Gabriela Rosa Defense Memorandum

8/11/2019 Gabriela Rosa Defense Memorandum

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UNITED STATES DISTRICT COURT

SOUT HE RN DIST RI CT OF NEW YORK

UNITED

STATES

OF AMERI CA

14CR434

DLC

GABRIELA

ROSA

Defendant.

X

DEFENDANT GABRIELA

ROSA S

SENTENCING MEMORANDUM

Genesis

A .

Peduto

Attorney for Gabriela Rosa

85-12 Kennedy Blvd.

North Bergan, N.J. 07047

Tel.: 2 0 1 - 8 6 8 - 2 2 4 0

Richard H. Rosenberg


217 Broadway - Suite 707

New Y or k N .Y . 1 00 07

T e l . : 2 1 2 - 5 8 6 - 3 8 3 8

Case 1:14-cr-00434-DLC Document 12 Filed 09/24/14 Page 1 of 6

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-----------------------------------------------------------)(

UNITED STATES OF AMERICA,

14

R

434 (DLC)

GABRIELA ROSA,

Defendant.

-----------------------------------------------------------)(

DEFENDANT GABRIELA ROSA S SENTENCING MEMORANDUM

Genesis A Peduto


85-12 Kennedy Blvd.

North Bergan, N.J. 07047

Tel.: 201-868-2240

Richard H Rosenberg


217 Broadway - Suite 707

New York, N.Y. 10007

Tel.: 212-586-3838


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ntrodllctioll

Defendant Gabriela Rosa is scheduled to be sentenced on October 3, 2014 following her

conviction by guilty plea to the two counts of an Information charging her with making false

statements in connection with her application for citizenship in violation of 18 U.S.C.

1 1

and

making false declarations in a Chapter 7 bankruptcy proceeding in violation of 18 U.S.C.

152(3).

The plea was entered pursuant to a plea agreement. Ms. Rosa has been at liberty on an

appearance bond since her voluntary surrender on June 27, 2014.

As shown below, the constellation of circumstances surrounding this defendant's

aberrant involvement

in

the offenses, in combination with her out

of

the heartland personal

circumstances strongly support the imposition of a non-guideline sentence, and further, we

respectfully urge, a non- prison sentence that would permit the defendant the ability to continue to

serve as the family breadwinner, primary caretaker for her son, and to fulfill her restitution

requirements under the terms of this plea

Ti e Guide/ille Selltellce Rallge

Both the plea agreement and the PSR arrive at the same advisory guideline range based on

a total offense level of 13. With no criminal history points, Ms. Rosa's advisory guideline range

is

12

to 18 months ( Zone C ) imprisonment. For the reasons that follow in this submission it

is

respectfully submitted that a term of three years' probation, as recommended by the Probation

Department

in

its PSR.addendum, is just, appropriate, and minimally sufficient to meet the goals

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o sentencing.

As this court is well aware, while the sentencing guidelines provide a sentencing court

with a starting point and the initial benchmark ,

Gall

v United States 128 S. Ct. 586 (2007), a

sentencing court must now consider all o the

18

U.S.C. 3553 (a) factors, not just the guidelines,

in determining a sentence that

is

minimally sufficient to meet the goals o sentencing set forth in

18

U.S.C. 3553 (a) (2): justice, deterrence, incapacitation and rehabilitation. United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). The requirement that a court impose a sufficient,

but not greater than necessary sentence to achieve those goals sets a limit

on

the sentence that a

court may impose. Further, in detennining whether and to what extent imprisonment is

appropriate based on 3553 (a) factors, the court is required to recogniz[e] that imprisonment is

not an appropriate means o promoting correction and rehabilitation. 18 U.S.C. 3582 (a).

In

Pepper

v United Stales

131

S

Ct. 1229 (2011), the Court twice emphasized that a

sentencing judge assumes an overarching duty under 3553(a) to 'impose a sentence sufficient,

but not greater than necessary' to comply with the sentencing purposes set forth in

3553(a)(2).

Id.,

at 1242, 1243. See also United States v Dorvee, 616 F.3d 174, 182-83 (2d Cir. 2010)

( [u]nder 3553(a)'s 'parsimony clause,' it is the sentencing court's duty to 'impose a sentence

sufficient, but not greater than necessary to comply with the specific purposes set forth' at 18

U.S.C. 3553(a)(2) ), quoting United Siaies v

Samas, 561

F.3d 108, 110 (2d Cir. 2009).

As the Second Circuit explained in

DOI Vee,

[e ]ven where a district court has properly calculated the Guidelines,

it may not presume that a Guidelines sentence is reasonable for any

particular defendant, and accordingly, must conduct its own

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independent review

of

the 3553(a) sentencing factors. See [United

States v.] Cavera. 550 F.3d [180,] 189 [(2d Cir. 2008) en banc)].

616F 3dat 182.

Based upon the 8 U.S.C. 3553 (a) factors present in this case we respectfully submit that a

below advisory guideline sentence

of

probation is appropriate in this case to ensure a sentence that is

minimally necessary to achieve the goals

of

sentencing and the interests of ustice.

Tile Defendant s Backgroulld, CI,aracter and Circumstances o I,e Offense: TI,e 55 (a)

Factors

Under

8

U.S.C. 3661, no limitation shall be placed on the information concerning the

background, character, and conduct of [the defendant] which a court of the United States may receive

and consider for the purpose

of imposing an appropriate sentence.

Gabriela Rosa is a 47 year old native of the Dominican Republic who arrived in the United

States twenty years ago. Her story is in the spirit of Horatio Alger, rising from humble beginnings to

become,

in

November 2012, the first Dominican born woman in the history of the New York

Assembly

Ms. Rosa was raised in the Dominican Republic as the oldest of three children from a long-

lived marriage that ended only upon her father's death. She was provided a sound upbringing with

good values in an industrious household. Her father owned and operated a construction company; her

mother tended to the household. Ms. Rosa earned her college degree in the Dominican Republic and,

in 1993, came to the U.S. at the age of27

Mrs. Rosa has exhibited consistent industry throughout her life. For a dozen years she was

employed as-a legislative assistant for Assemblyman Herman Denny Farrell. Her work with

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Assemblyman Farrell fueled her passion for politics and community activism. As an immigrant, Ms.

Rosa easily identified with the Hispanic community in Washington Heights and saw politics as the

vehicle for social change and bettennent. With a vision and a burning desire for social change, Ms.

Rosa pursued issues important to her and to her community. Her historic term in the Assembly was

cut short with her resignation but, as the annexed letters attest, Ms. Rosa's work ethic as a legislator

was greatly admired and she enjoys a reputation as a 'hard working, earnest, humble, kind ,

dedicated public servant. .

The offenses which Ms. Rosa undertook, and for which she has accepted responsibility, have

resulted in the her resignation from the Legislature and the end o what had seemed the ideal

American Dream. Her participation in a sham marriage in order to obtain citizenship would be, but

for her public face and mighty fall, just another sad tale

o

people desperate to arrive and then stay in

our great country. In her case the desperation was not to be separated from the man she loved and

with whom she has shared a life for the past nineteen years, her husband, Victor. Her bankruptcy

offense discharged not l X ry items but rather everyday consumables that built up to what appeared to

be an insunnountable debt

o

some thirty thousand dollars.

The attached letters o support fonn her fonner colleagues, community leaders, constituents,

and leaders from not-for -profit organizations dedicated to social change, all laud Ms. Rosa's

selfless commitment to community as a woman who took and executed her elected position with a

serious, issue oriented sense o responsibility.

Just as significantly, the letters speak

o

Ms. Rosa's unfailing devotion to family. Those who

have come to know her over the years have witnessed that devotion, the challenges she faces, and her

unwavering support for an ailing mother and special needs son, both

o

whom are greatly dependent

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on her for that SlIPPO r and love.

As Ms.

Ro sa's

le

tter

rela tes. she feels immense remorse and shame. The person who

committed these offenses seems so far removed from the dynamic, warm. kind. pcrson ofintcgr i ty

de

sc

ribed

in

the ann exed le tter

s.

As we approach sentencing, Ms. Rosa is anxiou s and

un

certa

in

aboulthe present but. in the spirit of the woman described in the letters, Ms. Ro sa is commiued

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devoting herself to the needs of her family and to the community causes in which she so genuinely

und tirelcssly believes.

In determining

ajus

l sentence for Ms. Rosa

it

is most re spectfu lly submitted that

the court consider Ms. Rosa's o

th

erwise unblem ished histor

y.

her dedication and importance to

those surrounding her. especially her son and he r unw

Gabriela Rosa Defense Memorandum

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