Opinion
CASE NO. 11-CR-00304-PAB CASE NO. 12-CR-00273-PAB CASE NO. 12-CR-00274-PAB
01-25-2013
UNITED STATES OF AMERICA, Plaintiff, v. JAMES LLOYD GRABER, Defendant.
David Conner Special Agent Theodore Faul Michael Sheehan
JUDGE PHILIP A. BRIMMER
COURTROOM MINUTES
Courtroom Deputy: Kathy Preuitt-Parks
Court Reporter: Janet Coppock
Probation Officer: Justine Kozak
Time: 45 minutes
Interpreter: n/a
Counsel
David Conner
Special Agent Theodore Faul
Michael Sheehan
SENTENCING
11:05 a.m. COURT IN SESSION
APPEARANCES OF COUNSEL. Defendant is present and in custody. ORDERED: The statement of facts in the Plea Agreement, the Presentence Report and its Addendum are not disputed by the parties and are adopted in the Court's factual findings in this case. The report is incorporated by reference as part of the Court's findings and conclusions. Court addresses defendant's objections to the presentence investigation report. Argument by Mr. Sheehan in support of defendant's motions for downward variance and comments addressing sentencing. Argument by Mr. Sibert and comments addressing sentencing. Defendant addresses the Court. Court states its findings and conclusions. ORDERED: Defendant's Motions for Downward Variance (Docs #74, 21, and 20) are DENIED. Statement by the Court regarding defendant's offense level, criminal history level and sentencing guidelines range. Defendant entered his pleas on August 23, 2012 to counts 1 of the Indictment (11-CR-00304-PAB), count 1 of the Indictment (12-CR-00273-PAB) and counts I and II of the Indictment (12-CR-00274-PAB) ORDERED: Court ACCEPTS the Plea Agreement. Court considers statutory factors of 18 USC § 3553(a) in arriving at sentence. ORDERED: Defendant shall be imprisoned for 63 months as to counts 1 and II (in each case), to be served concurrently and 84 months as to count II (case no. 12-CR-00274-PAB), to be served consecutively to the terms imposed in 11-CR-304-PAB, 12-CR-00273-PAB and count I in 12-CR-00274-PAB. ORDERED: Upon release from imprisonment, defendant shall be placed on supervised release for a period of 3 years as to counts 1 (11-CR-00304-PAB and 12-CR-00273) and 5 years as to counts I and II (12-CR-00274-PAB), to be served concurrently. ORDERED: Conditions of Supervised Release that:
(×) Within 72 hours of release from the custody of the Bureau of Prisons, defendant shall report in person to the probation office in the district to which the defendant is released.ORDERED: Special Condition of Supervised Release that:
(×) While on supervised release, the defendant shall not commit another federal, state, or local crime, shall not possess a firearm as defined in 18 U.S.C. § 921, and shall comply with the standard conditions that have been adopted by this Court.
(×) Defendant shall not unlawfully possess a controlled substance and submit to one drug test within 15 days of release on supervised release and at least two periodic drug tests thereafter for use of a controlled substance.
(×) Defendant shall cooperate in the collection of a DNA sample from the defendant as directed by the probation officer.
(×) Mandatory drug testing provisions of 18 U.S.C. § 3583(d) are WAIVED because the presentence investigation report indicates a low risk of future substance abuse by the defendant.
(×) Defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer, unless the defendant is in compliance with the periodic payment obligations imposed pursuant to the Court's judgment and sentence.ORDERED: Defendant shall pay $400.00 to Crime Victim Fund (Special Assessment), to be paid immediately. ORDERED: No fine is imposed because defendant has no ability to pay a fine. ORDERED: Defendant shall make restitution as follows:
(×) As directed by the probation officer, the defendant shall apply any monies received from income tax refunds, lottery winnings, inheritances, judgments, and any anticipated or unexpected financial gains to the outstanding court ordered financial obligation in this case.
(×) Defendant shall participate in and successfully complete a program of mental health treatment, as directed by the probation officer, until such time as the defendant is released from the program by the probation officer. The defendant will be required to pay the cost of treatment as directed by the probation officer. The Court authorizes the probation officer to release psychological reports and/or the presentence report to the treatment agency for continuity of treatment.
(×) Defendant shall remain medication compliant and shall take all medications that are prescribed by his/her treating psychiatrist. The defendant shall cooperate with random blood tests as requested by his treating psychiatrist and/or supervising probation office to ensure that a therapeutic level of his/her prescribed medications is maintained.
(×) The special assessment/restitution/fine obligations are due immediately. Any unpaid balances upon release from incarceration shall be paid in monthly installment payments during the term of supervised release. The monthly installment payment will be calculated as at lease 10 percent of the defendant's gross monthly wages.
+-----------------------------------+ ¦Name/Address of Victim ¦Amount ¦ +------------------------+----------¦ ¦Bank of the West ¦ ¦ ¦ ¦ ¦ ¦2200 W. Kimberly Road ¦$ 1,469.00¦ ¦ ¦ ¦ ¦Davenport, Iowa ¦ ¦ +------------------------+----------¦ ¦American Exchange Bank ¦ ¦ ¦ ¦ ¦ ¦440 D. Street ¦$29,705.00¦ ¦ ¦ ¦ ¦Eagle Nebraska ¦ ¦ +-----------------------------------+ It is RECOMMENDED that each victim receive an approximately proportional payment base on the victims' share of the total loss. ORDERED: The Court finds that the defendant does not have the ability to pay interest and interest is WAIVED as to the restitution. ORDERED: Government's Motion for Decrease for Acceptance of Responsibility (Doc #18) is GRANTED. ORDERED: Defendant advised of right to appeal. Any notice of appeal must be filed within 14 days. ORDERED: A copy of the presentence report shall be forwarded to the U.S. Bureau of Prisons and the U.S. Sentencing Commission. ORDERED: Defendant is REMANDED to the custody of the U.S. Marshal.