliver Roeder et al., What Caused the Crime Decline?, Brennan Center for
Just., 22-23 (Feb. 12, 2015); see also Gary Kleck and J.C. Barnes, Deterrence and
Macro-Level Perceptions of Punishment Risks: Is There a "Collective Wisdom?”,
59 Crime & Delinquency 1006, 1031-33 (2013)(concluding that “increases in
punishment levels do not routinely reduce crime through general deterrence
mechanisms, because the fundamental link between punishment levels and
perceptions of punishment levels appears to be weak to nonexistent”).
Unfortunately, the use of the general deterrence rationale has effectuated mass
incarceration. See Dr. Oliver Roeder et al., What Caused the Crime Decline?
B. Specific Deterrence
1. Empirical Studies
The likelihood that the defendant “will engage in future criminal conduct [is]
a central factor that district courts must assess when imposing sentence.” Pepper,
562 U.S. at 492. As in the case of general deterrence, empirical evidence does not
establish a relationship between sentence length and specific deterrence,
regardless of the type of crime. See National Institute of Corrections, Myths and
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Facts, Why Incarceration is Not the Best Way to Keep Communities Safe (2016).
The best available evidence establishes that imprisonment does not reduce
recidivism more than noncustodial sanctions. Francis T. Cullen et al., Prisons Do
Not Reduce Recidivism: The High Cost of Ignoring Science, 91 Prison J. 48S, 50S-
51S (2011). Rather, there is strong evidence that prison contributes to increased
recidivism. See Criminogenic Effects of Imprisonment: Evidence from State Panel
Data 1974-2002, 6 Criminology & Public Policy 589 (2007).
Thus, the most effective to promote public safety and ensure that convicted
persons can lead law-abiding lives is through broad use of non-incarceration
sentences, especially since “incarceration does little to change a person’s
behavior” and persons sentenced to prison have higher recidivism
rates than those sentenced to community corrections.
Myth and Facts, at 1, 4 (emphasis added).
2. Downes’s lower risk of recidivism
Downes has no criminal history. Moreover, he has been employed
throughout his life and does not have a substance abuse problem. These factors
demonstrate that Downes poses a lower risk of recidivism. See U.S. Sent. Comm’n,
Measuring Recidivism: The Criminal History Computation of the Federal
Sentencing Guidelines at 12-13 (May 2004).
In imposing the least sufficient sentence to account for the need to protect
the public from further crimes of Downes, this Court should consider the
statistically low risk of recidivism presented by him. United States v. Urbina, slip
op., 2009 WL 565485, *2-3 (E.D. Wis. Mar. 5, 2009) (considering low risk of
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recidivism indicated by defendant’s lack of criminal record, positive work history,
and strong family ties).
Chapter 5
The Guidelines
Criminal behavior can fuel public outcry and drive broad legislative
and executive agendas to get ‘tough on crime.’ But how does that
translate to specific instances? If you take a matrix to factor offense
severity, overlay it with mandates born of popular outrage, and tailor
it purportedly to address almost every eventuality, you get ‘justice’
dictated in advance, marked by visceral condemnation, and based on
the pretense of omniscience.
United States v. Williams, 372 F.Supp.2d 1335, 1337-1338 (M.D. Fla.
2005)(Presnell, J.). 10
A guideline recommendation is owed little deference. 11 Promogulated to
provide sentencing consistency, the sentencing guidelines achieved its goal
through the consistent imposition of sentences that were both irrational and
unjustly harsh.
The history of the guidelines is a history of failure. For example, the crack
guidelines sentenced offenders 100 times harsher than cocaine offenders despite
the lack of an empirical basis for such a disparity. The drug guidelines were
10 Although Williams was reversed by the Eleventh Circuit in United States v. Williams,
456 F.3d 1353 (11th Cir. 2006), the Eleventh Circuit’s decision was overruled by the
United States Supreme Court. See Kimbrough v. United States, 552 U.S. 1353 (2007).
11 As recognized in Gall, district courts “may not presume that the Guidelines range is
reasonable.” 552 U.S. at 49. See also Rita v. United States, 551 U.S. 338, 351 (2007)
(“[T]he sentencing court does not enjoy the benefit of a legal presumption that the
Guidelines sentence should apply.”).
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eventually amended to correct the problem. 12 But the cure, treating 28 grams of
crack the same as 500 grams of cocaine, was equally absurd since it resulted from
Congressional compromise rather than scientific evidence. See, e.g., Safia Samee
Ali, AG Issues New Guidance on Ending Sentencing Disparities for Crack versus
Powder Cocaine, NBC News (Dec. 22, 2023), available at
https://www.nbcnews.com/news/us-news/ag-issues-new-guidance-ending-
sentencing-disparities-crack-powder-coca-rcna62162. 13
Such is the case with the fraud guidelines since they are not the product of
careful study based on empirical evidence. Consequently, the fraud guidelines do
not reflect an approximation of sentences that might achieve § 3553 objectives.
In Rita v. United States, 551 U.S. 338 (2007), the Supreme Court gave two
reasons that it may be “fair to assume” that the guidelines “reflect a rough
approximation” of sentences that might achieve § 3553(a)’s objectives. First, the
12 The amendment to the crack guidelines was not a rare event. Indeed, the Sentencing
Commission has amended the Guidelines Manual more than 800 times over a period of
four decades. During the past forty years, Congress has rejected a proposed amendment
only once. See Cong. Research Serv., Congressional Review of Proposed Amendments to
the U.S. Sentencing Guidelines (June 6, 2023). The fact that the Guidelines have been
changed over 800 times underscores their persistent failures. Of course, one could argue
that the number of amendments demonstrates the guidelines are trying to get it right.
Unfortunately, it underscores their inherent unreliability and persistent failures. See, e.g.,
Samuel Beckett, Worstward Ho (Grove Pr. 1984)(“Try again, Fail Again, Fail Better”).
13 Unfortunately, the absurdity found in the crack guidelines is not the exception. For
instance, methamphetamine offenses are treated more severely than fentanyl or heroin
despite the latter substances’ great health risks. See, e.g., DEA, National Drug Threat
Assessment (March 2021). The guidelines treat one gram of methamphetamine 20 times
more harshly than one gram of heroin and eight times more harshly than fentanyl. See
USSG § 2D1.1(D).
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original Sentencing Commission used an “empirical approach,” which began “with
an empirical examination of 10,000 presentence reports setting forth what judges
had done in the past.” Id. Second, the Commission can review and revise the
guidelines based on judicial feedback through sentencing decisions, and
consultation with other frontline actors, civil liberties groups, and experts. Id. at
348-50. The Court recognized, however, that not all guidelines were developed in
this manner. See Gall, 552 U.S. at 46 & n.2; Kimbrough v. United States, 552 U.S.
85, 96 (2007). When a guideline “do[es] not exemplify the Commission’s exercise
of its characteristic institutional role,” because the Commission “did not take
account of ‘empirical data and national experience,’” the sentencing court is free to
conclude that the guideline “yields a sentence ‘greater than necessary to achieve §
3553(a)’s purposes, even in a mine-run case.” Kimbrough, 552 U.S. at 109-10.
A. An Advisory Sentencing Range Pursuant to Section 2B.1 Is
Not Based on Empirical Data or National Experience
Because the Sentencing Commission failed to rely on empirical data or
national experience in promulgating or amending the fraud guideline (USSG §
2B1.1), it failed to fulfill its institutional role. Thus, this Court is free to disagree on
reasoned policy grounds, with its recommendation. Kimbrough, 552 U.S. 101-02,
109-10; Rita, 551 U.S. at 351, 357.
When the Commission adopted the original guidelines in 1987, it “decided
to abandon the touchstone of prior past practice” with respect to white collar
offenses. Justice Stephen Breyer, The Federal Sentencing Guidelines and the Key
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Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 22-23 (1988). The
Commission quickly abandoned its original goal of ensuring “short but definite”
sentences. Beginning just two years after the Guidelines went into effect, prison
sentences for fraud offenders were steadily increased. The effect of those increases
on this case was to add four levels for loss in 1989, to add five more levels for loss
in 2001, and to increase the base offense level by one level in 2003. Consequently,
Downes’ advisory guideline range is now significantly higher than under the
original 1987 guidelines.
Because of these essential problems with USSG § 2B1.1, sentences in fraud
cases reflect significant judicial disagreement with the guidelines. Indeed, “since
Booker, virtually every judge faced with a top-level corporate fraud defendant in a
very large fraud has concluded that sentences called for by the Guidelines were too
high. This near unanimity suggests that the judiciary sees a consistent disjunction
between the sentences prescribed by the Guidelines for cases like these and the
fundamental requirement of Section 3553(a) that judges impose sentences
‘sufficient, but not greater than necessary’ to comply with its objectives.” Frank O.
Bowman III, Sentencing High-Loss Corporate Insider Frauds After Booker, 20
Fed. Sent. R. 167, 169, 2008 WL 2201039, at *4 (Feb. 2008).
B. The Advisory Guidelines are Inconsistent with § 3553(a).
While a discussion of guideline limitations undermines confidence in their
recommended outcomes, such an analysis fails to address their most fundamental
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problem. That is, the rigid matrix of the guidelines is driven by a limited narrative
of criminal conduct and criminal history. Consequently, they disregard the
expansive narrative of a defendant’s life and disregard the less general factors
under § 3553(a). As recognized by Judge Tjoflat, in some cases the Guidelines may
have little persuasive force when considering the other § 3553(a) factors. United
States v. Glover, 431 F.3d 744, 752-53 (11th Cir. 2005), abrogation on other
grounds, United States v. Joseph, 371 Fed.Appx. 70 (11th Cir. 2010)(unpublished).
In Downes case, a mechanical application of the guidelines does not account
for the unique factors that mitigate his sentence – a result that is antagonistic to §
3553(a), as well as Koon. In placing offense conduct above all else, the guidelines
do not account for unique circumstances of his offense. See Chapter I, supra. They
do not account for his exemplary qualities. See id. They do not account for the
significant impact of the collateral consequences of his conviction. See Chapter 2,
supra. They do not account for his low risk of recidivism. See Chapter 3, supra.
They do not account for the unwarranted disparity that would result from a
guideline sentence. See Chapter 6, infra. And they do not account for his need to
pay restitution in this case. See Chapter 7, infra.
The inability of the guidelines to meet the requirements of § 3553 constitutes
a grave failure in Downes’ case. To be sure, a mechanical application of the
guidelines in his case is necessarily inconsistent with a just sentencing process as
contemplated by Supreme Court precedent and the § 3553(a) factors. Such a
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technical approach would only prove that injustice not always occurs through the
impact of cataclysmic judicial decisions but often flows from the tide of quiet
bureaucratic choices made without foresight or contemplation. 14
Chapter 6
Disparity
In imposing a sentence, the Court must consider ‘the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct’
18 U.S.C. § 3553(a)(6)
Regarding the goal of avoiding disparity in the sentences of defendants, this
factor strongly supports Downes’s request for variance. To support this tenet,
exhibit 4 provides a chart of fraud cases nationally, many of which involved losses
far greater than the alleged loss in this case. Similarly, exhibit 5 provides a chart of
fraud cases in the Eleventh Circuit. In United States v. Parris, 573 F. Supp. 2d 744
(E.D.N.Y. 2008), Judge Block took a similar collection of cases into account in
imposing an appropriate sentence for two securities fraud offenders. Based on
these cases, the court concluded that “[t]hose [defendants] who were not
cooperators and were responsible for enormous losses were sentenced to double-
digit terms of imprisonment (in years); [while] those whose losses were less than
14 “The greatest evil is not now done in those sordid ‘dens of crime’ that Dickens loved to
paint. It is not done even in concentration camps and labor camps. In those we see its
final result. But it is conceived and ordered (moved, seconded, carried, and minuted) in
clean, carpeted, warmed, and well-lighted offices, by quiet men with white collars and cut
fingernails and smooth-shaven cheeks who do not need to raise their voice.”
C.S. Lewis, The Screwtape Letters at xxxvii (1961 ed.).
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$100 million were generally sentenced to single-digit terms.” Id. at 753. The court
relied on this national pattern in arriving at a sentence of 60 months for the two
defendants who faced an advisory guideline range of 360 months to life. Id. at 745.
Chapter 7
Restitution
In imposing a sentence, the Court must consider “the need to provide
restitution to any victims of the offense”
18 U.S.C. § 3553(a)(7)
Downes will owe restitution. If Downes is incarcerated, his ability to pay
restitution will be severely impacted. Conversely, a non-prison sentence will allow
Mr. Downes to make restitution. See 18 U.S.C. §3553(a)(7). Thus, this § 3553 factor
supports the imposition of a probationary sentence with house arrest. See United
States v. Rangel, 697 F.3d 795, 803-04 (9th Cir. 2012)(“the district court's goal of
obtaining restitution for the victims of Defendant's offense, 18 U.S.C. § 3553(a)(7),
is better served by a non-incarcerated and employed defendant”)(citation
omitted).
Conclusion
“Midway through this life we borne upon I found myself in a dark
wood where the way of truth was wholly lost and gone.”
Dante Alighieri, La Divina Commedia, Inferno, Canto I (1472)
Perhaps, beginning this memorandum as a fairy tale distracts us from the
seriousness of federal sentencing with all its trappings from a PSR to the
determined U.S. Marshalls waiting with their handcuffs. This memorandum
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wasn’t written as a distraction. Rather, it is an imperfect response to an imperfect
situation. To think that Seth Downes, this decent, naïve, and kind man, will carry
the weight of a felony conviction and the possibility of prison sentence is
unfathomable. To think that like so many before him, Downes’s life and fate will
be measured and weighed against the anchoring effect 15 of the guidelines is indeed
less than ideal, perhaps absurd. Caught in such a situation, the format of a fairy
tale seems just about right.
Putting aside the undersigned’s literary pretensions and rhetorical devices,
the unique circumstances presented in Downes’s case warrant a variance below the
applicable guideline range. Such a variance is necessary to vindicate the
preeminence of 18 U.S.C. § 3553(a) and the broad perspective of Koon, Pepper and
Concepcion, rather than the limited narrative presented by the sentencing
guidelines.
While it may be easy to turn to the guidelines to judge the Defendant’s
crimes, that isn’t justice. His crime cannot be the sole consideration. As this
memorandum demonstrates, Downes’s request for a probationary sentence is
supported by so many mitigating factors from the circumstances of his offense to
the man he has always been. While the retribution and visceral condemnation of
15
The anchoring effect is a person’s tendency to rely heavily on the first piece of
information they receive in decision-making. The effect often impacts decisions
concerning numerical values such as pricing or the guidelines. See Andrea J. Caceres-
Santamaria, The Anchoring Effect, Page One Economics, Federal Reserve Bank of St.
Louis (April 2021).
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the guidelines is easy, it shouldn’t be. For retribution and condemnation always
carry consequences – ramifications that extend beyond Downes to so many others
whose lives he has touched with his naivete and simple kindness.
Respectfully submitted,
/s/ Fritz Scheller
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of
Court by using the CM/ECF system, which will send a notice of electronic filing to
all parties this 9th day of June 2026.
/s/ Fritz Scheller
Fritz Scheller
Florida Bar Number 183113
Fritz Scheller, P.L.
231 E. Colonial Drive
Orlando, Florida 32801
Telephone 407-792-1285
Facsimile 407-649-1657
Email: fscheller@flusalaw.com
24
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