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Court filing by former Rep. Schmitz

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
UNITED STATES OF AMERICA, )
)
PLAINTIFF, )
)
v. ) CASE NO.: CR-08-P-14-RDP-PWG
)
SUZANNE L. SCHMITZ, )
)
DEFENDANT. )
SENTENCING MEMORANDUM ON BEHALF OF SUZANNE L. SCHMITZ
Suzanne L. Schmitz files this Sentencing Memorandum setting forth the factors
that the Court should consider in determining what type sentence is sufficient to comply
with the statutory directives set forth in 18 U.S.C. § 3553(a). In addition, the
memorandum briefly addresses the guideline found at U.S.S.G. § 2B1.1(a)(1) and the
calculation of loss as a specific offense characteristic that is addressed in U.S.S.G §
2B1.1(b)(1).
At the sentencing hearing, Mrs. Schmitz will present evidence in support of a
sentence to a term of probation to include extensive community service. Should this
Court find detention necessary, Mrs. Schmitz would request home detention as a
condition of probation. Mrs. Schmitz expects to present this Court evidence that will lay
out an extensive plan for community service.
The "over-arching provision" of 18 U.S.C. § 3553(a) is, of course, to impose a
sentence sufficient, but not greater than necessary" to meet the goals of sentencing
established by Congress. Kimbrough v. United States, 128 S.Ct. 558, 570 (2007). The
statute, in addition to requiring the sentencing court to consider the "nature and
FILED
2009 Jul-16 PM 04:16
U.S. DISTRICT COURT
N.D. OF ALABAMA
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circumstances of the offense," requires the court to consider the "history and
characteristics of the defendant." § 3553(a)(2) states that such purposes are:
(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 educational or vocational
training, medical care, or other correctional treatment in the most
effective manner.
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).
This Court may deviate from the Sentencing Guidelines in fashioning an
appropriate sentence if to do so would result in a reasonable sentence considering various
factors that Congress has enumerated in 18 U.S.C. § 3553(a). In determining the
minimally sufficient sentence, § 3553(a) further directs sentencing courts to consider the
following factors found in 18 U.S.C. § 3553(a)(1), (3)-(7) :
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(3) the kinds of sentences 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-
(i) issued by the Sentencing Commission pursuant to
section 994(a)(1) of title 28, United States Code, subject to
any amendments made to such guidelines by act of
Congress (regardless of whether such amendments have yet
to be incorporated by the Sentencing Commission into
amendments issued under 994(p) of title 28); and
(ii) that, except as provided in section 1742(g), are in effect
on the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised release, the
applicable guidelines or policy statements issued by the Sentencing
Commission pursuant to 994(a)(3) of title 28, United States Code,
taking into account any amendments made to such guidelines or
policy statements by act of Congress (regardless of whether such
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amendments have yet to be incorporated by the Sentencing
Commission into amendments issued under 944(p) of title 28);
(5) any pertinent policy statement-
(A) issued by the Sentencing Commission pursuant to section
994(a)(2) of title 28, United States Code, subject to any
amendments made to such policy statement by act of Congress
(regardless of whether such amendments have yet to be
incorporated by the Sentencing Commission into amendments
issued under section 994(p) of title 28); and
(B) that, except as provided in section 3742(g), is in effect on the
date the defendant is sentenced.
(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 victiMrs. of the offense.
HISTORY AND CHARACTERISTICS OF MRS. SCHMITZ
Mrs. Schmitz was reared and has spent most of her life in Madison County,
Alabama. She and her husband John Schmitz have reared three children. Each child
achieved the rank of Eagle Scout, graduated college are successfully employed and now
rearing Mrs. Schmitz's grandchildren. Davis Schmitz (age 39) is married and has three
children. Jonathan Schmitz (age 35) is married and has two children. Matthew Schmitz
(age 30) is married and has one child.
Mrs. Schmitz would be best characterized as a mother and an educator. After
working in the home to rear her children, she returned to teaching in 1986 at Sparkman
High School in Harvest, Alabama. She taught there until 2003. While teaching at
Sparkman, she earned many honors including Sparkman High School Teacher of the
Year and Madison County Teacher of the Year in 1991, Sparkman High School Teacher
of the Year, Madison County Teacher of the Year, District 8 State Teacher of the Year in
1993, Linda Chozen National Award for excellence in teaching civic education in 1996.
Attached hereto as Exhibit A, is a list of her awards. Mrs. Schmitz was also
instrumental in developing a civics program called "We The People." This became a
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nationally recognized program that has inspired many students to achieve excellence in
academics and to become interested and engaged in community and government affairs.
MRS. SCHMITZ PHYSICAL HEALTH AND MENTAL CONDITION
Mrs. Schmitz's health is fragile. That was evidenced in the first trial when this
Court recessed proceedings because Mrs. Schmitz was briefly hospitalized and ordered to
bed rest for mental and physical exhaustion caused by the stress of the charges and trial.
Attached hereto as Exhibit B is a letter from her family physician, William B. Hahn, Jr.,
M.D. Mrs. Schmitz's medical problems include Diabetes Mellitus, Hypertension,
Hyperlipidemia, Degenerative Joint Disease, and Renal Insufficiency. She also suffered
a stroke on March 7, 2007. She has further suffered severe depression and anxiety in
large part because of the charges and now the conviction and the stress it has caused her
family. This has required her to take medications. Mrs. Schmitz would request that this
Court take into consideration the impact incarceration would have on her already fragile
physical and mental condition.
KINDS OF SENTENCES AVAILABLE
Mrs. Schmitz proposes a sentence of probation with a condition of extensive
community service that takes into consideration her life experiences and expertise in
education. Mrs. Schmitz plans to present testimony from Jackie L. Wolfe, Jr., Director of
Madison County, Alabama Office of Alternative Sentencing and Release. Attached
hereto as Exhibit C is a letter from Mr. Wolfe to the undersigned laying out his offices'
willingness and ability to prepare and supervise a community service sentence that takes
into account her professional background. Such a sentence would be in keeping with the
factors stated in § 3553(a).
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CALCULATION OF LOSS AND RESTITUTION
The base offense level is 7 as found at U.S.S.G. § 2B1.1(a)(1). The Presentence
Investigation Report increases the offense level by 10 levels pursuant to U.S.S.G. §
2B1.1(b)(1)(F) by calculating the loss as being more than $120,000 but less than
$200,000. Application Note 3 (E) states in pertinent part that "loss shall be reduced by
... (i) the services rendered, by the defendant or other persons acting jointly with the
defendant, to the victim before the offense was detected." Attached hereto as Exhibit D
is a summary of value Mrs. Schmitz added to the CITY Program. Mrs. Schmitz expects
to present testimony and evidence regarding restitution and loss from R. Thomas Beason,
who is a Certified Public Accountant in Huntsville, Alabama. Mr. Beason will explain to
this Court how he reached the numbers stated in the summary. He provides in his
summary an upper and lower range of value, giving a total calculation of $44,680 as the
lower range and $55,780 as the upper range of value. Mr. Beason has also prepared a
Summary Report on Income Tax Effect, which has been attached hereto as Exhibit E.
This summary states that the gross amount Mrs. Schmitz received for federal tax
purposes was $177,253. Federal and Alabama income taxes paid on this amount was
$46,746, so she only kept $130,507, not taking into consideration any Social Security or
Medicare tax withheld.
Mrs. Schmitz submits that she is able to show value added in the range of $44,680
to $55,780, which she will ask the Court to determine after having heard testimony
during the sentencing hearing. This Court should subtract that value added from the
$130,507 that she kept after taxes in valuing loss, if any. Mrs. Schmitz submits that this
Court should not increase levels pursuant to U.S.S.G. § 2B1.1(b)(1)(F) because of the
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value Mrs. Schmitz added to the CITY Program. She added measurable value as
evidenced in the Summary of Value Added that has been attached as Exhibit D. In
addition, she has added immeasurable and continued value to the program. For instance,
she worked to get funding for the program as is evidenced by the visit that then Senator
Jeff Enfinger made to the program. This type of value is hard to put a number on but it is
very real in the lives of the employees where they keep a job and in the lives of the
students who continue to have a school.
CONCLUSION
This Court is well acquainted with the facts of this case having presided over two
trials and is well aware of the reputation of Mrs. Schmitz for honesty, duty to diligence
and hard work. The jury has convicted Mrs. Schmitz for criminal conduct after a hard
fought trial. Now is not the time to argue her conduct was not criminal, but to
acknowledge the jury's decision and ask this Court to find her conduct an aberration from
her spotless record and her reputation and history of being a pillar in her community. She
did not earn this reputation by being a lazy person, but by a lifetime of educating
children, sometimes as a paid educator, other times as a volunteer. She worked hard for
her community as a representative in the Alabama Legislature. These are all things that
this Court is well aware of and this memorandum has been as brief as possible because of
this Court's intimate knowledge of the case. Mrs. Schmitz requests that this Court
consider all factors in structuring a sentence of probation with a condition of extensive
community service.
Respectfully submitted this the 16th day of July, 2009.
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___/s/_________________________
Herman Watson, Jr.
WATSON, McKINNEY & ARTRIP
203 Green Street
P.O. Box 18368
Huntsville, Alabama 35804-1836
Telephone (256) 536-7423
Facsimile: (256) 536-2689
watson@watsonmckinney.com
/s/ _______________________
Jake Watson
WATSON GRAFFEO P.C.
228 Holmes Avenue, N.E., Suite 300
Huntsville, Alabama 35801
Telephone: (256) 536-8373
Facsimile: (256) 536-8349
watson@watsongraffeo.com
/s/ _______________________
Aaron Ryan
WATSON GRAFFEO P.C.
228 Holmes Avenue, N.E., Suite 300
Huntsville, Alabama 35801
Telephone: (256) 536-8373
Facsimile: (256) 536-8349
ryan@watsongraffeo.com
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CERTIFICATE OF SERVICE I hereby certify that on July 16, 2009, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system which will send notification of such filing
to the following:
William C. Athanas
Assistant United States Attorney
1801 Fourth Avenue North
Birmingham, Alabama 35203
David Estes
Assistant United States Attorney
400 Meridian Street, North, Suite 304
Huntsville, Alabama 35801
/s/
Of Counsel

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