United States of America v. Jenson - Stephen Douglas Jenson
Criminal

SENTENCING MEMORANDUM by Stephen Douglas Jenson

Eastern District of Michigan, mied-2:2012-cr-20430-271128

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Case | | 2: 12 - cr - 20430 - AC - PJK ECF No. 17 filed 03 / 12 / 13 PagelD. 59 Page 1 of 21 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, Honorable: Avern Cohn Case No: 2: 12 - CR20430 - 01 D - 1 STEPHEN DOUGLAS JENSON Defendant. MATTHEW A. ROTH (P58549) Assistant United States Attorney Eastern District of Michigan 211 W. Fort Street, Ste. 201 Detroit, MI 48226 (313) 226 - 9186 Law Offices of Raymond A. Cassar, P. L. C. 30445 Northwester Highway, Suite 220, Farmington Hills, MI 48334 248. 855. 0911 RAYMOND A. CASSAR (P36875) AMANDA S. PALETZ (P64579) Attorney for Stephen Jenson 30445 Northwestern Highway, Suite 220 Farmington Hills, Michigan 48334 (248) 855 - 0911; Fax (248) 855 - 9523 DEFENDANT'S SENTENCING MEMORANDUM AND REQUEST FOR DOWNWARD VARIANCE Submitted By: RAYMOND A. CASSAR (P36875) Attorney for Defendant Stephen Jenson 1 | Page Case 2: 12 - cr - 20430 - AC - PJK ECF No. 17 filed 03 / 12 / 13 PagelD. 60 Page 2 of 21 REQUEST FOR DOWNWARD VARIANCE NOW COMES the Defendant, STEPHEN DOUGLAS JENSON, by and through his attorneys, Law Offices of Raymond A. Cassar, PLC by Raymond A. Cassar, and for his Sentencing Memorandum and in support of his Request for a Downward Variance states the following: 1. On September 13, 2012, the Defendant pleaded guilty to Count Two (2) of the Information, which charged the Defendant with a violation of 18U.S. C. S 2252A (a) (5) (B), Possession of Child Pornography, 2. Mr. Jenson's guilty plea was predicated on his possession of 97 images of child pornography and four (4) videos equaling 300 images under USSG $ 262. 2 (b) (7) 3. In exchange for the guilty plea to Count Two (2) and upon this Court's acceptance of the Rule 11 Plea Agreement, Count (1) of the Information, Receipt of Child Law Offices of Raymond A. Cassar, P. L. C. 30445 Northwestern Highway, Suite 220, Farmington Hills, MI 48334 248. 855. 0911 Pornography in violation of 18U.S. C. 2252A (a) (2) will be dismissed. 4. Included in the Agreement is a stipulation by the parties that the sentence of imprisonment in this case shall not be less than thirty - six (36) months and shall not exceed the top of the sentencing guideline. 5. The guideline range as calculated in the Agreement is seventy (70) to eighty - seven (87) months. 6. Since the case of United States v Booker, 125 S. Ct. 738 (2005), the case Sentencing Guidelines are no longer mandatory. Booker and the cases that followed now make the guidelines advisory, - - - - - - - - - - - - - - - - - - - 2 Page Case 2: 12 - cr - 20430 - AC - PJK ECF No. 17 filed 03 / 12 / 13 PageID. 61 Page 3 of 21 7. Mr. Jenson's guidelines are calculated pursuant to USSG $ 262. 2 - " an. eccentric Guideline of highly unusual provenance which, unless carefully applied, can generate unreasonable results. " United States v. Dorvee, 616 F. 3d 174 (2nd Cir. 2010) . 8. USSG $ 262. 2 is, " largely the product of congressional directives, some of which the Sentencing Commission actually opposed, rather than Commission study and expertise. " United States v. Diaz, 720 F. Supp. 2d 1039 (E. D. Wis. June 30, 2010) . A sentencing court need not defer to such a guideline. United States v. Kimbrough, 552 US 85, 109 - 110 (2007) . 9. The guideline range of 70 - 87 months is based on several enhancements to the base offense level. These enhancements apply to virtually all child pornography offenders and therefore fail to distinguish between those offenders that pose a serious risk to the public and those that do not. Further, the enhancements result in higher average Law Offices of Raymond A. Cassar, P. L. C. 30445 Northwestern Highway, Suite 220, Farmington Hills, MI 48334 248. 855. 0917 sentences for individuals convicted of possessing child pornography than for those that commit hands - on offenses against minors. 10. 18U.S. C. $ 3553 (a) requires the Court to consider a number of factors in determining the appropriate sentence and whether a variance from the guidelines is warranted. This statute further directs the Court to consider all of the sentences available rather than just those determined by the guidelines. 11. Mr. Jenson's prior criminal record consists of one (1) misdemeanor alcohol related driving offense and no prior convictions relevant to the instant offense. 12. Mr. Jenson provided timely information to the Government concerning his involvement in the instant case and accepted responsibility for his actions by entering a plea of Guilty to Count Two (2) of the Information. - - - - - - - . . . - - - - - - - - - - - - - - - - 3 Page Case 2: 12 - cr - 20430 - AC - PJK ECF No. 17 filed 03 / 12 / 13 PageID. 62 Page 4 of 21 13. Mr. Jenson has been evaluated by Mr. Matthew D. Rosenberg, LMSW, an expert who specializes exclusively in the area of sexual deviance. In Mr. Rosenberg's expert opinion, Mr. Jenson is a low risk to re - offend, presents no predatory risk to children and is easily treatable in the community 14. In addition to voluntarily undergoing a psychosexual evaluation, Mr. Jenson has been treating with Mr. Rosenberg since April, 2012 in an effort to address the behavior that resulted in his arrest and to devise an Individualized Treatment Plan. 15. At the time of his arrest in December, 2011, Mr. Jenson was a 4th year medical resident at the University of Michigan Hospital. Upon completion of his residency, Mr. Jenson hoped to practice in the areas of hematology and oncology because of his desire treat cancer patients of all ages. To that end, he spent approximately six (6) years working as a technologist and laboratory specialist where he diagnosed and studied Law Offices of Raymond A. Cassar, P. L. C. 30445 Northwestem Highway, Suite 220, Farmington Hills, MI 48334 248. 855. 0911 = the progression of various forms of lymphoma and leukemia. 16. Because he was completing his pediatric rotation at the time, Mr. Jenson was falsely portrayed as an individual who chose to become a medical doctor to gain access to minors. The insincerity of this narrative is laid bare by the absence of complaints from any minor Mr. Jenson treated as well as from the results of two (2) polygraph examinations confirming the absence of any prior hands on contact. WHEREFORE, and for the reasons more fully set forth in the Brief in Support, the Defendant, STEPHEN DOUGLAS JENSON, respectfully requests that this Honorable Court exercise its discretion and vary below the calculated guidelines in order to achieve a sentence that is sufficient but not greater than necessary; to wit, a term of incarceration not - - - - - - - - - - - 4 Page Case 2: 12 - cr - 20430 - AC - PJK ECF No. 17 filed 03 / 12 / 13 PagelD. 63 Page 5 of 21 greater than thirty - six (36) months followed by a term of supervised release. Respectfully Submitted, s / Raymond A. Cassar RAYMOND A. CASSAR (P36875) AMANDA S. PALETZ (P64579) Law Office of Raymond A. Cassar, PLC Attorneys for Defendant Jenson 30445 Northwestern Hwy. Ste. 220 Farmington Hills, MI 48334 (248) 855 - 0911; Fax (248) 855 - 9523 E - Mail: ray @ crimlawattorney. com Law Offices of Raymond A. Cassar, P. L. C. 30445 Northwestem Highway, Suite 220, Farmington Hills, MI 48334 248. 855. 0911 = 5 Page Case 2: 12 - cr - 20430 - AC - PJK ECF No. 17 filed 03 / 12 / 13 PagelD. 64 Page 6 of 21 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, Honorable: Avern Cohn Case No: 2: 12 - CR20430 - 01 D - 1 STEPHEN DOUGLAS JENSON Defendant. MATTHEW A. ROTH (P58549) Assistant United States Attorney Eastern District of Michigan 211 W. Fort Street, Ste. 201 Detroit, MI 48226 (313) 226 - 9186 Law Offices of Raymond A. Cassar, P. L. C. 30445 Northwestem Highway, Suite 220, Farmington Hills, MI 48334 248. 855. 0911 = RAYMOND A. CASSAR (P36875) AMANDA S. PALETZ (P64579) Attorney for Stephen Jenson 30445 Northwestern Highway, Suite 220 Farmington Hills, Michigan 48334 (248) 855 - 0911; Fax (248) 855 - 9523 SENTENCING MEMORANDUM AND BRIEF IN SUPPORT OF REQUEST FOR DOWNWARD VARIANCE The statutory authority for sentencing guideline departures is found at 18U.S. C. § 3553 (b) . The United States Sentencing Guidelines Manual also authorizes departures under $ 5K2. 0. Since the ruling handed down in the case of United States v Booker, 125 S. Ct. 738, 750 - 51, 756 (2005), the Sentencing Guidelines are advisory in nature. The lack of mandatory guideline sentences now allow the Court flexibility to sufficiently account 6 Page Case 2: 12 - cr - 20430 - AC - PJK ECF No. 17 filed 03 / 12 / 13 PageID. 65 Page 7 of 21 for the unique circumstances of each case. The United States Supreme Court expanded the courts ' authority to deviate from the sentencing guidelines in the case of Gall v United States, 128 S. Ct. 586 (2007): But the Guidelines are not mandatory, and thus the range of choice dictated by the facts of the case is significantly broadened. Moreover, the Guidelines are only one of the factors to consider when imposing sentence, and § 3553 (a) (3) directs the judge to consider sentences other than imprisonment. ' The Court in Gall relied heavily on 18U.S. C. § 3553, which directs courts as to what factors to consider in crafting a sentence. Section 3553 (a) lists seven factors that a sentencing court must consider. The first factor is a broad command to consider " the nature and circumstances of the offense and the history and characteristics of the defendant. » 2 The second factor requires the consideration of the general purposes of sentencing, including the need for the sentence imposed Law Offices of Raymond A. Cassar, P. L. C. 30445 Northwestem Highway. Suite 220, Farmington Hills, MI 48334 248. 855. 0911 (a) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (b) to afford adequate deterrence to criminal conduct; (c) to protect the public from further crimes of the defendant; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. " The third factor pertains to " the kinds of sentences available, " $ 3553 (a) (3); the fourth to the Sentencing Guidelines; the fifth to any relevant policy statement issued by the Sentencing Commission; the sixth to " the need to avoid unwarranted sentence disparities, " $ 3553 (a) (6); and the seventh to " the need to provide restitution to any victim, " $ 3553 (a) (7) . Preceding this list is a general directive to impose a sentence sufficient, but 11d at 602. ? 18U.S. C. $ 3553 (a) (1) . - - - - - - - . - . - - - - - - - - - - - - - - - - - - - - 7 | Page Case 2: 12 - cr - 20430 - AC - PJK ECF No. 17 filed 03 / 12 / 13 PageID. 66 Page 8 of 21 not greater than necessary, to comply with the purposes " of sentencing described in the second factor. ARGUMENT - - - - - THE ENHANCEMENTS SET FORTH IN USSG $ 262. 2 SIGNIFICANTLY ELEVATE THE DEFENDANT'S GUIDELINES BASED ON CONDUCT INHERENT IN VIRTUALLY EVERY CHILD PORNOGRAPHY CASE AND ARE THEREFORE FUNDAMENTALLY INCONSISTENT WITH THE SENTENCING GOALS OF 3553. In determining the appropriate sentence, the district court may not presume that the guideline sentence is the correct one. Nelson v. United States, 129 S. Ct. 890, 892 (2009) . Rather, the sentencing court must make an independent determination regarding the appropriate sentence that is sufficient but not greater than necessary to comply with the purposes set forth in $ 3553 (a) (2): just punishment, deterrence, protection of the public and rehabilitation of the defendant. United States v. Diaz, 720 F. Supp. 2d 1039 (E. D. Wis. Law Offices of Raymond A. Cassar, P. L. C. 30445 Northwestern Highway, Suite 220, Farmington Hills, MI 48334 248. 855. 0911 June 30, 2010) . The district court is also free to free to reject any guideline on policy grounds. The guidelines recommend that Mr. Jenson serve 5. 8 to 7. 25 years in prison. The high