Defendant John Le Bron at 3006 River Grove Drive, Tampa, Florida CONTROLLED
SUBSTANCE - POSSESSION FELONY
Count One for a violation of 21 U.S.C. § 841(a)(1): that the defendant
knowingly and willfully possessed gamma-hydroxybutyric acid, also known as
"GHB," as
charged; and that the defendant possessed the substance with the intent to
distribute it.
PUBLIC RECORD EXCERPTS for Florida Limited Liability Company from Florida
state web site
EZ INVESTMENTS, LLC
Principal Address 3006 RIVER GROVE DRIVE TAMPA FL 33610
Registered Agent Name & Address
LEBRON, JOHN
3006 RIVER GROVE DRIVE TAMPA FL 33610
Manager/Member Detail
Name & Address
Title MGR
PATRICIA KUMER
2604 AUBURN AVE. TAMPA FL 33614
1
1 IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
2 CASE No. 8:05 CR 75 T 17 EAJ
3
4
UNITED STATES OF AMERICA
5
6 Plaintiff,
v. June 2, 2006
7 10:55 a.m.
8 JOHN LEBRON
9 Defendant.
_______________________________/
10
11
TRANSCRIPT OF SENTENCING PROCEEDING
12 BEFORE THE HONORABLE JUDGE
UNITED STATES DISTRICT COURT JUDGE
13
14 APPEARANCES:
15 For the Government: PROSECUTOR
Assistant U.S. Attorney
16 U.S. Attorney's Office
400 North Tampa St.,
17 Ste. 3200
Tampa, FL 33602
18
19 For the Defendant: APPOINTED INDIGENCY DEFENSE
ATTORNEY,
ESQ.
20
Re****ted By: TRANSCRIPTIONIST, RPR
21 Official Court Re****ter
U.S. District Court
22 801 North Florida Avenue
Tampa, FL 33602
23 Phone number
24 STENOGRAPHICALLY RE****TED
COMPUTER-AIDED TRANSCRIPTION
25
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
RE****TER
2
1 P R O C E E D I N G
2 THE COURT: Let's see now. 8:05
3 Criminal 75 T17 EAJ, United States of America,
4 represented by Assistant U.S. Attorney Anthony
5 PROSECUTOR versus John Lebron, represented by his
6 attorney, APPOINTED INDIGENCY DEFENSE ATTORNEY.
7 Now, please bear with me. I have to
8 read the script.
9 John Lebron, on December 15th, 2005 you
10 entered a plea of guilty to Count I of the
11 Indictment charging you with possession with
12 intent to distribute gamma-hydroxybutyric acid,
13 also known as GHB, in violation of Title 21 United
14 States Code, Section 841(a)(1) and (b)(1)(C).
15 The Court has previously accepted your
16 guilty plea and has adjudicated you guilty of that
17 offense.
18 It's the duty of the Court to address
19 several questions.
20 First, WITNESS5, have you had an
21 op****tunity to read and discuss the presentence
22 re****t dated April 14, 2006, and the addendum
23 dated April 14, 2006 with your attorney,
24 Mr. APPOINTED INDIGENCY ATTORNEY?
25 THE DEFENDANT: Yes, Your Honor.
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
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3
1 THE COURT: Mr. APPOINTED INDIGENCY ATTORNEY,
have you been
2 over those do***ents with your client?
3 MR. APPOINTED INDIGENCY ATTORNEY: Yes, Your
Honor.
4 THE COURT: Have you read them,
5 Mr. PROSECUTOR?
6 MR. PROSECUTOR: I have, Your Honor.
7 THE COURT: The Court notes in the
8 addendum to the presentence re****t there are no
9 objections by the government, but there are
10 objections by the defendant.
11 The -- probation disclosed a presentence
12 re****t on February the 10th, and the original
13 objections were due February 24th.
14 On February 27th, the defense moved for
15 a continuance of the sentencing. Court granted
16 that and reset it for April 28th. As a result of
17 new sentencing date, objections to the re****t were
18 due April 7th.
19 On April, 13th defense counsel sent the
20 probation office the attached objections to the
21 presentence re****t.
22 As of the date of this addendum,
23 probation has been unable to reach the defense
24 counsel to obtain clarification of the basis for
25 the objections or attempt to resolve them.
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
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4
1 Consequently, probation has provided the
2 following response to the objections based upon
3 the limited information provided in defense
4 counsel's attached submission.
5 Now, do you have anything more than what
6 is in the addendum today? Probation?
7 PROBATION: No, Judge, we do not.
8 THE COURT: Thank you. Noted for the
9 record.
10 Item 1, Paragraph 29, other arrests. No
11 impact on the guideline calculation with regard to
12 that.
13 Number 2, Paragraph 30, other arrests.
14 No impact on the guideline calculations.
15 Now, at the present time are there any
16 other objections to the presentence re****t with
17 regard to the factual statements or the guideline
18 applications? Mr. PROSECUTOR?
19 MR. PROSECUTOR: Your Honor, if I may.
20 THE COURT: Yes.
21 MR. PROSECUTOR: There's an issue
22 regarding the calculation regarding the drug
23 quantity. And I had indicated this to probation.
24 To give the Court some background
25 regarding the case, this case was one of many that
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
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5
1 occurred within a two-day period as a result of a
2 larger investigation by DEA.
3 Essentially, what happened was DEA had
4 discovered a source of a large quantity of GHB,
5 and worked the case from there. And quickly
6 people were cooperating, which led to other
7 arrests.
8 WITNESS5 was one of those individuals.
9 He participated in a reverse -- an individual was
10 cooperating that was to sell him three gallons of
11 GHB. He was arrested, advised of his rights. And
12 he indicated he'd be willing to cooperate, but
13 wanted to talk at that time to his sister, who is
14 an attorney.
15 I consulted with her that day of the
16 arrest, explained what we were doing, that we were
17 interested in his cooperation, and advised her
18 that three gallons is what he'd be accounted for.
19 Subsequent to that there was information
20 that was received that prior to this three-gallon
21 transaction there was an additional three-gallon
22 transaction.
23 Probation has scored it appropriately
24 under the guidelines. However, I feel obliged by
25 my own statements to WITNESS3 to only request
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
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6
1 the Court hold him accountable for the three
2 gallons on that reverse.
3 I should indicate to the Court that was
4 the representation I made, which then led him to
5 cooperate with law enforcement, which led to the
6 arrest of other individuals.
7 So, therefore, I am asking the Court to
8 consider the 3 gallons of the GHB.
9 THE COURT: Okay. Well, based upon your
10 ethical statement, Mr. PROSECUTOR, even though the
11 government may have at the time of trial been able
12 to establish the six gallons to which you make
13 reference, you orally discussed with counsel, who
14 at the time was representing the defendant, a
15 cooperation based upon the three. And you're
16 asking the Court to honor that, and I will honor
17 it. Okay?
18 Now, what, if any, other objections are
19 there to the presentence re****t, WITNESS5 -- I
20 mean, Mr. APPOINTED INDIGENCY ATTORNEY?
21 Mr. APPOINTED INDIGENCY ATTORNEY: Good
morning,
Your Honor.
22 May it please the Court. The objections that I
23 filed originally were with the understanding --
24 and I spoke to probation knowing that this case
25 was going to be continued. And I was involved in
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
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7
1 other matters, and that is the reason why they
2 were several days late. I think as we -- everyone
3 in this case pretty much knew that they weren't
4 going -- that WITNESS5 wasn't going to be
5 sentenced until later on.
6 I would note that we-- while we
7 certainly agree and understand that they do not
8 affect his criminal history category, he is a I.
9 Clearly, he can't go any lower. The reason we
10 objected to them is because of the nature of that
11 one charge. There's a lot more to that--
12 THE COURT: Well, we're going -- we're
13 going to get to them. What I'm really asking for
14 at this point -- you're going to get a chance to
15 argue the items. But I'm asking what, if any,
16 other objection items are there?.
17 You've only got two. Is that it?
18 MR. APPOINTED INDIGENCY ATTORNEY: No, Your
Honor. Has Your
19 Honor had an op****tunity to read the memorandum
20 that I filed?
21 THE COURT: Did you provide that to the
22 gov -- to the probation department?
23 MR. APPOINTED INDIGENCY ATTORNEY: I'm sorry.
No, Your
24 Honor.
25 THE COURT: Why not?
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
RE****TER
8
1 MR. APPOINTED INDIGENCY ATTORNEY: It's my
understanding that
2 once I make my objections, I place them to the
3 Court after the time period that the probation --
4 THE COURT: Probation waited for you to
5 do this. Therefore, probation is not in a
6 position to evaluate your objections. So you are
7 in error.
8 MR. APPOINTED INDIGENCY ATTORNEY: I certainly
apologize,
9 Your Honor.
10 THE COURT: You're in error with regard
11 to that. Did you provide it to the government?
12 MR. APPOINTED INDIGENCY ATTORNEY: Yes, Your
Honor.
13 THE COURT: But you didn't provide it to
14 probation?
15 MR. APPOINTED INDIGENCY ATTORNEY: No, but --
and clearly
16 the --
17 THE COURT: Just wait a second.
18 MR. APPOINTED INDIGENCY ATTORNEY: I'm sorry.
19 THE COURT: Madam Clerk --
20 COURTROOM DEPUTY CLERK: Yes, Your
21 Honor.
22 THE COURT: -- hand it to probation.
23 Thank you.
24 PROBATION: For the record, Your Honor,
25 I'm filling in for Ms. PROBATION OFFICER who actually was
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
RE****TER
9
1 the --
2 THE COURT: So as always, probation is
3 put in an awkward position since the super --
4 since the probation officer assigned to this case
5 is not here. And a fill-in has to deal with this.
6 And the bottom line is that it makes it
7 more difficult for the Court to evaluate the area
8 of inquiry.
9 So I'm telling you, Mr. APPOINTED INDIGENCY
ATTORNEY, based
10 upon the recitation that I see here today from
11 probation and the fact that today is the 2nd of
12 June, you had more than adequate time to get your
13 objections to probation. And you're not going to
14 let that happen again, are you?
15 MR. APPOINTED INDIGENCY ATTORNEY: Certainly
not, Your Honor.
16 THE COURT: Now, the government has no
17 other objections or explanation.
18 Let's go to your Item 1, and we'll deal
19 with that first. What -- what argument do you
20 want to make on Item 1?
21 MR. APPOINTED INDIGENCY ATTORNEY: Again, Your
Honor, it's
22 kind of a moot point. Because what we're
23 attempting to do is obviously because there was
24 nothing filed on the case, we did not want Your
25 Honor to see it. Because the nature of the
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
RE****TER
10
1 charge, it looks as if it's very serious, but it
2 involved a high school romance. And the ages were
3 inappropriate at the time, but it's not something
4 that this is a 23-year old with a 14-year old.
5 We simply felt that that cast WITNESS5
6 in a bad light. There's more to it, and that's
7 why we placed that objection.
8 Unfortunately, probation did not agree
9 with us at that point, and Your Honor saw it
10 anyway. So we really don't have anything to add
11 on that other than the fact that, obviously, the
12 State Attorney's Office did not file on this
13 charge.
14 I don't think it's as serious as the
15 typical L and L that comes before a state court.
16 This was a high school romance, again. I think
17 that perhaps the families were a little more upset
18 about it, and maybe it should have been left as a
19 family matter instead of a legal matter. And I
20 think that's ultimately what happened.
21 THE COURT: Okay. What is the
22 government's position with regard to that?
23 MR. PROSECUTOR: Your Honor, I have no
24 response to that.
25 THE COURT: Okay. And does probation
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
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11
1 have anything to add beyond what's in there?
2 PROBATION: No, Your Honor, we don't.
3 THE COURT: Fine. Okay. Well, your
4 objection is overruled.
5 What's your -- next is Item 2, Paragraph
6 30, other arrests. Let me hear your argument on
7 that.
8 MR. APPOINTED INDIGENCY ATTORNEY: Allow me
one
moment, Your
9 Honor. I'm sorry. That was the argument that I
10 made. I -- there are two objections.
11 THE COURT: All right. So I mean I
12 understand that, that you made it on that one.
13 But --
14 MR. APPOINTED INDIGENCY ATTORNEY: Correct.
Correct.
15 THE COURT: -- I'm just trying to follow
16 the item numbers, which you're obviously not doing
17 so that the record is clear on any appeal,
18 Mr. APPOINTED INDIGENCY ATTORNEY.
19 MR. APPOINTED INDIGENCY ATTORNEY: Yes, Your
Honor.
20 THE COURT: I try to be, you know,
21 methodical about Item 1, it's Paragraph 29. So
22 you argued Paragraph 30, which is under Item 2.
23 So let's go back to Paragraph 29 on that
24 one. What, if anything, do you want to say on it?
25 MR. APPOINTED INDIGENCY ATTORNEY: Again, just
that it's a
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
RE****TER
12
1 juvenile arrest. There was nothing filed on
2 behalf, and we attempted to keep that from this
3 Court. As again, we attempt to paint WITNESS5
4 in the best light that we can before this Court.
5 Obviously, probation disagreed, and it
6 came before the Court. So there's really, again,
7 no --
8 THE COURT: Well, probation disagreed
9 because on the instructions of this Court for whom
10 they work, all the judges of the Middle District
11 of Florida, probation is obliged to follow our
12 instructions, which are to give us all prior
13 record on people that prepare the presentence
14 re****t.
15 So it's not probation doing it. It's
16 the Court ordering it to be done so we're informed
17 about people that come before us, Mr. APPOINTED INDIGENCY
ATTORNEY. We
18 don't like things concealed from us that we are
19 supposed to know. Okay?
20 Now, anything else on that objection?
21 MR. APPOINTED INDIGENCY ATTORNEY: No, Your
Honor.
22 THE COURT: All right. Now, with the
23 assistance of probation, that's had all of about
24 two minutes to look at those objections, what do
25 you perceive from those objections today that
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
RE****TER
13
1 you're able to look at?
2 And, Mr. PROSECUTOR, try to help here a
3 little bit, because you've had the benefit
4 available to you.
5 Go ahead.
6 PROBATION: Well, Your Honor, the only
7 real objection I'm seeing is that he's objecting
8 to the base offense level, which --
9 THE COURT: Okay. I'll make that Item
10 3, base offense level. Okay.
11 PROBATION: I think he's asserting that
12 the defendant should only be held accountable for
13 three gallons of GHB, which the government
14 conceded before --
15 THE COURT: Right. Okay.
16 PROBATION: So the only thing that I saw
17 is that he -- his interpretation was that three
18 gallons equaled a base offense level of 22. And I
19 think it's --
20 MR. APPOINTED INDIGENCY ATTORNEY: Your Honor,
again --
21 PROBATION: -- 24.
22 MR. APPOINTED INDIGENCY ATTORNEY: -- if I may
interrupt,
23 that was a scrivener's error. There was an
24 amended motion filed.
25 THE COURT: So you agree it's a 22 -- or
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
RE****TER
14
1 a 24?
2 MR. APPOINTED INDIGENCY ATTORNEY: Correct,
Your
Honor.
3 THE COURT: All right. So we have no
4 dispute on that.
5 PROBATION: Okay. So then we can just
6 recalculate from that point. I think it can be
7 adjusted.
8 THE COURT: All right. I'm going to get
9 that in just a second. I want to make sure
10 there's nothing else. So the three gallons by
11 stipulation of the government and the defense;
12 correct, Mr. PROSECUTOR?
13 MR. PROSECUTOR: That is correct, Your
14 Honor.
15 THE COURT: Noted for the record. And
16 the Court's accepting that.
17 All right. Now, that's all you see in
18 those objections; right?
19 PROBATION: Yes, Judge. It looked like
20 there were just 3553 issues that he wanted to
21 argue. But for --
22 THE COURT: And those will come on a
23 motion on the other side of the ledger. Okay.
24 Do you have any other objections?
25 Probation's indicated you've got a 3553 motion,
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
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15
1 which will come after I give the lineup of the
2 sentencing guidelines. And then on the other
3 side, that's what I consider on the A(1) through
4 (7).
5 Is that okay?
6 MR. APPOINTED INDIGENCY ATTORNEY: Yes, Your
Honor.
7 THE COURT: All right. Now, let's do
8 the calculations based upon the base offense
9 level. And so the defendant's objection will be
10 sustained on that by the stipulation of the
11 parties, which the Court accepts. His objections
12 on 1 and 2 are overruled.
13 Okay. Fire away on the paragraphs when
14 you're ready. Go ahead.
15 PROBATION: Page 3, Judge, Paragraph 19.
16 THE COURT: All right. I'm getting
17 there.
18 PROBATION: Actually, I apologize.
19 We've got to back up one.
20 THE COURT: Okay. One, two --
21 PROBATION: It's Page 2, Paragraph 14.
22 THE COURT: Got you.
23 PROBATION: That the base offense level
24 goes to a 24 from a 26.
25 THE COURT: Okay. That's a 24. Okay.
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
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16
1 By stip of parties. I've got that noted by
2 stipulation of the parties. Court grants.
3 All right. Then where we going?
4 PROBATION: Next page, Paragraph 19.
5 The adjusted offense level will become a No. 22.
6 THE COURT: Okay.
7 PROBATION: Go down to Paragraph 22, and
8 that new adjusted number will be No. 19.
9 THE COURT: Right. Okay.
10 PROBATION: Go to the back of the
11 re****t, Page 11 --
12 THE COURT: Page 11.
13 PROBATION: -- Paragraph 66.
14 THE COURT: Okay.
15 PROBATION: And the range will be a 19,
16 criminal history category I.
17 THE COURT: Right.
18 PROBATION: And a new range of 30 to
19 37 months.
20 THE COURT: Okay. 30 to 37 months. Got
21 it.
22 PROBATION: And go to the next page,
23 Paragraph 75.
24 THE COURT: Okay. 75.
25 PROBATION: The new fine range becomes
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
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17
1 6,000 to 60,000 -- I'm sorry, to 1 million. 1
2 million.
3 THE COURT: I got it. 6,000 to 1
4 million?
5 PROBATION: Yes, Your Honor.
6 THE COURT: Just the base offense on it
7 that is reduced. Okay.
8 PROBATION: Correct. Correct. And that
9 should be all.
10 THE COURT: Okay. Thank you very much.
11 All right.
12 Now, back to the statement. The Court
13 adopts the undisputed factual statements and
14 guideline applications as contained in the
15 presentence re****t.
16 As to the controverted factual
17 statements and guideline applications, the Court
18 adopts the position of the probation office as
19 stated in the addendum except as to Item No. 3,
20 where objection by defendant is sustained by
21 stipulation of parties.
22 So we're now at total offense --
23 therefore, the Court determines that the
24 applicable guidelines are total offense level 19,
25 criminal history category Roman Numeral I. The
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
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18
1 range is 30 to 37; right?
2 PROBATION: Correct.
3 THE COURT: Two to three years
4 supervised release. Is that still the same?
5 PROBATION: Yes, it is.
6 THE COURT: And restitution's not
7 applicable. $6,000 to $1 million fine. And a
8 $100 special *****sment over which I have no
9 control.
10 Okay. Do you know of any reason why
11 this Court should not now proceed with imposition
12 of sentence?
13 Mr. APPOINTED INDIGENCY ATTORNEY, sir?
14 MR. APPOINTED INDIGENCY ATTORNEY: No, Your
Honor.
15 THE COURT: Mr. PROSECUTOR.
16 MR. PROSECUTOR: No, Your Honor.
17 THE COURT: Do you wish to make a
18 statement or to present any information in
19 mitigation of sentence? Is there a government
20 motion?
21 MR. PROSECUTOR: There is, Your Honor.
22 THE COURT: Do you defer to the
23 government?
24 MR. APPOINTED INDIGENCY ATTORNEY: As to --
yes.
25 THE COURT: Okay. Go right ahead.
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
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19
1 MR. PROSECUTOR: Your Honor, as I
2 indicated previously, this was a larger
3 investigation. WITNESS5, after consultation
4 with counsel, began cooperating. His cooperation
5 led to the arrest of another individual who was
6 prosecuted here in Federal Court.
7 As a result of a plea, there was no
8 testimony necessary. But due to the fact that he
9 led us to an arrest, subsequent to a prosecution,
10 pursuant to our guidelines we're asking for a
11 four-level departure under 5K1.1 under the United
12 States Sentencing Guidelines.
13 THE COURT: Okay. And how many levels?
14 MR. PROSECUTOR: Four levels.
15 THE COURT: Four levels. Okay. Based
16 upon the government's evaluation of that, that
17 will bring him down -- he's at 19 now. So four
18 levels will bring him to a level 15, Roman numeral
19 I. The range is -- do you have it, Mr. PROSECUTOR?
20 Or do you have it?
21 PROBATION: 18 to 24 months, Your Honor.
22 THE COURT: 18 to 24 months. Thank you.
23 All right.
24 Now, you also have a defendant's motion
25 under 3553(a)(1) through (7). Go ahead with that
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
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20
1 motion.
2 MR. APPOINTED INDIGENCY ATTORNEY: Your Honor,
I
have an
3 amended sentencing memorandum that I'd like to
4 make sure the Court has an op****tunity to read.
5 THE COURT: Okay.
6 MR. APPOINTED INDIGENCY ATTORNEY: I just
point
out for the
7 record that when I did that, it was a scrivener's
8 error as to the 22. I immediately within minutes
9 corrected that and filed a new one, in which I
10 bold faced all the changes, admitting my mistakes.
11 And it breaks down -- and we're in
12 agreement as to what probation says. That was my
13 error, and I hope the Court would accept that that
14 is my error and not my client's. I'm not trying
15 to pull any fast ones before the Court.
16 THE COURT: Okay. But the critical
17 thing is as we look at Item 4, Subsection C,
18 Subsection 2 on Page 5 of your Do***ent 54, the
19 defendant's total base offense level is a maximum
20 of 15 if the Court accepts the government's
21 motion.
22 MR. APPOINTED INDIGENCY ATTORNEY: Yes, Your
Honor.
23 THE COURT: Right. Okay.
24 MR. APPOINTED INDIGENCY ATTORNEY: Your Honor,
I
would --
25 THE COURT: And you're asking now for
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
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21
1 seven levels beyond that?
2 MR. APPOINTED INDIGENCY ATTORNEY: No, no,
Your
Honor. I'm
3 asking for three levels beyond that. The reason
4 being is that -- two arguments, Your Honor.
5 Number one, we believe that WITNESS5's --
6 THE COURT: Just a second. Go ahead.
7 MR. APPOINTED INDIGENCY ATTORNEY: --
WITNESS5's
decision
8 to cooperate manifests a super acceptance of
9 responsibility. Within moments he asked to speak
10 to his sister. Now, it is without question his
11 sister is an attorney. However, she does not
12 practice criminal law in Federal Courts.
13 He was asking to speak with his sister
14 more as a kind of security blanket. When his
15 sister came down, they then decided together to
16 immediately cooperate. That led to the arrest of
17 individuals who were then prosecuted within this
18 district.
19 I'd ask the Court to take that into
20 consideration given the fact that because he
21 was -- essentially he asked the advice of his
22 sister, who is an attorney, it could have been
23 very easy for him to simply say, I'm not speaking
24 period. I'm not doing anything.
25 WITNESS5 not only admitted to his own
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
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22
1 involvement immediately, but he then assisted the
2 government in apprehending other individuals who
3 were alleged and later convicted of crimes within
4 this district.
5 And I'd ask the Court to take that into
6 consideration when fa****oning a sentence beyond
7 the four levels. We certainly appreciate and
8 would ask the Court not to go below the four
9 levels, but we're asking the Court to consider the
10 totality of the cir***stances, and the fact that
11 what his actions amounted to is that sort of a
12 super acceptance of responsibility and grant more
13 than four levels.
14 When later on --
15 THE COURT: That's under the 5K1?
16 MR. APPOINTED INDIGENCY ATTORNEY: Yes.
17 THE COURT: All right. And you're also
18 making an argument under defendant's motion
19 3553(a)(1) through (7) requesting three additional
20 levels, I believe, under that, which would bring
21 him to a level 12, Roman I, where the range is 10
22 to 16.
23 MR. APPOINTED INDIGENCY ATTORNEY: It's -- I
don't --
24 THE COURT: And I'm putting that on the
25 record. Is that correct?
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
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23
1 MR. APPOINTED INDIGENCY ATTORNEY: Yes.
2 THE COURT: You got to be specific about
3 what you're asking for Mr. APPOINTED INDIGENCY ATTORNEY.
Okay. Go
4 ahead.
5 MR. APPOINTED INDIGENCY ATTORNEY: The reason
why is -- I
6 don't think it's a secret before anyone in this
7 Court that Zone C allows this Court different
8 options in sentencing than simply a 13, a 14, or a
9 15.
10 So what we're attempting to do, Your
11 Honor, either through a 5K motion, which -- in
12 which you grant additional levels beyond what the
13 government is requesting or through the mitigation
14 factors that we're asking the Court to take into
15 consideration, we're asking the Court to depart
16 downward so he can get into the Zone C. That is
17 explicitly stated within my motion.
18 If the appropriate time now is to go
19 into those mitigating factors under 3553(a), then
20 I'd like the op****tunity to do so. We do have
21 witnesses that I'd like to bring forward to the
22 Court who will be brief, but on point as to those
23 mitigating factors.
24 THE COURT: Well, if you're going to
25 bring them forward, you'd better bring them up to
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
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24
1 that podium now.
2 Mr. Bailiff, assist with regard to this.
3 How many people are you requesting?
4 MR. APPOINTED INDIGENCY ATTORNEY: Well, Your
Honor -
5 THE COURT: Don't tell me their names.
6 What's the number? How many?
7 MR. APPOINTED INDIGENCY ATTORNEY: At this
point
we have six
8 people who would like to address the Court very
9 briefly.
10 THE COURT: Six people?
11 MR. APPOINTED INDIGENCY ATTORNEY: Yes, Your
Honor.
12 THE COURT: They get one minute each.
13 MR. APPOINTED INDIGENCY ATTORNEY: Thank you,
Your Honor.
14 THE COURT: Line them up in a line.
15 MR. APPOINTED INDIGENCY ATTORNEY: Your Honor,
if I may --
16 THE COURT: Line them in a line right
17 now in the order in which you want them to speak.
18 Right now. Line them up.
19 MR. APPOINTED INDIGENCY ATTORNEY: Thank you.
20 THE COURT: Go back there, Mr. APPOINTED
INDIGENCY ATTORNEY,
21 and do that. Your client can stay right where he
22 is. Line them up. They get one minute each.
23 All right. Just as soon as Mr. APPOINTED
INDIGENCY ATTORNEY
24 gets them lined up and he can get back up here.
25 Okay. We got six people. All right.
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25
1 Who's the first person you're calling,
2 Mr. APPOINTED INDIGENCY ATTORNEY?
3 MR. APPOINTED INDIGENCY ATTORNEY: WITNESS1.
4 THE COURT: All right, sir. State your
5 name for the record.
6 WITNESS1: Good morning, Your
7 Honor. My name is WITNESS1.
8 THE COURT: Good morning, sir. What's
9 your relation****p to the defendant?
10 WITNESS1: I have a unique
11 relation****p with WITNESS5. I'm his
12 [RELATIVE].
13 THE COURT: Okay. Fine. You have one
14 minute.
15 WITNESS1: Okay. I'm also a member
16 of the Bar, Your Honor.
17 THE COURT: All right.
18 WITNESS1: I thought it would be
19 helpful to the Court if I could offer words that
20 may help the Court in determining the appropriate
21 sentence. I first met WITNESS5 nine years ago
22 as a high school student. He is a very capable
23 individual.
24 However, he did get off course. He got
25 involved in the wrong crowd. I was disappointed
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26
1 in him at times, knowing that he could do much
2 better if he applied himself and used the love and
3 his strong family around him. However, that
4 didn't happen at the time.
5 I believe that him getting caught may
6 have been one of the best things for him, in that
7 it straightened him out.
8 THE COURT: Okay.
9 WITNESS1: And I feel that the
10 anxiety that he's had over today has been enough
11 to have effectively cured him. I believe that's
12 demonstrated by his actions. In the last year he
13 has -- he has a fiancee, he has become a
14 homeowner, and he has become a father of his -- of
15 his first son.
16 I think it's realization of becoming a
17 father, him no longer being the child, but instead
18 of having to care for a child in combination with
19 the pendency of this case that has been most
20 corrective to him.
21 THE COURT: Counsel, you're out of time.
22 WITNESS1: Okay.
23 THE COURT: Thank you.
24 WITNESS1: Thank you, Your Honor.
25 THE COURT: Next person.
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1 MR. WITNESS2: Hello, Your Honor.
2 THE COURT: Yes, sir. What's your name,
3 sir?
4 MR. WITNESS2: My name is WITNESS2.
5 THE COURT: And what's your relation****p
6 to the defendant?
7 MR. WITNESS2: I'm a lifelong friend. I've
8 known him for 16 years.
9 THE COURT: Okay. Go ahead.
10 MR. WITNESS2: I just want to come forward
11 today and just state the type of character that my
12 buddy John has. I've known him for 16 years.
13 We've played all kinds of s****ts together. Grown
14 up throughout high school, middle school --
15 THE COURT: Did you try to get him to
16 get away from these people that got him in
17 trouble?
18 MR. WITNESS2: Absolutely, ma'am. I also --
19 THE COURT: He wouldn't listen to you,
20 would he?
21 MR. WITNESS2: He would not.
22 THE COURT: Okay.
23 MR. WITNESS2: Just recently within the past
24 year I've actually got him working with me as a
25 licensed real estate agent, a real estate
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1 investor. And I speak to him on a daily basis
2 every single morning.
3 And he motivates me to get up, you know,
4 and get out there and keep on doing things that I
5 need to do for myself. And he's just the type of
6 person he's turned into recently with being a
7 father and being engaged and just changing his
8 life around has, you know, really motivated me to
9 go up to the next level.
10 That's pretty much what I want to say.
11 THE COURT: Thank you very much for
12 coming, sir. You may take a seat.
13 MR. WITNESS2: Thank you.
14 THE COURT: The next person is?
15 WITNESS3: Witness3.
16 May it please the Court.
17 THE COURT: What's your relation****p to
18 the defendant?
19 WITNESS3: I am WITNESS5's [relative]
20
21 THE COURT: Okay. Fine. Go ahead. You
22 have one minute.
23 WITNESS3: Thank you, Your Honor.
24 I also acted with WITNESS5 and the Special Agent
25 when WITNESS5 was apprehended. Judge, what I
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29
1 would like to emphasize to Your Honor is that the
2 person that you see here today is not the person
3 that was dealing drugs.
4 My brother has made a significant life
5 change. I was very disappointed when I learned
6 that he was doing what he did, because he wasn't
7 raised like that. My family taught him morals.
8 They taught him right from wrong and --
9 THE COURT: Why did he do it?
10 WITNESS3: I don't know, Judge. I
11 can only say -- and I'm not -- and I'm not --
12 THE COURT: That's the critical thing
13 that you as his sister need to reach deep down
14 inside of him and find out, because --
15 WITNESS3: Well, Judge, I --
16 THE COURT: -- all the other things that
17 you might tell me about his life, his childhood,
18 and all the rest of that, what I'm really
19 interested in is what reached down inside his
20 insides.
21 WITNESS3: I can answer that
22 question, Your Honor --
23 THE COURT: Go ahead.
24 WITNESS3: -- in one word. He was
25 an addict. And I'm not making excuses for him by
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30
1 any means, because he made the choice to do drugs.
2 But my brother -- my brother's a very
3 loving, generous person. And when he was on
4 drugs, he only thought about himself. He became
5 very selfish. He hurt the family.
6 And that's -- its almost like a blessing
7 in disguise. When I spoke with the Special Agent
8 I wanted him to come forward and to turn in the
9 people that were doing this, because that was the
10 only way that I can insure that these people
11 weren't going to continue to bring him into this
12 type of activity. And that's why --
13 THE COURT: It's the first towards
14 rehabilitation.
15 WITNESS3: Correct.
16 THE COURT: He did the right thing, and
17 you gave him the right advice.
18 WITNESS3: And, Your Honor, the
19 other significant factor is that he overdosed on
20 GHB once. And I wanted to Marchman Act him. And
21 he swore to me that he would never use it again,
22 and he did. And I know that he dealt because he
23 was using.
24 In the last year and a half I got my
25 brother back. Our whole family got our brother
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31
1 back, because he's not using and he's gotten his
2 real estate license, he's become a father. He is
3 the brother that we all knew he could become, and
4 the person that he is today.
5 THE COURT: Okay.
6 WITNESS3: So we're asking Your
7 Honor to show leniency. To understand that he
8 acknowledges that he made a mistake. He's willing
9 to face up to that. He should be punished.
10 But I'm asking that Your Honor consider
11 the positive changes that he's made in his life --
12 THE COURT: Yes. Okay.
13 WITNESS3: -- and consider that
14 because, like I said, he is a good person and he's
15 a good father, and --
16 THE COURT: Okay. You've covered it.
17 Thank you, counselor.
18 WITNESS3: Thank you.
19 THE COURT: All right. The next person.
20 State your name, please.
21 WITNESS4: My name is Witness4.
22 THE COURT: And what's your relation****p
23 to the defendant?
24 WITNESS4: I'm his [relative].
25 THE COURT: Yes, ma'am.
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32
1 WITNESS4: An in a way what I have to
2 say, I'm glad this happened --
3 THE COURT: Sure.
4 WITNESS4: -- because right now I
5 would have lost my [relative] if it didn't happen. And I
6 have seen the difference in him in the last year.
7 And, Your Honor, he's a different person. And all
8 I can say is that I want to thank everybody for
9 helping him.
10 THE COURT: Yes, ma'am.
11 WITNESS4: Thank you.
12 THE COURT: I think you summed it up
13 well. Okay? Thank you.
14 Next person.
15 WITNESS5: Good morning, Your Honor.
16 THE COURT: Good morning, sir. What's
17 your -- your name, sir.
18 WITNESS5: My name is John Lebron, and
19 I am John's father.
20 THE COURT: All right, sir.
21 WITNESS5: And the first thing I'd
22 like to say is that the reason that he's standing
23 there is mainly due to my fault, also. Because I
24 was never a very good role model. And I also have
25 a problem, but with alcohol. And I've been
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33
1 fighting it now -- I've been clean and sober for
2 the last five years.
3 But I would like to thank the Court for
4 the fact that in the last year and a half when
5 they put him under my supervision -- or our
6 supervision, his [relatives and mine], we've been able
7 to notice a change in him. And we were able to
8 get to talk to him, where we had lost touch for a
9 long time. We were able to get to be able to talk
10 with him and spend time with him. And lately
11 we've been spending a lot of time together and
12 we've noticed a change in him.
13 And I would ask the Court also for
14 leniency and to take into consideration the fact
15 that -- I'm sure you hear this from everybody that
16 there is change, but I see the change in him, Your
17 Honor. And I, being addicted to alcohol, can also
18 help him -- or I've been lately working with him
19 and talking with him. And I've noticed the change
20 in him.
21 So I don't want to take anymore of your
22 time, but I'd like to thank you --
23 THE COURT: It's all right. It's okay,
24 sir.
25 WITNESS5: Thank you very much.
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34
1 THE COURT: I'm pleased to have heard
2 from both you and your wife.
3 Yes, ma'am. Your name, ma'am?
4 MS. KUMER (phonetic): I'm Trisha
5 Kumer. I'm John's fiancee.
6 THE COURT: All right.
7 MS. KUMER: We've been together for two
8 years. And a little bit about me, like I don't --
9 I don't have any family. My parents died when I
10 was really young. And I don't want my little son
11 to have a broken family.
12 I always knew he was a good person. And
13 I knew he had a drug problem, but I worked with
14 him through it, because he's such a caring,
15 sincere good person.
16 And since this incident he has changed.
17 He's become an amazing father. And he's our sole
18 sup****ter right now. I've had a difficult
19 pregnancy. I've had a horrible delivery. And
20 he's been there through everything with me. And
21 he's just helped me through everything physically
22 and emotionally.
23 I just ask that you have mercy on him
24 because I really need -- I really -- we need him.
25 THE COURT: Okay. Okay. I understand,
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35
1 ma'am. I really do. Okay? Just have a seat.
2 Thank you. You've expressed yourself. Okay?
3 Now, anything more that you want to say,
4 Mr. APPOINTED INDIGENCY ATTORNEY, or you want your client
to speak?
5 MR. APPOINTED INDIGENCY ATTORNEY: Mr. Lebron
will have the
6 last word. I just have a question to the Court.
7 In filing these motions after Booker,
8 this is the first time I've had an op****tunity to
9 come before this Court.
10 THE COURT: Yeah.
11 MR. APPOINTED INDIGENCY ATTORNEY: I've come
before other
12 Courts in this jurisdiction in Ft. Myers and
13 Ocala, and I get different answers. So I want to
14 make it clear --
15 THE COURT: Sure.
16 MR. APPOINTED INDIGENCY ATTORNEY: -- that
the -- a lot of
17 the objections that I filed, Judge Moody, for
18 instance makes me actually read them into the
19 record. He doesn't consider them part of the
20 record even though I filed them.
21 THE COURT: No. If you filed them,
22 they're -- they're part of the record here.
23 However, I need to rule on them.
24 MR. APPOINTED INDIGENCY ATTORNEY: Correct.
25 THE COURT: So if you want to specify
TRANSCRIPTIONIST, RPR OFFICIAL UNITED STATES COURT
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36
1 which ones you need rulings on insofar as
2 objections are concerned, because if they relate
3 to other matters in the presentence re****t, we
4 have to deal with them.
5 MR. APPOINTED INDIGENCY ATTORNEY: Yes, Your
Honor. The --
6 THE COURT: And we probably should have
7 dealt with them when I talked about Item 1, Item
8 2, Item 3.
9 We went to Item 3, which was the base
10 offense level, and we dealt with it on the
11 quantity.
12 Now, what are these others and how are
13 they categorized?
14 MR. APPOINTED INDIGENCY ATTORNEY:
There - -there is only one
15 other one --
16 THE COURT: What is it?
17 MR. APPOINTED INDIGENCY ATTORNEY: -- and it
deals with -- in
18 my experience, Judge --
19 THE COURT: What is it?
20 MR. APPOINTED INDIGENCY ATTORNEY: No. --
letter
C. Where it
21 says federal guidelines should not be given
22 substantial weight.
23 THE COURT: Is that your only other
24 objection?
25 MR. APPOINTED INDIGENCY ATTORNEY: Yes, Your
Honor.
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37
1 THE COURT: MR. APPOINTED INDIGENCY ATTORNEY.
Well, let me
2 mark it here on the sheet here. No. 4, going to
3 have to put it on the back page here. No. 4,
4 federal sentencing guidelines should not be given
5 substantial weight?
6 MR. APPOINTED INDIGENCY ATTORNEY: Yes, Your
Honor.
7 THE COURT: Okay. And what's your
8 authority for that?
9 MR. APPOINTED INDIGENCY ATTORNEY: Well, it's
my
10 understanding --
11 THE COURT: Do you have a case law for
12 that?
13 MR. APPOINTED INDIGENCY ATTORNEY: It's more
--
if you'll
14 allow me --
15 THE COURT: Okay.
16 MR. APPOINTED INDIGENCY ATTORNEY: It's -- the
United States
17 Sentencing Commission post Booker has sent out a
18 memorandum to all of the judges and the probation
19 officers and lawyers. And it advises judges to
20 give, quote, substantial weight to the guidelines.
21 Our -- my objection to that is more -- a
22 theoretical one is that if judges start giving
23 substantial weight to the guidelines, that, in
24 effect, makes them a de facto mandatory again,
25 which is against what the remedial majority told
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38
1 the Court not to do on January 12th.
2 So what I am asking the Court to do is
3 to just make it an equal factor, as all of the
4 other factors under 3553(a)(1) -- (3) through (7).
5 So I'm just asking it to be one of an
6 equal factor, and to the Court to give equal
7 weight to such things as what we've just heard.
8 And also the other mitigating factors such as
9 Mr. Lebron's drug abuse as an addict, his -- in
10 this case, strong educational history, which I
11 believe will lead this Court to have less concern
12 that he'll violate again, because he has legal
13 means to -- once he is released from whatever it
14 is that he's going to do for this Court, I think
15 he's less likely to come back before this Court
16 because he has perhaps options that other
17 defendants that come before this Court do not
18 have.
19 So I'm asking the Court just to --
20 and -- and it's kind of a speculative objection,
21 because I've not been before this Court on this
22 type of hearing since January 12th. So I don't
23 know whether or not this Court will give
24 substantial weight in accordance with the
25 Sentencing Commission's instruction. If this
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39
1 Court does, I'm objecting to it. If it doesn't,
2 then again it's a moot objection as well.
3 THE COURT: All right. What's
4 probation's objection with regard to this, bearing
5 in mind that we have Booker, Fan-Fan indicating
6 that the guidelines are advisory?
7 PROBATION: Exactly, Your Honor. And so
8 it would be our position that the judges know
9 that, and they don't impose a mandatory. They use
10 them advisory. And whether they apply them
11 substantially or whether not, is really -- is up
12 to you.
13 THE COURT: It's a judgment call?
14 PROBATION: It's a judgement call.
15 THE COURT: It's a judgement call, just
16 like with the jury. You introduce evidence, and
17 you give it such weight, if any, as you believe it
18 deserves to have.
19 You've made your argument with regard to
20 your client and his background, and I evaluate
21 that and make a determination with regard to it.
22 Now, what's the government's position?
23 MR. PROSECUTOR: Your Honor, if I can
24 respond to a couple of things.
25 THE COURT: Sure.
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40
1 MR. PROSECUTOR: First, obviously, it's
2 the government's position that the guideline
3 calculation is a reasonable sentence for this
4 case. Even beyond that, if the Court were to
5 consider any factors under 3553, I still think
6 where we're ultimately winding up -- and I should
7 put on the record it's the government's position
8 that a low end sentence, even though there is no
9 plea agreement in this case.
10 The low end of the guideline range would
11 be appropriate, which under the guideline range
12 would come up to 18 months. Even under 3553, that
13 is a more than reasonable sentence in light of the
14 drug involvement of this defendant.
15 Beyond that, Your Honor, and this -- I
16 normally would not do this, but I'd be remiss if I
17 didn't say this today. This sentencing is very
18 reminiscent of a sentencing I had before Your
19 Honor with this drug, GHB. We had a defendant in
20 very similar cir***stances, eventually went on
21 probation and died of an overdose.
22 And I say this to Mr. Lebron himself
23 because of two things. One, he's got very little
24 criminal history. But as a result of this first
25 prior -- today's prior, he's now a career
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41
1 offender.
2 THE COURT: That's right.
3 MR. PROSECUTOR: If he comes back before
4 this Court again, he will never see the light of
5 day. Two strikes.
6 THE COURT: He'll get life without
7 parole.
8 MR. PROSECUTOR: Second thing is, and it's
9 clear, he has had a problem with addiction. And
10 that's why I bring up the prior sentencing. Very
11 similar person in his cir***stances. Strong
12 family, sup****t, very bright individual who
13 couldn't beat it and wound up dying.
14 He's got to make choices in his life,
15 and those are the two things he's going to have to
16 carry with him the rest of his life.
17 So I just leave that for the record.
18 THE COURT: Okay. Well, I'm glad that
19 you did that, Mr. PROSECUTOR. And I think that his
20 family can identify with that, certainly one of
21 the people who spoke, because it's not after 5
22 years or 10 years or 15 years when you're
23 recovering from a problem. It's something with --
24 from which you have to recover for the rest of
25 your life. And it will always be there waiting to
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1 attack you, to attack your weakness.
2 Anything else, Mr. PROSECUTOR?
3 MR. PROSECUTOR: No, Your Honor.
4 THE COURT: Anything else, Mr. APPOINTED
INDIGENCY ATTORNEY?
5 MR. APPOINTED INDIGENCY ATTORNEY: As to
mitigating factors,
6 I think that his family members have spoke more
7 eloquently I can. I think John -- Lebron will
8 do so as well.
9 I just ask the Court to take into
10 consideration the fact that he has been out on
11 pretrial release. And granted, he's had the
12 sledgehammer hanging over him in terms of the
13 sentencing. But I think by all accounts, this
14 gentleman has made the necessary changes.
15 And while we certainly appreciate
16 everything that Mr. PROSECUTOR has done today, and
17 we certainly appreciate -- I think everyone can
18 appreciate the kind of warning tale of the
19 gentleman before him.
20 Obviously, this Court has to look at
21 this gentleman as an individual. And I'd ask the
22 Court to take into consideration -- I think this
23 is a person who is worth a risk in terms of an
24 alternative sentence to incarceration, given
25 everything that's come before this Court,
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43
1 especially the last person that spoke, Ms. Kumer,
2 given her cir***stances with her newborn child.
3 THE COURT: Okay.
4 MR. APPOINTED INDIGENCY ATTORNEY. And I know
Mr. Lebron does
5 want to address the Court.
6 THE COURT: All right. I want -- go
7 right ahead, Mr. Lebron.
8 THE DEFENDANT: I wanted to write -- I
9 wrote this down because I'm kind of nervous.
10 THE COURT: Sure. Sure. Go ahead.
11 THE DEFENDANT: Your Honor, I want to
12 start off by saying that this is nobody's fault
13 but my own, and I know that. And looking back
14 when I was dealing drugs, I see I hurt a lot of
15 people. And I just -- I guess my visual was
16 blurred on, you know, what really mattered.
17 I know I have a drug problem, and, you
18 know, I know I need help. But this past year and
19 a half I was thinking what might happen and go to
20 prison and leave my family -- leave my family that
21 needs me. I just -- that's what hurts -- that's
22 what's hurt me the most.
23 And I've got a son now that I want to
24 spend -- you know, I want to be in his life. And
25 I am truly sorry for what I did. And I can assure
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44
1 you'll never see me again in this courtroom.
2 THE COURT: Okay. All right. If you
3 want to come back up here in front of the Court,
4 Mr. Lebron.
5 Now, Mr. APPOINTED INDIGENCY ATTORNEY --
6 MR. APPOINTED INDIGENCY ATTORNEY: Yes, Your
Honor.
7 THE COURT: -- do you or your client
8 have an objection if I speak with Mr. PROSECUTOR?
9 The agent's not here, is he?
10 MR. PROSECUTOR: He's not, Your Honor.
11 He's on leave.
12 THE COURT: Okay. Speak with
13 Mr. PROSECUTOR at sidebar. It will be on the
14 record, but sealed out of your presence and out of
15 the presence of your client.
16 MR. APPOINTED INDIGENCY ATTORNEY: No
objection,
Your Honor.
17 THE COURT: Do you have any
18 objections --
19 MR. APPOINTED INDIGENCY ATTORNEY: Can I
explain
to him what
20 that means?
21 THE COURT: Yeah, sure.
22 MR. APPOINTED INDIGENCY ATTORNEY: Yes, Your
Honor. No
23 objection. I've explained to my client what this
24 means.
25 THE COURT: Okay. All right.
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45
1 (AT WHICH TIME A SIDEBAR DISCUSSION WAS
2 HAD BETWEEN THE COURT AND GOVERNMENT COUNSEL AND
3 DEEMED SEALED BY THE COURT.)
4 THE COURT: Okay. All right.
5 Now, I'm going to ask APPOINTED INDIGENCY
ATTORNEY to come
6 over here because I'm going to show him this.
7 MR. PROSECUTOR: Okay.
8 THE COURT: So it's not --
9 MR. PROSECUTOR: Okay.
10 (AT WHICH TIME THE FOLLOWING SIDEBAR CONFERENCE
11 WAS HELD:)
12 THE COURT: Mr. APPOINTED INDIGENCY ATTORNEY,
I
want you over
13 here now. Just you with Mr. PROSECUTOR.
14 Among the things I've discussed with
15 Mr. PROSECUTOR, and I didn't want to throw this at
16 you. Are you familiar with this new case that's
17 come out from the Eleventh Circuit called McVeigh?
18 MR. APPOINTED INDIGENCY ATTORNEY: No, Your
Honor.
19 THE COURT: Okay. All right. Now, let
20 me show you the McVeigh case. In a nutshell, this
21 is a 5K1.1 case --
22 MR. APPOINTED INDIGENCY ATTORNEY: Oh, yes. I
recognize --
23 THE COURT: -- and they dropped 21
24 levels.
25 See, everybody -- see, everybody knows
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46
1 the facts, but they don't know the name of the
2 case.
3 And I didn't want to spring that on you.
4 But -- and I'm keeping it up here with me, because
5 when you go down the test of one, two, three,
6 four, five, and the Court's evaluation of the
7 significance and usefulness and all that rest of
8 that stuff, it's an awful lot like going down to
9 31 -- I mean, a 3553(a)(1) through (7).
10 Now, whatever I'm going to do with him,
11 I'd be more inclined to do it under the 5K1.1.
12 Because even departure under the 5K1.1, to some
13 extent additionally, I feel more comfortable with
14 because he did provide you the cooperation with
15 which he provided you.
16 And you found that critical and good to
17 yourself at the time when you had those two days
18 of arresting people left, right, and center.
19 MR. PROSECUTOR: That's correct, Your
20 Honor.
21 THE COURT: And so we're talking about
22 his timeliness. And he immediately responded to
23 that on the advice of his sister, who's a
24 lawyer --
25 MR. PROSECUTOR: Yes, Your Honor.
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47
1 THE COURT: -- and all the rest of that.
2 So I'm -- I'm weighing that right now.
3 MR. APPOINTED INDIGENCY ATTORNEY: Yes, Your
Honor.
4 THE COURT: Okay. Anything else?
5 MR. PROSECUTOR: No, Your Honor.
6 THE COURT: Thank you.
7 MR. APPOINTED INDIGENCY ATTORNEY: Your Honor,
may I take a
8 Kleenex box to his family?
9 THE COURT: May you take a what?
10 MR. APPOINTED INDIGENCY ATTORNEY: The Kleenex
box.
11 THE COURT: Sure.
12 (WHEREUPON, THE SIDEBAR DISCUSSION WAS
13 CONCLUDED AND THE PROCEEDING RESUMED AS FOLLOWS:)
14 THE COURT: Okay. All right. Now, it
15 is never any great pleasure for this Court to
16 sentence anyone. It's a duty that has to be
17 performed.
18 The Court takes a number of factors into
19 consideration, not the least of which is that you
20 have attempted to make amends by cooperating with
21 the government. And the Court has to evaluate the
22 significance of that cooperation.
23 And I've had discussions with
24 Mr. PROSECUTOR with regard to that at sidebar on the
25 record that is sealed. And I've also had your
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1 attorney, Mr. APPOINTED INDIGENCY ATTORNEY, over there
for
discussions
2 with regard to a recent court case, U.S. vs.
3 McVeigh out of the Eleventh Circuit, where
4 criteria have to be met for a substantial
5 assistance motion.
6 And I believe that Mr. PROSECUTOR has
7 satisfied me that the criteria in the McVeigh
8 case, Items 1 through 5, have been met considering
9 the timeliness of the cooperation, the extent of
10 it, especially during the two days when things
11 were going on, the completeness and truthfulness
12 and reliability of the information upon which
13 action was taken.
14 Also, the period of time that this
15 defendant has been under the supervision of his
16 family to try to make him come to grips with the
17 reality of where he is at the age of 27.
18 What is particularly alarming about
19 this, Mr. Lebron, is why you took the first step
20 to attempt to get into these drugs. Because you
21 graduated high school with a 3.57 grade point
22 average. You attended the University of south
23 Florida from '97 to 2001.
24 And that apparently was the beginning of
25 the end for you. Because once you got into that
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1 environment away from home, which I see so often,
2 parents trustingly have their children that are
3 growing into adulthood exposed to what they hope
4 is a better environment in their lives to improve
5 them, find out later on that they have exposed
6 them to not only poor associates, but to sharks
7 who feed off of their young and destroy them.
8 And there is no question that you dealt
9 with associates at that period of time that
10 ultimately resulted in you being academically
11 dismissed for your poor scholastic standing.
12 You just were not mature enough to be
13 placed in that environment to deal with that
14 problem. And as a result of it, you find yourself
15 today -- you find yourself today in the situation
16 in which you are.
17 And your lack of maturity is
18 demonstrated in the two objections which are in
19 the order that Mr. APPOINTED INDIGENCY ATTORNEY, your
attorney, has
20 ably argued in protecting your interests here.
21 Your immaturity is demonstrated with regard to
22 that. And you need to realize that.
23 You're a father now. I assume that you
24 and your fiancee are going to assume the
25 responsibilities of married life, and that you are
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1 going to prepare yourself to go forward, being a
2 responsible citizen in the community.
3 You have not yet had a taste of jail.
4 You have not yet found out what is it - it's like
5 to have that jail door close and you to be
6 confined without restrictions.
7 And I have to evaluate whether or not I
8 should expose you to that or not. Now, the least
9 amount that I could give you under these
10 cir***stances without getting down into this Zone
11 C, which I'm sure Mr. APPOINTED INDIGENCY ATTORNEY has
explained to
12 you, is 12 months in jail.
13 And I have to figure out in my mind
14 whether that is something that you need to have so
15 you will know what it is like if you have to face
16 the rest of your life in jail without parole as a
17 career offender if you slip.
18 I also have to take into consideration
19 what I feel that impact may have upon you.
20 Because I am concerned even today about your
21 maturity.
22 Now, the only people who can control you
23 is your family. And the sup****t of your family is
24 more critical to you than I think you maybe even
25 realize. 12 months in jail might be very damaging
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1 to you, because I'm not sure you are capable of
2 handling it.
3 I have plenty of people that I put in
4 jail that I don't have any choice about that. But
5 with you I've got a choice. I have to make up my
6 mind whether I come down under the 5K1.1, because
7 I don't think I'm going to grant it under
8 Mr. APPOINTED INDIGENCY ATTORNEY's motion. That's being
denied.
9 Even in consideration of the McVeigh
10 case I have to decide whether or not instead of
11 coming down four levels, I come down seven.
12 But I want you to clearly understand and
13 I want your family to clearly understand two
14 things. If I come down that seven, your family is
15 going to have to watch you. Because if you become
16 so distraught, you might do something
17 self-destructive.
18 The second thing you might do is you
19 might go back to what has been your emotional
20 sup****t since 19 -- what is it, '97? And that's
21 the drug culture. Now you've got to tell me.
22 That year and a half you've been out, have you
23 wanted those drugs?
24 THE DEFENDANT: Your Honor, I have -- I
25 have thought about -- you know, I have wanted
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1 those drugs --
2 THE COURT: Sure.
3 THE DEFENDANT: -- but I know my life
4 will be better without them.
5 THE COURT: Okay. Now, you wanted them
6 and that's natural. Because they've been your
7 crutch.
8 You need anything?
9 PROBATION: No, Judge.
10 THE COURT: Okay.
11 PROBATION: I was just clarifying. Zone
12 C is going to be half the amount of time in
13 prison.
14 THE COURT: Yeah, I know. I know. I
15 know.
16 You've wanted the drugs. And when
17 you've wanted the drugs, what kind of emotional
18 state have you been in?
19 THE DEFENDANT: Just -- I don't
20 understand the question.
21 THE COURT: Well, what has caused you to
22 want the drugs? Just waking up in the morning and
23 saying, I'd like to have it? Or being near people
24 or were you confronted with crisis?
25 THE DEFENDANT: No. Mainly like if I --
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1 if I heard somebody maybe talking about it or
2 something like that, it made me think about it.
3 And it's not that I wanted it, I needed it; it's
4 that I guess I just -- I went back and thought
5 about it.
6 THE COURT: Well, that's not -- that's
7 not unnatural. People who give up cigarettes
8 always want to smoke. It's just -- it's just
9 there. So they got to stay away from it. It
10 could be years.
11 You're going to be confronted with that
12 for years. You understand that?
13 THE DEFENDANT: Yes, Your Honor.
14 THE COURT: To answer probation's
15 question, have we got a chance of putting him
16 in -- will the Bureau of Prisons consider putting
17 him over in the comprehensive sanctions section?
18 PROBATION: No, they will not let a
19 Court do that. They sent out a memo about a year
20 ago saying, no, they won't.
21 THE COURT: They haven't changed that?
22 PROBATION: No, ma'am, they have not.
23 THE COURT: We used to be able to put
24 the people in the CCC or whatever the changed name
25 was of it, comprehensive sanctions center and all
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1 the rest of that.
2 So they won't let that happen?
3 PROBATION: No.
4 THE COURT: Okay. Well, you're going to
5 have to explain to your client that if he chooses,
6 he has the right to appeal whatever it is that the
7 Court's going to do here.
8 You're asking for four levels under the
9 5K1.1, Mr. PROSECUTOR. And if we get him down to
10 Zone B we can put him at the -- we can put him on
11 probation.
12 PROBATION: With home confinement,
13 Judge.
14 THE COURT: Pardon me?
15 PROBATION: With home confinement, yes.
16 THE COURT: With six months home
17 confinement if I come down that far.
18 Is the government going to appeal?
19 MR. PROSECUTOR: No, Your Honor.
20 THE COURT: Well, I'm sure that the
21 defense -- I wouldn't have to certify Mr. APPOINTED
INDIGENCY ATTORNEY
22 for any examination to determine whether or not
23 he's going to appeal.
24 MR. APPOINTED INDIGENCY ATTORNEY: No, Your
Honor.
25 THE COURT: Well, I'm going to -- we've
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1 dropped down to four levels down to level 15. I'm
2 going to drop down another five levels, which will
3 bring him down to level ten, Roman Numeral I,
4 where the range is 6 to 12 months.
5 And we're going to impose the probation
6 for a five-year period of time. And six months of
7 that's going to be on house arrest.
8 And that five years is not as easy as
9 you might think. Because it's going to be tough
10 and it's going to be tough on your family.
11 I want your father and mother up at the
12 podium. Just right there is fine.
13 I need to know whether you as the
14 parents of your son are willing to re****t him to
15 the United States Probation Office if you find or
16 you suspect that he is starting to have a problem
17 with drugs -- any kind of drugs.
18 Mr. Lebron: Yes, Your Honor.
19 WITNESS4: Surely would, Your Honor.
20 THE COURT: Well, let me tell you why
21 this is terribly im****tant. Because we got to
22 stop him from becoming a career offender. And
23 that means you're going to have to monitor him.
24 That means he may not like it because you're
25 coming around or you're having much more to do
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1 with his life than you should.
2 But you're his [relatives]. And as you
3 pointed out to me and you made your statement,
4 WITNESS5, you realized in your discussions with
5 [the Defendant] you should have pointed out that he was
6 having these problems.
7 WITNESS5: Yes. We have. I have
8 pointed it out to him.
9 THE COURT: All right. But you've got
10 to come to the point where you've got to re****t
11 him to probation if you suspect he's having a
12 problem.
13 WITNESS5: He knows that. And I told
14 him that while he was under my supervision.
15 THE COURT: Well --
16 WITNESS5: If I found out he did it, I
17 would turn him in.
18 THE COURT: Well, he's got to have that
19 backup. Because if he doesn't have it, he's going
20 to get arrested out there on the street. If he
21 turns -- gets turned into probation, I've got some
22 control over whether or not I bring him in here
23 for a hearing or not.
24 WITNESS5: Uh-huh.
25 THE COURT: He gets arrested on the
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1 street by law enforcement, it's all over.
2 WITNESS5: Right.
3 THE COURT: And the members of the
4 family that are lawyers know what I'm talking
5 about. It's all over.
6 Are you willing to assume that
7 responsibility?
8 WITNESS5: Yes, ma'am. Yes, Your
9 Honor.
10 THE COURT: Both of you?
11 WITNESS4: Yes.
12 THE COURT: Okay. You can have a seat.
13 WITNESS5: Thank you.
14 THE COURT: All right. I'm going to
15 deny your request, Mr. APPOINTED INDIGENCY ATTORNEY,
under
3551(a)(1)
16 through (7). That's denied.
17 I'm going to grant the government's
18 motion and come down additional levels under the
19 government's motion down to 5 levels, which will
20 bring you down to level 10, Roman numeral 1, where
21 the range there is 6 to 12 months.
22 I assume you have nothing else you want
23 to say, Mr. APPOINTED INDIGENCY ATTORNEY; correct?
24 MR. APPOINTED INDIGENCY ATTORNEY: No, Your
Honor.
25 THE COURT: Or your client? No?
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1 MR. APPOINTED INDIGENCY ATTORNEY: No, Your
Honor.
2 THE COURT: All right. Anything from
3 the Government?
4 MR. PROSECUTOR: No, Your Honor.
5 THE COURT: The Court having asked the
6 defendant why judgment should not now be
7 pronounced, and after hearing the defendant's
8 response, the Court has found no cause to the
9 contrary, the parties having made statements on
10 their behalf or having waived the op****tunity to
11 do so, Court having reviewed the presentence
12 re****t, pursuant to Title 18 United States Code,
13 Section 3551 and 3553, and the Sentencing Reform
14 Act of 1984 as modified by U.S. vs. Booker and
15 Fan-Fan, it's the judgment of the Court that the
16 defendant is hereby placed on five years'
17 probation.
18 Upon release from imprisonment, the
19 defendant shall serve a three-year term of
20 supervised release.
21 While on supervised release,
22 defendant --
23 PROBATION: That wouldn't apply with
24 probation.
25 THE COURT: Oh, that's right. That's
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1 right. Right. Right. Right. You're right. I
2 need to put -- he's going to be put on five
3 years' -- while on probation. That's the line I
4 wanted. While on probation -- strike the
5 reference to supervised release.
6 While on probation, defendant shall
7 comply with the standard conditions adopted by the
8 Court in the Middle District of Florida.
9 In addition, defendant shall comply with
10 the following special conditions: Number one, six
11 months house arrest, subject to standard
12 conditions and costs by the United States
13 Probation Office. That's my abbreviated form for
14 that. Okay?
15 Number two, the defendant shall
16 participate in a program of outpatient and/or
17 inpatient for the treatment of narcotic addiction
18 or drug or alcohol dependency, and follow the
19 probation officer's instructions regarding the
20 implementation of this Court directive. This
21 program may including testing for the detection of
22 substance use or abuse, not to exceed 104 tests
23 per year.
24 Further, the defendant shall be required
25 to contribute to the costs of services -- let's
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1 see here -- for such treatment, not to exceed an
2 amount determined reasonable by the probation
3 officer's sliding scale for substance abuse
4 treatment services.
5 Upon completion of a drug or alcohol
6 dependency treatment program, the defendant is
7 directed to submit to testing for the detection of
8 substance use or abuse, not to exceed 104 times
9 per year.
10 Defendant, having been convicted of a
11 qualifying felony, shall cooperate in the
12 collection of DNA as directed by the probation
13 officer.
14 The mandatory drug testing requirements
15 of the Violent Crime Control Act are imposed.
16 Based on the financial status of the
17 defendant, Court waives imposition of a fine.
18 The Court orders that the defendant
19 forfeit to the United States immediately and
20 voluntarily any and all assets and property or
21 ****tions thereof subject to forfeiture which are
22 in the possession or control of the defendant or
23 the defendant's nominees.
24 It is further ordered that the defendant
25 shall pay the United States a special *****sment
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1 of $100 which shall be due immediately. I have no
2 control over that.
3 After considering the advisory
4 sentencing guidelines -- oh, that reminds me --
5 the federal sentencing guidelines should be given
6 substantial weight.
7 Your objection is overruled on that.
8 Because these guidelines are advisory, your
9 objection would infringe on the judicial authority
10 of the Court to sentence appropriately. So the
11 objection's overruled.
12 After considering the advisory
13 sentencing guidelines and all the factors
14 identified in Title 18 United States Code, Section
15 3553(a)(1) and government's 5K1.1 motion, which is
16 granted, Court finds that the sentence imposed is
17 sufficient but not greater than necessary to
18 comply with the statutory purposes of sentencing.
19 Court finds the sentencing to be reasonable and
20 adequate.
21 The Court having pronounced sentence,
22 does counsel for the defendant or government have
23 any objections to the sentence or to the manner in
24 which the Court pronounced sentence, other than
25 those previously stated for the record?
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1 Mr. APPOINTED INDIGENCY ATTORNEY?
2 MR. APPOINTED INDIGENCY ATTORNEY: No, Your
Honor.
3 THE COURT: Mr. PROSECUTOR?
4 MR. PROSECUTOR: No objections.
5 THE COURT: The defendant is ordered to
6 re****t -- can't write it up here. Too tight.
7 Defendant is ordered to re****t to U.S. Probation
8 Office immediately for further instructions.
9 You have the right of appeal from the
10 judgment and sentence within ten days from this
11 date. Failure to appeal within the ten-day period
12 shall be a waiver of your right to appeal. The
13 government may file an appeal from this sentence.
14 You're also advised that you're entitled
15 to assistance of counsel in taking an appeal. If
16 unable to afford a lawyer, one will be provided
17 for you.
18 If unable to afford the filing fee, the
19 Clerk of the Court will be directed to accept the
20 Notice of Appeal without such fee.
21 Now, I have to advise you that
22 Mr. APPOINTED INDIGENCY ATTORNEY's a qualified,
competent,
and
23 effective member of our CJA panel, and also as a
24 retained attorney. And that I'm sure he's
25 advising you of your right to appeal, although I
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1 can't imagine that you're going to appeal this
2 sentence. And that's up to the government whether
3 or not they wish to appeal the sentence.
4 Any questions that you have about that,
5 WITNESS5?
6 THE DEFENDANT: No, Your Honor.
7 THE COURT: Any questions, Mr. APPOINTED
INDIGENCY ATTORNEY?
8 MR. APPOINTED INDIGENCY ATTORNEY: No, Your
Honor.
9 THE COURT: Mr. PROSECUTOR, any questions?
10 MR. PROSECUTOR: No, Your Honor.
11 THE COURT: All right. Now, Mr. Lebron,
12 this is the one break you're getting in your life.
13 You need to go back and look at your immaturity
14 that caused you to commit those previous crimes.
15 You need to look deeply inside yourself and
16 eradicate this and be a man.
17 You're not a child anymore. You're a
18 man. And if you let this affect the rest of your
19 life, you're going to get warehoused. You believe
20 me?
21 It won't be me; it'll be some other
22 judge I'm sure. You watch yourself because you've
23 got that weakness inside you. Okay?
24 THE DEFENDANT: Yes, Your Honor.
25 THE COURT: Anything else?
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1 MR. APPOINTED INDIGENCY ATTORNEY: No, Your
Honor.
2 THE COURT: You're excused.
3 Mr. Lebron: Thank you, Your Honor.
4 THE COURT: All right, Mr. -- yes.
5 Mr. APPOINTED INDIGENCY ATTORNEY, he needs to re****t to
probation now.
6 MR. APPOINTED INDIGENCY ATTORNEY: I'm going
to
take him over
7 right now.
8 THE COURT: Take him right now.
9 (PROCEEDINGS ADJOURNED.)
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