IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ...

[Pages:20]Case 5:15-cr-40050-DDC Document 59 Filed 01/27/17 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

UNITED STATES of AMERICA,

Plaintiff, v.

MICHAEL ANDREW RYAN, Defendant.

Case No. 15-CR-40050-DDC

SENTENCING MEMORANDUM Defendant Michael Ryan pled guilty to six counts of smuggling firearms in violation of 18 U.S.C. ? 554. At sentencing, the parties will jointly recommend that Mr. Ryan receive a sentence of 52 months' imprisonment. This joint recommendation is a product of the parties' extensive knowledge of the facts as well as negotiations spanning from shortly after Mr. Ryan made his first appearance in June of 2015 through January 21, 2017. It is impossible to outline each consideration that factored into the parties' agreement, but the following is a high-level overview of some of the considerations, offered in support of the recommended 52- month sentence: 1. Mr. Ryan voluntarily stopped his misconduct before contact with law enforcement. At the time of his arrest, roughly two years had passed since he had

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shipped firearms. Voluntary cessation of misconduct, before law enforcement contact, has been approved as factor supporting a departure or variance. See, e.g., United States v. Workman, 80 F.3d 688, 701 (2d Cir. 1996) (approving a two-level departure based on the defendant terminating offense conduct and joining the military, acts "not undertaken at the spur of impending prosecution for the crimes at issue in this appeal."); United States v. Smith, 311 F. Supp. 2d 801 (E.D. Wis. 2004) (granting a two-level departure based on the defendant's "transformation" that "occurred before he was arrested or even knew he was under investigation"). To be clear, the defense is offering this information in support of the jointly recommended 52-month sentence; the defense is not asking for a further downward departure or variance. 2. Mr. Ryan debriefed with federal authorities and attempted to provide useful information to assist the government. Such effort, even if not resulting in what the government deems substantial assistance, has been approved as grounds for a departure or variance. United States. v. Fernandez, 443 F.3d 19 (2d Cir. 2006) (holding that evaluation of section 3553(a) factors should include consideration of a defendant's efforts to cooperate, even if those efforts do not yield a government motion for a downward departure pursuant to U.S.S.G. ? 5K1.1 (`non-5K cooperation')."); United States v. Jaber, 362 F. Supp. 2d 365 (D. Mass. 2005)

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(approving a downward departure, noting that the defendant's "repeated efforts to help law enforcement . . . surely bear on his extraordinary acceptance of responsibility"). 3. The presentence report, Doc. 58, omits a three-level reduction for acceptance of responsibility. The change was not made at the request of the government. Instead, the government's submission to probation read: "Given defendant's criminal history of I, the United States recommends a sentencing guideline range of 57 to 71 months imprisonment and, pursuant to the plea agreement in this matter, recommends a sentence of 57 months imprisonment, the low end of the appropriately calculated Guidelines range." Mr. Ryan's pretrial conduct, described in paragraphs 43 and 44 of the presentence report, does not justify denial of acceptance points. Mr. Ryan had a positive result on a preliminary urine test on September 20, 2016, and denied use. A lab report, dated September 27, 2016, shows a "positive" result for amphetamines and a "negative" report for mdma- methylendioxymethamphetamine. Despite disputing that he used illegal drugs, Mr. Ryan appeared on October 6, 2016, and agreed to simply go into custody and begin earning credit for time served. The decision to voluntarily go into custody was made before probation took a second preliminary urine test on October 6, 2016. The October 6 urine sample was not submitted to a laboratory for testing.

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Mr. Ryan continues to deny that he used illegal drugs while on pretrial release. But he agreed with counsel that the upside to resisting detention was limited, given that a custodial sentence was anticipated. At the time, sentencing was scheduled for November 14, 2016 (roughly 40 days after the revocation hearing). The September 20, 2016, urine sample should not result in Mr. Ryan losing an adjustment for acceptance of responsibility, especially given that Mr. Ryan denies using illegal drugs and the government has not advocated for taking away the adjustment. An evaluation of the factors set out in Application Note 1 to U.S.S.G. ? 3E1.1, leads to the conclusion that Mr. Ryan's overall conduct supports a finding that he has accepted responsibility. Not only did he voluntarily terminate the offense conduct long before learning that he was under investigation, but he promptly entered a guilty plea and proffered with agents in an attempt to provide substantial assistance. He also agreed to not contest the administrative forfeiture of multiple firearms (valued at thousands of dollars) unrelated to the offense conduct. In all, Mr. Ryan has not challenged the government on any front, and he has attempted to provide substantial assistance. His conduct both before and after indictment demonstrates acceptance of responsibility. 4. Mr. Ryan disputes the claims underlying the two-level enhancement in paragraph 51 of the presentence report, role in the offense. After additional investigation

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and research, the parties agreed that compromise is in everyone's best interest. The joint recommendation is a mid-point of 52 months' imprisonment. The defense has maintained that a role adjustment is inapplicable and the properly calculated offense level is 23; the government has maintained that a two-level role adjustment is appropriate and the properly calculated offense level is 25. A sentence of 52 months in prison is a mid-point and a compromise that the parties believe is appropriate under the facts of this case. 5. The presentence report does not tell the Court all of the positive attributes of the very likeable Mr. Ryan. Mr. Ryan's family and friends paint a more comprehensive picture of Mr. Ryan as good man. Their letters to the Court are attached as Exhibit 1. The defense requests that the Court take these considerations into account and follow the parties' joint recommendation to impose a sentence of 52 months' imprisonment.

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Respectfully submitted, Joseph, Hollander & Craft LLC Attorneys for Defendant Ryan By: /s/ Christopher M. Joseph Christopher Joseph, #19778 1508 S.W. Topeka Blvd. Topeka, Kansas 66612 Phone: (785) 234-3272 / fax: (785) 234-3610 cjoseph@

CERTIFICATE OF SERVICE I hereby certify that on January 27, 2017, I electronically filed the foregoing with the clerk of the court by using the CM/ECF system which will send notice of electronic filing to all parties of record.

/s/ Christopher Joseph

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Case 5:15-cr-40050-DDC Document 59-1 Filed 01/27/17 Page 1 of 14

RYAN &SONS

REALTORS

ESTABLISHED 1965

January 25, 2017

Jack and Jenney Ryan 2111 W. 69th Terr. Mission Hills, KS 66208 785-41 0-6586

Case No. 15-40050-01-DDC - Michael A. Ryan

The Honorable Judge Crabtree,

We are the parents of Michael A. Ryan. Michael has always been a wonderful son who respects his parents and brother. We are a very close family. Michael is committed and faithful to his friends.

Michael was a good student and he received his bachelor's degree from Kansas State University in Parks & Wildlife Management. He was active in many organizations in school and church. He's always had a good work ethic and has never been fired.

Michael adores his 5 year old daughter, Brittany. He is a mature, responsible father who provides her with all of her needs. For example, they love going to the zoo, playing with her toys, and celebrating special occasions. Michael cares and supports his daughter's mother.

We believe that Michael can be a productive and law-abiding citizen. He is not a violent person, but is a person that made a poor decision. He needs our support and encouragement. He has many talents to contribute to society. Michael has continued to grow and we believe he has learned from his mistakes.

We appreciate your consideration and all efforts in helping Michael. Thank you for the important work that you do.

y mcerely,

~

1 / ~(?~ Jack

dJIeI?n/n~I~ U ~ , (

P.O. BOX 1261? 600 HUMBOLDT STREET ? MANHATTAN , KANSAS 66502 ? TELEPHON E (785) 776-1213

MEMBER NATIONAL ASSOCIATION OF REAL ESTATE BOARDS

Case 5:15-cr-40050-DDC Document 59-1 Filed 01/27/17 Page 2 of 14

January 26, 2017

Honorable Daniel D. Crabtree United States District Court 444 S.E. Quincey, Suite 405 Topeka, KS 6683

Judge Crabtree,

Thank you for the opportunity to write the following letter requesting leniency in the sentencing of my brother, Mr. Michael Ryan. I understand that Michael is being sentenced on multiple charges. Today I write to you to express my support, and to present a fuller picture of who Michael is as a person.

My name is Patrick Ryan. I am the Executive Vice President/ Chief Retail Officer for FitLife Brands, and a graduate of Kansas State University. My brother and I were both students at KSU, where we were members of Beta Theta Pi fraternity. I currently reside in Overland Park, KS. As Michael's older brother, I probably know my brother better than anyone. We have always been very close, as he is my only sibling. My goal today is to give you an understanding of who he is as a brother, an uncle, but most importantly as a father.

My brother is an amazing father to his beautiful daughter, Britney. He has wanted nothing more than to provide her with a good life. Taking her to the city park in Manhattan on the weekends, Britany falling asleep on her father's lap as we all watch the movies as a family, and emphasizing the importance of taking her to our family church. My brother has always prioritized his daughter, and they are very connected. The last few months of separation have been very hard on both of them.

My two children, Marissa (7) and Colin (6), have always had a great uncle - from goofy gadgets for my son to huge teddy bears for my daughter - they think Uncle Mike is the best. My daughter, who understands where my brother sits as you read this, has continued to ask if she can make the drive to see him. I'm not sure she truly understands the emotion of the situation, but it's because she loves her uncle Mike and knows he loves her.

My brother is an auto salesman. Over the last 5 years, I've had the opportunity to walk the auction lot with him several times. As we walked the lot, I would swear my brother was the mayor of the auction. He knew every facet and could relate to every walk of life there - it was his place. He was so proud to have me with him introducing me to his colleagues. It showed me he loved me and was proud to have me as his brother. Another moment I want to speak of was during the Royals final game of the 2014 World Series. My father knew that history was going to be made, and what better than to surprise my brother and I with tickets to the final game. It was an amazing day with my family - we tailgated with friends, grabbed hot dogs, and shot pictures of the three of us. I can remember standing in the concessions line late in the game and hearing Bumgarner's name called to pitch. Yes we lost, but we ended that day with a hug and I love you.

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