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Ford Sentencing Memo

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A memorandum from the defense attorneys of State Rep. La Shawn Ford recommending what sentence he should received for misdemeanor tax fraud.
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  IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA, ) Plaintiff, ) ) v. ) No. 12-CR-927 ) Judge Rebecca R. Pallmeyer LA SHAWN FORD, ) Defendant. ) DEFENDANT’S POSITION PAPER AND COMMENTARY ON SENTENCING FACTORS Defendant, LA SHAWN FORD , by and through his attorneys, THOMAS ANTHONY DURKIN  and JOSHUA G. HERMAN,  pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure, the opinions of the United States Supreme Court in United States v. Booker, 543 U.S. 220 (2005),  Rita v. United States, 551 U.S. 338 (2007), Gall v. United States, 552 U.S. 38 (2007), Kimbrough v. United States, 552 U.S. 85 (2007), and  Nelson v. United States, 555 U.S. 350 (2009), as well as 18 U.S.C. § 3553(a), respectfully submits Defendant’s Position Paper and Commentary on Sentencing Factors. 1   I. POSITION PAPER AND COMMENTARY ON SENTENCING FACTORS. A.   Introduction. Counsel concur with the guidelines calculations set forth in the PSR and also in the Government’s Version. The total offense level for this misdemeanor offense is 6, which when combined with a criminal history category of I results in an advisory Sentencing Guidelines range of 0 to 6 months’ imprisonment. (PSR, p. 5, ¶¶16-24; Govt. Version, p. 3). This guideline range falls within Zone A of the Sentencing Table. As this Court is no doubt well aware, however, these guideline calculations serve only as a “starting point” and “initial benchmark” in 1  Counsel and Defendant have no objections to the Presentence Report (“PSR”). Case: 1:12-cr-00927 Document #: 64 Filed: 10/27/14 Page 1 of 12 PageID #:575  2 the determination of a just and appropriate sentence. See Gall , 552 U.S. at 49-51. The question of what is just and appropriate in this case turns on the consideration of all of the §3553(a) factors in order to arrive at a sentence that is “sufficient but not greater than necessary” to achieve the purposes of sentencing. 18 U.S.C. § 3553(a). As such, and as will be demonstrated more fully below, counsel believe this is the extraordinary case involving a rather extraordinary defendant that not only cries out for a non-custodial sentence, but just as easily might well be a case in which the imposition of a fine may satisfy the “sufficient but not greater than necessary” requirement of § 3553(a). 2   B.   The Nature and Circumstances of Offense (§3553(a)(1)). In determining what sentence to impose, the Court must, of course, consider the “nature and circumstances of the offense.” 18 U.S.C. §3553(a)(1). The Plea Agreement (Dkt. #60) describes the factual basis for the offense, and states that on or about August 29, 2008, Mr. Ford: willfully delivered and disclosed, and caused to be delivered and disclosed, to the Internal Revenue Service a U.S. Individual Income Tax Return (From 1040 with schedules and attachments) for calendar year 2007, which return was known by him to be false as to a material matter in that the return falsely stated that the total cost or other basis for the property at 5700 W. Erie in Chicago was $166,979, when in fact, as [Mr. Ford] knew, the total cost or other basis for that property was materially lower than $166,979. (Plea Agreement, Dkt. #60, p. 2, ¶6). This basis of $166,979, which was reflected on Mr. Ford’s tax return, included $74,226 of rehabilitation costs. (  Id. , p. 3).   This resulted in a capital gain of 2  Section 7207 provides that a violation may be punished by fine, up to a year imprisonment, or both. The guidelines provide that a fine may be the sole sanction, even in lieu of probation, when it can be paid in full at sentencing. Specifically, Application Note 1 to Section 5E1.2, which is entitled “Fines for Individual Defendants” states as follows: A fine may be the sole sanction if the guidelines do not require a term of imprisonment. If, however, the fine is not paid in full at the time of sentencing, it is recommended that the court sentence the defendant to a term of probation, with the payment of the fine as a condition of probation. Case: 1:12-cr-00927 Document #: 64 Filed: 10/27/14 Page 2 of 12 PageID #:576  3 $124,278. The rehabilitation costs were actually $51,160, which was $23,066 less than stated on the tax return. (  Id  .) This resulted in a tax loss of approximately $3,782. (  Id  .) The property located at 5700 W. Erie was one of a number of properties that Mr. Ford owned as part of a real estate business. As described in more detail below, Mr. Ford purchased, rehabilitated, and leased or sold properties on the impoverished West Side of Chicago in large  part to advance the community and economic development of that area, which is where he grew up and still resides. The property at 5700 W. Erie was one of these properties. At any given time, Mr. Ford had several rehabilitation projects in progress at the same time, in addition to the sale and purchases of other properties. Not unlike many young entrepreneurial businessmen in the real estate development field, bookkeeping and attention to detail was not Mr. Ford’s specialty—something that he now deeply regrets and is determined to remedy in his personal and  professional life. While Mr. Ford worked with an accountant to ensure that expenses such as rehabilitation costs were properly allocated, ultimately it was his responsibility, and his alone, to ensure that these costs were accurately stated on his tax returns. And for failing to do that, Mr. Ford accepts full responsibility. Nevertheless, as is clear from a description of the offense, it can  be attributed more to Mr. Ford’s failure to exercise proper controls and oversight rather than greed as is the case with most tax offenses. C.   The History and Characteristics of the Defendant (§3553(a)(1)). In its sentencing analysis, the Court must also consider the “history and characteristics of the defendant.” 18 U.S.C. §3553(a)(1). In this regard, and to put it bluntly, it is difficult for counsel to recall another case in which a defendant’s history and characteristics provide such strong mitigation evidence. As counsel noted early on in this case, Mr. Ford’s Horatio Alger- Case: 1:12-cr-00927 Document #: 64 Filed: 10/27/14 Page 3 of 12 PageID #:577  4 esque arc prior to the indictment virtually “personifies the American Dream.” (Motion to Dismiss, Dkt. #21, p. 3, footnote 3). Mr. Ford was born on February 28, 1972, in Chicago’s now-razed Cabrini Green housing  projects. His mother was an unwed teenager. He never knew his father. Without a father or mother to raise him, Mr. Ford’s grandmother adopted him at birth and, to say the least, did an incredible job. Mr. Ford’s biological mother has had a long history of drug addiction and abuse that caused her to be absent from most of his life. Mr. Ford nevertheless is still dedicated to her, and has made efforts to try and help her recover from addiction. In fact, as noted in the PSR, his mother has recently participated in in-patient substance abuse counseling at a drug treatment facility. 3  (PSR, p. 7, ¶39). The only person remotely close to a father figure in Mr. Ford’s life was his grandmother’s husband, whose life was tragically shortened when he committed suicide after struggling with drug addiction. (PSR, p. 7, ¶37). When he was just two years old Mr. Ford moved with his grandmother from Cabrini Green to the Austin neighborhood on the West Side of Chicago. (PSR, p. 7, ¶38). Mr. Ford attended elementary school at Our Lady Help of Christians School on the West Side, and then attended Weber High School, a well known Catholic high school on the Northwest side of Chicago. While in high school Mr. Ford played basketball, studied, and worked part-time at Our Lady Help of Christians Catholic Church doing janitorial work. (Letter from Rev. K.F.) 4  After graduating from Weber in 1990, Mr. Ford became the first in his family to attend a four-year 3  This treatment facility is the Women’s Treatment Center on the Near West Side of Chicago. Mr. Ford’s mother has since been discharged from that facility and is now attending meetings to address her addiction. As noted in the PSR, the recent period of sobriety is the longest period that Mr. Ford’s mother has abstained from using controlled substances. (PSR, p. 7, ¶39). 4  Copies of this and other letters in support of Mr. Ford will be submitted under separate cover and also  provided to the government and Probation Office. Case: 1:12-cr-00927 Document #: 64 Filed: 10/27/14 Page 4 of 12 PageID #:578
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