UNITED STATES OF AMERICA,  Plaintiff, )

-vs- ) CASE NO. CR-08-272-C

PAUL L. SMITH,  Defendant. )

COMES NOW, the Defendant Paul L. Smith, through counsel and submits the following

Objections to the Revised Presentence Investigation Report and Sentencing Memorandum in

support of his request for a variance in his sentence based on 18 U.S.C. § 3553(a), factors to be

considered in imposing a sentence. In furtherance thereof the Defendant would show this

Honorable Court as follows, to-wit:

By letter dated January 6, 2010, the Defendant submitted to the United States Probation

Office written objections to the Presentence Investigation Report dated December 23, 2009.

Thereafter, a revised report was prepared and portions of the original report were modified

thereby mooting certain objections as submitted by the Defendant and Government. This

document encompasses the objections that were not previously mooted by the revised report.

Objection 1: Mr. Smith objects to paragraphs 24 and 26 in the Revised Presentence

Investigation Report as double counting. Paragraph 24 relates to an adjustment for sophisticated

means and paragraph 26 relates to an adjustment for abuse of a position of trust. A total of four

level adjustment is made based on these two almost identical enhancements. In essence Mr.

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Smith is accused of creating a false company and causing funds to be funneled through that

company (sophisticated means), which is something that was possible only because he was the

executive director of Marie Detty (Abuse of a Position of Trust

It should be noted that use of a special skill is very similar to sophisticated means.

Sophisticated means is defined in §2B1.1, Application Note (8) (B) as “especially complex or

especially intricate offense conduct pertaining to the execution or concealment of an offense.”

Use of a special skill in §3B1.3, relates to the use of skill “in a manner that significantly

facilitated the commission or concealment of the offense.” Both Specific Offense

Characteristics are defined in Application Notes as facilitating the commission and/or

concealment of the offense.

Additionally, §3B1.3, specifically provides that the adjustment of abuse of a position of

trust or use of a special skill may not be applied if the position or skill was included in the base

offense or the specific offense characteristic. “This adjustment may not be employed if an

abuse of trust or skill is included in the base offense level or specific offense characteristic.”

Under §2B1.1(b)(9)(C) that is a specific offense characteristic which as described above is

virtually identical to a “special skill.” The use of both the enhancement for sophisticated means

and special skill in this particular case amounts to double counting.

Impermissible double counting or impermissible cumulative sentencing occurs

when the same conduct on the part of the defendant is used to support separate

increases under separate enhancement provisions which necessarily overlap, are

indistinct, and serve identical purposes. United States v. Rice, 52 F.3d 843, at

Based on impermissible double counting, Mr. Smith’s total offense level should be

reduced to level 18 and his guideline sentencing range should be from (27 - 33) months.

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Applying the guidance of Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169

L.Ed.2d 445 (2007) the guidelines are not the only consideration relating to the imposition of a

sentence.

As we explained in Rita, a district court should begin all sentencing

proceedings by correctly calculating the applicable Guidelines range. See 551 U.

S., at . As a matter of administration and to secure nationwide consistency, the

Guidelines should be the starting point and the initial benchmark. The Guidelines

are not the only consideration, however. Accordingly, after giving both parties an

opportunity to argue for whatever sentence they deem appropriate, the district

judge should then consider all of the §3553(a) factors to determine whether they

support the sentence requested by a party.

Gall v. United States, 128 S.Ct. at 596-597.

As outlined in §3553(a) the Court should consider the following factors when

determining the appropriate sentence for an individual defendant:

1. The nature and circumstance of the offense and the history and characteristics of the

defendant. This is a non-violent offense by an individual who has no prior contact with the

criminal justice system. Attached to this Sentencing Memorandum are character letters from

prior employers and co-workers outlining Mr. Smith’s professionalism, trustworthiness,

dedication and mentor type qualities.

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 for the offense;

(B) To afford adequate deterrence to criminal conduct; Defendant Smith is fiftyone

(51) years old and has no prior criminal history.

(C) To protect the public from further crimes of the defendant; Defendant Smith

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is fifty-one (51) years old and has no prior criminal history.

(D) To provide the defendant with needed educational or vocational training,

medical care, or other correctional treatment in the most effective manner;

Defendant Smith is not in need of educational or vocational training or medical

care.

3. The kinds of sentence available:

4. The kinds of sentence and the sentencing range established for the type of offense

committed when considering the advisory guidelines;

5. The consideration of any pertinent policy statements;

6. The need to avoid unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct;

7. The need to provide restitution to any victims of the offense.

In exercising its sentencing discretion the Court is to impose a sentence sufficient, but not

greater than necessary, to comply with the purposes set forth in paragraph 2 of 18 U.S.C.

§3553(a).

As noted in Gall, 128 S.Ct. at 598, “[i]t has been uniform and constant in the federal

judicial tradition for the sentencing judge to consider every convicted person as an individual

and every case as a unique study in the human failings that sometimes mitigate, sometimes

magnify, the crime and the punishment to ensue.”

Unique and individual to Mr. Smith’s case is the reasonable conclusion that Mr. Smith is

not going to return to criminal behavior and is not a danger to society. At the age of 51, Mr.

Smith has no prior criminal history.

1 See, Attached letters.

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Additionally, when considering the mandates of 18 U.S.C. § 3661, that “[n]o limitation

shall be placed on the information concerning the background, character and conduct of a person

convicted of an offense which a court of the United States may receive and consider for the

purpose of imposing an appropriate sentence.” The substance and quantity of information about

the character, background, integrity and quality of person that is presented about Defendant

Smith clearly make him an exemplary individual deserving consideration by this Court of a

sentence of probation. Mr. Smith through counsel presents this additional information and

for a term of probation.

WHEREFORE, Defendant Paul L. Smith requests this Honorable after consideration of

the factors set forth in 18 U.S.C. §3553(a) impose a sentence of probation, home confinement,

community service with conditions that will provide the for restitution and other factors and

determined by the Court.

Respectfully submitted

MARTIN LAW OFFICE

S/ Mack K. Martin

Mack K. Martin, OBA # 5738

125 Park Avenue

Fifth Floor

Oklahoma City, Oklahoma 73102

Telephone (405) 236-8888

Facsimile (405) 236-8844

Attorney for Defendant

Paul L. Smith

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I hereby certify that on Friday, January 22, 2010, I filed this instrument under seal and

submitted a full true and complete copy to Assistant United States Attorney, Ms. Vicki Zemp

Behenna, 210 West Park Avenue, Suite 400, Oklahoma City, Oklahoma 73102.

S/ Mack K. Martin

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