UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA Plaintiffs CRIMINAL DOCKET CR-09-351 BRIAN DUNN V. HON. RICHARD P. CONABOY Defendant SENTENCING MEMORANDUM ON BEHALF OF BRIAN DUNN Through counsel, Brian Dunn files the following Sentencing Memorandum setting forth all factors that the Court should consider in determining what type and length of sentence is sufficient, but not greater than necessary, to comply with the statutory directives set forth in 18 U.S.C. 3553(a). Brian Dunn, upon contact from and meeting with the Federal Bureau of Investigation on March 25, 2009, immediately took responsibility for his conduct, and immediately indicated his desire to dispose of this matter in as early and as expeditious a fashion possible. Mr. Dunn immediately agreed to cooperate in the investigation of his own conduct. His behavior, serious in nature, is likewise aberrant from an otherwise respected figure in the community. It is with great remorse for his conduct, and with great respect, that Brian Dunn submits this sentencing memorandum. Initially, this sentencing memorandum will address the underlying law this Court may consider in fashioning a sentence. Thereafter, this memorandum will discuss the specific factors

and characteristics concerning Brian Dunn and this case that, it is respectfully submitted, this Court may consider. Sentencing under Booker On January 12, 2005, the Supreme Court ruled that its Sixth Amendment holding in Blakely v. Washington, 124 S. Ct. 2531 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000) applies to the Federal Sentencing Guidelines. United States v. Booker, 125 S. Ct. 738, 756 (2005). Given the mandatory nature of the Sentencing Guidelines, the Court found no relevant distinction between the sentence imposed pursuant to the Washington statutes in Blakely and the sentences imposed pursuant to the Federal Sentencing Guidelines@ in the cases before the Court. Id. at 751. Accordingly, reaffirming its holding in Apprendi, the Court concluded that Id. at 756. [a]y fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt. Based on this conclusion, the Court further found those provisions of the federal Sentencing Reform Act of 1984 that make the Guidelines mandatory, 18 U.S.C. 3553(b)(1) or which rely upon the Guidelines mandatory nature, 18 U.S.C. 3742(e), incompatible with its Sixth Amendment holding. Booker, 125 S. Ct. at 756. Accordingly, the Court severed and excised those provisions, making the Guidelines effectively advisory. Id. at 757. Instead of being bound by the Sentencing Guidelines, the Sentencing Reform Act, as revised by Booker, requires a sentencing court to consider Guidelines ranges, see 18 U.S.C.A. 3553(a)(4) (Supp.2004), but it permits the court to tailor the sentence in light of other statutory concerns as well, see 3 553(a). 2

Booker, 125 S. Ct. at 757. Thus, under Booker, sentencing courts must treat the guidelines as just one of a number of sentencing factors set forth in 18 U.S.C. 3553(a). The primary directive in Section 3553(a) is for sentencing courts to impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph 2. Section 3553(a)(2) states that such purposes are: (A) (B) (C) (D) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to afford adequate deterrence to criminal conduct; 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. In determining the minimally sufficient sentence, 3553(a) further directs sentencing courts to consider the following factors: 1) the nature and circumstances of the offense and the history and characteristics of the defendant ( 3553(a)(1); 2) the kinds of sentences available ( 3553(a)(3); 3) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct ( 3553(a)(6); and 4) the need to provide restitution to any victims of the offense. ( 3553(a)(7). Other statutory sections also give this Court direction in sentencing. Under 18 U.S.C. 3582, imposition of a term of imprisonment is subject to the following limitation: in determining whether and to what extent imprisonment is appropriate based on the Section 3553(a) factors, the judge is required to recognize that imprisonment is not an appropriate means of promoting correction and rehabilitation (emphasis added). Under 18 U.S.C. 3661, no limitation shall be placed on the information concerning the background, character, and conduct of the defendant which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence (emphasis added). This statutory language certainly overrides the (now-advisory) policy statements in Part H of the 3975 149-1 3

sentencing guidelines, which list as not ordinarily relevant to sentencing a variety of factors such as the defendant s age, educational and vocational skills, mental and emotional conditions, drug or alcohol dependence, and lack of guidance as a youth. See U.S.S.G. 5H1. The directives of Booker and 3553(a) make clear that courts may no longer uncritically apply the guidelines. Such an approach would be inconsistent with the holdings of the merits majority in Booker, rejecting mandatory guideline sentences based on judicial fact-finding, and the remedial majority in Booker, directing courts to consider all of the 3353(a) factors, many of which the guidelines either reject or ignore. Justice Scalia explains the point well in his dissent from Booker s remedial holding: Thus, logic compels the conclusion that the sentencing judge, after considering the recited factors (including the guidelines), has full discretion, as full as what he possessed before the Act was passed, to sentence anywhere within the statutory range. If the majority thought otherwise, if it thought the Guidelines not only had to be "considered" (as the amputated statute requires) but had generally to be followed its opinion would surely say so. Booker, 125 S. Ct. at 791 (Scalia, J., dissenting in part). Likewise, if the remedial majority thought the guidelines had to be given heavy weight, its opinion would have said so. The remedial majority clearly understood that giving any special weight to the guideline range relative to the other Section 3553(a) factors would violate the Sixth Amendment. In sum, in every case, a sentencing court must now consider all of the 3553(a) factors, not just the guidelines, in determining a sentence that is sufficient but not greater than necessary to meet the goals of sentencing. And where the guidelines conflict with other sentencing factors set forth in 3553(a), these statutory sentencing factors should generally trump the guidelines. See United States v. Denardi, 892 F.2d 269, 276-77 (3d Cir. 1989) (Becker, J, concurring in part, dissenting in part) (arguing that since 3 5 5 3 (a) requires sentence be no greater than necessary to 4

meet four purposes of sentencing, imposition of sentence greater than necessary to meet those purposes violates statute and is reversible, even if within guideline range). Additionally, Bran Dunn urges this Court to consider other departures within the sentencing guidelines, including the consideration of a departure for the early disposition of this case and a consideration of the aberrant nature of his behavior, as well as any other factors pursuant to 5K2.0. The "Early Disposition" of this matter subject to USSG 5K3.1 Brian Dunn was contacted by Special Agents of the Federal Bureau of Investigation on March 25, 2009. Immediately following that contact and meeting with the agents, Dunn, through his family, contacted the undersigned. On March 26, 2009, the undersigned met with Brian Dunn. On March 27, 2009, the undersigned telephoned Assistant United States Attorney William Howser to discuss Brian Dunn coming to Scranton to meet with the AUSA and FBI agents. On March 30, 2009 Mr. Dunn and the undersigned met with AUSA Howser and the FBI. Mr. Dunn immediately agreed to cooperate in the investigation of his wrong doing. At the time of the March 30, 2009 meeting with the AUSA and FBI, the AUSA made clear the then-current scope of the investigation, and that the government was looking into potential gratuities received by Mr. Dunn in connection with teaching jobs in the Wilkes Bane Area School District. Mr. Dunn immediately acknowledged his role in the securing of two teaching positions, and the receipt of money for assistance in securing those jobs. During the course of this meeting, further discussions were held concerning a plea to a one count Information. Ultimately, that Information was filed on filed on October 26, 2009. 5

There can be no doubt, however, that from the initial meeting on March 30, 2009 it was Mr. Dunn s intention to acknowledge responsibility for his conduct, accept the criminal information, and plead guilty. Such conduct is the essence of early disposition. 1 It is respectfully requested that this Court acknowledge Mr. Dunn s early disposition of this matter, beyond that which is recognized in 3E1.1(a) and (b), and fashion a further departure beyond the three levels for acceptance of responsibility that have been agreed to both by Mr. Dunn, the government, and the U.S. Probation Office in the Pre Sentence Investigation report. 5K2.20 - Aberrant Behavior and other 5K2.0 factors Brian Dunn acknowledges that there is no excuse for his actions. The acceptance of gratuities while a member of the school board of the Wilkes Barre Area School District in return for teaching positions represents an abuse of the trust of the citizens of Luzerne County and the Commonwealth of Pennsylvania. His actions also reflect the reach of a corrupt local government scheme; one that has clearly impacted the citizens of Luzerne County, and, with the ongoing government investigation and prosecution, one that hopefully will now terminate. The culture that existed, and may still exist today in Luzerne County, is not one which may, or should be, countenanced. Brian Dunn is a life long resident of Luzerne County, specifically in Wilkes Barre. He graduated from Coughlin High School in 1981. He had steady employment with the Commonwealth of Pennsylvania Department of Revenue for nearly 20 years. Prior to his job with the Department of Revenue, Mr. Dunn was employed for five years by the Commonwealth 1 It is fully understood by Mr. Dunn and the undersigned that the United States District Court for the Middle District of Pennsylvania does not have an "early disposition program" as described in section 5K3,1 of the sentencing guidelines. It is also fully understood that several of the Circuit Courts of Appeal have ruled that the lack of an early disposition program does not violate the Equal Protection Clause for those defendants within those districts that do not have such a program. Whether the Third Circuit Court of Appeals would follow the other circuits, or would rule differently, is not of consequence here at the moment. The issue raised here is that were an early disposition program available, Brian Dunn would clearly be an eligible participant. 3975 149-1 6

of Pennsylvania Department of Corrections as a mail inspector. His stable work history is evidence of his commitment to himself, his family, and his community. As a result of his plea agreement in this matter, he resigned from his position with the Commonwealth Department of Revenue. Throughout his 46 years, Mr. Dunn has run afoul of the law one time, that for driving under the influence in 2005. The Pre Sentence Investigation report, at paragraph 46, references Mr. Dunn s extensive alcohol abuse. His alcohol consumption was significant, and lead to serious issues at home. Ultimately, his marriage ended in divorce. Following the notification by the FBI in late March 2009 of his pending arrest, Mr. Dunn, with the support and encouragement of his family, his friends, and the government attorneys, agents and pre-trial services personnel, has successfully completed an alcohol rehabilitation program. As essentially a "hanger-on" with the likes of political movers and shakers, judges and lawyers in Luzerne County, Brian Dunn found himself in a position of power with the Wilkes Barre Area School Board. It has become clear that the "pay to play" culture had existed well before Brian Dunn was elected to the Wilkes Barre Area School District, in both the school district itself and within Luzerne County. The essence of the government s case against Mr. Dunn and others in Luzerne County is that gratuities were the way business was done. To become a part of the problem rather than the solution is not correct. However, Brian Dunn is remorseful for his conduct, and is fully aware of the damage he has done to his family and his community. He is a person with an otherwise an otherwise law abiding life, with support from family and friends. The behavior evidenced by Brian Dunn in accepting gratuities is wrong, is not excusable, but is indeed aberrant. It is respectfully submitted that this Court has the 7

authority to recognize Mr. Dunn s otherwise positive contributions to his family, his employers, and his community and fashion a further departure. Application of the Statutory Sentencing Factors to the Facts of this Case In the present case, the following factors must be considered when determining what type and length of sentence is sufficient, but not greater than necessary, to satisfy the purposes of sentencing: 1. The Nature and Circumstances of the Offense and the History and Characteristics of the Offender (a) Nature and Circumstances of Offense This matter involves a violation of 18 U.S.C. 666. In the criminal complaint, the Government alleged, and Mr. Dunn immediately agreed, that, as a member of the Wilkes Bane Area School District school board, he had received gratuities in return for securing certain teaching positions in the school district. (b) History and Characteristics of Mr. Dunn The Pre Sentence Investigation report prepared by the United States Probation Office details Mr. Dunn s history and background. There is no objection to the contents of that report as it relates to Mr. Dunn s background and character. Additionally, as described above, Mr. Dunn took immediate responsibility for his actions and took immediate steps to dispose of this matter in a timely, early and expeditious fashion.

2. The Need for the Sentence Imposed To Promote Certain Statutory Objectives: (A) to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense This Court has broad discretion to impose a sentence to reflect the above objectives. In so doing, should likewise consider the government s Motion for Downward Departure for substantial assistance. (B) to afford adequate deterrence to criminal conduct Mr. Dunn is fully remorseful for his conduct. The instant offense violates the public trust in elected officials. Mr. Dunn is fully cognizant of that violation of trust, and is regretful for his actions. (C) to protect the publicfrom further crimes of the defendant Mr. Dunn is not a danger to commit future crimes. (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner Mr. Dunn was successfully and consistently employed for nearly 30 years before the instant offense. He is fully physically able to maintain gainful employment. He will obtain full time employment upon his release from any custodial sentence. He has completed an alcohol rehabilitation and treatment program for his alcohol dependency. 3. The Kinds of Sentences Available In Booker, the Supreme Court severed and excised 18 U.S.C. 3553(b), the portion of the federal sentencing statute that made it mandatory for courts to sentence within a particular sentencing guidelines range. Booker, 125 S. Ct. at 756. This renders the sentencing guidelines advisory. Id. 9

Mr. Dunn is eligible to receive a sentence that may include a period of imprisonment followed by supervised release; home confinement; probation; a fine and special assessment. There are no mandatory minimum sentences applicable. 4. The Sentencing Range Established by the Sentencing Commission The appropriate guideline range is reflected in the Pre Sentence Report prepared by the United States Probation Office. The government has filed a Motion for Downward Departure. 5. The Need To Avoid Unwarranted Disparities Multiple defendants have pled guilty and have been sentenced as a result of their participation in the course of conduct investigated by the government in this matter. The sentences have ranged from probation to a custodial sentence of 13 months. 6. The need to provide restitution to any victims of the offense At paragraph 17 of the Pre Sentence Investigation report, the U.S. Probation Office states there is no identifiable victim of the offense. At paragraph 70, the Pre Sentence report states that restitution is not an issue in this matter. 10

Conclusion For the foregoing reasons, Brian Dunn respectfully submits that a sentence of home confinement and supervised release is sufficient, but not greater than necessary, to comply with the statutory directives set forth in 18 U.S.C. 3553(a). Respectfully submitted, RAWLE & HENDERSON LLP Date: September 24, 2010 s/scott F. Griffith, Esquire Scott F. Griffith, Esquire Attorney for Defendant, Brian Dunn The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 575-4324 11