Case: 1:12-cr Document #: 133 Filed: 09/11/14 Page 1 of 10 PageID #:733

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1 Case: 1:12-cr Document #: 133 Filed: 09/11/14 Page 1 of 10 PageID #:733 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) vs. ) No. 12 CR ) DAVID TRESCH, ) The Honorable ) Edmond E. Chang, Defendant. ) Judge Presiding DAVID TRESCH S SENTENCING MEMORANDUM NOW COMES the defendant, DAVID TRESCH, by and through his attorney, JEFFREY B. STEINBACK, and files this sentencing memorandum as to sentencing issues. I. Background On January 10, 2013, a ten-count indictment was returned in the Northern District of Illinois. Counts One through Five of the indictment charged David Tresch and Nicholas Demars with defrauding Mayer Brown of the intangible right to honest services of its employee David Tresch through kickbacks, in violation of 18 U.S.C and Counts Six through Ten of the indictment charged David Tresch and Nicholas Demars with defrauding Mayer Brown by making materially false and fraudulent representations and the concealment of material facts, in violation of 18 U.S.C and (R. 37) The indictment also contained a forfeiture allegation. On April 22, 2013, David Tresch entered a plea of guilty to Count One of the indictment. (R. 69) According to the plea agreement, the base offense level is 8, with an 18-level increase due to the amount of the kickbacks involved, as well as a two-level increase for violating a position of trust. The plea agreement indicates that a two-level reduction is warranted for Mr. Tresch s acceptance of

2 Case: 1:12-cr Document #: 133 Filed: 09/11/14 Page 2 of 10 PageID #:734 responsibility, and an additional one-level reduction is warranted for the timeliness of his plea of guilty. According to the plea agreement, Mr. Tresch s Total Offense Level is 25 and he is in Criminal History Category I because he has zero criminal history points. (Plea Agreement, page 15) The presentence report ( PSR ) agrees with the calculations set forth in the plea agreement. (PSR 19-33) II. APPLICATION OF PRINCIPALS The primary directive in 3553(a), as emphasized by the Supreme Court in Rita v. United States, 551 U.S. 338, 127 S.Ct (2007), is for sentencing courts to impose a sentence sufficient, but not greater than necessary, to comply with the purposes of sentencing. Rita, 127 S.Ct. at These purposes include the need for the sentence imposed: (A) to reflect the seriousness of the offense, promote respect for the law, and 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 (D) to provide the defendant with needed education or vocational training, medical care, or other correctional treatment in the most effective manner. 18 U.S.C. 3553(a)(2). In addition to reflecting on the purposes of sentencing and the Guidelines recommendations, Section 3553(a) requires courts to consider, among other things: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the kinds of sentences available; (3) the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct; and (4) pertinent policy statements. 18 U.S.C. 3553(a). District courts now look to the Sentencing Guidelines only to guide a wholly discretionary decision that is exercised in reference to the sentencing factors set forth in 3553(a). See United States v. Demaree, 459 F.3d 791, 795 (7 th Cir. 2006) ( choice of sentence, whether inside or outside 2

3 Case: 1:12-cr Document #: 133 Filed: 09/11/14 Page 3 of 10 PageID #:735 the guideline range, is discretionary ); and United States v. Ngatia, 447 F.3d 496, (7 th Cir. 2007) (same). In other words, the Guidelines simply recommend a potential sentencing range, and a district court judge s freedom to impose a reasonable sentence outside the range is unfettered. Demaree, 459 F.3d at 795. The sentencing court must make an individualized assessment based upon the facts presented. A sentence below the advisory guideline range is appropriate as long as the reasons for selecting that sentence are rooted in 3553(a), sufficiently individualized to the circumstances of [the] case, and generally associated with sentencing leniency. United States v. Wachowiak, 496 F.3d 744, 745 (7 th Cir. 2007). The plea agreement and the PSR have calculated David Tresch s Total Offense Level to be 25. (PSR 28; Plea Agreement, page 15) The PSR indicates that Mr. Tresch has no prior criminal convictions and that his criminal history score is zero; placing him in Category I. (PSR 33) The plea agreement indicates that the defendant agreed to fully and truthfully cooperate with the government. (Plea Agreement, page 17) In addition, the plea agreement indicates that At the time of sentencing, the government shall make known to the sentencing judge the extent of defendant s cooperation. If the government determines that defendant has continued to provide full and truthful cooperation as required by [the Plea] Agreement, then the government shall move the Court, pursuant to Guideline 5K1.1, to depart downward from the low end of the applicable Guideline range, and shall recommend a sentence that includes a term of imprisonment in the custody of the Bureau of Prisons of 66 percent of the low end of the applicable Guideline range. (Plea Agreement, page 17) The plea agreement further indicates that the defendant shall be free to recommend any sentence. (Plea Agreement, page 17) 3

4 Case: 1:12-cr Document #: 133 Filed: 09/11/14 Page 4 of 10 PageID #:736 A. Application of Section 3553(a) Sentencing Factors Fully Justify a Sentence Significantly Below the Advisory Range The Sentencing Guidelines are now only a piece of the sentencing puzzle. See Kimbrough v. United States, 128 S.Ct. 558, 574 (2007)(discussing United States v. Booker, 543 U.S. 220, 245 (2005). In the wake of Booker, the sentencing court must impose a sentence in accordance with 18 U.S.C. 3553(a), and should no longer presume that a sentence calculated pursuant to the United States Sentencing Guidelines is appropriate. Gall v. United States, 552 U.S. 38 (2007). As the Supreme Court held in Gall, the sentencing court must make an individualized assessment when determining an appropriate sentence. Pursuant to 3553(a), courts must also consider a number of other factors, including the nature and circumstances of the offense and the history and characteristics of the defendant, the kinds of sentences available, and the Guidelines. These factors, considered against the backdrop of Gall and Kimbrough, make clear that the court should give individualized consideration to the person and the offense, rather than simply focusing on the offense alone and its generation of an uninformed range on a two-axis grid. We take this opportunity to amplify these factors, as they apply to David Tresch. 1. Nature and Circumstances of the Offense The nature and circumstances of the offense have been adequately set forth in the plea agreement and the government s sentencing memorandum. (R. 37, 84) We are confident that the government will not offer any thing further in aggravation. 2. History and Characteristics of David Tresch David Tresch was born on April 6, (PSR page 3) David had a sad and unfortunate childhood; a childhood he describes as fractured. (PSR 41) David s parents divorced when he 4

5 Case: 1:12-cr Document #: 133 Filed: 09/11/14 Page 5 of 10 PageID #:737 was a baby and his father, William, never claimed David. (PSR 39) As a youth, David s family often moved. (PSR 38) David s mother was married to Vic Oppie from 1965 to Mr. Oppie was an alcoholic who was cruel and abusive and fought with, and beat, his mother on a regular basis requiring police intervention. (PSR 41) Around 1974, David s mother married Earl Elliott and was the first time the family was stable in David s life. (PSR 42) Unfortunately, Mr. Elliott died of cancer in (PSR 42) On January 29, 1980, David enlisted in the United States Navy, reenlisted in 1984, and was honorably discharged on January 23, 1988, after serving eight years. (PSR 57) On November 18, 1982, David married Dawn Oswald and they have 10 children. (PSR 44) Dawn is a homemaker, as eight of their children live at home, including Elliot who is a disabled Marine and the rest of the children are students. (PSR 44) The probation officer interviewed Dawn Tresch on August 1, 2013, and Dawn described David as responsible, hardworking, a good dad and a devoted husband. (PSR 45) Mrs. Tresch added that David coached their children s sports teams after working all day, and volunteers with the Boy Scouts and Knights of Columbus, and at other community and church functions. (PSR 45) It is clear that David is the sole source of income and support for his wife and eight children. Many defendants ask Courts to take risks in trusting that they will behave in accordance with the dictates of the law if given probation. After nearly two years since his arrest and being on released without incident on pretrial supervision, and having cooperated fully with the government, David Tresch s track record speaks for itself. 3. Adequate Deterrence David has also done everything in his power to assist the government in righting this wrong. He has cooperated, providing substantial assistance to authorities. He has pled guilty, openly 5

6 Case: 1:12-cr Document #: 133 Filed: 09/11/14 Page 6 of 10 PageID #:738 acknowledging his part in this offense. A sentence of probation with a custody proponent constitutes a sentence which is sufficient, but not greater than necessary to comply with the various sentencing considerations. B. 18 U.S.C. 3553(b)(2)(A)(ii) Title 18, U.S.C. 3553(b)(2)(A)(ii) provides that a court, in sentencing a defendant convicted of an offense involving a child, has the discretion to impose a sentence below the advisory sentencing range if it finds the existence of a mitigating circumstance which as not been adequately taken into consideration by the Sentencing Commission and should result in a different. Sentencing Guideline 5K2.0(b) adopts Section 3553(b)(2)(A)(ii). We submit that the numerous circumstances discussed above have not been adequately taken into consideration by the Sentencing Commission and warrant a sentence below the advisory sentencing range in this unique case. In Gall, the Supreme Court affirmed the district court s sentence of 36 months probation, despite an advisory guideline range of 30 to 37 months, based, in part, on issues similar to the numerous issues present in this case. Gall, 128 S.Ct at 593. The district court concluded that a term of imprisonment was not necessary to deter the defendant from engaging in future criminal conduct or to protect the public from any future criminal acts by the defendant. Gall, 128 S.Ct. at 602. The Supreme Court rejected the Eighth Circuit s conclusion that a sentence of probation was inadequate and beyond the realm of available sentencing choices and emphasized the fact that a sentence of probation is in fact punishment and is not merely an act of leniency. Gall, 128 S.Ct. at The sentence David Tresch is requesting of the Court is a serious one, befitting the offense of conviction. As the Gall Court observed, a felony conviction and a sentence of probation, together with special conditions such as the obligation to make full restitution, constitutes a serious 6

7 Case: 1:12-cr Document #: 133 Filed: 09/11/14 Page 7 of 10 PageID #:739 punishment. While custodial sentences are qualitatively more severe than probationary sentences of equivalent terms, offenders sentenced to probation are nonetheless subject to conditions which restrict their liberty. See United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587 (2001) (inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled). For example, probationers may not leave the judicial district, move, or change jobs without notifying, and, in some instances, receiving permission from their probation officer or the court. Id. In addition, they must report regularly to their probation officers, permit unannounced visits to their homes, refrain from associating with any person convicted of a felony, and refrain from excessive drinking. See U.S.S.G. 5B1.3. Furthermore, most probationers are also subject to individual special conditions imposed by the court. Finally, a probationer always faces the possibility of harsh consequences if a condition of their probationary term is violated. See Advisory Council of Judges of National Council on Crime and Delinquency, Guides for Sentencing (1957) (probation is not merely letting an offender off easily). If this Court decides to impose a period of home confinement as a condition of probation, David Tresch will be confined to his home. He will not be allowed to travel to share holidays or family events, attend school events or even accompany them to the park or beach. He would not be allowed to leave his home to visit friends, see a movie, eat in a restaurant, sit in the park, shop at mall, or do any of the small acts that provide so much of the pleasure and enjoyment of life and which the rest of us take for granted. He will, for all practical purposes, be a prisoner in his home and not be able to leave except for work, or medical reasons, or other limitations established by this Court. In addition, as the Court is more aware of than most in society, a federal conviction is a stigma that blights a life forever and has serious and severe consequences on not just David, but also 7

8 Case: 1:12-cr Document #: 133 Filed: 09/11/14 Page 8 of 10 PageID #:740 his family. Such punishment provides a permanent reminder of David s wrong doing, and, for David, carries a high degree of guilt and shame. David Tresch is a 53-year-old man who is contrite, remorseful, and who has fully accepted responsibility for his conduct. David has cooperated with the government. Given David s remorse, his lack of any prior convictions, coupled with his cooperation in the instant offense, the passage of nearly two years since the offense occurred, and given his complete compliance with his pretrial release conditions, a sentence of probation with a custody proponent followed by five years of supervisory release with numerous conditions would adequately reflect the seriousness of the offense, promote respect for the law, and provide just punishment. In addition, given David Tresch s background as a solid citizen with no prior convictions, his volunteerism in the community, his daily regret and contrition over this case, there is no basis for believing that a lengthy sentence of incarceration is required to serve either general or specific deterrence objectives. David Tresch is a resilient man, husband and father who understands that his offense necessitates punishment, and that he, in fact, deserves the informal penalties he has received and endured during the past years while this case was pending. What we ask is that David and his family s future not be crushed. C. Additional 3533(a) Factors Additional Section 3553(a) factors will be addressed orally at the time of sentencing. CONCLUSION The current sentencing regime invests significant discretion with the Courts to consider all of the circumstances of an individual their history, their character, the totality of their circumstances in determining the appropriate sentence. In the unique circumstances of this case, a sentence of probation would fulfill the interests of justice and fulfill all the requirements set forth in 18 U.S.C and will, at the same time, be a just punishment. 8

9 Case: 1:12-cr Document #: 133 Filed: 09/11/14 Page 9 of 10 PageID #:741 For all of the reasons set forth above, the defendant, DAVID TRESCH, respectfully requests this Honorable Court to sentence him to probation, which is sufficient, but not greater than necessary to comply with the various sentencing considerations. Respectfully submitted, /s/ Jeffrey B. Steinback JEFFREY B. STEINBACK Law Offices of Jeffrey B. Steinback 53 W. Jackson Boulevard Suite 1420 Chicago, IL (847)

10 Case: 1:12-cr Document #: 133 Filed: 09/11/14 Page 10 of 10 PageID #:742 CERTIFICATE OF SERVICE I, JEFFREY B. STEINBACK, the attorney for Defendant David Tresch hereby certify that on this, the 11 th day of September, 2014, I filed the above-described documents on the CM/ECF system of the United States District Court for the Central District of Illinois, which constitutes service of the same. Jeffrey B. Steinback Law Offices of Jeffrey B. Steinback 53 W. Jackson Boulevard Suite 1420 Chicago, IL (847) /s/ Jeffrey B. Steinback Jeffrey B. Steinback 10