This Week I Have Filed 2 Motions (Substantive) in Bryan Sheppard S Re-Sentencing Case

LETTER NO. 2

Dear ______,

This week I have filed 2 motions (substantive) in Bryan Sheppard’s re-sentencing case, and Mr. Becker has filed a motion related to scheduling. I am attaching the 2 motions I filed to keep you apprised. I am also going to take a few minutes to try and explain the motions.

Motion 1:

This motion applies to the changes in the sentencing laws starting in 1999 (2 years after the convictions), which now apply to Bryan because his sentence was determined to be unconstitutional under Miller (the law that says teens cannot be sentenced to mandatory life sentences without the Judge considering many factors).

When the case was sent back for re-sentencing under Miller, it meant Bryan’s judgment and conviction were not final. The law says if the judgment and conviction are not final then the individual is permitted to ask the Judge to apply any new law to his case. There have been several developments in Federal law since the 1997 convictions, which prohibit the sentence that the Judge gave Bryan in 1997.

(NOTE: his co-defendants all have FINAL judgments and they cannot ask for relief.)

The Government did not charge Bryan (or the others) with murder. They charged them with setting a fire, which then caused damage to property which was used in interstate commerce. The jury was only asked to decide if one or more of the defendants set a fire to destroy property . . . because, as Mr. Becker said in closing, they were "mean & ornery."

The Government did not charge anyone with murder, because there was no evidence of intent to hurt or kill anyone, including the six firemen who responded to the construction site when called by the security guards. Both the Judge Stevens and Mr. Becker acknowledged this fact in closing and again at the sentencing proceeding.

To prove murder, the Government would have had to prove intention or deliberation, which they avoided with the arson charge. Mr. Becker told the jurors in closing. "This is not a murder case," and then the Judge instructed jurors that whether the fire was the proximate cause of the deaths was a sentencing question.

In 1997, the Sentencing Guidelines allowed a person to be convicted of a lesser offense (destroying property) and then be sentenced for the more serious crime of assault (fire caused injury) or murder (fire was the proximate cause of death).

The Judge was required to make the "factual finding" using a "more likely than true" test instead of a "beyond a reasonable doubt" test. If he found it was more likely than not true that the arson fire was the proximate cause of the firefighters’ deaths, then he had to sentence the defendants to life.

The Judge used the "more likely than not" standard at sentencing in 1997 and found that the fire was the proximate cause of death. This required him to give Bryan an aggravated sentence after making that finding. Based on his finding, he was required to sentence each person to life without parole, even though the Government never proved any element related to a murder charge.

The probation officer also made a factual finding when she wrote her report for the Judge 1) that the fire was the proximate cause of the firefighters’ deaths; and 2) that the analogous homicide offense (to get to a life sentence) was murder in the first degree (vs. murder in the second degree which would have resulted in 20+ year sentences).

Truthfully, the only way to get the sentence to LIFE was for the Judge/Probation Officer to draw this analogy, which the Sentencing Guidelines permitted.

In 1999, the US Supreme Court began to look at this sentencing issue and decided, in Apprendi & Jones[1], that the aggravating facts used to increase someone's punishment had to be presented to a jury, and the jury had to find the fact beyond a reasonable doubt.

Then, in 2000 and again in 2013, the US Supreme Court reaffirmed this rule.

Therefore, since Bryan is back in court and his judgment is not final, the argument is that the court must apply these cases which hold that he cannot be sentenced for anything more than what he was convicted of. He was convicted of aiding or assisting others in setting a fire which destroyed property. The sentence for this offense cannot exceed 10 years.

Motion 2:

The second motion asks the court to RECALCULATE the base offense level. In Federal Court, Judges rely on formulas to sentence people. The idea is that this would bring uniformity to sentencing. In reality, this format removes discretion from Judges and places sentencing decisions in the hands of the Probation Office.

The Sentencing Guideline formula takes into account the offense of conviction and the person's criminal history. They plug that information into a grid to come up with a range of months the person should serve in prison. The person may get the low end of the range if he has mitigation (accepted responsibility, cooperated with the government), or the person may get the high end if he failed to help the government.

Because of the US Supreme Court’s Miller decision, a LIFE sentence for a teen is unconstitutional; therefore, arguably, the Judge cannot start with a LIFE sentence,

and

The US Supreme Court decisions in Apprendi & Jones mean that a sentence for criminal conduct of hurting the firefighters would have to have been decided by the jury determining beyond a reasonable doubt that the fire was set to hurt someone. Based on these USSC cases, the base offense level for what Bryan was convicted of cannot exceed 10 years in prison; therefore, the correct sentence would be far less than the base offense level assigned in 1997 which made this a life sentence.

Mr. Becker will file a response to my motions in which he may agree with me or argue I am misreading the law. I can then file a reply. The Judge will then review and rule on the motions.

I am available to you or your family members at any time if you have any questions or concerns. 816.868.9088 (voice/text).

Sincerely,

Cyndy Short

[1] Jones v. United States, 526 U.S. 227 (1999). Apprendi v. New Jersey, 530 U.S. 466 (2000).