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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION UNITED STATES OF AMERICA, * * * v. * CRIMINAL ACTION NO. * 2:10cr186-MHT RONALD E. GILLEY, * * * MOTION FOR VARIANCE FROM SENTENCING GUIDELINES and MOTION FOR OPPORTUNITY TO PRESENT EVIDENCE COMES NOW Defendant Ronald E. Gilley, by and through his undersigned attorney, in connection with the sentencing hearing set in this case on July 16, 2012, and files this motion as follows: In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court declared that the federal guidelines should be advisory, and excised the limitations contained in 18 U.S.C. 3553(b). 543 U.S. at 245, 259-60. The sentencing courts discretion is now significantly broadened and the court must make an individualized assessment of the facts of each case. Gall v. United States, 552 U.S. 38, 46 (2007). Before Booker, a sentencing courts authority to depart depended on whether a factor was prohibited, encouraged, discouraged, or not mentioned by the Sentencing Commission. Koon, v. United States, 518 U.S. 81, 93-96 (1996). Encouraged departures were permitted if not already adequately considered and warranted. USSG 2K2.0 (a)(2)(A); Koon, 518 U.S. at 96. Discouraged and unmentioned departures were permissible only if present to an exceptional degree, USSG 2K2.0(a)(4); Koon, 518 U.S. at 95-96, in other words, if the circumstances were extraordinary. See e.g. United States v. Simmons

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(Simmons I), 470 F.3d 1115, 1130 (5th Cir. 2006). In rendering the Guidelines advisory, the Supreme Court authorized sentencing courts, not only to depart from the Guidelines, but also to vary from the recommended ranges in accordance with 18 U.S.C. 3553(a). After Booker, it should be pellucidly clear that the particular factors in any given case need not be extraordinary to warrant a variance from the Guidelines. Gall, 552 U.S. at 41. Since the issuance of Gall, the Circuit Courts have recognized that a sentencing court is free to reject the Sentencing Commissions policy decisions in any given case. They have also begun to recognize that there is no longer the necessity of an extraordinary circumstance in order to vary from the guidelines. For example, the Fifth Circuit has announced the death of the extraordinary circumstances requirement for non-Guidelines sentences. See United States v. Simmons, 568 F.3d 564, 568 (5th Cir. 2009). In conformance with the foregoing guiding principles of sentencing now in place, Defendant Ronald Gilley moves the Court to consider the following facts and circumstances in determining his sentence in this case: (1) There is now authority for the courts to grant downward departures where the loss overstates the seriousness of the offense, USSG 2B1.1, cmt.n.19(c). See United States v. Kushner, 305 F.3d 194 (3d Cir. 2002); United States v. Hicks, 217 F.3d 1038 (9th Cir. 2000). (2) Courts may now grant downward departures in a wide variety of cases on the basis of factors not adequately taken into consideration or not considered at all by the guidelines. A court may depart when overlapping guidelines unnecessarily increase the prison sentence. See U.S. v. Lauersen, 362 F.3d 160 (2nd Cir 2004). (A) In this case the Government has and will argue that the Gilley was an organizer or leader of a criminal activity that involved five or more participants or was other otherwise

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extensive enhancement applied to the characterization of a defendant as a leader or organizer under USSG 3B1.1(a). Application of section 3B1.1(a) requires the district court to determine

the role of the defendant and how many individuals were involved in the criminal activity. See United States v. Yates, 990 F.2d 1179, 1181 (11th Cir. 1993). The factors that a sentencing court considers to decide if the enhancement is applicable are: (1) the exercise of decision-making authority, (2) the nature of participation in the commission of the offense, (3) the recruitment of accomplices, (4) the claimed right to a larger share of the fruits of the crime, (5) the degree of participation in planning or organizing the offense, (6) the nature and scope of the illegal activity, and (7) the degree of control and authority exercised over others. (B) Regarding Mr. Gilleys leadership role; Even though Mr. Gilley was a leader as he plead, he lacked the sophistication in that he had no knowledge of lobbying, or ways and means to contact or influence any legislator. Initially, Mr. Gilley had no concept of the fine line between lobbying and robbery. Once involved, he then became aware. Mr. Gilley became the fall guy for McGregor, Massey and the other defendants. Although the sentencing guidelines are the same, it would be unjust to compare Mr. Gilleys case and sentencing to those such as the executives of Enron or Bernie Madoff . The sophistication of the acts executives of Enron and Bernie Madoff are no way comparable, as they were fully aware of their crimes, organized and continued to commit them for years, causing the American economy to plummet and costing taxpayers millions of dollars. Mr. Gilley did not ruin the economy nor take money from anyones pocket, as there were no victims or losses in his crimes, he was simply trying to help his community as he has done all of his adult life. 3. District Courts are not only permitted, but required to consider the history and characteristics of the defendant such as age, medical condition, prior military service, family

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obligations, entrepreneurial spirit, etc. (A) In spite of Commission discouragement, numerous courts have recognized family ties and responsibilities as a basis for a non-Guideline sentence. USSG 5H1.6. See for example United States v. Bueno, 549 F.3d 1176 (8th Cir. 2008) (approving variance to probation to allow defendant convicted of distribution of five kilograms of cocaine to care for wife suffering from lupus and rheumatoid arthritis); United States v. Schroeder, 536 F.3d 746, 755 (7th Cir. 2008) (court could vary to allow defendant to look after daughter with compromised immune system); United States v. Husein, 478 F.3d 318 (6th Cir. 2007) (270 days home confinement followed by supervised release to allow defendant convicted of distributing Ecstasy to care for father incapacitated by strokes). Pursuant to USSG 5H1.6, in sentencing a defendant convicted of an offense other than an offense involving a minor victim under section 1201, an offense section 1591, or an offense under chapter 71, 109A, 110, or 117, family ties and responsibilities are not ordinarily relevant in determining whether a departure may by warranted. Additionally, family responsibilities that are complied with may be relevant to the determination of the amount of restitution or fine. USSG 5H1.6, comment. (n. 1(b)), provides that, in addition to the courts consideration of the non-exhaustive list of circumstances in subdivision (A), a departure under this policy statement based on the loss of caretaking or financial support of the defendants family, requires the presence of the following circumstances: (i) the defendants service of a sentence within applicable guideline range will cause a substantial, direct, and specific loss of essential caretaking, or essential financial support, to the defendants family. (ii) The loss of caretaking or financial support substantially exceeds the harm ordinarily incident to incarceration for a similarly situated defendant. For example, the fact that the defendants family might incur some degree of financial hardship or suffer to some extent from the absence of a parent through incarceration is not in itself sufficient as a basis for departure because of such hardship or suffering is of a sort ordinarily incident to incarceration. (iii) the loss of caretaking or financial support is one for which no effective remedial or ameliorative programs reasonably are available, making the defendants caretaking or financial support irreplaceable to the defendants family. (iv) The departure effectively will address the loss of caretaking or financial responsibility.

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As noted in paragraph 129 of the presentence report, the defendants wire has been diagnosed with an incurable lung disease, which weakens her immune system and r requires ongoing treatment. As a result, his wifes daily routine is affected and she can perform no strenuous activities. The defendants wife travels to Birmingham, Alabama, on a regular basis for treatment and often has to undergo bronchoscopy, which is a surgical procedure to flush her lungs of foreign bodies because she is unable to do so on her own through a productive cough. The defendant and his wife have her two minor sons residing with them who are involved in many extracurricular activities. The defendants wife often has to rely on the defendant to care for them as she suffers from significant fatigue due to the disease. See Presentence Investigation Report, by Ellen S. Traywick, Senior U.S. Probation Officer. (B) There is authority for the Court to vary from the guidelines based on Gilleys impeccable work and employment history. For example in United States v. Jones, 460 F.3d 191 (2d Cir. 2008), the Second Circuit affirmed a district courts variance from a thirty-to-thirtyseven-month Guideline range to a sentence of fifteen months for a defendant convicted of being a felon in possession of a firearm and possession of five bags of marijuana based on the defendants consistent work ethic, his family obligations and support, his fathers recent death and his efforts at rehabilitation. Jones, 460 F.3d at 194. See also Gall v. United States, 128 S. Ct. 586, 592, 599 (2007) (see discussion concerning defendant's employment history and the start of his own business); United States v. Chase, 560 F. 3d 828 (8th Cir. 2009) (defendant's excellent employment record could support downward variance). As described in this sentencing memorandum Chapter IV, Paragraph 8(a), BamaJam Farms would be negatively impacted by any incarceration of Mr. Gilley. Mr. Gilley is instrumental in the success of this project as shown in many of the Exhibit letters, some of which have been quoted below. The local community is depending on BamaJam Farms success for income, whether it be directly or indirectly. During Americas economic struggle, it is visionaries like Mr. Gilley that will put this nation back on her feet. In United States v. Pressley, 345 F.3d 1205 (11th Cir. 2003) and United States v. Weaver, 920 F.2d 1570 (11th Cir.1991), the

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Eleventh Circuit granted downward departures where the collateral consequences of the prosecution provided a basis for such. As previously mentioned, Mr. Gilley has been publicly humiliated, lost all monies and his home has been foreclosed upon. Mr. Gilleys case is not within the Heartland of cases as described by the Sentencing Commission. (C) The defendants age should also be considered as a reason to vary from the guidelines due to the decreased rates of recidivism recorded for defendants over the age of forty. The Commission has found "recidivism rates decline relatively consistently as age increases." See U.S. Sentencing Comm'n, Measuring Recidivism: The Criminal History of Computation of the Federal Sentencing Guidelines (May 2004) (A Component of the Fifteen Year Report on the U.S. Sentencing Commission's Legislative Mandate). See Measuring Recidivism: The Criminal History Computation Of The Federal Sentencing Guidelines, at 12, 28 (2004); available at www.ussc.gov/publicat/ Recidivism _ General.pdf. ("Recidivism rates decline relatively consistently as age increases"). See United States v. Thomas, 595 F. Supp. 2d 949 (E.D. Wis.,2009) (considering defendant's age, limited prior criminal history, and personal characteristics including time spent in the army, among other factors, district court imposed 5 months in custody and 5 months home detention with three years supervised release, where Guidelines recommended 27-33 months imprisonment); United States v. Hodges, 2009 WL 366231 (E.D.N.Y., Feb. 12, 2009) (court relies in part on lower risk of recidivism for older defendants like this 43-year old defendant); United States v. Lucania, 379 F. Supp. 2d 288, 297 (E.D.N.Y. 2005) ("Post-Booker courts have noted that recidivism is markedly lower for older defendants."); United States v. Carmona-Rodriguez, 2005 WL 840464, * 4 (S.D.N.Y. April 11, 2005)(unpublished) (where 55-year old woman pled guilty to drug distribution, 30month sentence (below guideline range) was appropriate due to low probability defendant would

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recidivate); Simon v. United States, 361 F. Supp. 2d 35 (E.D.N.Y. 2005) ("under the Guidelines, age was not normally relevant to sentencing. 5H1.1.) See also United States v. Nellum, 2005 WL 300073 (N.D. Ind. Feb. 3, 2005) (unpublished) (57-year old defendant convicted of distributing crack and court imposed below-Guidelines sentence based on low likelihood of recidivism upon release). (4) Post-Booker, the Court is authorized to combine several factors in formulating a nonguidelines sentence. In the instant case, Defendant Ronald E. Gilley says the Court should look at the combined factors of his age, no criminal history, family obligations, importance to the community and work ethic as a package. In other words, Gilley invites the Court to look at him as a whole person and examine his whole life, rather than the separate parts of it. See, for example, United States v. Collington, 461 F.3d 805, 809 (6th Cir. 2006) (trial courts variance based on the defendants age, his minimal criminal record and family circumstances including the fact that his father had been murdered when he was nine and his mother died of cancer two years later upheld.) (5) Pursuant to USSG5K2.0(a)(1)(A), the court may depart form the applicable guideline range if in the case of offenses other than child crimes and sexual offenses, the court finds, pursuant to 18 U.S.C. 3553(b)(1), that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that, in order to advance the objectives set forth in 18 U.S.C. 3553(a)(2), should result in a sentence different from that described. The defendant pled guilty in this case and assisted the government. Other than one other codefendant (Massey), and two coconspirators in related cases (Pouncey and Spicer), who did the same, all other defendants (the politicians to whom the defendant offered the bribes, another casino owner and two lobbyists and an employee of Gilley) were found not guilty. See Presentence Investigation Report, by Ellen S. Traywick, Senior U.S. Probation Officer. (6) The United States Supreme Court has said the sentencing court has an obligation to consider all non-frivolous reasons proffered by the parties for a non-Guideline sentence. Rita v. United States, 551 U.S. 338, 357 (2007). In doing so, the court must not focus solely on the

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offense to the exclusion of consideration of the circumstances of the offender. United States v. Olhovsky, 562 F.3d 530, 549-50 (3d Cir. 2009). It is not severe punishment that promotes respect for the law, it is appropriate punishment, id. at 551 (emphasis in original), that is, punishment that is sufficient, but not greater than necessary, to comply with the purposes set forth in the statute. 18 U.S.C. 3553(a). Pursuant to the provisions of 18 U.S.C. 3553(a), the court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. In so doing the court shall consider the nature and circumstances of the offense and the history and characteristics of the defendant. The amount of the bribes involved in this case is what has produced such a high offense level and should not be taken lightly. However, the defendants to whom the bribes were offered, as well as a two lobbyists and an employee of Gilley that were allegedly involved with the defendant in responsibility for his action sand assisted the government in this case. The defendant has no prior criminal history. There is no identifiable victim who suffered an actual loss in this case. The defendant has continued to work to save his business and properties, but has suffered significant financial hardship through this process. See Presentence Investigation Report, by Ellen S. Traywick, Senior U.S. Probation Officer.

In fact, it is reported that The Sentencing Commission, during a recent Symposium On Alternatives To Incarceration, revealed that lengthy prison sentences may actually increase recidivism, while alternatives including intensive supervision and training might reduce it. WHEREFORE, Defendant Ronald E. Gilley moves this Honorable Court to: I. Impose a non-guidelines sentence in this case which reflects a consideration and incorporation of the foregoing facts and circumstances; II. Grant Defendant an opportunity to present evidence and oral argument regarding the foregoing facts and circumstances; III. Grant such other, further or different relief as is appropriate and all that will promote fairness, equity and justice in this case. Respectfully submitted on this the 3rd day of July, 2012.

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/s/David J. Harrison David J. Harrison Attorney for Defendant P.O. Box 994 Geneva, Alabama 36340 (334) 684- 8729 davidjharrison@centurytel.net

CERTIFICATE OF SERVICE I certify that on July 3, 2012, the foregoing motion on behalf of Ronald E. Gilley was filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Peter J. Ainsworth U.S. Department of Justice Public Integrity Section 1400 New York Ave - NW 12th Floor Washington, DC 20005 202-514-1412 Peter.Ainsworth@usdoj.gov Barak Cohen U.S. Department of Justice 1400 New York Avenue, NW Washington, DC 20005 202-514-1412 202-514-3003 (fax) barak.cohen@usdoj.gov Michael Kendall Day U S Department of Justice Public Integrity Section 1400 New York Avenue, NW; Suite 12100 Washington, DC 20005 202-353-2248 202-514-3003 (fax) m.kendall.day@usdoj.gov

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Martha Geron Gadd Susan G. James & Associates 600 South McDonough Street Montgomery, AL 36104 334-269-3330 334-263-4888 (fax) mgerongaddsgja@gmail.com Henry Lewis Gillis Thomas Means Gillis & Seay PC 3121 Zelda Court PO Drawer 5058 Montgomery, AL 36106 334-270-1033 334-260-9396 (fax) hlgillis@tmgslaw.com Susan Graham James Susan G. James & Associates 600 S. McDonough Street Montgomery, AL 36104 334-269-3330 334-263-4888 (fax) sgjamesandassoc@aol.com James P Judkins Judkins, Simpson, High & Schulte P.O. Box 10368 Tallahassee, FL 32302 850-222-6040 850-561-1471 (fax) jjudkins@readyfortrial.com Edward T Kang U.S. Dept of Justice, Public Integrity Section Public Integrity Section 1400 New York Ave NW - 12th Floor Washington, DC 20005 202-514-1412 edward.kang3@usdoj.gov

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Marquest J. Meeks Dept of Justice, Public Integrity Section 1400 New York Ave NW - Ste 12100 Washington, DC 20005 202-514-1412 marquest.meeks@usdoj.gov

Brenda K Morris Department of Justice 1400 New York Ave - NW, 12th Floor Washington, DC 20005 202-514-1439 Brenda.Morris@usdoj.gov Eric Olshan United States Department of Justice Public Integrity Section, Criminal Division 1400 New York Ave, NW Suite 12100 Washington, DC 20005 202-514-1412 eric.olshan@usdoj.gov John Luman Smith US DEPARTMENT OF JUSTICE 1400 NEW YORK AVE, NW 12th FL Washington, DC 20005 202-514-1412 Emily Rae Woods Department of Justice Public Integrity Section - 1400 New York Ave NW Rm 12-200 Washington, DC 20008 202-262-7647 rae.woods@usdoj.gov

/s/David J. Harrison David J. Harrison