U.S. Department of Justice United States Attorney Eastern District of New York

DRA:BMR    F.#2002R00892    McGuire.psr.ltr.wpd

Mailing Address:

One Pierrepont Plaza Brooklyn, New York 11201 147 Pierrepont Street Brooklyn, New York 11201

March 10, 2005

 

U.S. Probation Officer Talia Katz U.S. Probation Department Eastern District of New York  75 Clinton Street, Room 405 Brooklyn, New York 11201-4201

 

Re:	United States v. Thomas P. McGuire, et al. Criminal Docket No. 03-191 (S-6)(SJ)

Dear Ms. Katz:

 

We write to address certain factual discrepancies/ issues set forth in the Presentence Report (“PSR”) for the defendant Thomas P. McGuire. Additionally, it is our position that McGuire’s Guideline range should be 8-14 months, not 10-16 months as set forth in the PSR. The 8-14 month range reflects a one-level reduction for global disposition.

 

Referring to page 5, paragraph 2, and page 35, paragraph 131, forfeiture payment should be sent to the attention of Special Assistant U.S. Attorney Douglas Leff, rather than Adam Schwartz.

 

At page 5-6, paragraph 3, the PSR indicates its disagreement with a one-level reduction for global resolution, noting the PROTECT Act and stating that United States v. Garcia, 926 F.2d 125 (2d Cir. 1991), is distinguishable. Rather than limiting the sentencing discretion given to judges by Garcia to a narrowly focused set of facts, in cases quite different from Garcia’s factual core, the Second Circuit has expressly permitted Guideline reductions or downward departures based on a conservation of judicial resources. See, e.g., United States v. Agu, 949 F.2d 63, 67 (2d Cir. 1991) (holding that “cooperation with the government in respects other than the prosecution of others or cooperation with the judicial system can, in appropriate circumstances, warrant a departure”). It is thus our position that a one-level reduction for global disposition is within the Court’s discretion.

 

2
 

At page 9, paragraph 15, the second sentence should be deleted because the indicated mailings were not sent to contractors.

 

At page 11, paragraph 21, it should be payments and deliveries of money.

 

At page 14, paragraph 33, we agree that restitution is inappropriate, but it was necessary to advise McGuire of his maximum exposure in that regard. As indicated elsewhere in the plea agreement, the money is to be paid as forfeiture.

 

Referring to page 14, paragraph 34, the PSR indicates a discrepancy between restitution owed and amount of loss for Thomas McNamara, which we will address to the extent necessary in response to McNamara’s PSR.

 

Referring to page 15, paragraph 35, the PSR indicates a discrepancy between restitution owed and amount of loss for Daniel Murphy, which we will address to the extent necessary in response to Murphy’s PSR.

 

Referring to page 15, paragraph 36, the PSR indicates that Quaranta’s restitution liability is $145,200 (the loss figure), not $18,000. Quaranta is being held responsible for the amount he personally illegally earned, i.e., the money he received from Recine Materials at the Starrett City job - his second overlapping job. Others, i.e., Ralph Garguilo and Joel J. Cacace, Jr., are responsible for their part of the greater loss figure.

 

As to page 16, paragraph 41, the proof shows that Thomas McNamara should receive a three- as opposed to two-level increase for role in the offense. McNamara agreed to the three-level enhancement in his plea agreement. We will further address this point once we have received the PSR for McNamara.

 

As to page 17, paragraph 45, the company name is Soil Solutions, plural. It was Vito Volpicelli who typically accumulated the receipts.

 

Referring to page 34, paragraph 44, we agree with the PSR that the total offense level is 12 - before the additional global point is awarded. It is our position that the global point should be deducted, resulting in an ultimate total offense level of 11. Total offense level 11, with Criminal History Category I, yields a Guideline range of 8-14 months.

 

In conclusion, we respectfully submit that McGuire should be sentenced within the Guideline range of 8 to 14 months.

3
 

Very truly yours,

 

ROSLYNN R. MAUSKOPF UNITED STATES ATTORNEY

By:	____________________________ Bridget M. Rohde/Joey Lipton Assistant United States Attorneys (718) 254-6348/6125

 

cc:

Clerk of the Court (SJ) Michael G. Considine, Esq.