Sentencing Memorandum — No. 2:21-cr-00430 (Dkt. 64, W.D. Pa.)

Summary

A 25-page sentencing memorandum, Document 64, filed 03/28/22 by Assistant Federal Public Defender Sarah Levin for Desmond Fodje Bobga in United States v. Bobga, Criminal No. 2:21-430, in the U.S. District Court for the Western District of Pennsylvania. The memorandum argues that Bobga's part in the fraud scheme is inseparable from the civil war in Cameroon between Anglophone separatists, the Ambazonians, and the Francophone government, citing Human Rights Watch and State Department reports that at least 4,000 civilians have been killed and the kidnapping of ten teachers in Bamenda in February 2022. It says Bobga resisted recruitment and extortion, fled to Romania, funded his escape through the scheme and accepts responsibility. After reviewing the § 3553(a) factors and deterrence research, it asks for a sentence of time served with no term of supervision.

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“Sentencing Memorandum — No. 2:21-cr-00430 (Dkt. 64, W.D. Pa.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/sentencing-memorandum-no-2-21-cr-00430-dkt-64-w-d-pa-11117fdc8e/, SHA-256 670bf1241117645d072844c4aaa1881d42f98a21902a8afad1220ac83d886520.

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Case 2:21-cr-00430-NBF Document 64 Filed 03/28/22 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA )
)
v. ) Criminal No. 2:21-430
)
DESMOND FODJE BOBGA )

SENTENCING MEMORANDUM

Desmond Bobga’s participation in the fraud scheme for which he faces

sentencing is inseparable from the ongoing violence and political situation in his

country, Cameroon. Faced with few opportunities and small risk of survival, young

Cameroonian men like Desmond Bobga turn to education – and, sometimes, to crime

– to survive and escape their circumstances. Desmond fled Cameroon to Romania

because of his stance against the ongoing civil war in Cameroon. His participation in

the fraud scheme funded his escape. He is not proud of his choices, and he accepts

responsibility for them. He also asks this Court to take into account all the

circumstances described below that factored into his decisions.

“Life in Cameroon, honestly, is terrible, if I could find a word. . . . You have all

these degrees but you can’t find a job. . . You have to find someone you know to help

you have a job,” explained Julie Bosung, Desmond Bobga’s maternal aunt.1 Ms.

1 Exhibit A, Video interview with Julie Bosung, March 12, 2022, at
approximately 00:34. Quoted dialogue from Exhibit A is transcribed as best as
possible with light edits by counsel for ease of understanding. Unless otherwise
indicated, additional information in this memorandum comes from the defense team’s
interviews with Mr. Bobga, his mother, and his maternal aunt, Julie Bosung, and
maternal grandmother, Theresia Lumah Epse Foncham.
Case 2:21-cr-00430-NBF Document 64 Filed 03/28/22 Page 2 of 25

Bosung is a nurse who lives in Maryland. She fled Cameroon because of the violence

and the lack of job opportunities there.

Desmond Bobga and his family are from of the Anglophone region of Cameroon,

which is English-speaking. Cameroon is in a civil war between the Anglophone and

majority Francophone Cameroonian government, where the Anglophones are seeking

to create their own country. Many people in Cameroon, including Desmond and his

family, are trapped in the middle of the two factions.

Since 2017, the anglophone separatist fighters (called Ambazonians, or “Amba

boys”) have been waging war against their government.2 Ambazonians torture,

kidnap, and kill civilians.3 At least 4,000 civilians, including aid workers, have been

killed and more have been displaced in the North-West and South-West regions

during this civil war.4 Armed Ambazonians control some towns by having lockdowns,

which restrict business operation and movement into, out of, and within the towns.5

Ambazonians are known to kidnap and imprison young men who refuse to join their

ranks or offer support.6

2 See WORLD REPORT: Cameroon, Human Rights Watch (2022),
https://www.hrw.org/world-report/2022/country-chapters/cameroon.
3 WORLD REPORT 2022.
4 WORLD REPORT 2022.
5 U.S. Department of State, Cameroon 2020 Human Rights Report, 29 (2021),

https://www.state.gov/wp-content/uploads/2021/10/CAMEROON-2020-HUMAN-
RIGHTS-REPORT.pdf.
6 See Ex. A at approx. 03:07.

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One tactic used by Ambazonian fighters has been a boycott of education to keep

students from learning French, which is taught in all government funded schools and

many private schools. Ambazonians routinely attack, kidnap, and kill students and

educators.7 They are suspected of bombing a university and have destroyed and

bombed schools.8 As recently as February 2022, Ambazonians kidnapped ten teachers

because they would not shut down a school for disabled children associated with the

Cameroonian government in Bamenda, a town where Desmond lived.9

For several years, Desmond has resisted Ambazonians attempting to recruit

him or extort money from him and his family members. He has spoken out against

the violence, especially as to violence against students and schools, and he and family

members have paid a steep price. Desmond’s parents both worked in education, and

he is a dedicated student. He wanted to continue his education, which the

Ambazonians are trying to block. Ambazonians had him on a list of “wanted

peacekeepers” as early as 2019.10 However, Desmond continued his public speaking

into 2020 and until his arrest in this case.

7 See supra WORLD REPORT 2022 (explaining that at least 700,000 students

were not attending school in March 2021 because of the crisis).
8 “Cameroon, Armed Separatists’ Attack on Education,” Human Rights Watch

(Dec. 15, 2021) https://www.hrw.org/news/2021/12/15/cameroon-armed-separatists-
attack-education.
9 “Cameroon Separatists Abduct Teachers at School for Disabled,” Voice of

America (Feb. 25, 2022) https://www.voanews.com/a/cameroon-separatists-abduct-
teachers-at-school-for-disabled/6458852.html.
10 See Letter and photos from Ms. Patience, Exhibit B.

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Desmond’s mother, Sebyonga Patience Tita Epse Fodje (“Ms. Patience”)

explained that Desmond is a “peace advocate.”11 “Unlike his peers who were scared

and could not speak out against the Ambaxonian fighters (separatists), [Desmond]

stood up and advocated for peace,” she wrote.12 His aunt explained, “Desmond was

not supportive of the Amba boys, he wanted to do everything peacefully, so he became

a target.”13

The school massacre that most affected Desmond was in Kumba on October

24, 2020.14 The government reports that Ambazonians were responsible for killing

seven children and injuring at least thirteen others.15 The Cameroonian government

responded by accusing residents of failing to tell them about the gunmen before the

attack, but community members disagree with this view.16

Desmond spoke out against the Kumba massacre in a video he posted to social

media that went viral. He spoke of peace and the need for education and

understanding. Then, Ambazonians issued a statement saying they wanted

Desmond, dead or alive. The Ambazonians also called and messaged Desmond,

11 See Exhibit B.
12 Id.
13 Ex. A at approx. 07:50.
14“Cameroon: Gunmen Massacre School Children,” Human Rights Watch
(Nov. 2, 2020) https://www.hrw.org/news/2020/11/02/cameroon-gunmen-massacre-
school-children.
15 Id.
16 Id.

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demanding he join them, give them money, or die. Desmond’s advocacy was covered

in local newspaper articles, shown in these excerpts:17

17 See Exhibit C, Excerpts of press coverage of Mr. Bobga’s public speech.

5
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Ms. Patience, Desmond’s mother, was kidnapped, assaulted, and left for dead

by Ambazonians following Desmond’s advocacy. She was saved from a ditch by

someone passing by. Her attackers told her they would do worse if her son did not

stop his “peace propaganda.”18 “It was devasting for us. I thank god [Ms. Patience] is

alive right now,” explained Ms. Bosung.19

The rest of Desmond’s family continues to suffer in Cameroon. Ambazonians

burnt down a house in a family compound because of Desmond’s advocacy. Ms.

Patience was in the compound at the time but survived by hiding in the bush.

18 See Ex. B.
19 Ex. A at approx. 11:22.

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Ambazonians continue to contact and threaten Ms. Patience. Desmond’s uncle and

cousin are currently missing and believed to be either held by Ambazonians for

ransom or murdered. Desmond’s family cannot afford to pay the ransoms. Ms.

Patience is fearful because she knows that the Ambazonians have made their way

into Yaoundé, the city where she lives. Ms. Patience cannot tell who they are, so she

cannot avoid them. She knows that the government will not protect her from the

Ambazonians because they have done nothing to help her with her two missing family

members. Ms. Patience lives in fear, and under constant threat, for her life and her

family members’ safety.

Desmond Bobga’s father was murdered when he was about 6 years old.20 As

the only and oldest son, he was left to try and take care of his mother and sister in a

country without opportunities for anyone without a personal connection to

government, or money to bribe an official.21 Desmond tried to join the military, but

he could not afford the bribe required and did not have family connections to pull

strings. His mother tried to open a hair salon, but it closed after 6 months because

men from the government came to take money from her daily, calling it “rent.”

Desmond sold goods at a market with his friend to try and support his family.22

Many times, the Ambazonian fighters burned his store because Desmond would not

20 PSR ¶ 40.
21 See Ex. A at approx. 13:54.
22 Ex. A at approx. 09:55.

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give them money.23 Ms. Bosung explained that young people sell goods in the market

because “they can’t have a job.”24 A lot of the younger people steal to survive. They’ll

“snatch your bag from the supermarket” and then explain that they have no choice,

they have to eat.25

Ms. Bosung explained that even after studying, if someone like Desmond

wanted to become a doctor or a lawyer, he would have to sit for an exam, and “if you

don’t have money to bribe, you don’t have a seat to take an exam.”26 Unemployment

is so high in Cameroon that employers negotiate with employees to pay them less

than minimum wage.27 Cameroon’s economic freedom score is below regional and

world averages.28

Desmond’s additional employment efforts were not successful, and he focused

on his studies.29 Eventually, he decided to flee Cameroon to pursue his education in

Romania, a safer country where he could go to school. He moved to Romania in

January 2020, during the time period of the conspiracy in this case. Desmond pursued

23 Ex. A at approx. 09:55.
24 Id. at approx. 01:41.
25 Id. at approx. 02:12.
26 Ex. A at approx. 15:15.
27 U.S. Department of State, Cameroon 2020 Human Rights Report, 52 (2021),

https://www.state.gov/wp-content/uploads/2021/10/CAMEROON-2020-HUMAN-
RIGHTS-REPORT.pdf.
28 2022 Index of Economic Freedom: Cameroon, The Heritage Foundation

(2022) https://www.heritage.org/index/country/cameroon.
29 See PSR ¶¶ 48-51.

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his university education in Romania seriously, and he focused on security

governance, and specifically, on the security dilemma in Africa.30

Desmond was arrested in Romania on December 3, 2020, and extradited to the

United States.31 He does not have legal status in the United States, and upon

completion of his sentence, he will be removed to Cameroon.32

Desmond Bobga agrees that the intended amount of loss, as reflected in the

plea agreement, is $111,920.33 The conspiracy involved at least 10 individuals in

addition to Desmond in at least 3 countries, including the United States.34 Desmond

had never been to the United States prior to his extradition here. He did not receive

an amount of money even close to the total loss amount, and he likely received less

than $50,000. However, he understands and he accepts responsibility for his part in

the illegal scheme that resulted in $111,920 of intended loss to victims.

30 See Exhibit D, Letter of Recommendation from Professor Adrian Daniel
Stan, Babeş-Bolyai University, Cluj, Romania (June 18, 2021).
31 PSR ¶ 2. Counsel asks this Court to note that Mr. Bobga was held in

“immigration custody in anticipation of a federal indictment” since his arrest in
Romania as of this date and recommend to the BOP that presentence credit be
awarded under 18 U.S.C. § 3585(b) as of this date. See e.g., Paz-Salvador v. Holt, No.
3:10-CV-2668, 2011 WL 3876268, at *3 (M.D. Pa. Aug. 31, 2011) (“[U]nlike ICE
detainees solely awaiting removal, those being held in immigration custody in
anticipation of a federal indictment for illegal re-entry are entitled to credit for their
time held awaiting indictment.”) (citing cases).
32 See Page 1 (noting detainer from Immigration and Customs Enforcement).
33 See PSR ¶ 15.
34 See infra Section I.B (summarizing evidence relating to other co-

conspirators).
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From December 3, 2020, until the sentencing hearing date of April 8, 2022,

Desmond Bobga will have been in custody for over 16 months. After accounting for

credit for good time that will be awarded by the Bureau of Prisons, that amounts to

a sentence of nearly 19 months. This is right below the low end of the Guidelines of

21 to 27 months’ imprisonment.35 Accordingly, a small variance is requested, to a

sentence of time served, which is entirely justified under the § 3553(a) factors.

I. The factors in 18 U.S.C. § 3553(a) warrant a variance below the
Guidelines range and specifically, a time served sentence.

The Court must fashion a sentence “sufficient, but not greater than necessary”

to comply with the purposes of sentencing by considering the 18 U.S.C. § 3553(a)

factors.36

35 PSR ¶ 55.
36 The parsimony provision of 18 U.S.C. ' 3553(a) is the “overarching principle”

of sentencing, directing courts to impose a sentence “sufficient, but not greater than
necessary,” United States v. Olhovsky, 562 F.3d 530, 552 (3d Cir. 2009), considering:
(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…;
(B) to afford adequate deterrence…;
(C) to protect the public…; and
(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment…;
(3) the kinds of sentences available;
(4) the advisory Guidelines range;
(5) any pertinent policy statements…;
(6) the need to avoid unwarranted sentence disparities; and
(7) the need to provide restitution….
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Mr. Bobga specifically requests a sentence of time served without a term of

supervised release to follow because he will be removed from the United States upon

the conclusion of his sentence, and under U.S.S.G. § 5D1.1(c), no term of supervision

is recommended.37

A. A variance is warranted because of the trauma and violence that
characterized Mr. Bobga’s childhood and young adulthood,
contributing to the lack of opportunity in Cameroon.

As described in the Introduction, Desmond Bobga has witnessed violence and

trauma in his life that is unimaginable to many people in the United States. Research

shows that those experiences affect an individual’s decision making.

Dr. Richard G. Dudley, Jr. wrote about childhood trauma and its effects for the

Harvard Kennedy School and the National Institute of Justice in 2015. He explained

that “some children are exposed to events that are exceptionally stressful. The impact

of such traumatic events is more severe when they occur repeatedly … Trauma can

also result if a child witnesses acts of violence, including domestic violence and street

violence.”38 Trauma-exposed children tend to be anxious, hypervigilant, and

“hyperreactive to perceived threats of danger.”39

Experiencing childhood trauma also means that as an adult, the individual is

hampered in his ability to “correctly consider risk and made healthy life decisions,”

37 See Addendum to PSR.
38 Childhood Trauma and Its Effects: Implications for Police by Richard G.

Dudley, Jr., M.D., Harvard Kennedy School, National Institute of Justice, July 2015.
39 Id. at 6.

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according to a 2017 study.40 It also means that without treatment, “no threat of

punishment [is] likely to be effective in changing this deficit” in an adult’s decision-

making process.41

As shown in the Introduction, Mr. Bobga’s life in Cameroon was characterized

by abuse, trauma, and violence. His decision to participate in an illegal fraud scheme

must be viewed through a lens of trauma, as well as the prevalence of violence and

illegal activity in Cameroon.

B. A variance is warranted because of the number and location of
additional, uncharged co-conspirators, all of whom received some of
the money used to calculate Mr. Bobga’s Guidelines.

Mr. Bobga understands that he is liable, as a member of the charged

conspiracy, for the acts of his alleged co-conspirators. He agrees that he participated

in the fraud scheme, and he accepts responsibility for his role, including the

stipulations in the plea agreement as to amount of loss and restitution. The overall

loss amount agreed to in the plea agreement is $111,920.42 Mr. Bobga agrees that his

actions resulted in that amount of intended loss. However, there are a number of

other participants in the scheme in several different countries, and all of them

received money. There is no evidence that Mr. Bobga received all of the money (or

40 Mimi Kirk, “The Long Shadow of Childhood Trauma,” Bloomberg City Lab

(Dec. 4, 2017), https://www.bloomberg.com/news/articles/2017-12-04/the-impact-of-
childhood-trauma-on-adult-behavior.
41 Id.
42 PSR ¶ 10.

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even most of the money) at issue in this case, and an additional variance is warranted

on this basis. Here is why:

In Rule 16 discovery and at the preliminary hearing, the government presented

evidence about a fraud scheme and Mr. Bobga’s participation in that scheme. The

government’s evidence showing that total amount included Google Voice

communications between conspiracy members and victims, primarily with two

Google Voice numbers, one ending in 8514, and one ending in 4502.43 The government

presented evidence that the 8514 number was tied to Mr. Bobga, but it said that the

4502 number “may and may not be” tied to Mr. Bobga.44 The Court found that the

4502 number “has not been linked to Mr. Bobga,” and, instead, was tied to “an alleged

co-conspirator.”45

In the government’s calculation, the total amount of money paid associated

with the 8514 number was roughly $49,000, and the additional amount solicited

brought the loss number associated with the 8514 number to $66,065.46 The loss

amount associated with the 4502 number was nearly $46,000 (with just under

$30,000) in money received by co-conspirators.47 This means that, at most, Mr. Bobga

43 There is at least one other Google Voice number linked to the scheme, ending

in 0347, but that number did not play a primary role in victim communications. See
Preliminary Hearing Tr. June 9, 2021, at 22, 56, attached as Exhibit G.
44 See Preliminary Hearing Tr. June 9, 2021 (Ex. G), at 55.
45 Id. at 67.
46 See Exhibit E, Loss Calculations (Redacted) at page 1 (showing amounts

solicited and received through communications with 8514 number).
47 See id. at page 2 (showing (showing amounts solicited and received through

communications with 4502 number).
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personally received less than $50,000 from victims, and may not have received

anything close to that amount.

Additional evidence showed that other co-conspirators also received money:

 The government agreed that additional, uncharged co-conspirators were

located in Romania, Cameroon, Maryland, and anywhere else where the

victims were told to send money, including Florida.48

 The government agreed that during the time period covering the

conspiracy, Mr. Bobga did not travel from Cameroon other than to

Romania.49

 The government has no evidence of communication between co-

conspirators or bank records from any of the co-conspirators, including

Mr. Bobga.50

 The government has no evidence of voice recordings for any of the

communications with victims.51

 For Victim 5, there is only evidence of communications with the 4502

Google Voice number, and that Victim sent money to Virginia.52

 Even where the 8514 number communicated with victims, there is no

evidence that Mr. Bobga received any of that money. For example, in

48 Preliminary Hearing Tr. June 9, 2021 (Ex. G), at 21, 25, 58.
49 Id. at 23.
50 Id. at 23, 25.
51 Id. at 40.
52 Preliminary Hearing Exhibit 5A-R, Tr. June 9, 2021 (Ex. G), at 16.

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communications between the 8514 Google Voice number and Victim 3,

there is evidence that Victim 3 sent money to Maryland.53

 During cross-examination, counsel pointed out that additional IP

addresses linked to the target email accounts used as part of the fraud

scheme linked to locations in Cameroon, Romania, the United States,

and Bangladesh.54

The evidence of Mr. Bobga’s receipt of money is much more limited, and it

includes the following:

 Mr. Bobga received a total of $1840 from Victim 2.55

 The government presented evidence that a total of 7 individuals in

Romania received money wired from Victim 1 in March 2020.56

C. A variance does not create a disparity with other sentences.

Variances in fraud cases – including in cases with individuals who are

similarly situated to Mr. Bobga – are the norm, and a time served sentence

(equivalent to 19 months’ imprisonment) does not create a disparity with other

individuals who come before this Court.

53 Preliminary Hearing Exhibit 3B-R; Tr. June 9, 2021 (Ex. G), at 15-16.
54 Preliminary Hearing Tr. June 9, 2021 (Ex. G), at 29-31.
55 Preliminary Hearing Exhibit 2B-R; Tr. May 21, 2021, at 32. The transcript

of this portion of the hearing is attached as Exhibit F.
56 See Preliminary Hearing Exhibit 1B-R; Tr. May 21, 2021 (Ex. F) at 36.

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Out of 5,706 sentences under § 2B1.1 in 2021, nearly 42% were below-

guidelines sentences with downward variances.57 Out of 3,202 fraud sentences where

imprisonment was imposed in fiscal year 2021, the average length of imprisonment

was 18 months.58 The average extent of a downward variance in a fraud case in fiscal

year 2021 was 59.8%.59

For non-U.S. citizens

in criminal history category

I sentenced under § 2B1.1

for fraud offenses, the great

majority of them (74.9%%)

were sentenced to less than

24 months’ imprisonment

(as shown in the figure on

the left).60

57 2021 Annual Report and Sourcebook, Table 32,
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-
reports-and-sourcebooks/2021/Table32.pdf.
58 Id., Table 15, https://www.ussc.gov/sites/default/files/pdf/research-and-

publications/annual-reports-and-sourcebooks/2021/Table15.pdf.
59 Id., Table 40, https://www.ussc.gov/sites/default/files/pdf/research-and-

publications/annual-reports-and-sourcebooks/2021/Table40.pdf.
60 Interactive Data Analyzer, U.S. Sentencing Commission, filters: Fiscal Year:

2020; Circuit: All; State: All; District: All; Race: All; Gender: All; Age: All; Citizenship:
Non-U.S. Citizen; Education: All; Crime Type: All; Guideline: § 2B1.1; Drug Type:
All; Sentencing Zone: All; Criminal History: I; Career Offender Status: All, available
at https://ida.ussc.gov/analytics/saw.dll?Dashboard.
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In this group, the average and median imprisonment length was 18 (average) and 7

(median) months, as shown here in the figure below.61

With these statistics in mind, a sentence the equivalent of 19 months

represents a sentence right in the middle of similarly situated first-time fraud

defendants who are facing immigration consequences and deportation. A 19-month

sentence would not create a disparity with other, similar sentences.

D. A variance is warranted because of Mr. Bobga’s impending removal
from the United States.

Because of Mr. Bobga’s impending removal, he deserves a prison sentence that

is less severe than similarly situated defendants. He will not be eligible for a

reduction in sentence if he completes certain BOP programming, like the Residential

Drug Abuse Program, or home detention / halfway house placement. Indeed, on this

61 Id.

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basis, district courts have found that a variance is warranted. See United States v.

Pacheco-Soto, 386 F. Supp. 2d 1198, 1205 (D.N.M. 2005) (“[I]t is solely because of

Defendant's status as a deportable alien that he faces an unwarranted increase in

the severity of his sentence.”).62

E. The pretrial conditions of confinement at the ACJ and Butler County
Prison warrant a sentence without further prison time.

Desmond Bobga’s year of federal pretrial custody at the ACJ and Butler

County Prison were made much more severe due to the restrictions imposed as a

result of the COVID-19 pandemic. Mr. Bobga was incarcerated at the ACJ between

April and August 2021, during the height of the pandemic restrictions there. After

that, he was transferred to Butler County Prison, which also had lockdowns and

reduced opportunities for recreation, programming, and communication.

At the ACJ, since March 2020, prisoners have been unable to receive visitors

and are only reportedly restarting visits as of March 2022.63 The little programming

that existed has been or drastically curtailed.64 Most dramatically, prisoners were

restricted to their cells for 23 hours per day from March 2020 until only several

62 See also BOP Policy § 550.55(b), “Inmates Not Eligible for Early Release”

(listing inmates with ICE detainers as ineligible for early release).
63 See Allegheny County Jail, COVID-19 Information, Our Response,

https://www.alleghenycounty.us/jail/index.aspx.
64 See Transcript at 4, Jail Oversight Board Meeting (July 2, 2020), available

at https://alleghenycontroller.com/resource/jail-oversight/.
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months ago, when the restrictions were lifted.65 This is near-solitary confinement for

a 29-year old young man who committed a nonviolent offense and a first-time offender

and has never before been to prison in his life.

Mr. Bobga’s pretrial incarceration has been nearly totally during the pandemic

restrictions. He has been subjected to more time spent confined in his cell, no visits,

little to no programming opportunities, and reduced freedom to move around the jail

including in recreational areas. He asks this Court to consider the severity of these

restrictions as a mitigating factor.

Because the conditions of pretrial confinement in this case are harsher than

would otherwise occur due to the pandemic, they justify a reduced sentence. Courts

in this District, including this Court, have varied below the Guidelines in at least four

cases as a result of harsher presentence confinement conditions at the local jails

contracted with the U.S. Marshals, and especially at the ACJ. See Statement of

Reasons, United States v. Hurt, Case No. 17-cr-285 (Fischer, J.) (Nov. 6, 2020)

(granting variance, in part, because defendant “served time during COVID-19 with

protocols in place, making it more onerous and also restricted access to

programming”); Statement of Reasons, United States v. Stevens, Case No. 18-cr-32

(Fischer, J.) (Nov. 5, 2020) (same); Sentencing Hr’g, United States v. Reddix, Case No.

19-376 (Conti, J.) (Mar. 18, 2021) (granting variance, in part, because Allegheny

65 See Transcript at 12, Statement by Warden Harper at Allegheny County Jail

Oversight Board Meeting (Jan. 7, 2021), available at
https://alleghenycontroller.com/resource/jail-oversight/.
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County Jail has (“ACJ”) had “horrible conditions with the lock down” because of the

“the inability to see loved ones [and] inability to have more frequent phone calls with

family,” as well as the lack of programming); Sentencing Hr’g, United States v. Cox,

Case No. 18-cr-50 (Cercone, J.) (May 18, 2021) (granting variance, in part, based on

the “limitations on [defendant’s] liberty that prisoners normally have” in jail). See

also United States v. Sutton, 973 F Supp. 488, 493 (D.N.J. 1997), aff’d 156 F.3d 1226

(3d Cir. 1998) (“Unusual pretrial confinement … in either length or severity of

condition, can properly be considered by the sentencing court.”).

Some states are passing bills requiring that sentencing courts reduce the

amount of prison time for individuals who are in custody during the COVID-19

pandemic. New Jersey has passed a bill shortening prison sentences for individuals

serving time during the pandemic.66 Delaware has introduced similar legislation.67

Other district courts have recently cited the harsh prison conditions and lack

of programming opportunities due to the coronavirus as reasons to vary downward in

imposing sentence. See e.g., United States v. William White, 19-cr-325-RC (D.D.C.

Aug. 5, 2020) (referring to more punitive and less rehabilitative conditions at the jail

66 See “New Jersey Covid-19 Inmate Time Credits Bill Becomes Law, (March,

11, 2021) https://chamlinlaw.com/blog/new-jersey-covid-19-inmate-time-credits-bill-
becomes-law/.
67 Eichmann, Mark, “Delaware bill would cut jail time during health crisis,”

WHYY (March 16, 2021), https://whyy.org/articles/delaware-bill-would-cut-jail-time-
during-health-crisis/.
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due to COVID-19); United States v. Antonio Cox, 19-cr-235-JDB (D.D.C. July 29,

2020) (acknowledging lack of programming due to COVID-19).

Even before coronavirus, district and appellate courts recognize that conditions

of confinement that are harsher than would otherwise occur may justify a reduced

sentence. See, e.g., United States v. Ortiz, No. CRIM. 06-858(KSH), 2007 WL 4208802,

at *3 (D.N.J. Nov. 27, 2007) (granting downward variance due to pretrial conditions

of confinement); United States v. Pressley, 345 F.3d 1205 (11th Cir. 2003) (pretrial

conditions of confinement may justify a reduced sentence).

For similar reasons, a reduced sentence is justified here.

F. Mr. Bobga is a non-violent, first-time offender, and at low risk of
recidivism; the Sentencing Commission’s policy statements support a
sentence without further incarceration.

Indeed, research shows that a prison sentence can harm non-violent, low-risk

offenders like Mr. Bobga. Instead, recidivism is best reduced through treatment in

the community, as opposed to correctional intervention.68 Low-risk offenders like Mr.

Bobga have a higher likelihood of recidivism following placement in intense

correctional settings, where they are exposed to higher-risk offenders and placed in a

setting that “disrupt[s] the factors that make them low-risk.”69

68 Understanding the Risk Principle: How and Why Correctional Interventions

Can Harm Low-Risk Offenders, Topics in Community Corrections (2004), available
at http://caparc.org/uploads/3/5/2/7/35276822/high_low_risk_article.pdf.
69 Id. at 7.

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Title 18, United States Code 3553(a)(5) requires that this Court consider

applicable United States Sentencing Commission Policy Statements. In January

2009, the Commission issued a report entitled Alternative Sentencing in the Federal

Justice System (“Report”).70 Therein, the Commission emphasizes that the

Sentencing Reform Act of 1984, which provides the “foundation” for federal

sentencing policy, “requires that the federal sentencing guidelines ‘reflect the general

appropriateness of imposing a sentence other than imprisonment in cases in which

the defendant is a first offender who has not been convicted of a crime of violence or

an otherwise serious offense . . .”71 Further, in providing the background for the

Report, the Commission states:

Increasingly, criminal justice professionals have argued
that dwindling prison space should be reserved for the
most serious and dangerous offenders, necessitating a
reconsideration of alternative sanctions for first-time and
non-violent offenders. The appeal of alternatives to
incarceration has continued to increase in the wake of
reports of the ever-growing prison population. As of 2008,
more than one in every 100 adults are incarcerated in the
United States. That large, and still growing, population
cost the states more than $49 billion in 2007. In addition to
the monetary costs, social costs of imprisonment include
the separation of families, isolation from the community,
and transitional difficulties when offenders re-enter the
community.72

70 The “Report” is available at
http://www.ussc.gov/Research/Research_Projects/Alternatives/20090206_Alternativ
es.pdf.
71 Id. at 2 (emphasis added).
72 Report at 1-2.

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The Report concludes:

Effective alternative sanctions are important options for
federal, state, and local criminal justice systems. For the
appropriate offenders, alternatives to incarceration can
provide a substitute for costly incarceration. Ideally,
alternatives also provide those offenders opportunities by
diverting them from prison (or reducing time spent in
prison) and into programs providing the life skills and
treatment necessary to become law-abiding and productive
members of society.73

Mr. Bobga’s crime, although serious, is non-violent. He has no prior history

with the criminal justice system in any country. After his sentence is over, he will be

removed and unable to reenter the United States. With zero criminal history points

and no sign of re-offending, he cannot be counted among “the most serious and

dangerous offenders” for whom federal prison space should be allocated. We do not

need to pay to continue to incarcerate Mr. Bobga when he will not be back in the

United States, and where he has already served nearly two years’ imprisonment for

his offense.

G. A sentence without further prison time provides for sufficient
deterrence and adequately protects the public.

It is not the length of Mr. Bobga’s potential sentence, but rather, the certainty

of punishment that drives the deterrent effect of prison time.74 A study by the U.S.

Department of Justice concluded that “[s]ending an offender to prison isn’t a very

73 Id. at 20.
74 National Institute of Justice, Five Things About Deterrence (Sept. 2014),

available at https://ncjrs.gov/pdffiles1/nij/247350.pdf.
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effective way to deter crime . . . . Prisons actually may have the opposite effect.”75

This is why a lengthier sentence for Mr. Bobga cannot be justified on the basis of

deterrence. “[L]engthy prison sentences cannot be justified on a deterrence-based,

crime prevention basis.”76 The Brennan Center for Justice similarly concludes,

“Empirical studies have shown that longer sentences have minimal or no benefit on

whether offenders or potential offenders commit crimes.”77

Respect for the law is evident in Mr. Bobga’s conviction, and does not

necessitate a longer prison sentence. “Respect for the law is promoted by punishments

that are fair, however, not those that simply punish for punishment’s sake.” United

States v. Stern, 590 F. Supp. 2d 945, 956-57 (N.D. Ohio Dec. 19, 2008). “A sentence

that is disproportionately long in relation to the offense is unjust and . . . fails to

promote respect [for the law].” United States v. Ontiveros, 2008 U.S. Dist. LEXIS

58774, 2008 WL 2937539, at *3 (E.D. Wisc. July 24, 2008). “There is no reason to

believe that respect for the law will increase if a defendant who deserves leniency is

sentenced harshly any more than there is reason to believe that respect for the law

will increase if a defendant who deserves a harsh punishment receives a slap on the

wrist.” Stern, 590 F. Supp. 2d at 957.

75 Id.
76 Daniel S. Nagin, Deterrence in the Twenty-First Century, 42 Crime & Just.

199, 202 (2013).
77 Brennan Center for Justice, What Caused the Crime Decline? 26 (Feb. 2015),

https://www.brennancenter.org/publication/what-caused-crime-decline.
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CONCLUSION

For all of these reasons, along with the reasons in Mr. Bobga’s other filings,

and those that will be presented at the sentencing hearing, after taking into account

all of the § 3553(a) factors, a sentence of time served without no term of supervision

to follow is sufficient but not greater than necessary to fulfill the goals of sentencing.

Respectfully submitted,

/s/ Sarah Levin
Sarah Levin
Assistant Federal Public Defender

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