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United States v. Brewer - 978 F. Supp. 2d 710 (W.D. Tex. 2013)


18 U.S.C.S. § 3553 provides in part that punishment should be decided taking into account: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed—(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.


Donald Dean Brewer and Sherri Lynn Brewer were indicted by a grand jury of citizens on 17 counts of conspiracy to defraud, wire fraud, and major fraud against the United States, alleging creation of a sham contracting operation which led to $6,445,370 in ill gotten gains, half of which went to the Brewers, and all of which were stolen from the taxpayers. Mr. and Mrs. Brewer are both 64 years of age. In August of 2004, Mr. Brewer was involved in an airplane crash. As a consequence of the crash and the related surgeries and procedures, Mr. Brewer has complete paralysis and constant nerve pain in his right leg, partial paralysis in his left leg, severe osteoporosis in his lower extremities, poor circulation, and poor temperature regulation. Mr. Brewer is confined to a wheelchair 99% of the time and suffers from depression. Mrs. Brewer's history and characteristics also weigh on the Court. At the sentencing hearing, it was revealed that Mrs. Brewer's resistance to imprisonment stemmed, not from a fear for her own health, happiness and safety, but for the health, happiness and safety of her husband. Her defense counsel explained that Mrs. Brewer "lives to take care of Don Brewer." Indeed, while the Bureau of Prisons is equipped to care for prisoners of all levels of need, it would not likely meet the level of care that Mrs. Brewer has faithfully provided to Mr. Brewer in the years since the airplane crash.


Is a non-custodial sentence proper in this case?




The Court noted that a guidelines sentence for a severely infirm 64-year-old man like Mr. Brewer was, as a practical matter, a life sentence. In the spirit of sparing dwindling resources by keeping non-violent offenders out of prison, non-custody retribution was appropriate for defendants. Incarceration of defendants would not have significantly deterred future offenders. The goal of incapacitation was sufficiently achieved by the conditions of probation. Imprisonment was not necessary to keep defendants from committing financial crimes again. The court's variance in contravention of U.S. Sentencing Guidelines Manual § 5B1.1, cmt., application n. 2 was reasonable because the court strongly believed probation was appropriate given the unique circumstances of the case. All factors, under 18 U.S.C.S. § 3553, weighed in favor of a non-custodial sentence for defendants.

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