Case 1:18-cr-00218-TSC Document 67 Filed 12/13/18 Page 3 of 12
Where the Guidelines do not expressly specify a Guideline range, the Court should “apply the most analogous guideline. If there is not a sufficient analogous guideline, the provisions or 18 U.S.C. § 3553 shall control, except that any guidelines and policy statements that can be applied meaningfully in the absence of a Chapter Two offense guideline shall remain applicable.” U.S.S.G. § 2X5.1.
The Government’s position is that there is no sufficiently analogous guideline for the underlying substantive offense and that the provisions of 18 U.S.C. § 3553 should control sentencing. See United States v. Alvarez, 506 F. Supp. 2d 1285, 1288 (S.D. Fla. 2007).
The defendant submits that the guideline that best captures the defendant’s offense behavior and guideline that is most analogous for sentencing purposes here is U.S.S.G. § 2B1.1. See United States v. Dumeisi, No 06C4165, 2006 WL 2990436, *8 (ND. Ill. Oct. 17, 2006) (same).
Your client and the government reserve the right to brief the presentence report writer and Court as to their positions and agree that the Court will decide which, if any, Guideline range applies. The base offense level for U.S.S.G. 2B1.1 is 6. However, your client understands that the final decision regarding the applicable sentencing guideline and offense level will be made by the Court.
B. Acceptance of Responsibility
As before, the Government’s official position is that there is no sufficiently analogous guideline for the underlying substantive offense and that the provisions of 18 U.S.C. § 3553 should control sentencing. If the Court finds a sufficiently analogous guideline, however, the Government agrees that a 2-level reduction will be appropriate. pursuant to U.S.S.G. § 3E1.1, provided that your client clearly demonstrates acceptance of responsibility, to the satisfaction of the Government, through your client’s allocution, adherence to every provision of this Agreement, and conduct between entry of the plea and imposition of sentence.
Nothing in this Agreement limits the right of the Government to seek denial of the adjustment for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, and/or imposition of an adjustment for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, regardless of any agreement set forth herein, should your client move to withdraw her guilty plea after it is entered or should it be determined by the Government that your client has either (a) engaged in conduct, unknown to the Government at the time of the signing on this Agreement, that constitutes obstruction of justice, or (b) engaged in additional criminal conduct after signing this Agreement.
Should the Court use U.S.S.G. § 2B1.1 in accordance with the above, the applicable Guidelines Offense Level would be at least 4.
C. Estimated Criminal History Category
Based upon the information now available to this Office, your client has no criminal convictions.
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