Upload
caseytolan
View
226
Download
0
Embed Size (px)
Citation preview
8/11/2019 Gabriela Rosa Defense Memorandum
1/6
UNITED STATES DISTRICT COURT
SOUT HE RN DIST RI CT OF NEW YORK
UNITED
STATES
OF AMERI CA
14CR434
DLC
GABRIELA
ROSA
Defendant.
X
DEFENDANT GABRIELA
ROSA S
SENTENCING MEMORANDUM
Genesis
A .
Peduto
Attorney for Gabriela Rosa
85-12 Kennedy Blvd.
North Bergan, N.J. 07047
Tel.: 2 0 1 - 8 6 8 - 2 2 4 0
Richard H. Rosenberg
Attorney for Gabriela Rosa
217 Broadway - Suite 707
New Y or k N .Y . 1 00 07
T e l . : 2 1 2 - 5 8 6 - 3 8 3 8
Case 1:14-cr-00434-DLC Document 12 Filed 09/24/14 Page 1 of 6
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------)(
UNITED STATES OF AMERICA,
14
R
434 (DLC)
GABRIELA ROSA,
Defendant.
-----------------------------------------------------------)(
DEFENDANT GABRIELA ROSA S SENTENCING MEMORANDUM
Genesis A Peduto
Attorney for Gabriela Rosa
85-12 Kennedy Blvd.
North Bergan, N.J. 07047
Tel.: 201-868-2240
Richard H Rosenberg
Attorney for Gabriela Rosa
217 Broadway - Suite 707
New York, N.Y. 10007
Tel.: 212-586-3838
8/11/2019 Gabriela Rosa Defense Memorandum
2/6
Case 1:14-cr-00434-DLC Document 12 Filed 09/24/14 Page 2 of 6
ntrodllctioll
Defendant Gabriela Rosa is scheduled to be sentenced on October 3, 2014 following her
conviction by guilty plea to the two counts of an Information charging her with making false
statements in connection with her application for citizenship in violation of 18 U.S.C.
1 1
and
making false declarations in a Chapter 7 bankruptcy proceeding in violation of 18 U.S.C.
152(3).
The plea was entered pursuant to a plea agreement. Ms. Rosa has been at liberty on an
appearance bond since her voluntary surrender on June 27, 2014.
As shown below, the constellation of circumstances surrounding this defendant's
aberrant involvement
in
the offenses, in combination with her out
of
the heartland personal
circumstances strongly support the imposition of a non-guideline sentence, and further, we
respectfully urge, a non- prison sentence that would permit the defendant the ability to continue to
serve as the family breadwinner, primary caretaker for her son, and to fulfill her restitution
requirements under the terms of this plea
Ti e Guide/ille Selltellce Rallge
Both the plea agreement and the PSR arrive at the same advisory guideline range based on
a total offense level of 13. With no criminal history points, Ms. Rosa's advisory guideline range
is
12
to 18 months ( Zone C ) imprisonment. For the reasons that follow in this submission it
is
respectfully submitted that a term of three years' probation, as recommended by the Probation
Department
in
its PSR.addendum, is just, appropriate, and minimally sufficient to meet the goals
2
8/11/2019 Gabriela Rosa Defense Memorandum
3/6
Case 1:14-cr-00434-DLC Document 12 Filed 09/24/14 Page 3 of 6
o sentencing.
As this court is well aware, while the sentencing guidelines provide a sentencing court
with a starting point and the initial benchmark ,
Gall
v United States 128 S. Ct. 586 (2007), a
sentencing court must now consider all o the
18
U.S.C. 3553 (a) factors, not just the guidelines,
in determining a sentence that
is
minimally sufficient to meet the goals o sentencing set forth in
18
U.S.C. 3553 (a) (2): justice, deterrence, incapacitation and rehabilitation. United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). The requirement that a court impose a sufficient,
but not greater than necessary sentence to achieve those goals sets a limit
on
the sentence that a
court may impose. Further, in detennining whether and to what extent imprisonment is
appropriate based on 3553 (a) factors, the court is required to recogniz[e] that imprisonment is
not an appropriate means o promoting correction and rehabilitation. 18 U.S.C. 3582 (a).
In
Pepper
v United Stales
131
S
Ct. 1229 (2011), the Court twice emphasized that a
sentencing judge assumes an overarching duty under 3553(a) to 'impose a sentence sufficient,
but not greater than necessary' to comply with the sentencing purposes set forth in
3553(a)(2).
Id.,
at 1242, 1243. See also United States v Dorvee, 616 F.3d 174, 182-83 (2d Cir. 2010)
( [u]nder 3553(a)'s 'parsimony clause,' it is the sentencing court's duty to 'impose a sentence
sufficient, but not greater than necessary to comply with the specific purposes set forth' at 18
U.S.C. 3553(a)(2) ), quoting United Siaies v
Samas, 561
F.3d 108, 110 (2d Cir. 2009).
As the Second Circuit explained in
DOI Vee,
[e ]ven where a district court has properly calculated the Guidelines,
it may not presume that a Guidelines sentence is reasonable for any
particular defendant, and accordingly, must conduct its own
3
8/11/2019 Gabriela Rosa Defense Memorandum
4/6
Case 1:14-cr-00434-DLC Document 12 Filed 09/24/14 Page 4 of 6
independent review
of
the 3553(a) sentencing factors. See [United
States v.] Cavera. 550 F.3d [180,] 189 [(2d Cir. 2008) en banc)].
616F 3dat 182.
Based upon the 8 U.S.C. 3553 (a) factors present in this case we respectfully submit that a
below advisory guideline sentence
of
probation is appropriate in this case to ensure a sentence that is
minimally necessary to achieve the goals
of
sentencing and the interests of ustice.
Tile Defendant s Backgroulld, CI,aracter and Circumstances o I,e Offense: TI,e 55 (a)
Factors
Under
8
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.
Gabriela Rosa is a 47 year old native of the Dominican Republic who arrived in the United
States twenty years ago. Her story is in the spirit of Horatio Alger, rising from humble beginnings to
become,
in
November 2012, the first Dominican born woman in the history of the New York
Assembly
Ms. Rosa was raised in the Dominican Republic as the oldest of three children from a long-
lived marriage that ended only upon her father's death. She was provided a sound upbringing with
good values in an industrious household. Her father owned and operated a construction company; her
mother tended to the household. Ms. Rosa earned her college degree in the Dominican Republic and,
in 1993, came to the U.S. at the age of27
Mrs. Rosa has exhibited consistent industry throughout her life. For a dozen years she was
employed as-a legislative assistant for Assemblyman Herman Denny Farrell. Her work with
4
8/11/2019 Gabriela Rosa Defense Memorandum
5/6
Case 1:14-cr-00434-DLC Document 12 Filed 09/24/14 Page 5 of 6
Assemblyman Farrell fueled her passion for politics and community activism. As an immigrant, Ms.
Rosa easily identified with the Hispanic community in Washington Heights and saw politics as the
vehicle for social change and bettennent. With a vision and a burning desire for social change, Ms.
Rosa pursued issues important to her and to her community. Her historic term in the Assembly was
cut short with her resignation but, as the annexed letters attest, Ms. Rosa's work ethic as a legislator
was greatly admired and she enjoys a reputation as a 'hard working, earnest, humble, kind ,
dedicated public servant. .
The offenses which Ms. Rosa undertook, and for which she has accepted responsibility, have
resulted in the her resignation from the Legislature and the end o what had seemed the ideal
American Dream. Her participation in a sham marriage in order to obtain citizenship would be, but
for her public face and mighty fall, just another sad tale
o
people desperate to arrive and then stay in
our great country. In her case the desperation was not to be separated from the man she loved and
with whom she has shared a life for the past nineteen years, her husband, Victor. Her bankruptcy
offense discharged not l X ry items but rather everyday consumables that built up to what appeared to
be an insunnountable debt
o
some thirty thousand dollars.
The attached letters o support fonn her fonner colleagues, community leaders, constituents,
and leaders from not-for -profit organizations dedicated to social change, all laud Ms. Rosa's
selfless commitment to community as a woman who took and executed her elected position with a
serious, issue oriented sense o responsibility.
Just as significantly, the letters speak
o
Ms. Rosa's unfailing devotion to family. Those who
have come to know her over the years have witnessed that devotion, the challenges she faces, and her
unwavering support for an ailing mother and special needs son, both
o
whom are greatly dependent
5
8/11/2019 Gabriela Rosa Defense Memorandum
6/6
Case 1:14-cr-00434-DLC Document 12 Filed 09/24/14 Page 6 of 6
on her for that SlIPPO r and love.
As Ms.
Ro sa's
le
tter
rela tes. she feels immense remorse and shame. The person who
committed these offenses seems so far removed from the dynamic, warm. kind. pcrson ofintcgr i ty
de
sc
ribed
in
the ann exed le tter
s.
As we approach sentencing, Ms. Rosa is anxiou s and
un
certa
in
aboulthe present but. in the spirit of the woman described in the letters, Ms. Ro sa is commiued
10
devoting herself to the needs of her family and to the community causes in which she so genuinely
und tirelcssly believes.
In determining
ajus
l sentence for Ms. Rosa
it
is most re spectfu lly submitted that
the court consider Ms. Rosa's o
th
erwise unblem ished histor
y.
her dedication and importance to
those surrounding her. especially her son and he r unw