IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION UNITED STATES OF AMERICA, : Plaintiff, : CASE NO. 2:15-CR-280 v. : JUDGE MARBLEY MATTHEW L. DAILEY, : Defendant. : SENTENCING MEMORANDUM OF DEFENDANT Defendant Matthew Dailey, through undersigned counsel, respectfully submits the Respectfully submitted, /s/ Samuel H. Shamansky SAMUEL H. SHAMANSKY CO., L.P.A Samuel H. Shamansky (0030772) Julie G. Keys (0092537) 523 South Third Street Columbus, Ohio 43215 T: (614) 242-3939 F: (614) 242-3999 shamanskyco@gmail.com Counsel for Defendant
MEMORANDUM With the exception of objections already raised, Defendant submits that Probation Officer Melinda Bettac has provided a thorough and accurate rendition of the factual and procedural background of the case and takes no issue with the same. De of a three-level downward adjustment for acceptance of responsibility pursuant to 3E1.1. Despite these downward adjustments, Defendant disagrees with the severity of the recommended sentence and urges the Court to consider the following in determining a reasonable sentence. REASONS IN SUPPORT OF TWELVE MONTHS AND ONE DAY Defendant respectfully submits that a 108-month term of imprisonment is not necessary to satisfy the purposes of sentencing as set forth in 18 U.S.C. 3553(a). A sentence of twelve months and one day of imprisonment would be consistent with the 3553 factors and, in consideration of the now-advisory Sentencing Guidelines, would be reasonable based on the particular facts and circumstances of this case. The United States Sentencing Guidelines after Booker v. United States and Gall v. United States: Application of 18 U.S.C. 3553 On January 21, 2005, the United States Supreme Court dramatically changed the landscape of federal sentencing in United States v. Booker, 543 U.S. 220 (2005). By separate 5-4 majorities, the Court held (1) that the Sixth Amendment as construed in Blakely v. Washington, 542 U.S 296 (2004), applies to the federal sentencing guidelines and (2) that, in order to avoid Sixth Amendment concerns raised by the guidelines, it is necessary to invalidate two provisions of the Sentencing Reform Act of 1984 that make the guidelines mandatory in federal court sentencing. Sentencing courts were instructed to consider the guidelines as advisory and appellate courts were 2
3553(a). Thus, the Court established a system whereby a sentence within the otherwise applicable guidel provisions established in 3553. More recently, in Gall v. United States, 128 S.Ct. 586 (2007), the Supreme Court confirmed that District Courts should receive substantial deference in the imposition of a sentence, even if it is outside the guideline range, so long as that sentence is reasonable under 3553. four purposes: (1) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, (2) to afford adequate deterrence to criminal conduct, (3) to protect the public from further crimes of the defendant, and (4) to provide the defendant with needed education or vocational training, medical care, or other correctional treatment in an effective manner. See 18 U.S.C. 3553(a)(2). In addition, 3553 requires a sentencing court to ty among defendants with similar records See 18 U.S.C. 3553(a)(6). Moreover, 3553 See 18 U.S.C. 3553(a). In the case sub judice and pursuant to the foregoing analysis under Booker and 3553, three considerations may warrant imposition of a prison term less than the guideline rsonal characteristics, 3553(a)(1), (2) the need for the sentence imposed to reflect the seriousness of the crime and to provide just punishment for the offense, 3553(a)(2)(A), and (3) the need for the sentence imposed to afford adequate deterrence and protect the public from future crimes committed by the defendant, 3553(a)(2)(B) and (C). 3
History and Personal Characteristics - 3553(a)(1) Family History and Responsibilities Matthew Dailey is a forty-five-year-old Mount Vernon native, and the father of two minor children. He has been married for close to twenty years to Kellie Dailey, a registered nurse. Both Defendant and his wife have worked tirelessly to support their minor children. By all accounts, Defendant is a devoted husband and father who always puts the needs of his family first and foremost. In addition to working 70+ hours per week as a high-ranking law enforcement official in the Mount Vernon Police Department, Mr. Dailey managed to find the time to coach both of his s sports teams for the past nine years. eagerly await his return. Employment History and Professional Accomplishments Mr. Dailey honorably served his country by enlisting in the Army and is a proud Desert Storm Combat Veteran. In October of 2015, Mr. Dailey resigned after nearly eighteen years of serving the community as a detective sergeant with the Mount Vernon Police Department. As lead detective in the department, Mr. Dailey oversaw all criminal investigations and provided testimony in countless criminal cases. Moreover, after unilaterally establishing the SWAT Team in 2005, Mr. Dailey acted as the SWAT Commander at Mount Vernon Police Department. Throughout his long career, Mr. Dailey received numerous professional accolades for his honorable service to the City of Mount Vernon. In 1997, after his first full year at Mount Vernon Police Department, Mr. Dailey received the Officer of the Year Award. In 2013, the Mount Vernon Fire Department presented Mr. Dailey with the Firefighter Cross for his work investigating a fatal arson. Perhaps most reflective of his consummate service to the community is the endless, personal volunteer work he has provided to the Salvation Army, Food For The Hungry, and Hunters For 4
The Hungry over the years. Five years ago, Mr. Dailey received recognition for his substantial donation of food to Mou s homeless community. There can be no argument that Mr. Dailey was an outstanding law enforcement professional who was totally devoted to serving the needs of the residents of Knox County. Addiction, Desperation, and Recovery uncharacteristic conduct in the instant case is rooted solely in addiction and desperation. While apprehending a suspect, Mr. Dailey sustained a serious injury to shoulder, requiring numerous surgeries. Regrettably, Mr. Dailey became addicted to opiates, an addiction from which consumed his life in ways unimaginable, and which directly caused the behavior underlying this offense. As this Court has witnessed over its many years on the bench, Mr. Dailey opiates strangled his judgment and robbed him of the clearness of intellect necessary to avoid the desperate and deplorable actions he undertook in an effort to satisfy his opiate cravings. Regrettably, Mr. Dailey was likely too proud to seek professional help and continued to spiral downward. Even though the Government continued to beat its righteous drum, deploring the act of a motive? Zero. Trafficking in narcotics? Yes, but only for the purpose of feeding his own addiction. An excuse? No. Merely an explanation. Opiate addiction knows no boundaries and mercilessly claims victims from all walks of life. By way of example, attached Cheryl Karcher. The New York Times piece poignantly highlights just how easy it is to slip into addiction, and how utterly difficult it is to curb cravings, to maintain a career while dependent on opiates, and to face the harsh personal, professional, and criminal consequences of drug addiction. 5
Mr. Dailey is a man who but for his addiction would have never behaved unlawfully. While he recognizes that returning drugs to the street was especially heinous given his career in law enforcement, Mr. Dailey was not motivated by greed, profit, or ill will; rather, he was controlled by his overpowering disease. His body and mind were so ravaged by his disease that he was unable to function with an eye towards law rooted in desperation. Upon arrest, Mr. Dailey was finally forced to address his addiction. During his initial weeks in jail, Mr. Dailey suffered emotionally, psychologically, and physically as he withdrew from opiates. Mr. Dailey was treated with powerful anti-psychotic drugs, which were necessary in order to stabilize his mood and delusions. Now, with the clarity of sobriety, Mr. Dailey is able to recognize and fully appreciate the severity of his addiction, the atrociousness of his conduct, and the lasting effects his behavior will have on his family, his career, and the community at large. Mr. Dailey has accepted full responsibility for his conduct, as demonstrated by his plea of guilty. He has fully cooperated with government officials and provided all information requested. In short, Mr. Dailey understands the severity of his conduct, blames only himself, and is genuinely remorseful. Need for the Sentence to Reflect the Seriousness of the Crime, Promote Respect for the Law, and to Provide Just Punishment - 3553(a)(2)(A) Mr. Dailey recognizes that extortion under color of official right is a serious offense and acknowledges that the Sentencing Guidelines recommend a prison sentence given the general circumstances. However, without minimizing his conduct or its impact, Mr. Dailey respectfully submits that a 108-month prison sentence is not necessary to provide just punishment, reflect the seriousness of his crime, or promote respect for the law. In making this assertion, Mr. Dailey understands that the Sentencing Guidelines suggest a 6
range of 108 to 135 months incarceration, a fine of $15,000 to $150,000, a term of supervised release of one to three years, and restitution in the amount of $8,000. -violent in nature and motivated solely by the disease of drug addiction, for which he would greatly benefit from treatment. He has accepted full responsibility for his criminal actions and demonstrated genuine remorse not only for the conduct itself, but for the harm he caused to both the public and his family. Mr. Dailey has a criminal history score of zero. Defendant has made no attempt to avoid punishment and cooperated fully in his prosecution. Mr. Dailey respectfully urges the Court consider the foregoing factors, as well as any additional mitigation presented at sentencing, in determining what sentence will reasonably reflect the seriousness of his offense, provide just punishment, and promote respect for the law. Need for a Sentence Imposed to Deter Matthew Dailey and Protect the Public from Further Crimes - 3553(a)(2)(B) & (C) A 108-month prison term is not required to deter Mr. Dailey from future criminal conduct or to protect the public. As discussed above, Mr. Dailey has no criminal history and is deeply remorseful for his uncharacteristic conduct. Thus, a 108-month prison term is not necessary to deter Mr. Dailey from this conduct in the future, or to protect the public from further crimes. A prison term of twelve months and one day and payment of restitution will assuredly deter both Mr. Dailey and others from participating in conduct of this nature in the future. A twelvemonth-and-one-day prison sentence will also allow Defendant to seek needed rehabilitation treatment in a more effective manner. The sooner Mr. Dailey enters an appropriate treatment center, the sooner and more effectively he will be able to battle his addiction while making longterm changes to ensure a stable recovery. Imposing a lengthier term of incarceration will provide no further disincentive than already created. Certainly, there remains a need to punish Defendant. 7
However, he respectfully submits that this need is adequately fulfilled by a sentence of twelve months and one day and restitution. CONCLUSION Based on the foregoing, Defendant respectfully submits that the Court impose a sentence of 12 months and one day imprisonment and the payment of $8,000.00 restitution. This sentence will provide just and reasonable punishment as contemplated by the United States Code and Sentencing Guidelines. Accordingly, Defendant respectfully urges the Court to consider imposing a 12-month-and-one-day period of incarceration and restitution in the amount of $8,000.00 in the above-captioned case. Respectfully submitted, /s/ Samuel H. Shamansky SAMUEL H. SHAMANSKY CO., L.P.A Samuel H. Shamansky (0030772) Julie G. Keys (0092537) 523 South Third Street Columbus, Ohio 43215 T: (614) 242-3939 F: (614) 242-3999 shamanskyco@gmail.com Counsel for Defendant 8
CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was filed with the Clerk of Court for the United States District Court for the Southern District of Ohio using the CM/ECF system, which will send notification of the filing to Assistant U.S. Attorney, Jessica H. Kim, 303 Marconi Boulevard, Suite 200, Columbus, Ohio 43215 on August 31, 2016. /s/ Samuel H. Shamansky SAMUEL H. SHAMANSKY 9