Case 7:16-cr-00229-LSC-HNJ Document 39 Filed 07/17/17 Page 1 of 11 FILED

2017 Jul-17 PM 03:38

U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

UNITED STATES OF AMERICA, )

)
v. ) Case No. 7:16-CR-00229-LSC-HGD
)
BRETT WILLIAM KIRKHAM, )

MOTION FOR VARIANCE AND SENTENCING MEMORANDUM

COMES NOW the Defendant, Brett Kirkham, in accord with the decision in

United States v. Booker, 543 U.S. 220 (2005), Kimbrough v. United States, 552 U.S. 85

(2007), Rita v. United States, 551 U.S. 338 (2007), Gall v. United States, 552 U.S. 38

(2007) Nelson v. United States, 129 S.Ct. 890 (2009) (per curiam), Spears v. United

States, 555 U.S. 261 (2009) and 18 U.S.C. 3553(a), and files this Motion for Variance

and Sentencing Memorandum setting forth all factors this Court shall consider

before imposing a sentence in the above-styled case.

Brett Kirkham requests that this Court impose a sentence that is "sufficient but

not greater than necessary to comply with" the goals of sentencing set forth in 18

U.S.C. 3553(a)(2). Brett Kirkham requests that this Court grant a five-level variance

based on the sentencing factors enumerated in USSG 3553, resulting in a

post-variance range of punishment of 168 to 210 months' imprisonment. Further,

this defendant requests that this Court factor into its sentence the fact that this

defendant has been incarcerated in state custody for approximately one (1)

year pending this sentencing date.

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In this case and with this Defendant, a sentence of 17.5 years imprisonment

would be "sufficient, but not greater than necessary" to comply with statutory and

policy goals of sentencing, including promoting respect for the law, providing just

punishment for the offense, achieving general deterrence, and protecting the

public from further crimes by this Defendant. This defendant will be almost sixty (60)

years of age at the time of his release if the court imposes a sentence as suggested

herein.

I. THE APPLICATION OF THE 3553 FACTORS TO THIS CASE JUSTIFY A

HIGH-END SENTENCE IN THE POST-VARIANCE GUIDELINE RANGE.

Brett Kirkham requests that this Court impose a sentence that is "sufficient but

not greater than necessary to comply with" the goals of sentencing set forth in 18

U.S.C. 3553(a)(2). Those goals, the consideration of the "nature and

circumstances" of this defendants offense, this defendants "history and

characteristics," and the other factors set forth in 3553(a), support a sentence of

seventeen and one-half (17 ) years imprisonment. Thus, this defendant asks that

this Court impose a below-guideline sentence, based on statutory factors of

3553(a).

As this Court is well aware, the sentencing Court is no longer bound by the

application of the guidelines in determining the appropriate range of punishment.

Based on a number of cases, it is clear that the guidelines are to be considered

only as a starting point, a point of reference, for the sentencing court during its

consideration of numerous factors which ultimately result in a deliberately crafted

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sentence, unique to the individual being sentenced. According to Nelson v. U.S.,

129 S.Ct. at 891, "the Guidelines are not only not mandatory on sentencing courts;

they are also not to be presumed reasonable."

"A district court may determine, on a case-by-case basis, the weight to give

the Guidelines, so long as that determination is made with reference to the

remaining section 3553(a) factors that the court must also consider in calculating

the defendant's sentence." Hunt v. United States, 459 F.3d 1180. Thus, as

recognized by Judge Tjoflat in United States v. Glover, 431 F.3d 744, 752-53 (11th Cir.

2005), in some cases, the guidelines may have little persuasive force in light of some

of the other 3553(a) factors.

As evidence by his plea of guilty, Mr. Kirkham is clearly culpable for his

offense and takes full responsibility for his actions. He is deeply disturbed by his

actions, feels intense remorse and realizes that his actions will have a tremendously

detrimental impact on his life and on the lives of those he loves, namely, his parents.

Attached to this sentencing memorandum are letters of support from

individuals in the community who, although shocked at the behavior that gives rise

to the conviction of Mr. Kirkham in this instance, nevertheless maintain that he is a

man of humility and certainly capable of living a law abiding life with a low risk of

recidivism at such time that he is released from the Bureau of Prisons.

From the letter of Bill & Brenda Kirkham, Bretts parents: Brett William
Kirkham is our older son. We are both retired educators, each with
thirty-one years of service. Along with our sons, we have been involved
in our community through church, Boy Scouts, volunteering for Special

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Olympics, community clean-up, ARC, math tournaments, education

and bands for over forty years.

Brett has earned several degrees in history, math, education and

leadership with hard work and scholarships. Brett secured his Eagle
Scout Award with a project at our church. Through his love of music
he has participated in music groups from elementary through college.
He was a graduate assistant for the director of the Million Dollar Band
and has used music in his career. Throughout his life he has placed
others first contributing to his being a supportive, kind, compassionate
person. Regardless of awards for service, enterprise and dedication he
remains a hardworking, decent, emphatic and respectful man. On the
rare occasion that he took time off work it was usually to help us with
our medical and health concerns. Brett had perfect attendance from
kindergarten through high school, worked many extra hours at his
profession and volunteered for extra duties to help others. Brett walked
three miles to get food for his eighty- year-old neighbor when the
tornadoes struck Tuscaloosa; bought special shoes for a maintenance
worker so she could continue working; distributed food and supplies
while checking on people in the Pleasant Grove area that were
affected by tornadoes; covered a school office overnight during the
snow storm that shut down Jefferson County - cooking for staff and
students stranded at the school while maintaining contacts with
parents, guardians and officials are a few examples of his selfless,
honest and giving nature.

Brett has accepted responsibility for the charges against him as well
as expressing remorse and regret. He understands people have been
hurt. Having taken the circumstances seriously, he has learned from
the situation and wants to work to overcome any concerns or
problems for a positive outcome. We believe that with leniency he
would be able to use his skills and talents to help others. Being a
worthy member of society is important to him so he is willing to seek
counseling, rehabilitation or whatever it takes to be an honorable
citizen. A lengthy sentence would make it difficult for him to achieve
those objectives or for us to rely on him with our medical and health
concerns as we have in the past. We love Brett having been blessed
with his positive presence in our lives. We believe he is contrite and we
earnestly hope you will consider him deserving of leniency and
mercy.

From the letter of Bart Kirkham, Bretts little brother: Brett has always

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striven to exceed expectations and set an example for those around

him. He has gently achieved his goal of making things better along his
path in life whether that be professionally, individually, or while
volunteering in his community. I admire his ability to give of his time
and talents in cheerful service to others and never doing so in
expectation of anything in return. Brett is a good person that has
been my hero my entire life. With a dedicated heart for lifting the
heaviest of loads for our family and his friends, Brett has always
sacrificed his own interests for those whom he loves.

One of our grandfathers was a farmer and always had an opportunity

for a little help. Brett figured out quite quickly that he could always find
something to do around the farm to assist in making things run. I think
we both learned from that grandfather that we could and should seek
out what we can do to help. Brett has made that his life's work:
helping where he can.

I know that we are not perfect beings and we all have failings. I do not
know much about Brett's case, but I do know that while he accepts
any appropriate responsibility; we as his family and the community he
has served so diligently would not benefit from him being incarcerated
for a long term. I do believe that Brett is sorry for his actions and will
take whatever action you deem necessary to show that he is indeed
worthy of the trust society places in each of us. I ask for your
understanding and mercy for my big brother so that he can once
again help where he can.

From the letter of Pamela L. Rush, PhD, who has known Brett for over 10
years: During the time I worked directly for Brett (6 years), he was an
exceptional leader. He went above and beyond for his students and
faculty. He was supportive of our projects and ideas. He challenged
us to be the best teachers we could be and completely changed our
school climate to be more productive and disciplined. We had fewer
student issues and a greater sense of community because of his
leadership. He exhibited high expectations for those around him and
provided the support and resources necessary to reach those
expectations.

I have always considered him more than a supervisor but more of a

friend. He has always demonstrated an importance and closeness
with his family. Also, after meeting him it only takes a few seconds to
know his passion for education and how it impacts students and their

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future success. He is probably the most fervent educator I have ever

met. He was always the first one to school and easily the last one to
leave. It was not uncommon to call his office phone hours before or
after school and have him answer. He was always reading or
"crunching" data to find ways to assist all learners in our school.

From the letter of Allison Mays, friend of Brett Kirkham: I almost did not
write this letter. Having known Brett Kirkham since he was a freshman
band student at the University of Alabama and having followed similar
paths in our careers as educators, I wanted to share what I could in
hopes it could be of some assistance when he comes before you for
sentencing. But it is also difficult for me, in my role as an educator, to
reconcile how I feel personally about the Brett I care for with my
professional feelings about the reasons he is in your courtroom.

Brett is a perfectionist and very much a "people-pleaser." He hates,

more than anything, to let anybody down, especially his parents (Bill
and Brenda are the salt of the earth - and I've watched them both
age at least two decades within the past year). Looking back on
everything with what little I know about the case, I think this is telling.
Brett and I had a long discussion last summer that "everything happens
for a reason." It took me almost a year, but I think I figured what "this
reason is" out. Because everything Brett worked for so zealously -
almost to the point of obsession - is now gone and will be gone when
he finishes his sentence, Brett will be forced to truly be himself. Flaws
and all. To me, if there is a positive in all of this, that is it. He has
learned, through all of this, that a flawed Brett is still loved by his family
and friends. I think that this will be what sustains him through
whatever sentence you impose and what will be what will make him
a better human being for when he finishes his sentence. More
importantly, l believe he knows this as well.

From the letter of Erika Howell, friend and neighbor of Brett Kirkham: I
am grateful for the opportunity to write to you, as Brett Kirkham will
soon come before you for sentencing. I moved across the street from
him nearly seven years ago and since that time have known Brett, and
his family, as close neighbors and friends.

In those years, I have only seen him act with high regard for the law
and with concern and compassion for those around him. I know he
has been a great and necessary support to his parents as their health
problems have increased over the years. His arrest and these serious

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charges have been absolutely mind-boggling for me to comprehend,

but I hope I am able to keep my mind open to every possibility.

Brett has been a wonderful, conscientious neighbor. Immediately after

the tornado hit us six years ago, he was over rigging a repair for my
ruined fence so my dogs could go safely outside. I was in no shape to
have done that by myself, but I didn't have to ask for help. While we
didn't have power, he brought food for me (and for at least one other
neighbor I know of). He just saw what needed to be done and helped
take care of us. In the years after things got back to normal, I would
see some of the rental or unsold properties on our street with
overgrown, weedy yards. And I'd catch Brett, mowing and
weed-eating right after he did his own. I asked him why, when it was
the responsibility of the owners. He would just say they weren't going
to get to it and there was no need to make more work for the city. He
just wanted to keep the property values up. I still believe he can make
positive contributions for our community.

From the letter of DeAnne Rodenburg, friend for over 40 years: Judge
Coogler, Brett has been an outstanding young man throughout his
entire life. He has worked hard and has been a mentor to many of his
colleagues and friends. Brett has a love of history and has always
looked to read books and magazines to learn more about local history
or historical events. Brett has always been a great supporter of his
family and the activities they were involved in. He has enjoyed
traveling; camping and talking with people of all ages to learn their
history and backgrounds - hence his love of history. He has a love of
music that was evident at an early age when he asked to join the
middle school band and learn to play the tuba. He was an
outstanding member of the University of Alabama Million Dollar Band
for many years. Within the last few years both of his parents had
surgery and he made special efforts to make sure that they were
comfortable away from home and had anything that might be
needed. He always goes the extra mile to help.

From the letter of Terry Schilder, colleague of Brett Kirkham: ...9 years
that I worked at Hueytown Middle School with him as my principal
while I was employed as the school speech language pathologist.

...I do want to share with you my knowledge of Mr. Kirkham as an

educational leader, a mentor and a caring professional during the
years that I worked with him.

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Over the years, his concern for the best educational experience for
the students at HMS was obvious, and he motivated his staff daily to
give their best effort for the benefit of all the students. During all this
time that I saw, he treated all the students with utmost
professionalism and truly cared about their becoming all that they
could become.

He created a family atmosphere among the teachers and always

exhibited keen leadership skills both in the school as well as during the
many professional meetings I attended both at the school and at
Central Office where he was well respected for his forthright
presentations to make the educational experience at HMS of a high
quality throughout the County, particularly speaking for the students
with special needs.

In all honesty, the man I have come to know well during this
professional relationship is not a person who would put students in any
personal harm, and it is with that in mind that I hope you will consider
leniency so that Mr. Kirkham can function in a meaningful way back
in society where he can use his considerable intellectual abilities for
worthwhile endeavors. Thank you for your consideration.

From the letter of Roxie Horton, lifelong family friend of Brett Kirkham:
I have known Brett since birth and have been involved with his family
even before his parents were married. Brett has worked summer jobs
with me while in college (in retail services.) I know he has a really
good soul. He has spent his l ife in giving service to others at all levels
of society without reciprocity.

I know Brett has disappointment in himself, feels disgust, and is sorry for
any involvement. He wants to change.

From the letter of Don Levy, Owner of Levy Advertising Agency: I have
known Brett for many years. He graduated form the University of
Alabama, an then joined the U of A Million Dollar Band Alumni
Association. We worked together as Board Members and Officers.
Sir, you could father one million adults and not one would ever believe
or suspect that Brett is caught up in this type case.

I want to list for you what type of person I found Brett to be:

Integrity EXCELLENT

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Loyalty EXCELLENT
Respectfulness EXCELLENT
Responsibility EXCELLENT
Humility EXCELLENT
Compassion EXCELLENT
Fairness EXCELLENT

I know he is truly sorry, regretful, grieved and sad about this entire
dilemma.

II. The Need for the Sentence Imposed To Promote Certain

Statutory Objectives:

Brett Kirkham has been incarcerated since July 1, 2016 and will continue to

be imprisoned for some time. Any further incarceration will serve to protect the

public from further crimes being committed by Mr. Kirkham. There is no indication

that Mr. Kirkham would ever re-offend, his utter lack of criminal history, his

acceptance of responsibility, and his desire for self-rehabilitation as evidenced by

ongoing therapy while incarcerated with a licensed professional therapist. His

efforts in seeking mental health counseling since his arrest reveal much about his

character and reduce the possibility of further criminal activity.

Should this Court have any reservations regarding the imposition of a 17

year sentence, the conditions of Mr. Kirkhams lengthy period of supervised release

(strict monitoring and limitations) and a lifetime requirement to register as a sex

offender under federal law and Alabama law should assuage those concerns.

These restrictions will deter future criminal conduct.

As previously stated, Mr. Kirkham has been in custody since his arrest in

Jefferson County, Bessemer Division, on July 1, 2016 and asks to have credit towards

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this sentence for this time, which is approximately twelve months.

Mr. Kirkham respectfully suggests that a sentence to any term of

imprisonment longer than 17 years would be "greater than necessary" to serve

the purposes of sentencing in this case. Mitigating factors regarding Mr. Kirkhams

offense and personal circumstances, his self-rehabilitation, and his acceptance of

responsibility are plainly not accounted for in the sterile arithmetic of the

computation of the applicable guideline range. A sentence consistent with the

suggestions herein would serve all of the goals of punishment established by the

Sentencing Reform Act.

Conclusion

A sentence of 17 years imprisonment represents a proportional and rational

sentence in this case considering the sentencing factors and the guidelines. A

non-guideline sentence can be appropriate "because the Guidelines sentence

itself fails properly to reflect 3553(a) considerations, or perhaps because the case

warrants a different sentence regardless."

WHEREFORE, the premises considered, Defendant Brett Kirkham respectfully

moves this Honorable Court to consider the above Motion for Variance and

Sentencing Memorandum when determining an appropriate sentence.

Respectfully submitted,

/s/ Thomas J. Spina

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Thomas J. Spina
Attorney for Defendant
State Bar #4959-N77T
1330 21st Way South, Suite 200
Birmingham, Alabama 35205
Telephone: (205) 939-1330
TommySpina@bellsouth.net

CERTIFICATE OF SERVICE

I hereby certify that on July 17, 2017, I electronically filed the foregoing with
the Clerk of the Court using the CM/ECF system which will send notification of such
filing to all attorneys of records.

/s/ Thomas J. Spina

Thomas J. Spina

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