Case 3:18-cr-00006-MO Document 13 Filed 04/11/18 Page 1 of 4

Noah Horst, OSB No. 076089

Email: noah@lmhlegal.com
Levi Merrithew Horst PC
610 SW Alder Street, Suite 415
Portland, Oregon 97205
Telephone: (971) 229-1241
Facsimile: (971) 544-7092

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

UNITED STATES OF AMERICA, Case No.: 3:16-CR-00115-MO;

3:18-CR-006-MO
Plaintiff,

vs. DEFENDANT’S SENTENCING

MEMORANDUM

JAMES IAN MCGLOTHLIN

Defendant.

James McGlothlin will appear in front of the Court for sentencing on April 16, 2018,

having pled guilty on January 5, 2018 to one count of Production of Child Pornography on each

of the above captioned cases. Mr. McGlothlin pled guilty pursuant to a global plea agreement

with the United States, Clackamas County, and Multnomah County following lengthy

negotiations. On March 3, 2018, Mr. McGlothlin pled guilty and was sentenced in Clackamas

County case No. 16CR56930. Pursuant to the global agreement, Clackamas County sentenced

Mr. McGlothlin to 225 months prison to be served concurrently with the sentence imposed in the

Page 1 – DEFENDANT’S SENTENCING MEMORANDUM

 Case 3:18-cr-00006-MO Document 13 Filed 04/11/18 Page 2 of 4

federal cases. The parties intend that Mr. McGlothlin should serve a total of 28 years in prison

with all credits and that he serve his entire sentence in a federal institution.

The parties jointly recommend a sentence of 28 years (336 months) in prison with all

credits. The parties also recommend that the federal sentences be ordered to run concurrently

with the 225-month sentence previously imposed in Clackamas County case No. 16CR56930.

Probation concurs with the above, recommending the same sentence structure.

I. Guideline Calculations Under the Plea agreement and the Pre-Sentence Report

The Defendant has reviewed the presentence report and agrees with the guidelines

calculation therein. However, pursuant to the Plea Agreement, the parties recommend the non-

Guideline sentence noted above for the reasons explained below.

II. A Non-Guideline Sentence is Warranted

The Sentencing Guidelines are advisory only, and but one factor among many to be

considered in fashioning an appropriate sentence. Kimbrough v. United States, 552 U.S. 85, 90

(2007); Gall v. United States, 552 U.S. 38, 49–51 (2007); United States v. Booker, 543 U.S. 220,

245 (2005). Moreover, the Guidelines are “not to be presumed reasonable,” and are to be given

no more weight than any other factor listed in 18 U.S.C. § 3553(a). Nelson v. United States, 555

U.S. 350, 352 (2009); United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc). See

also Rita v. United States, 551 U.S. 338, 351 (2007) (“the sentencing court does not enjoy the

benefit of a legal presumption that the Guidelines sentence should apply”); United States v.

Sachsenmaier, 491 F.3d 680, 685 (7th Cir. 2007) (“ultimately [the court] must sentence based on

18 U.S.C. § 3553(a) without any thumb on the scale favoring a guideline sentence”). However,

the Court is required to properly calculate what sentence the guidelines recommend. Carty, 520

F.3d at 991.

Page 2 – DEFENDANT’S SENTENCING MEMORANDUM LEVI MERRITHEW HORST PC

610 SW Alder Street, Ste 415
Portland, Oregon 97205
 Case 3:18-cr-00006-MO Document 13 Filed 04/11/18 Page 3 of 4

Regardless of the advisory guideline range, a court’s “overarching duty [is to] impose a

sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [18

U.S.C. § 3553(a)(2)].” 18 U.S.C. § 3553(a). Pepper v. United States, 131 S.Ct. 1229, 1242

(2011). In fashioning such a sentence, the court considers (1) the nature and circumstances of the

offense and the history and characteristics of the defendant, and (2) the need for the sentence

imposed:

To reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; []to afford adequate deterrence to
criminal conduct; [] to protect the public from further crimes of the defendant;
[]and to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner.

18 U.S.C. § 3553(a)(2).

To appreciate how the jointly proposed sentence complies with the Court’s mandate, this

Court must understand the “history and characteristics of the defendant,” as “the punishment

should fit the offender and not merely the crime.” Id. at 1240 (quoting Williams v. New York, 337

U.S. 241, 247 (1949)). Mr. McGlothlin’s criminal conduct, risk level, and other history and

characteristics are well-documented in the Pre-Sentence Report and accompanying documents.

As noted in the PSR Mr. McGlothlin has accepted responsibility for his criminal acts and taken

the unusual steps of seeking and fully engaging treatment while in custody.

Conclusion

For the reasons set forth above and detailed in the PSR, the parties jointly recommend

that the Court impose a total of 28-years. Recognizing Mr. McGlothlin will likely be sent to a

specialized facility, he requests that the Court include a judicial recommendation that he be

designated to FCI Sheridan so he may continue his treatment and maintain relationships with his

supportive family.

Page 3 – DEFENDANT’S SENTENCING MEMORANDUM LEVI MERRITHEW HORST PC

610 SW Alder Street, Ste 415
Portland, Oregon 97205
 Case 3:18-cr-00006-MO Document 13 Filed 04/11/18 Page 4 of 4

DATED this 11th day of April, 2018

By: /s Noah Horst

Noah Horst, OSB No. 076089
Attorney for Noah Horst

Page 4 – DEFENDANT’S SENTENCING MEMORANDUM LEVI MERRITHEW HORST PC

610 SW Alder Street, Ste 415
Portland, Oregon 97205