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UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA : No. 3:09CR270 (MRK)
MICHAEL IAN SOHN : SEPTEMBER 14, 2010
DEFENDANT’S MEMORANDUM IN AID OF SENTENCING
Michael Ian Sohn (the defendant or “Mr. Sohn”), pleaded guilty to one count of
Conversion of Campaign Contributions, in violation of 2 U.S.C. §§ 439a (b) and 437g (d) (1)
(A)I), and one count of tax evasion, in violation of 26 U.S.C. § 7201, on March 11, 2010. He
is scheduled to be sentenced by this Court on September 21, 2010. Mr. Sohn makes no
excuses for his conduct. And he is sincere and remorseful. He is also sincere when he says
that he is resolved to put this black mark on an otherwise responsible and law-abiding life
behind him. He wants nothing more than to make amends for his actions and make a quick
return to his family.1
In fact, notwithstanding the unfortunate starts and stops connected to Mr. Sohn’s initial
efforts concerning legal representation prior to the undersigned’s involvement, Mr. Sohn has
taken positive, meaningful and remorseful steps to make amends for his wrongdoing. For
instance, not long after his guilty plea, Mr. Sohn entered into a Conciliation Agreement with
the Federal Election Commission in which he affirmatively took responsibility for his actions
The Court’s attention is particularly referred to the letter, forwarded to the Probation Officer, from his wife,
Aimee Renaud. The particulars of that letter set forth in great detail the changes that have been wrought in the
defendant by, inter alia, this prosecution.
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and agreed to pay restitution to the Shays Committee in the full amount of $252,424.10. In
effectuating that agreement, Mr. Sohn also provided financial documentation to the
Commission and agreed that, should his financial condition be otherwise, he would
immediately agree to a financial penalty of up to $505,000. Clearly, then, Mr. Sohn is doing
everything he can to make amends for his conduct and those efforts should be taken into
consideration in fashioning an appropriate sentence in this matter. Indeed, based on Mr.
Sohn’s life history, a non-Guidelines sentence including no incarceration would be “sufficient,
but not greater than necessary” to promote general deterrence, just punishment, respect for the
law, and to reflect the seriousness of the offense.
II. Mr. Sohn’s Guidelines Range
As an initial matter, the parties are in general agreement on the computation of the base
guidelines and while we agree that the base offense under U.S.S.G. § 2C1.8(a) is 8, and that a
12 level increase is recommended under U.S.S.G. § 2C1.8(b)(1) and 2B1.1(b)(1)(G) because
the loss amount is between $200,000 and $400,000 and an additional two levels because the
offense involved 30 or more transactions, we do not agree that two levels should be added
under U.S.S.G. § 3B1.3 for Abuse of Position of Trust. Accordingly, prior to any further
adjustments, Mr. Sohn’s offense level should be Offense Level 22, Criminal History Category
I, which results in a Guideline Range of 41 to 51 months. After a three level reduction in the
Offense Level for Acceptance of Responsibility, the adjusted Offense Level is 19, Criminal
History Category I, which results in a Guidelines Range of 30 to 37 months. Mr. Sohn will
address the proper sentencing issues below.
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III. Abuse of Position of Trust Enhancement
The Presentence Report recommends an additional two level increase under § 3B 1.3
for “abuse of position of trust." PSR ¶ 23. Such an increase is not applicable in this case,
however, because the Shays Campaign did not entrust Mr. Sohn with the substantial discretion
necessary to support application of this guideline adjustment and thus he therefore did not hold
a position of trust within the meaning of this guideline.
Section 3B 1.3 provides in pertinent part:
If the defendant abused a position of public or private trust, or used a
special skill, in a manner that significantly facilitated the commission
or concealment of the offense, increase by 2 levels. This adjustment
may not be employed if an abuse of trust or skill is included in the
base offense level or specific offense characteristic.
U.S.S.G. § 3B1.3. The commentary defines a position of trust as follows:
‘Public or private trust’ refers to a position of public or private trust
characterized by professional or managerial discretion (i.e.,
substantial discretionary judgment that is ordinarily given
considerable deference). Persons holding such positions ordinarily
are subject to significantly less supervision.
“Proper application of § 3B1.3 requires satisfaction of two requirements: first, that [the
defendant] occupied a “position of trust,” and second, that [the defendant] abused that position
of trust to commit or conceal his crimes.” United States v. Nuzzo, 385 F.3d 109, 115 (2d Cir.
2004). The Second Circuit has held that “[i]t is not sufficient that a defendant enjoyed a
position of trust, and thus had an opportunity to commit a difficult-to-detect wrong. That would
merely satisfy the first of the two prongs of § 3B1.3. Rather, (1) the defendant must have
enjoyed a “superior” position, relative to other potential perpetrators, as a result of a trust
relationship, see United States v. Castagnet, 936 F.2d 57, 62 (2d Cir. 1991); and (2) the
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defendant must have capitalized on that superior position in committing the offense conduct,
see U.S.S.G. § 3B1.3, comment. (n.1).
Not every employee occupies a position of trust subject to this enhancement. United
States v. Viola, 35 F.3d 37, 45 (2d Cir. 1994), abrogated on other grounds by Salinas v.
United States, 522 U.S. 52 (1997). Rather, the Court must examine the degree of discretion
entrusted to the employee by the employer. United States v. Broderson, 67 F.3d at 456 (2d
Cir. 1995) (“[E]very example of an abuse of trust in the Commentary accompanying Section
3Bl.3 also involves a victim entrusting an agent or employee with discretion.”); United States
v. Tribble, 206 F.3d 634, 637 (6th Cir. 2000) (“[T]he level of discretion accorded an
employee is to be the decisive factor in determining whether his position was one that can be
characterized as a trust position . . . . The examples given in the application notes constitute
abuse of a position of trust); Tribble, 206 F.3d at 637 (“[J]ust because we trust a person to
handle another's property in the course of their job does not mean they occupy a ‘position of
trust’ for the purpose of § 3B 1.3.”).
Mr. Sohn’s position did not accord him the discretion required to invoke this
enhancement. Although his title was that of “Campaign Manager,” in reality his basic job
functions were hiring staff, tracking contributions, making deposits, preparing checks for
payment to vendors, receiving bank account statements and making sure the software program
ran correctly. As the PSR correctly notes, ¶ 8, Mr. Sohn did not even “have signature
authority on the Committee accounts.”
His duties were, from the standpoint of this possible enhancement under the sentencing
guidelines, purely ministerial. But when it came to the financial oversight of the Committee’s
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funds, Mr. Sohn worked under the close supervision of the Committee Treasurer, who was
required to file periodic reports with the Federal Election Commission relating to the
Committee’s financial activities and, as the PSR recognizes, “[t]he treasurer, with Sohn’s
assistance, regularly filed required reports with the FEC.” PSR ¶ 10. Clearly, Mr. Sohn was
under the supervision of the Committee Treasurer. See United States v. Barrett, 178 F.3d
643,646 (2d Cir. 1999) (Persons holding positions of trust ordinarily are subject to
significantly less supervision than employees whose responsibilities are primarily
nondiscretionary in nature). While Mr. Sohn had access to Committee funds, he was
nonetheless subject to supervision and oversight by others and, as noted in the PSR, Mr. Sohn
did not even have signature authority over the Committee’s bank accounts.
There are numerous instances in which the Second Circuit held that a defendant's
position of trust contributed to the commission or concealment of a crime, but those facts are
not present here. For instance, the Second Circuit upheld the enhancement where “chief
officers of financial institutions used authority afforded to them by their positions to
misallocate bank funds and to subsequently conceal those misallocations,” see United States v.
McElroy, 910 F.2d 1016, 1027-28 (2d Cir. 1990) and a postal worker abused his superior
position with the United States Postal Service that afforded him access to large amounts of cash
without accounting controls, see United States v. Melendez, 41 F.3d 797, 799 (2d Cir. 1994)
Unlike those cases, Mr. Sohn was supervised and there were accounting controls in
place to stop these thefts. He simply was able to steal the funds anyway. Thus, looking at the
two prongs of the enhancement, with regard to the financial controls of the committee, which
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is the relevant consideration in this case, Mr. Sohn did not have a supervisory position with
discretion to do what he wanted with the finances of the Committee – he didn’t even have
signatory authority. It is not sufficient that Mr. Sohn might have been trusted by the
Committee and thus had the opportunity to commit a difficult to detect crime. He must have
held a superior position relative to others in the organization. He did not. The campaign
treasurer held that position.
Second, he couldn’t have used his position to conceal the wrongdoing because the
campaign treasurer filed reports with the FEC that could have detected the wrongdoing. If it
were Mr. Sohn’s responsibility alone to oversee all accounts, have signatory authority over the
accounts, and prepare, certify and file the reports with the FEC, perhaps it could be argued
that he abused a position of trust. But that is not the case here. This case is not akin to the
chief officers of financial institutions who have sole authority over every aspect of their actions
and crimes. There were controls in place, but clearly Mr. Sohn got around them. But as has
long been recognized, “just because we trust a person to handle another's property in the
course of their job does not mean they occupy a “position of trust” for the purpose of § 3B
1.3.” United States v. Tribble, 206 F.3d 634, 637 (6th Cir. 2000). Accordingly, no
enhancement for abuse of a position of trust is warranted under the Guidelines.
With these specific issues addressed, Mr. Sohn now turns to the settled law surrounding
IV. Legal Framework of Sentencing in Federal Court
The Supreme Court decided three important cases in 2007 that guide sentencing courts.
First, in Rita v. United States, 127 S.Ct. 2456 (2007), the Court held that a district court judge
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is not permitted to apply a presumption of reasonableness to a within-Guidelines sentence. Id.
Next, in Gall v. United States, 128 S.Ct. 586 (2007), the Court rejected any notion that
a variance from the Guidelines range requires extraordinary circumstances. Id. at 595. What
is required instead is that the sentencing court “make an individualized assessment based on the
facts presented [and] if [it] decides that an outside-Guidelines sentence is warranted, [it] must
consider the extent of the deviation and ensure that the justification is sufficiently compelling to
support the degree of the variance.” Id. at 597.
Lastly, in Kimbrough v. United States, 128 S.Ct. 558 (2007), the Court held that
sentencing judges are free to reject a Guidelines range based on a conclusion that in a
particular case such a range yields sentences “greater than necessary” to promote the § 3553(a)
sentencing goals. Id. at 564. The Court noted that a necessary bi-product of such
individualized consideration is that some sentencing disparity will inevitably result. Id. at 574.
Even before these three landmark cases were decided, courts interpreted United States
v. Booker, 543 U.S. 220 (2005), as mandating that courts consider any fact that is relevant
under 18 U.S.C. § 3553(a) and not just those traditionally considered pertinent to Guidelines
departure grounds. See United States v. Jones, 460 F.3d 191, 194 (2d Cir. 2006) (“With the
entire scheme rendered advisory by the Supreme Court’s decision in Booker, the Guidelines
limitations on the use of factors to permit departures are no more binding on sentencing judges
than the calculated guidelines ranges themselves.”). Similarly, courts interpreted Booker to
require that they carefully consider any argument for a non-Guidelines sentence unconstrained
by Guidelines departure authority. See United States v. Williams, 435 F.3d 1350, 1354, n.2
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(11th Cir. 2006) (“The district court’s sentence [below the Guidelines] does not have to be
justified as a downward departure. After Booker, the sentencing Guidelines are advisory, and
the sentencing court, in its own discretion, can move below the advisory Guidelines range
without a motion for a downward departure as long as the resulting sentence is reasonable.”).
Post Booker, Rita, Gall, and Kimbrough, the “parsimony clause” is more important
than ever. In determining an appropriate sentence, the Court must apply the “parsimony
clause” set forth in 18 U.S.C. § 3553(a), which provides that the court “shall impose a
sentence sufficient, but not greater than necessary” to comply with the purposes of sentencing.
The “parsimony clause” is not just another “factor” to be considered along with the others set
forth in § 3553(a). Rather, it creates a fundamental over-arching value regarding the exercise
of sentencing discretion. The “parsimony clause” should be understood as creating a
utilitarian presumption of the lowest punishment necessary to accomplish the goals of
sentencing in light of the § 3553(a) factors. Hence, when the Guidelines were mandatory, that
provision created a presumption in favor of the low end of the prescribed range, just as a
statutory command of “but not less than necessary” would have created a presumption of
erring on the side of greater punishment and hence, within the Guidelines, the high end of the
prescribed range (and the absence of any statutory command would create no presumption
either way). See generally United States v. Chartier, 933 F.2d 111, 117 (2d Cir. 1991).
Based on the statutory scheme after Booker’s excision of 18 U.S.C. § 3553(b), the
“parsimony clause” of § 3553(a) has broader application than simply influencing the decision
of where to sentence within a mandatory range. Now that the Guidelines are “advisory” and
therefore subordinate to 18 U.S.C. § 3553(a) as a whole, the “parsimony clause” should be
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understood in the broader context of assessing how much punishment is fair and reasonable for
a particular person who has committed a particular crime. The Second Circuit explained in
United States v. Ministro-Tapia, 470 F.3d 137 (2d Cir. 2006), that if the Court believes a
lower sentence will be as effective as a higher sentence in serving the purposes of sentencing,
it must choose the lower sentence. See id. at 142 (where a Guidelines sentence is “in
equipoise with [a] below-the-range sentence,” the parsimony clause requires imposition of the
V. A Non-Guidelines Sentence is Appropriate Based on a Number of Reasons
With the above framework in mind, a number of factors are present in this case which
calls for a non-Guidelines sentence. Among these factors are: (1) Mr. Sohn has finally
admitted to a serious substance abuse problem and, (2) Mr. Sohn, based on his personal
characteristics, is unlikely to re-offend.2 Accordingly, any period of incarceration would be
“greater than necessary” to promote the § 3553(a) sentencing goals.
As noted above, in determining any sentence, the Court is to ensure that the sentencing
being imposed is one that is “sufficient, but not greater than necessary.” 18 U.S.C. §3553(a).
To that end, section 3553(a) sets forth a broad array of factors from which a sentencing judge
must determine the appropriate sentence. These factors are as follows:
(1) the nature and circumstances of the offense and the history and characteristics of
(2) the need for the sentence imposed –
Mr. Sohn has been in therapy since his arrest in this case. His treating psychotherapist, Jack Bloom, Ph.D., has
submitted a report which will be included with his PSR. The report is significant in that it notes that not only has
Mr. Sohn made dramatic progress in the course of his psychotherapy, but that it is unlikely that he will ever re-
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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
D. to provide the defendant with needed education or vocation training,
medical care, or other correctional treatment in the most effective
(3) the kinds of sentence available;
(4) the kinds of sentence and the sentencing range established for –
A. the applicable category of offense committed by the applicable category
of defendant as set forth in the guidelines. . .
(5) any pertinent policy statement –
A. issued by the Sentencing Commission . . .
(6) the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
A. Mr. Sohn is Unlikely to Re-offend
Recidivism studies from the Sentencing Commission support the view that Mr. Sohn is
very unlikely to re-offend. Mr. Sohn has the following characteristics, all of which indicate a
reduced likelihood of recidivism: (1) he has no prior criminal convictions; (2) he is married;
(3) he has a solid employment history; and (4) he has an above-average education.
The Sentencing Commission itself has concluded that offenders like Mr. Sohn, with
zero criminal history points, have a substantially lower recidivism rate than other offenders
who fall within criminal history category I of the Guidelines. See United States Sentencing
Commission, Recidivism and the “First Offender” 13, 26 (2004),
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http://www.ussc.gov/publicat/Recidivism_FirstOffender.pdf. In particular, defendants with
zero criminal history points under the Guidelines have a recidivism rate of 11.7 percent
whereas those with one criminal history point have a rate of 22.6 percent. Id. at 13, 26. The
Guidelines range in this case does not capture this significant distinction because the same
range applies regardless of whether the defendant has zero or one criminal history point.
The Sentencing Commission also has recognized that recidivism rates are strongly
correlated with age. See Measuring Recidivism: The Criminal History Computation of the
Federal Sentencing Guidelines (2004), www.ussc.gov/publicat/Recidivism_General.pdf
(“Recidivism Report”); A Comparison of the Federal Sentencing Guidelines Criminal History
Category and the U.S. Parole Commission Salient Factor Score (2005) at 8, 13-15,
www.ussc.gov/publicat/Recidivism_General.pdf (first offender status and age are powerful
predictors of recidivism under the United States Parole Commission Salient Factor Score);
United States v. Lucania, 379 F.Supp.2d 288, 297 (E.D.N.Y 2005) (post-Booker, courts have
noted that recidivism is markedly lower for older defendants) (collected cases). The
Commission has found that “[r]ecidivism rates decline relatively consistently as age increases.”
Recidivism Report at 12. Significantly, for Criminal History Category I defendants between
the age of 36 and 40 at the time of sentencing, only 12.1 percent recidivated. Id. at 28.
Recidivism is also correlated with employment status. Mr. Sohn has consistently
worked throughout his adult life and only since this offense has his employment status been
interrupted. PSR ¶¶ 44-47. For offenders in criminal history category I, the recidivism rate
for employed offenders drops to only 12.7 percent. Recidivism Report at 29.
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Marriage status also predicts recidivism. Those who have never been married have a
32.3 percent recidivism rate, compared to a 13.8 percent rate for married offenders such as
Mr. Sohn. Married offenders in criminal history category I have a rate of only 9.8 percent.
Id. These are all powerful predictors that Mr. Sohn will not offend again.
In sum, the Commission’s recidivism studies provide powerful evidence that Mr. Sohn,
given his lack of prior record, age, employment history and marital status is unlikely to ever
re-offend. As other courts have found, a variance can be supported based on a defendant’s low
risk of recidivism. See United States v. Baker, 445 F.3d 987, 992 (7th Cir. 2006) (thirty-two
month variance proper where defendant first offender, had solid history of employment, was
well-educated; such factors must be taken into account when assessing the nature and
circumstances of the offense and the history and characteristics of the defendant under §
3553(a)); United States v. Diambrosio, 2008 WL 732031 at *3 (E.D. Pa. March 13, 2008) (a
low chance of recidivism is an appropriate factor supporting a non-Guidelines sentence (citing
United States v. Pauley, 511 F.3d 468 (4th Cir. 2007)); United States v. Hernandez, 2005 WL
1242344 (S.D.N.Y. May 24, 2005) (same).
B. Mr. Sohn’s Substance Abuse History Warrants Participation in the Bureau of
Prisons 500 Hour Drug Treatment Program
Whatever sentence the Court decides to impose, we urge that the Court recommend that
Mr. Sohn participate in the Bureau of Prison’s 500 hour intensive drug program. 3 Although
the PSR initially indicated that Mr. Sohn had relatively little history of drug use, and although
Mr. Sohn initially denied that he had such a problem, it is clear that he does have a history of
The Bureau of Prisons stated criteria for eligibility are: (1) a documented pattern of substance abuse in the
12 months prior to the arrest for which the inmate is serving his sentence; (2) an ability to complete the entire
program; and (3) that the inmate be diagnosed by the Drug Abuse Program Psychologist as having a drug use
disorder as defined in the Diagnostic and Statistical Manual (DSM) of the American Psychiatric Association.
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serious drug abuse. Since the time that he was initially interviewed, Mr. Sohn’s wife met with
and explained to the Probation Officer that Mr. Sohn had regularly and seriously abused
marijuana and cocaine and that this abuse carried through the time he was committing the
offenses which now bring him before the Court. Mr. Sohn has subsequently met with his
Probation Officer and has not only admitted his drug use, but has finally faced up to the
underlying causes of the drug abuse and has begun a treatment program, in addition to his
regular psychotherapy.4 Mr. Sohn has been drug free since at least the time of his arrest in
this case. Yet because, as this Court well knows, substance abuse addictions are life-long, Mr.
Sohn would benefit greatly from participating in the drug treatment program and he urges that
the Court recommend Mr. Sohn’s participation.5
Mr. Sohn’s prompt and difficult recognition of the fact that he had initially misled the Probation Officer, is a
factor which should be taken as additional evidence that the “[s]elf centered, angry, addict [sic], insecure, liar, . . .
irresponsible, explosive, . . . unaccountable, . . . fake[.]” person that he was has now started down the long and
difficult road to rehabilitation cannot be gainsaid. This quotation is taken directly from Ms. Renaud’s letter to the
Court. For reasons of privacy, we have submitted Ms. Renaud’s letter to be included with the Presentence Report,
rather than attaching it to this Memorandum. A copy, of course, has been provided to the Government.
The most recent information available to counsel indicates that Bureau of Prisons Residential Drug Treatment
Programs are available at FPC Lewisburg and FPC McKean in the Northeast Region. We assume that Mr. Sohn
qualifies for placement in a camp; therefore, we ask the court to designate either the Federal Prison Camp at
Lewisburg or at McKean, where the Residential Drug Treatment Program is available. We also ask that the Court
grant Mr. Sohn voluntary surrender to whatever institution is designated by the Bureau of Prisons.
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In sum, notwithstanding his actions, Mr. Sohn’s personal history and characteristics,
the fact that he is unlikely ever to appear before a court again, and his very low risk of
recidivism, strongly militate in favor of a relatively short period of incarceration. Far more
effective, and reasonable, alternatives exist that will satisfy the myriad purposes of sentencing,
including punishment and general deterrence. Accordingly, Mr. Sohn respectfully requests
that the Court fashion a non-Guidelines sentence that provides for a minimal period of
incarceration yet forces him to continue to confront the substance abuse problems from which
By: /s/ Harold James Pickerstein
Harold James Pickerstein (ct05094)
McElroy, Deutsch, Mulvaney & Carpenter LLP
30 Jelliff Lane
Southport, CT 06890-1436
Tel: (203) 319-4000
Fax: (203) 259-0251
Case 3:09-cr-00270-MRK Document 36 Filed 09/14/10 Page 15 of 15
CERTIFICATE OF SERVICE
I hereby certify that on September 14, 2010, a copy of foregoing Defendant’s
Memorandum in Aid of Sentencing was filed electronically and served by mail on anyone
unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by
operation of the court’s electronic filing system or by mail to anyone unable to accept
electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing
through the court’s CM/ECF System.
/s/ Harold James Pickerstein
Harold James Pickerstein