Case 1:10-cr-00158-LMB Document 41 Filed 08/23/10 Page 1 of 14

IN THE UNITED STATES COURT FOR THE

EASTERN DISTRICT OF VIRGINIA
Alexandria Division

UNITED STATES OF AMERICA

v. Criminal No. 1:10-CR-158 (LMB)

JOSEPH GEORGE ECKER, Sentencing Hearing: August 27, 2010

Defendant.

DEFENDANT’S POSITION WITH REGARD TO SENTENCING

Pursuant to Rule 32 of the Federal Rules of Criminal Procedure, section 6A1.3 of the

advisory United States Sentencing Guidelines (the “Guidelines”), and this Court’s Policy Regarding

Procedures to be Followed in Guideline Sentencing, the Defendant, Joseph George Ecker, through

counsel, states that he has received and reviewed the Presentence Investigation Report (“PSR”)

prepared in this case and its Addendum, and he has no objections.

For the reasons stated herein, Mr. Ecker respectfully requests a sentence of incarceration that

is no greater than 87 months. He also requests that the Court recommend to the Federal Bureau of

Prisons that he be designated to the Federal Medical Center at Butner.

ARGUMENT

I. The Advisory Guideline Range is Not to Be Presumed Reasonable

In two recent summary reversals, the Supreme Court stated in no uncertain terms that the

Guidelines cannot be used as a substitute for a sentencing court’s independent determination of a just

sentence based upon consideration of the statutory sentencing factors spelled out in 18 U.S.C. §

3553(a). Nelson v. United States, 129 S. Ct. 890 (2009); Spears v. United States, 129 S. Ct. 840

(2009). The Court’s decisions in Nelson and Spears build upon its earlier decisions in Kimbrough
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v. United States, 128 S. Ct. 558 (2007), and Gall v. United States, 128 S. Ct. 586 (2007), establishing

that the Sentencing Guidelines are simply an advisory tool to be considered alongside the other §

3553(a) statutory considerations.

“Our cases do not allow a sentencing court to presume that a sentence within the applicable

Guidelines range is reasonable,” the Court held in Nelson. 129 S.Ct. 891. “The Guidelines are not

only not mandatory on sentencing courts; they are also not to be presumed reasonable.” Id.

(emphasis in original). In other words, sentencing courts commit legal error by using a Sentencing

Guidelines range as a default to be imposed unless a basis exists to impose a sentence outside that

range. See also United States v. Johnson, 553 F.3d 990, 996 (6th Cir. 2009) (“[I]t is clear that Spears

applies with equal force to sentencing decisions under the new crack-cocaine Guidelines and that

district courts may categorically reject and vary from the new Guidelines based on policy

disagreements with those Guidelines.”).

While sentencing courts must continue to consider the sentencing guidelines, Congress has

required federal courts to impose the least amount of imprisonment necessary to accomplish the

purposes of sentencing as set forth in 18 U.S.C. § 3553(a). Those factors include (a) the nature and

circumstances of the offense and the history and characteristics of the defendant; (b) the kinds of

sentences available; (c) the advisory Guidelines range; (d) the need to avoid unwarranted sentencing

disparities; (e) the need for restitution; and (f) the need for the sentence to reflect the following: the

seriousness of the offense, promotion of respect for the law and just punishment for the offense,

provision of adequate deterrence, protection of the public from future crimes and providing the

defendant with needed educational or vocational training, medical care, or other correctional

treatment. See 18 U.S.C. § 3553(a); see also Kimbrough, 128 S. Ct. at 570. The sufficient-but-not-

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greater-than-necessary requirement is often referred to as the “parsimony provision.” This

requirement is not just another factor to be considered along with the others set forth in section

3553(a) — it sets an independent limit upon the sentence.

Upon consideration of the seven co-equal factors set forth in § 3553(a), a sentencing court

may find that the case falls outside the “heartland” contemplated by the Guidelines, or that “the

guidelines sentence itself fails properly to reflect the § 3553(a) considerations,” or that “the case

warrants a different sentence regardless.” Rita, 127 S.Ct. at 2465. While the sentencing court must

begin its analysis by correctly calculating the advisory sentencing range, the court is then free in light

of the other statutory sentencing factors to impose an entirely different sentence. This is because,

under Rita, a district court is free simply to disagree, based on the statutory sentencing factors, with

the Sentencing Guidelines’ “rough approximation” of the appropriate sentence for any given case.

Id.

Moreover, in Kimbrough, the Court held that a district court is free to sentence outside the

advisory range on the basis of a disagreement with a policy determination made by the Sentencing

Commission – in that case, the 100:1 ratio between powder and “crack” cocaine. The Court held

that “it would not be an abuse of discretion for a district court to conclude when sentencing a

particular defendant that the crack/powder disparity yields a sentence ‘greater than necessary’ to

achieve § 3553(a)’s purposes, even in a mine-run case.” 128 S. Ct. at 575. In other words, a

sentencing court is free under Kimbrough to disagree on policy grounds with a judgment of the

Sentencing Commission even when the offense at issue falls squarely within the type of cases to

which the Sentencing Commission intended a particular guideline to apply.

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Regardless of whether the Court calls its sentence a “variance” or a “departure,” the

overriding principle and basic mandate of § 3553(a) require district courts to impose a sentence

“sufficient, but not greater than necessary,” to comply with the purposes of sentencing set forth in

§ 3553(a)(2). This requirement is not just another factor to be considered along with the others set

forth in Section 3553(a). Rather, it sets an independent limit upon the sentence.

II. A Sentence of No Greater than 87 Months Incarceration Is Sufficient To Satisfy The

Statutory Purposes Of Sentencing Under 18 U.S.C. § 3553(a)

Mr. Ecker stands before this Court to be sentenced for conspiring with others from 2007 to

2010 to distribute Methadone, oxymorphone, and hydromorphone and for using $200,000 in

Medicare benefits to obtain the pills distributed during the course of the conspiracy (as well as all

his other medications during that time period). Mr. Ecker asks this Court to punish him for his

criminal conduct, not for the statements he made prior to pleading guilty or for his misguided efforts

to provide for his wife by directing her to remove wine bottles from their residence and sell them to

support herself while he is incarcerated.

The government asks this Court to impose a sentence of 15-20 years. Were it not for Mr.

Ecker’s false statements, which did not in any way hinder the investigation or prosecution of this

case, his guideline range would be 87-108 months, instead of 188-235 months. If he had not made

false statements about the wine and the safe deposit boxes,1 he would not have received a 2-level

enhancement for obstruction of justice and instead would have received a 3-level reduction for

accepting responsibility in advance of trial. If it were not for his allegedly false statements made

1
The defendant disputes any finding that the obstruction enhancement should be based
on his statements about damaging his residence to avoid its forfeiture or to harm others, as those
statements were made out of frustration and not intended to be taken seriously.

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during debriefs with the government about matters peripheral to the drug and fraud offenses (that

his wife was not present during any drug transactions and that he sold a silver bar to a codefendant)

and his false statements about the wine, then he would have received a 2-level reduction under the

safety valve provisions. See U.S.S.G. § 2D1.1(c)(11), § 5C1.2; PSR, Addendum, p. A-2 (finding

that the “defendant meets criteria one through four of the criteria under Section 5C1.2, however, he

does not meet the fifth criteria which states, the defendant has truthfully provided to the Government

all information and evidence . . . concerning the offense”).

But for these statements, Mr. Ecker’s offense level would be 29 and the corresponding

guideline range would be 87-108 months, or 7-9 years. In other words, Mr. Ecker’s false statements

have doubled the bottom of the applicable guideline range from 7 years to 15 years. Mr. Ecker

submits that his sentence should be driven by his drug distribution and health care fraud conduct, not

by his false statements. To the extent that this Court wishes to impose an additional penalty on Mr.

Ecker for his false statements, adding 8 years is greater punishment than is necessary to deter Mr.

Ecker from making such statements in the future.

Since his arrest on April 7, 2010, Mr. Ecker has been detained at the Alexandria Detention

Center. He has been placed in the mental health unit. He is under lockdown for 22 to 23 hours a

day. He has limited interaction with his neighboring inmates, who are also under lockdown. He has

not received the medication he took for years prior to his arrest. He reports that he is in extreme

pain. Regardless of whether this Court believes that his pain is due to narcotic withdrawal or a

genuine medical condition, he is suffering. Moreover, in April, while Mr. Ecker was detained at the

ADC, he learned that Mrs. Ecker, who has long suffered from depression and has been suicidal in

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the past, briefly checked herself into a mental hospital due in part to the stress of her husband’s

arrest.2

Prior to pleading guilty in this case, during one monitored meeting in April 2010 at the ADC,

Mr. Ecker told his wife that she should burn down their home so that the government cannot seize

it. He also stated during that conversation that he wished that the home had been rigged with

explosives when the FBI busted him. Mr. Ecker submits that these statements were made out of

frustration, while he was in pain, and were not meant to be taken seriously. The government has

seized on these statements and focuses their sentencing memorandum on these and other, similar

comments. Yet there is no evidence that Mr. Ecker is capable of destroying property or harming

others. His criminal history contains no allegations of violence. The instant drug offense, unlike

most other drug conspiracies, was committed without the use of firearms, explosive devices, or any

other weapon. Indeed, in spite of the government’s alarm over these comments, since April, the

government has taken no steps to remove Mrs. Ecker from the home to prevent her from destroying

it. Furthermore, when Mrs. Ecker failed to respond to requests from the government to search the

residence to conduct an inventory of their assets, Mr. Ecker signed a consent form prepared by

government counsel authorizing the United States Marshal Service to enter the home “by whatever

means necessary” to conduct the inventory of their personal belongings. That inventory was safely

conducted.

On June 16, 2010, Mr. Ecker pled guilty before this Court to conspiring with others (Robert

Berger, Zachary Mills, and other unindicted coconspirators) to distribute Methadone, oxymorphone,

2
The information about Mrs. Ecker’s recent mental health status and her stay at a mental
health hospital was obtained from the FBI’s report of a witness interview.

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and hydromorphone from “in or about early to mid-2007 . . . [to] March 2010” in violation of 21

U.S.C. §§ 841(a)(1) and 846, PSR, ¶ 15; Statement of Facts, ¶ 1, and to using his Medicare benefits

to obtain prescriptions for the pills from his physician, in violation of 18 U.S.C. § 1347, PSR, ¶ 28;

Statement of Facts, ¶ 14.

In the plea agreement, Mr. Ecker agreed to forfeit his residence in Middleburg, Virginia

(which was assessed in 2009 at $832,700, PSR, ¶ 113), silver bars and coins, a wine collection, and

the family jewelry that the FBI found in his and his wife’s safe deposit boxes (including jewelry his

wife received from his parents as gifts, a wristwatch that he purchased overseas when he was in

college, and a wristwatch that his father gave him as a gift).

After pleading guilty and agreeing to forfeit his wine collection, the FBI’s investigation

turned toward monitoring Mr. Ecker’s communications and searching for his wine collection. Mr.

Ecker directed his wife to remove the wine from the residence and to sell it to have funds to support

herself. Mr. Ecker makes no excuses for this conduct. He feels immense guilt for the collateral

consequences imposed on his wife due to his criminal conduct. Mrs. Ecker is unemployed, severely

depressed, and ill-equipped to provide for herself. His conduct relating to the wine collection was

a misguided effort to provide some financial support to his wife while he is incarcerated. He

understands that due to this conduct, the government will no longer recommend a 3-level reduction

for acceptance of responsibility, as it had originally agreed in the plea agreement, and he is therefore

facing a substantially higher guideline range.

Mr. Ecker is 53 years old. He and his two older siblings were raised by their parents in

Maryland. Mr. Ecker’s father was employed with the CIA and entered local politics to escape family

life. Mrs. Ecker was a homemaker. His parents’ marriage was an unhappy one. At the age of 13,

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Mr. Ecker found his mother unconscious after she had overdosed on sleeping pills. She was in and

out of mental institutions for the next two years. Mr. Ecker was the youngest child and does not

recall spending time with his father. Instead, according to the PSR interview and his jail

correspondence, Mr. Ecker grew up isolated. He recalls feeling a constant sense of insecurity and

being physically bullied by his older brother.

At the same time, when Mr. Ecker was in his teenage years he started using marijuana on a

weekly basis. Illegal substances were readily available to Mr. Ecker, whose older brother was a

dealer. Mr. Ecker also used heroin, at one point on a daily basis. He has an extensive history of

opiate use, starting in 1974. Mr. Ecker submits that there was a period when he abstained from using

drugs and alcohol, but that ended due to pain from peripheral neuropathy.

Mr. Ecker was first diagnosed with degenerative peripheral neuropathy in 2000. He has

received disability benefits since 2006 and was declared disabled since 2003. His most recent

physician treated him from 2003 to 2010. He diagnosed Mr. Ecker with degenerative peripheral

neuropathy and prescribed over 20 medications for him during that period. Those prescriptions

include the following medications which Mr. Ecker was prescribed prior to entering into the instant

conspiracy to distribute drugs: Fentora, Dilaudid, Methadone, MS contin, MSIR, Prosac, and

Valium. The government argues that the diagnosis of peripheral neuropathy is unreliable due to the

volume of prescriptions written for Mr. Ecker by his physician. However, over the decades, Mr.

Ecker has developed a high tolerance to narcotic medications. Mr. Ecker has been a user of

prescription drugs, including Methadone, morphine (MS contin and MSIR), and hydromorphone

(Dilaudid), for years. See PSR, ¶¶ 46-77 (listing arrests and convictions from 1977 to 1990 for,

largely, prescription fraud); PSR, ¶ 49 (describing 1985 arrest where Mr. Ecker was found with

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Dilaudid, Tussionex, Theolair, Aminophylline, and Theophylline); PSR, ¶ 92 (describing Mr.

Ecker’s enrollment in a methadone clinic from 1981-1982).3

From 1993 to 2001, Mr. Ecker was employed as an account executive at Decision Support

System in Dulles, Virginia. He earned up to $300,000 per year. PSR, ¶ 105. In 1994, Mr. Ecker

married his current wife; they have been married for 16 years. While Mr. Ecker was employed at

Decision Support System the Eckers purchased their home in Middleburg. The home needed work

and the couple invested their time and money into improving it. After Mr. Ecker lost his job, the

couple struggled to keep up with their mortgage payments. Mr. Ecker was unable to find new

employment and Mrs. Ecker was also unemployed. Under these financial pressures, Mr. Ecker

decided to sell prescription medication that was being paid for by Medicare. He had planned to use

the proceeds to continue to pay the mortgage and improve the home until he could sell the home for

a profit. After selling the home, he planned to abandon the conspiracy. According to information

obtained from the government, the house did go under contract multiple times in the past year, but

the contracts fell through when the buyers could not produce the requisite down payment.

Mr. Ecker has pled guilty and is being sentenced for distributing Methadone, oxymorphone,

and hydromorphone for approximately three years, from 2007 to 2010. The offense did not involve

any violence, threats of violence, or weapons. Mr. Ecker distributed to three individuals from his

home and from his vehicle. The government agents in this case have searched his residence, his

phone records, his medical records, his safe deposit boxes, his files, and his computers, and they

3
According to reports obtained from the government, FBI agents who arrested Mr. Ecker
on April 7, 2010 administered several prescription medications to him throughout the day while
they searched his residence, including 32 methadone 10 mg, 1 capsule of hydromorphone, 6
tablets of morphine sulfate 30 mg, 8 Dilaudid 8 mg pills, 2 MS Contin 100 mg pills, 1 Famvir, 1
Furosimide, 1 Wellburtin, two Duragesic patches, 1 Androgel, and 1 Klor Con pill.

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have interviewed numerous witnesses, including physicians. They have found no additional

evidence of drug dealing outside of the 3-year period to which Mr. Ecker has pled guilty. The

government estimates that Mr. Ecker received Medicare benefits (including benefits for drugs

personally consumed by Mr. Ecker) valued at $200,000 during this 3-year period. PSR, ¶ 34. The

equity remaining in the Ecker residence, $325,400, covers that loss. Mr. Ecker is also forfeiting

numerous silver bars and coins, as well as his and his wife’s personal jewelry that the government

found in their safe deposit boxes.

A sentence of no greater than 87 months will avoid unwarranted disparities among sentences

imposed on similar codefendants. Mr. Ecker’s codefendants – Robert Berger, Zachary Scott Mills,

and other coconspirators whose prosecution status is unknown to the undersigned. Mr. Berger pled

guilty pursuant to a plea agreement before the Honorable Claude M. Hilton on August 17, 2010.4

See United States v. Robert Andrew Berger, 1:10-CR-00303-CMH. According to the Statement of

Facts (Doc. 6, para. 1) entered in his case, Mr. Berger pled guilty to the same conspiracy to distribute

as Mr. Ecker – conspiring from 2007 to 2010 to distribute methadone, oxymorphone, and

hydromorphone. Yet, the government has agreed in Mr. Berger’s case that the drug weight

distributed by him and his codefendants in furtherance of the same conspiracy that spans the same

three-year time period is less than the weight the parties stipulated to in Mr. Ecker’s case – at offense

level 34. In Mr. Berger’s case, the government agreed that the drug weight was lower – “at least

1,000 kilograms but less than 3,000 kilograms of marijuana,” resulting in a base offense level of 32.

Berger Statement of Facts (Doc. 6), paragraph 4. If Mr. Berger qualifies for a 3-level reduction for

4
The other codefendant who is being prosecuted is Zachary Scott Mills, who is
scheduled to plead guilty before the Honorable Gerald Bruce Lee on August 25, 2010.

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acceptance of responsibility, his offense level will be 29. If Mr. Berger, like Mr. Ecker, is in

Criminal History Category I, he will likely receive a 2-level reduction under the safety valve

provision. Mr. Berger’s final offense level would be level 27 and, at Criminal History Category I,

his guideline range would be 70-87 months, prior to receiving any credit for cooperation.

Thus, if this Court follows the government’s recommendation of a sentence of 188 to 235

months, Mr. Ecker will receive a sentence that is substantially greater than Mr. Berger’s likely

sentence – despite the fact that Mr. Berger pled guilty to the same conspiracy. To the extent there

are any differences in the conduct of Mr. Ecker and Mr. Berger, prior to Mr. Berger receiving any

credit for cooperating, these differences do not warrant Mr. Ecker receiving a sentence that is more

than double Mr. Berger’s likely sentence. Indeed, Mr. Berger’s role in the conspiracy is in certain

respects more egregious than Mr. Ecker’s, given that Mr. Berger distributed the drugs to individual,

street-level buyers. Accordingly, in determining an appropriate sentence, this Court should consider

Mr. Berger’s likely sentence and impose a sentence that result in an unwarranted disparity with that

sentence. A sentence no greater than 87 months would be entirely consistent with Mr. Berger’s

sentence and not result in such an unwarranted disparity.

Mr. Ecker should also be sentenced as though he qualifies for a 3-level reduction under §

3E1.1 for accepting responsibility for his offense conduct. Mr. Ecker pled guilty in advance of trial

and within the deadlines proposed by the government. He pled guilty pursuant to a written Statement

of Facts and the government does not allege that Mr. Ecker has ever strayed from that Statement of

Facts. Since pleading guilty, he has consistently accepted responsibility for his crimes, and his

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sentence should reflect that.5 Similarly, this Court should sentence Mr. Ecker as though he did not

receive an obstruction enhancement because Mr. Ecker’s obstruction conduct did not have the effect

of hindering the government’s investigation of his offense conduct. Mr. Ecker’s conduct has also

not hindered the government’s investigation and seizure of his assets – the government is in

possession of his wine collection, it is in the process of seizing his residence in Middleburg, and it

has already seized Mr. Ecker’s silver bars, silver coins, and jewelry.

Finally, a sentence of no greater than 87 months is sufficient to meet the goals of punishment

and deterrence. Mr. Ecker would be about 70 years old when he is released from incarceration. He

would be under the strict supervision of a federal probation officer while on supervised release. As

the Court brought to his attention at the plea hearing, upon release, he may no longer be eligible for

Medicare or any other government health benefits due to this conviction for health care fraud. The

loss of future medical benefits is in itself substantial punishment for someone who will be entering

his 70's and suffers from peripheral neuropathy.

CONCLUSION

For the reasons stated above, Mr. Ecker respectfully requests that this Court sentence him

for his drug distribution and health care fraud conduct, not for flippant statements he made to his

wife or his efforts to prevent the government from obtaining wine that his wife could sell to support

herself. He submits that a sentence of no greater than 87 months of incarceration is sufficient, but

not greater than necessary to meet the sentencing goals enumerated under 18 U.S.C. § 3553(a). He

5
The PSR also finds that Mr. Ecker would be eligible for acceptance of reponsibility, but
for the alleged obstruction conduct. PSR, ¶ 39.

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also requests that the Court recommend to the Federal Bureau of Prisons that he be designated to the

Federal Medical Center at Butner.

Respectfully submitted,
JOSEPH GEORGE ECKER

By Counsel,

Michael S. Nachmanoff,
Federal Public Defender

By: /s/
Aamra S. Ahmad
Assistant Federal Public Defender
Virginia Bar #75929
Counsel for the Defendant
1650 King St., Suite 500
Alexandria, Virginia 22314
(703) 600-0800 (tel.)
(703) 600-0880 (fax)
Aamra_Ahmad@fd.org

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CERTIFICATE OF SERVICE

I hereby certify that on the 23rd day of August 2010, I will file the foregoing pleading with
the Clerk of Court and will deliver a copy by hand to:

Eugene Rossi
Paul Rosen
United States Attorney’s Office
2100 Jamieson Ave.
Alexandria, Virginia, 22314

A courtesy copy of the foregoing pleading will be delivered to Chambers within one business
day of the filing.

/s/
Aamra S. Ahmad
Assistant Federal Public Defender
Virginia Bar #75929
Counsel for the Defendant
1650 King St., Suite 500
Alexandria, Virginia 22314
(703) 600-0800 (tel.)
(703) 600-0880 (fax)
Aamra_Ahmad@fd.org

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