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`Exhibit A
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`Case 1:20-cr-10263-PBS Document 227 Filed 09/27/22 Page 1 of 32Case 1:21-cv-11181-DPW Document 146-1 Filed 10/01/22 Page 2 of 33
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`UNITED STATES OF AMERICA
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`JIM BAUGH et al.
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`No. 20-cr-10263-PBS
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`DEFENDANT JIM BAUGH’S
`SENTENCING MEMORANDUM
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`William W. Fick, Esq. (BBO #650562)
`Daniel N. Marx, Esq. (BBO #674523)
`FICK & MARX LLP
`24 Federal Street, 4th Floor
`Boston, MA 02110
`(857) 321-8360
`WFICK@FICKMARX.COM
`DMARX@FICKMARX.COM
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`Counsel for Defendant Jim Baugh
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`TABLE OF CONTENTS
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`INTRODUCTION .......................................................................................................................... 1
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`BACKGROUND ............................................................................................................................ 4
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`A.
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`B.
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`Childhood, Education, and Family ......................................................................... 4
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`Professional Experience Prior to eBay ................................................................... 5
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`C. Work at eBay from 2016 to 2019 ........................................................................... 5
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`D.
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`E.
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`Additional offense context ...................................................................................... 7
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`Life after arrest and prosecution ........................................................................... 19
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`ARGUMENT ................................................................................................................................ 20
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`A.
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`B.
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`C.
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`D.
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`The “Pattern of Activity” enhancement is inapplicable. ....................................... 21
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`The proposed sentence will provide just punishment. .......................................... 24
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`Neither specific nor general deterrence requires more than 30 months’
`incarceration. ......................................................................................................... 27
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`Imprisonment would not facilitate any required “treatment.” .............................. 28
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`CONCLUSION ............................................................................................................................. 29
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`CERTIFICATE OF SERVICE ..................................................................................................... 30
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`Defendant Jim Baugh respectfully submits this Memorandum, accompanying letters,1 and
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`other exhibits to assist the Court with sentencing.
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`INTRODUCTION
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`Jim Baugh is a devoted, father, son, brother, and friend. Those who have known him
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`longest describe him as unfailingly dependable and generous with his time, attention, and financial
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`resources. He has no prior criminal record, but does have a distinguished history of service both
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`as a U.S. government employee and in the private sector.
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`While Mr. Baugh’s role in the bizarre and disturbing criminal conduct at issue betrayed the
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`principles he defended throughout his career, it was an aberrational episode in his life. Mr. Baugh
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`recognizes that he stands before the Court guilty of very serious offenses that caused severe harm
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`to real people. He has taken responsibility and accepts that meaningful punishment will follow.
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`But with all due respect to the government’s sentencing arguments, Mr. Baugh should not
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`be sentenced as the “face” of eBay, subject to a high-end “Guideline” term of imprisonment
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`because this case involved the “resources of a Fortune 500 company” used to inflict a “three-week
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`nightmare” on “a Natick couple, whose journalism had angered two of the company’s most senior
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`executives.” Gov. Mem. at 1.
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`Yes, the Steiners suffered terribly, did not deserve it, and continue to struggle in the
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`aftermath. Yes, Mr. Baugh is accountable for his actions, “knew better,” and should have acted
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`accordingly. Yes, Mr. Baugh is the most senior eBay employee the government chose to prosecute,
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`and bears an extra measure of responsibility for his supervisory role. But stopping there ignores
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`1 Exhibit A is an allocution letter from Mr. Baugh to the Court. Exhibit B is a compilation of
`support letters from third parties. Home addresses and contact information, as well as the names
`of children, have been redacted from the publicly-filed letters. Counsel can provide unredacted
`copies to the Court upon request.
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`1
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`the broader reality of what happened. Mr. Baugh had no personal animus against the Steiners, no
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`psychotic pleasure in fostering fear, no desire to inflict harm for its own sake, and no disdain for
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`“First Amendment values.” Gov. Mem. at 14.
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`Rather, from his cubicle adjacent to the private offices in the insular, high-pressure
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`environment of a Silicon Valley C-Suite, Mr. Baugh was convinced to view the Steiners (wrongly,
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`he recognizes in hindsight) not as journalists but as dangerous “trolls” who posed an existential
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`threat to the company and even to the physical safety of its employees. Mr. Baugh faced intense,
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`relentless pressure from multiple executives (who have evaded criminal responsibility), including
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`the CEO Devin Wenig, SVP Steve Wymer, COO Wendy Jones, and General Counsel Marie
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`Huber, to do something, anything, about the “threat” which, they knew and told Mr. Baugh
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`repeatedly, could not be solved through ordinary “lawyer” tools.
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`Indeed, reflecting a toxic culture that goes to the very top of many powerful technology
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`companies, senior eBay executives hired Mr. Baugh precisely because of his prior experience as a
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`government security professional with a demonstrated ability to solve difficult problems through
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`unconventional means. See, e.g., Kate Conger, Uber Survived the Spying Scandal. Some Careers
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`Didn’t, NEW YORK TIMES (Nov. 28, 2021) (quoting former CIA officer employed by Uber: “In the
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`government, when you’re given a mission or you’re given a task, you go and you execute on the
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`mission . . . . Your experience tells you to go execute because your boss or the leadership have
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`given you this task, and you worry about how to do it — not whether or not you should do it,
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`because you’ve never had to worry about that before.”).2
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`2 Available at https://www.nytimes.com/2021/12/06/technology/uber-spying-allegations.html.
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`2
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`The Steiners were a “threat” that Wenig, Wymer, Jones, and Huber were obsessed with
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`neutralizing. Meanwhile, Mr. Baugh was a tool to be used—and then discarded, as an army of
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`outside lawyers descended to conduct an “internal investigation” aimed at saving the company and
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`its top executives from prosecution. Of course, that does not excuse Mr. Baugh’s conduct.
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`Although pushing back against a powerful CEO may not have been realistic, Mr. Baugh could and
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`should have exercised good judgment grounded in common sense and just walked away. He deeply
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`regrets his failure to do so. He has also candidly acknowledged and proactively addressed the
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`contribution of alcoholism to his regrettable judgment.
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`Mr. Baugh cannot undo what he did, but context still bears on appropriate punishment.
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`Accordingly, and for the reasons elaborated more fully below, we submit that 30 months
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`imprisonment followed by 36 months of supervised release is the appropriate sentence in this
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`case. It is a severe sentence, a full year longer than that imposed on the only co-conspirator
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`sentenced thus far, and commensurate with sentences in this district for other kinds of high-profile
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`corporate misconduct, even in cases that involved extensive physical harm to many individual
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`people.
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`Other than perhaps Mr. Baugh’s young daughters, few would shed a tear or criticize the
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`Court for following the government’s recommendation. No punishment could ever be enough to
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`undo what was done to the Steiners. But this Court has a more holistic responsibility than simply
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`expressing community outrage, rigidly applying the advisory Guidelines in very unusual
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`circumstances, or “sending a message” that will be loudly and widely broadcast across media that
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`have avidly reported every salacious detail of this case.
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`Warehousing Mr. Baugh in federal prison for additional months or years would confer no
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`marginal benefit on anyone and do nothing to advance the purposes of sentencing. To the contrary,
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`3
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`sentencing Mr. Baugh severely, as the capstone of eBay’s role in the case, sends precisely the
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`wrong message of impunity to corporate executives, that the security professionals they employ
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`will absorb all the criminal exposure for corporate misconduct if the executives maintain willfully
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`blind, “don’t ask, don’t tell” distance from operational specifics, as they claim to have done here.
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`BACKGROUND3
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`A.
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`Childhood, Education, and Family
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`Mr. Baugh is now 47 years old. Born and raised in Arkansas, his sister, Jill, described his
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`childhood and education:
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`Jim grew up in a small town with a population of approximately 2000 people.
`Educational resources were scarce in our town, but Jim was able to overcome this.
`He completed a bachelor’s degree in Criminology, a master’s degree in Public
`Administration, and also earned his Pilot’s License at the age of 18. He continued
`his flight training and later got a Commercial/Multi-engine License. After he
`graduated college, he packed a U-Haul and moved from Arkansas to Los Angeles
`alone for his first job. This is significant because most people never leave the small
`town where we grew up. Jim was raised on our family farm, and he started working
`there when he was only 9 years old. This instilled a very strong work ethic in
`Jim that has lasted throughout his entire life.
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`While in graduate school at the University of Oklahoma, Jim used what extra time
`he had available to volunteer at Big Brothers Big Sisters of America where is
`mentored an abused child for approximately three years before moving out-of-state.
`Over the next 5 years, Jim continued to stay in contact with his little brother and
`continued to send him birthday and Christmas presents. Jim’s efforts had a positive
`impact on this child, and I know his life would have turned out much differently if
`he’d never met Jim. I was inspired by Jim’s dedication to community service, so
`much that I later volunteered at the same organization and became a Big Sister. Jim
`continued his involvement in other charity organizations, such as the Seattle Milk
`Fund. By participating in this charity, Jim and his wife would adopt families during
`Christmas time and provide presents to them and their children.
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`Mr. Baugh married in 2009 but is now in the process of finalizing a divorce. He is the proud father
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`of two daughters. Mr. Baugh’s sister, Tammy, explained:
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`3 The narrative in this section is a cursory synopsis based on the more extensive social history
`contained in the PSR and accompanying letters.
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`4
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`He has two beautiful daughters, E[] (10) and S[ ] (7) who are his world. They rely
`on Jim for financial, emotional, and physical support. They think he hung the moon.
`I feel that an extended sentence would be extremely detrimental to E[ ] and S[ ] as
`they are very young and need their father during this very fragile time in their lives.
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`B.
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`Professional Experience Prior to eBay
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`After graduate school, Mr. Baugh went to work at Microsoft as a protection agent for the
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`Chairman and CEO. He left Microsoft to work for the National Clandestine Service of the CIA.
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`He later returned to the private sector where he was employed directly by a company Bill Gates
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`established to support the Gates Foundation, and then as an independent security consultant. He
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`worked on many high-profile protection details including, for example, then-Vice President Joe
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`Biden at the 2016 Oscars. See Ex. C. He also provided private volunteer assistance to the FBI and
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`CIA. Over the course of this work, he earned the trust and respect of security professionals around
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`the world. A Danish colleague, Martin Keloe, wrote:
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`Jim was a very hard-working security agent who was very dedicated to protecting
`his clients. He always went the extra mile to make sure the people he was
`protecting were safe and that he had control over all imaginable and unimaginable
`scenarios. Jim has helped me a lot over the last 15 years and has always been
`willing to put himself aside to help others. It is a quality I have greatly appreciated
`over the years and hopefully can continue to benefit from in the future as well.
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`With regard to Mr. Baugh’s criminal conduct, Mr. Keloe added:
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`As a former Police Officer, I have a deep understanding and appreciation for the
`law, and I do not condone what happened. But since I have been in Jim’s shoes, I
`also have an understanding of how something like this could have happened when
`there is intense pressure from the top.
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`C. Work at eBay from 2016 to 2019
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`Mr. Baugh went to work at eBay in 2016. As the head of eBay’s Global Security and
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`Resiliency operations, he managed over 300 employees in 95 locations worldwide. Putting aside
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`the offense conduct, Mr. Baugh is rightly proud of the honorable, demanding, and necessary work
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`5
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`his team performed on a daily basis to keep eBay’s personnel and assets safe. As just one example,
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`in 2017:
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`In the aftermath of Hurricane Irma’s devastation, eBay employee Ursula Marren
`found herself stranded on Tortola in the British Virgin Islands. Ursula, a manager
`on [eBay’s] Audit team based in San Jose, had been sailing off the island’s coast
`with her brother as part of her sabbatical. They tried to leave the island in advance
`of the storm but couldn’t get a flight. The hotel where they were in was left
`uninhabitable, with a collapsing foundation, by Irma’s strong winds and flooding.
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`Ursula and her brother, Adrian, quickly went into survival mode, making sure they
`had enough food and water, and searching for shelter on higher ground. They also
`became the caregivers to two elderly couples—one who was also vacationing and
`the other who lived on the island.
`…
`The security team was quick to respond. Stephanie Popp, Sr. Manager of eBay’s
`Global Intelligence Center, activated a chain of events to rescue Ursula and her
`brother.
`…
`Over three days, the nine-person GIC team led by Jim Baugh, Senior Director of
`Global Security, evaluated all possible avenues to rescue Ursula and Adrian. The
`team had to act quickly, Baugh explains, because not only were conditions
`deteriorating on Tortola, with reports ranging from crime and looting to
`uninhabitably and people swimming off the island to try to reach boats that could
`lead to their return home, but also Hurricane José was brewing in the distance.
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`“Our only priority was to ensure Ursula and her brother were safely evacuated from
`the island. In addition to working through our standard emergency response
`protocol, we were constantly thinking: What else can we do? Who else can we call?
`What other resources do we have in the region that could possibly assist?” Jim said.
`“At that point, we immediately activated our emergency evacuation protocol and
`put a backup special operations contingency on standby.”
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`With Stephanie taking lead, the team worked around the clock attempting to contact
`Ursula through any means possible, while also comforting her family, coworkers
`and close friends, assuring them that eBay and the rescue effort would bring Ursula
`and Adrian home.
`…
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`6
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`Along with the help of ISOS, an eBay travel partner who provides emergency
`medical assistance, the GIC deployed a helicopter to rescue Ursula, Adrian and the
`elderly couple who were also vacationing there.4
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`Given his responsibilities, Mr. Baugh was preoccupied by the potential for a “copycat”
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`replay of two external events that occurred during his tenure at the company. On October 1, 2017,
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`a gunman opened fire on a crowd attending a music festival from the 32d floor of the Mandalay
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`Bay Hotel in Las Vegas, killing 60 people.5 Mr. Baugh was worried that a similar attack could
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`occur at the annual “eBay Open,” a major gathering of eBay sellers in Las Vegas. (Indeed, the
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`2019 eBay Open was scheduled to take place at the Mandalay Bay, itself.) Separately, on April 3,
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`2018, an armed woman entered the headquarters of YouTube in San Bruno, California, and opened
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`fire, wounding three people, one of them critically, before killing herself.6 Mr. Baugh worried that
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`eBay was particularly vulnerable to a similar attack because its headquarters in nearby San Jose
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`was spread across a poorly protected, multiple-building campus comprising more than a city block.
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`Fueling these serious and sincere concerns was the existence of a small but very angry and fractious
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`sliver of the eBay seller community, some of whom were believed to be unstable, armed, and
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`dangerous. Executives sometimes derisively referred to this cohort as “hillbilly garage sale”
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`merchants.
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`D.
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`Additional offense context
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`As Mr. Baugh made clear in his letter to the Court, he offers no excuses for his offense
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`conduct. He knew better and should have acted accordingly. Still, additional context is helpful to
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`4 Kendall Fields, Swooping in to Rescue and Employee in the Aftermath of Hurricane Irma, ebay
`HUB (September 20, 2017) (attached as Exhibit D).
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` See generally https://en.wikipedia.org/wiki/2017_Las_Vegas_shooting.
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` See generally https://en.wikipedia.org/wiki/YouTube_headquarters_shooting.
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`understand how and why an otherwise honorable man, with a long and unblemished career of
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`serving the public and protecting others, would come to commit these crimes.
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`The Executive Leadership Team (“ELT”) at eBay, in particular, Devin Wenig (CEO),
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`Steve Wymer (Senior Vice President (“SVP”) for Communications), Wendy Jones (SVP and
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`COO), and Marie Huber (SVP and General Counsel), viewed eCommerceBytes (the Steiners’
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`publication), the readers who posted comments on eCommerceBytes, and a Twitter account called
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`“FidoMaster” (at various times, @unsuckEBAY and @FidoMaster1) as existential threats to the
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`company. The ELT suspected that FidoMaster was either an alter-ego or collaborator of the
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`Steiners, and that, together, they incited hostility from the seller “fringe” who posed a physical
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`security threat to eBay employees.
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`In addition, the ELT suspected the Steiners and FidoMaster of colluding with and possibly
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`receiving funding from an activist investor, Elliott Management, that was critical of eBay
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`executives and wanted to obtain seats on the company’s Board. The General Counsel, Marie
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`Huber, advised the ELT that ordinary tools such as lawsuits and cease-and-desist letters would be
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`ineffective to address the “problems” posed by eCommmerceBytes and FidoMaster. So the ELT
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`turned to Mr. Baugh. The ELT was aware of Mr. Baugh’s background, his primary responsibility
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`for physical security, and his reputation for creative solutions to difficult problems. While the ELT
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`never asked Mr. Baugh about specifics of his plans, it was certainly foreseeable to the ELT that
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`Mr. Baugh would use harassment or other coercive means in an effort to modify behavior.
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`Concerns about FidoMaster first emerged in the June 2018 after it made a profane post on
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`the eCommerceBytes blog in response to an article about eBay layoffs.
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`eBay’s security team was concerned that FidoMaster had insider knowledge about Wenig’s private
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`travel plans for the July 4 holiday. On July 20, 2018, Fidomaster tweeted a request for Wenig’s
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`address in the Hamptons, tagging eCommeceBytes, with an ominous reference to Jack Welch’s
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`book entitled “Execution”:
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`Then, on July 24, 2018, FidoMaster posted an eBay logo spattered in blood. The post tagged
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`eCommerceBytes and SilverIceKing, a regular contributor to eCommerceBytes.
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`Throughout the summer of 2018, multiple negative tweets about the upcoming eBay Open event
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`in Las Vegas prompted additional concerns about incitement of threats to physical security.
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`FidoMaster also started to refer to Wenig as “DevilBoy.”
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`The ELT’s concerns about FidoMaster’s
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`threats and apparent connections
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`to
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`eCommerceBytes escalated further in the Spring of 2019. In an email thread on March 21, 2019,
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`reacting to a FidoMaster tweet, General Counsel Marie Huber asked Mr. Baugh to provide “as
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`much info as possible” on Fidomaster.
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`Huber further instructed Mr. Baugh to notify her of all relevant online activity, and she separately
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`inquired about a Twitter handle in the name of Jesse Cohn, a representative of Elliott Management
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`on the eBay Board:
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`On May 22, 2019, FidoMaster and eCommerceBytes posted information about “Walker’s
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`West,” a replica of Wenig’s favorite New York pub constructed on the eBay campus. Baugh,
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`Wymer, and Wendy Jones (Senior Vice President, COO, and Mr. Baugh’s direct manager)
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`discussed the issue by email on May 23, 2019. The information was apparently obtained from a
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`building contractor’s website, and apart from the embarrassment for supposed extravagant
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`spending, the security team viewed publication of information about campus buildings as a
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`potential security risk. Even after the contractor removed the information from its website,
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`eCommerceBytes located and posted an archived version. Jones asked Mr. Baugh to “huddle on
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`this at lunch…”
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`At the lunch meeting, Jones asked Mr. Baugh if he could find a way to deal with the issue “off the
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`radar since comms and legal couldn’t handle it.” Jones told Mr. Baugh, “Just get it done. I don’t
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`want to know the details, just make sure you sync with Wymer.” Mr. Baugh thereafter provided
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`regular updates to Jones.
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`On June 8, 2019, co-conspirator Brian Gilbert spray painted “FidoMaster” on the Steiners’
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`fence. Mr. Baugh told Wymer that his team had given the Steiners “a tap on the shoulder.” Wymer
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`expressed approval but did not ask questions. In the immediate aftermath of the vandalism, the
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`ELT was pleased, because they executives perceived that negative postings had subsided.
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`On July 10, 2019, an eBay user emailed Wenig to complain about FidoMaster. This was
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`discussed in an email thread that included Wymer and Huber, noting that Twitter would not take
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`any action against the account. On July 15, Wymer forwarded the thread to Mr. Baugh, “FYI.”
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`On July 18, 2019, Wenig’s wife texted Mr. Baugh to complain about a post by Silver Ice
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`King on eCommerceBytes:
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`On or about July 19, 2019, Mr. Baugh met with Jones and played a recorded call between
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`a security team member using a false identity and a subject associated with FidoMaster. Jones
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`“fist bumped” Mr. Baugh.
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`On August 1, 2019, Mr. Baugh and Wymer exchanged text messages:
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`Wymer added, “I’ll embrace managing any bad fall out. We need to STOP her.”
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`On August 6, 2019, Wenig received another email complaint about FidoMaster. He sent
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`the following email to Huber, Wymer, and Mr. Baugh: “First of all we should shut down the
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`account. Second, this user name keeps popping up causing all kinds of trouble. Might be worth
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`some research Jim.” Wymer responded that he had Mr. Baugh had been working on the issue.
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`Huber and her colleagues responded that legal remedies were not and would not be effective.
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`Huber wrote:
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`15
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`Mr. Baugh separately texted with Wenig:
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`Case 1:20-cr-10263-PBS Document 227 Filed 09/27/22 Page 19 of 32Case 1:21-cv-11181-DPW Document 146-1 Filed 10/01/22 Page 20 of 33
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`Mr. Baugh then forwarded the thread to Jones (to provide “visibility,” keeping her in the loop).
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`Jones responded with a “thumbs up.”
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`Case 1:20-cr-10263-PBS Document 227 Filed 09/27/22 Page 20 of 32Case 1:21-cv-11181-DPW Document 146-1 Filed 10/01/22 Page 21 of 33
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`On August 7, 2019, Aaron Johnson, another in-house lawyer, emailed Huber, Wymer, and Mr.
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`Baugh:
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`Wymer then responded to the group:
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`Case 1:20-cr-10263-PBS Document 227 Filed 09/27/22 Page 21 of 32Case 1:21-cv-11181-DPW Document 146-1 Filed 10/01/22 Page 22 of 33
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`Shortly after that email, Wymer met Mr. Baugh:
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`• Wymer was very agitated, pointing his finger, etc.
`• He instructed Baugh to take any actions necessary to neutralize the Steiners and identify
`FidoMaster.
`• “Direct order” from the CEO.
`• Wymer did not want to know details but assured Mr. Baugh that his group would have
`“executive level support” if efforts led to “any legal problems.”
`• “Devin [Wenig] wants the website burned to the ground.”
`• “The only thing that matters is that it stops.”
`• “If it doesn’t stop, we are all done.”
`• “eBay Corporate is willing to absorb any legal exposure.”
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`Later, in the immediate aftermath of the “blown operation” in Boston, Wymer spoke by phone
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`with Mr. Baugh.
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`• Wymer stated that he and Jones were aware of operation because they saw an email from
`Natick PD to eBay legal.
`• Wymer reasoned that harassment – which he equated to “TPing” a house – is not a crime.
`• Wymer seemed nervous and said multiple times that he didn’t know anything about what
`was going on but that he wouldn’t say anything to legal during its internal investigation.
`• Wymer told Mr. Baugh, “Stick to your guns,” which Mr. Baugh understood as instruction
`to have his security team stick to its cover story about attending an industry conference in
`Boston.
`• Wymer asked Mr. Baugh how long it would be before legal started reading his emails/texts;
`Mr. Baugh said he didn’t know.
`• Wymer told Mr. Baugh they “just needed to get rid of the Hardy Boys,” referring to eBay
`legal.
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`E.
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`Life after arrest and prosecution
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`After being fired by eBay and then charged in this case, the explosion of publicity made it
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`impossible for Mr. Baugh to secure employment. His marriage also disintegrated.
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`After “hitting bottom” in his years-long descent into alcoholism, Mr. Baugh voluntarily
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`checked into an in-patient treatment program and has continued follow-up care. He has now been
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`sober for over two years.
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`For a substantial part of his pretrial release, Mr. Baugh moved to the Seattle area to restore
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`and maintain a relationship with his young daughters and assist in their care while his ex-wife
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`Case 1:20-cr-10263-PBS Document 227 Filed 09/27/22 Page 22 of 32Case 1:21-cv-11181-DPW Document 146-1 Filed 10/01/22 Page 23 of 33
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`worked full-time. More recently, he moved back home to Arkansas, where he has lived with one
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`of his sisters and helped his elderly father run the family farm. He intends to return there after
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`completing his sentence.
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`* * *
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`This information, and the additional letters submitted with this Memorandum, demonstrate
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`that Mr. Baugh and the conduct underlying his conviction are both far more complex than the most
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`salacious facts or headlines viewed in isolation.
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`ARGUMENT
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`A criminal penalty must be “sufficient, but not greater than necessary, to comply with the
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`purposes of sentencing.” 18 U.S.C. § 3553(a). Here, fair consideration of the offense in light Mr.
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`Baugh’s role, history, and characteristics compels the conclusion that incarceration for a term of
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`30 months is sufficient.
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`The Court is required to compute the Guideline Sentencing Range (“GSR”) as a “starting
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`point and the initial benchmark.” Gall v. United States, 528 U.S. 38, 49 (2007). Here, the
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`government and Probation take the position that the advisory GSR is 57-71 months (level 25, CHC
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`I), while Mr. Baugh contends that the properly calculated GSR is 46-57 months (level 23, CHC I).
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`Whatever GSR the Court adopts, the Guidelines are not the sole factor, nor even the first
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`among the many factors, that Congress has commanded the courts to apply in section 3553(a). The
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`Court “may not presume that the Guidelines range is reasonable,” rather it must “make an
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`individualized assessment based on the facts presented.” Id. at 50. Indeed, “the Guidelines are only
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`one of the factors to consider . . . and 3553(a) directs the judge to consider sentences other than
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`imprisonment.” Id. at 59. The Supreme Court has emphasized that the “Guidelines are not only
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`Case 1:20-cr-10263-PBS Document 227 Filed 09/27/22 Page 23 of 32Case 1:21-cv-11181-DPW Document 146-1 Filed 10/01/22 Page 24 of 33
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`not mandatory on sentencing courts; they are also not to be presumed reasonable.” Nelson v.
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`United States, 555 U.S. 350, 352 (2009) (per curiam) (emphasis in original).
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`Thus, district courts are now required to consider whether the Sentencing Commission’s
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`underlying policy results in an advisory GSR that is unreasonably high. See United States v.
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`Kimbrough, 552 U.S. 85, 109 (2007); United States v. Boardman, 528 F.3d 86, 87 (1st Cir. 2008);
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`United States v. Martin, 520 F.3d 87, 93-94 (1st Cir. 1998).
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`The First Circuit has elaborated on the meaning and breadth of the so-called “parsimony
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`principle” in United States v. Rodriguez, 527 F.3d 221 (1st Cir. 2008). It stressed that the Supreme
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`Court’s ruling in Kimbrough requires a “more holistic inquiry” and that “section 3553(a) is more
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`than a laundry list of discrete sentencing factors; it is, rather, a tapestry of factors, through which
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`runs the thread of an overarching principle.” Id. at 228. That overarching principle is to “impose a
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`sentence sufficient but not greater than necessary.” Id. In reaching a decision on what constitutes
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`an appropriate sentence, the district court should “consider all the relevant factors” and “construct
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`a sentence that is minimally sufficient to achieve the broad goals of sentencing.” Id. (emphasis
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`added).
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`A.
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`The “Pattern of Activity” enhancement is inapplicable.
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`Mr. Baugh objects to the proposed application of a 2-level “pattern of activity”
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`enhancement under U.S.S.C. §