`FOR THE NORTHERN DISTRICT OF IOWA
`WESTERN DIVISION
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`UNITED STATES OF AMERICA,
` PLANTIFF,
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`v.
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`JAY EARNEST NIDAY,
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` DEFENDANT.
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`NO. 20-CR-4081-LTS
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`DEFENDANT’S SENTENCING
`MEMORANDUM & BRIEF
`IN SUPPORT OF DOWNWARD
`VARIANCE FROM GUIDELINES
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`The defendant, Jay Earnest Niday, through counsel, hereby submits the following
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`Memorandum for the sentencing set for April 1, 2021, at 2:00 o’clock p.m.:
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`I.
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`FACTS……………………………………………………………………………..2
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`II. WITNESSES AND EXHIBITS…………………………………………………4-5
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`III. ARGUMENT………………………………………………………………...…….5
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`1. Mr. Niday should not receive an upward adjustment either for his role in
`the offense or because of an abuse of public trust………………………….5
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`2. Mr. Niday’s sentence should be reduced significantly below the guideline
`range because of the nature and circumstances of the offense, Mr. Niday’s
`particular participation in the offense, his lack of criminal history, his age,
`the absence of any need to protect the public from any further crimes by
`him, and because a “stiff” sentence is not necessary to adequately deter
`criminal conduct (by Mr. Niday or anyone else)…………………………...7
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`IV. CONCLUSION…………………………………………………………………….9
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`Case 5:20-cr-04081-LTS-KEM Document 21 Filed 03/24/21 Page 1 of 9
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`I.
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`FACTS:
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`Codefendant Patrick Schwarte and Defendant Jay Niday both pleaded guilty to an
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`information charging (Count 1) conspiracy in violation of 18 U.S.C. § 371, and (Count 2)
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`knowingly falsifying, tampering with, or rendering inaccurate a monitoring device or
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`method required to be maintained by the Clean Water Act in violation of 33 U.S.C. §
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`1319(c)(4). This prosecution pertains to the Wastewater Treatment Plant (WWTP) at
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`3100 South Lewis Boulevard in Sioux City, Iowa. (PSIR ¶ 14) That plant was
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`constructed in 1961 (Id). The plant had been managed since 2004 by American Water
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`Services, Inc. (“American Water”). (PSIR ¶ 37)
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`The National Pollutant Discharge Elimination System (“NPDES”) governs the
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`discharge of pollutants into waters of the United States. (PSIR ¶ 7) The treatment plants
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`are required to test the effluent (water discharged into the river) from March 15th through
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`November 15th of each calendar year (the “disinfection season”) (PSIR ¶ 21-22) for
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`“fecal coliform”.1 There are many different technologies by which a treatment plant may
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`disinfect its wastewater, and in the 2000’s the City of Sioux City converted the plant from
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`a gas chlorine disinfection system to a liquid chlorine disinfection system. (PSIR ¶ 25)
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`In June, 2015, the employment of both Schwarte and Niday was terminated by the
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`City of Sioux City (PSIR ¶ 77) after it was discovered that the amount of chlorine being
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`applied to the effluent was increased immediately before testing so that the water
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`1 From November 16th through March 14th this effluent is untreated.
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`treatment plant would pass the test, and then the chlorine levels were turned back to
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`minimal levels. (PSIR ¶ 55-57).
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`Mr. Schwarte’s and Mr. Niday’s stipulation of facts in their plea bargains are
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`virtually identical. (Doc. 10 for Niday). As noted in the PSIR (¶ 41), Schwarte was a
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`thirty-year veteran employee at the plant and he possessed a grade II wastewater
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`certification and possessed extensive training and experience in municipal wastewater
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`management. That same paragraph states that “On January 3, 2011, the city assumed
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`operation of the WWTP from American Water. The City hired the defendant and Patrick
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`Schwarte, two American Water employees, as the WWTP’s Superintendent and Shift
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`Supervisor, respectively.” Mr. Niday objected to this paragraph because it implied that
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`the two of them started working at the WWTP at the same time. In fact, Schwarte had
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`been there for several years before Niday began working at the plant. (2015 employment
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`termination minus 30 years = about 1985 would have been when Schwarte started there.)
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`Mr. Niday started work at the WWTP (then operated by American Water) in August of
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`2009. (PSIR ¶ 116).
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`At Mr. Schwarte’s sentencing it was unsuccessfully argued by the government that
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`Schwarte should receive an upward adjustment for aggravating role in the offense under
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`USSG § 3B1.1 or for abuse of a position of public trust/use of a special skill pursuant to
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`USSG § 3B1.3. Schwarte argued that Niday was the only other “participant” in the
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`instant offense, and so he did not act as a “leader or organizer” for the purpose of his role
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`in the criminal offense. Jay Niday told the government in his proffer that he was guilty of
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`these charges because he found out that Pat Schwarte was monkeying with the chlorine
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`levels and instead of firing him or reporting him he told him to quit doing it, and then he
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`did not follow up and make sure that the fraudulent testing ceased but instead looked the
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`other way. With regard to the five “first-shift” operators acting at the direction of
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`defendant and Schwarte (Doc. 10 p. 10 “U”) Mr. Niday believes the government will
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`concede that these workers, who would have been operating the controls, were instructed
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`by Schwarte—not Niday. Furthermore, that particular paragraph of the plea agreement (¶
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`U of Doc. 10), which contained 89 initialed paragraphs on 25 pages, is stressed by the
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`presentence author as the reason for an upward role for Mr. Niday. (PSIR ¶ 86). That
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`paragraph states:
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`“U. No later than July 2012, defendant and Schwarte—and at least five
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`first-shift operators acting at the direction of defendant and Schwarte—tampered
`with the monitoring methods at the WWTP in order to ensure the WWTP would
`pass all of its tests. The City did not report any exceedances of its 2006 Permit
`limits after July 2012.”
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`Mr. Niday does not deny he initialed that paragraph but he consistently told the
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`government that he did not learn that Schwarte was turning the chlorine down until about
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`2014.
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`II. WITNESSES AND EXHIBITS:
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`The defendant does not anticipate calling any witnesses at the sentencing hearing.
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`Mr. Niday anticipates offering the following character letters and court documents
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`and news articles pertaining to cases the defense believes are similar to this case for
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`sentencing:
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`Exhibit 101: Letter from Kennedy Candor.
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`Exhibit 102: Letter from Doug Rainforth.
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`Exhibit 103: Letter from James Bane, P.E..
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`Exhibit 104: Letter from Jay Whalen.
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`Exhibit 105: Letter from Robin Niday.
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`Exhibit 106: Information, guilty plea, and judgment in US v. Wolf (CR14-4091).
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`Exhibit 107: Sioux City Journal article (10/05/2020) about Thomas Miller.
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`Exhibit 108: Sioux City Journal article (2/14/2021) about Calvin Diehl.
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`III.
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`ISSUES:
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`1. Mr. Niday should not receive an upward adjustment either for his role in
`the offense or because of an abuse of public trust.
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`Jay Niday was not the organizer or leader of this criminal activity. He was not
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`Schwarte’s “leader or organizer”. He was the plant superintendent. As such, he was
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`Schwarte’s superior but the guideline speaks in terms of being the organizer or leader of a
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`criminal activity. Schwarte had been working at the plant for years before Niday worked
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`there. The government bears the burden of proving by a preponderance of the evidence
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`that the aggravating role enhancement is warranted. United States v. Garcia, 703 F.3d
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`471, 475 (8th Cir. 2013) (citing United States v. Gaines, 639 F.3d 423, 427 (8th Cir. 2011).
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`Mr. Niday denies that he started this ball rolling. The five “first-shift” operators were
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`acting upon Schwarte’s direction—not his. Furthermore, there is a lack of evidence that
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`any other worker besides Schwarte and Niday were criminally responsible for the
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`commission of the offense. "'A ‘participant’ is a person who is criminally responsible for
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`the commission of the offense, but need not have been convicted.' USSG § 3B1.1 cmt.
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`(n.1) (2016). 'A person who is not criminally responsible for the commission of the
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`offense ... is not a participant.'..." United States v. Keleta, 949 F.3d 1082 (8th Cir. 2020).
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`The Keleta case involved a tax-fraud conspiracy case in which Keleta, Lewis, and Paulos
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`were charged and Lewis and Paulos pleaded guilty and testified against Keleta. Keleta’s
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`PSIR applied a four-level role enhancement under USSG § 3B1.1(a). Keleta objected on
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`the basis that the government had not identified five criminally responsible participants as
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`required by the enhancement. The government argued that Keleta, Lewis, Paulos, and
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`the “seven customers” who testified at trial each counted as “participants”. The district
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`court imposed the upward enhancement and the circuit reversed, citing United States v.
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`Hammerschmidt, 777 F. App’x 171, 173 (8th Cir. 2019). United States v. Keleta, (Id. at
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`948-949). The case of United States v. Tuma, 738 F.3d 681 (5th Cir. 2013), cited by
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`United States Probation, is distinguishable from the case at hand because of the nature
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`and extent of that conspiracy and the clear purpose of that enterprise (making money for
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`Mr. Tuma).
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`Defendant Niday should not be held to have abused his position of public trust
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`because although he has special skill in the water treatment arena so did co-defendant
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`Schwarte, and Schwarte was the person who had been at the plant the longest and he was
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`the person who directly dealt with the employees on the line. Defendant Kuhn ordered
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`illegal pumping, hauled away soil to cover his tracks, told technicians to change their
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`testing results and asked other technicians to change the results. Furthermore, in Kuhn
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`the defendant did not object to the two-level increase for role and for abuse of trust.
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`2. Mr. Niday’s sentence should be reduced significantly below the guideline
`range because of the nature and circumstances of the offense, Mr. Niday’s
`particular participation in the offense, his lack of criminal history, his age,
`the need to avoid unwarranted sentence disparities among defendants with
`similar records who have been found guilty of similar conduct, and because
`there is no need to protect the public from any further crimes by him.
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`Jay Niday will be sixty-four years old in April. Other than a first offense OWI
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`thirty-seven years ago, he has no criminal record. (PSIR ¶ 97). He graduated high school
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`in 1975 and earned a Water Environmental Technology certificate from Kirkwood
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`Community College two years later. (PSIR ¶ 114). He has worked his whole life in the
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`wastewater industry. (Exhibit 102) (Exhibit 103) (PSIR ¶ 116). His employment with
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`the City of Sioux City was terminated because of his present offense. He then became
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`employed at Tyson Foods as a dredging manager but resigned just before pleading guilty
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`to this offense because Tyson informed him he would be terminated upon his conviction.
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`(PSIR ¶ 116). He has had no problems on pretrial release. Jay is an avid hunter but with
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`this conviction he has lost his gun rights. Jay also fishes and he goes to Canada about
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`every year with his fishing buddies (but that will not happen anymore with this
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`conviction).
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`Robin Niday, Jay’s wife, writes that the two of them have been together for 10
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`years; married for 5. She and Jay are aware of the gravity of this crime and its
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`repercussions. They have lost jobs, homes, vehicles, money, and retirements. (Exhibit
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`105). Robin writes “Our future is uncertain and that has caused a lot of stress and
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`sleepless nights. Jay has never been in any trouble before and he prides himself on his
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`honesty and integrity…I beg you for your leniency as I need my husband & his children
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`need their father.” (Id.) Jay is a family man. He keeps in regular contact with his elderly
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`parents and his four sibling sisters. (PSIR ¶ 104-105). Perhaps most telling about Mr.
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`Niday’s true character is the letter written by Kennedy Candor, his step-daughter (a term
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`Jay would not like because he has treated Robin’s children as his own). (Exhibit 101).
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`“Jay became a part of our lives when I was 14 years old…He came to every one of my
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`softball games…(he) offered to walk me down the aisle…He made me feel like I always
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`had him as a dad…Jay has always been the backbone of our family”. (Id.)
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`Our Supreme Court has recognized that offenders on probation are subject to
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`several standard conditions that substantially restrict their liberty. Gall v. United States,
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`552 U.S. 38, 48 (2007). Gall was a college student who joined a conspiracy to distribute
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`ecstasy. In so doing he netted over $30,000 (at least 2,500 grams of ecstasy) over a seven
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`month period during which he used ecstasy, cocaine, and marijuana. He voluntarily
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`withdrew from the conspiracy but was facing a guideline sentence of 30-37 months
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`imprisonment. (Id. at 41-43). The district judge sentenced Gall to probation for a term of
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`36 months and the government appealed. The Eighth Circuit Court of Appeals reversed
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`and remanded for resentencing. The Supreme Court reversed the 8th Circuit holding
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`…it is not for the Court of Appeals to decide de novo whether the justification
`for a variance is sufficient or the sentence reasonable. On abuse-of-discretion
`review, the Court of Appeals should have given due deference to the District
`Court's reasoned and reasonable decision that the § 3553(a) factors, on the
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`whole, justified the sentence. Accordingly, the judgment of the Court of
`Appeals is reversed. (Id. at 59-60).
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`The Court further acknowledged that age of a defendant is a factor which a district court
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`can consider (in that case Gall was young—in this case Mr. Niday is facing retirement age).
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`The government had also argued in Gall that his sentence should be increased to avoid
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`unwarranted sentencing disparities among codefendants who have been found guilty of
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`similar conduct. Patrick Schwarte was sentenced to a term of two years’ probation
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`(concurrent on each count) with 60 days of radio frequency monitoring, a $200 special
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`assessment, and a $5,000 fine. (PSIR page 2.) See also Exhibits 106, 107, and 108 (which
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`are submitted by counsel as evidence of similar defendants who have been found guilty of
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`similar conduct).
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`IV. CONCLUSION:
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`Mr. Niday asks the Court to grant his motion for downward variance and impose a
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`sentence which is not greater than necessary, but is sufficient to do justice in this case.
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`Respectfully Submitted,
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`BY:
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`/s/John P. Greer
`John P. Greer
`13 W. 4th Street
`P. O. Box 215
`Spencer, Iowa 51301
`712-262-1444
`Attorney for Defendant
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