UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN THE UNITED STATES OF AMERICA, Plaintiff vs. CRIMINAL NO.

1:08-cr-47 Hon. Paul L. Maloney Chief United States District Judge

STEPHANIE LYNNE FULTZ Defendant ___________________________________/ DEFENDANT STEPHANIE FULTZS SENTENCING MEMORANDUM AND BRIEF IN SUPPORT OF REQUEST FOR VARIANCE AND/OR GUIDELINE DEPARTURE I. INTRODUCTION

Stephanie Fultz stands before this Court having pled guilty to misprision of a felony. Even though she will appear for sentencing on the same day as others who were named in the original indictment, it is hoped that this memorandum will help the Court focus on the particular factors related to Ms. Fultz, as the Courts grapples with its duty to impose an individualized sentence that is sufficient, but not greater than necessary to satisfy the directives of 18 U.S.C. 3553(a). Stephanie Fultz is situated quite differently than her co-defendants. While Frank Ambrose and Marie Mason were building a revolution, Stephanie Fultz was building a life. While others were making plans for mischief and destruction, Ms. Fultz was planning a family. While Ambrose and Mason planned and executed actions in the name of the ELF, both before and after the Michigan State Arson, neither had any connection with Ms. Fultz before or after the weekend during which the trajectories of their lives briefly intersected a weekend during which

Ms. Fultz believed she was simply going on a vacation up north to spend New Years with her boyfriend and his acquaintances. While the extensive record of destructive activities, spanning many years, by Mason and Ambrose is clear and acknowledged in their plea agreements Ms. Fultz has not been involved in any criminal activity before or after that fateful weekend. She was neither committed to their cause nor part of their movement. She simply made a poor, regrettable, unjustifiable, but ultimately isolated and aberrant decision which now brings her within the Courts jurisdiction, and for which she has fully acknowledged her responsibility. A. Stephanie Fultz at the time of the Offense

Stephanie was the product of a tumultuous childhood. Her parents fought frequently, and the fights were accompanied by frequent moves, both when her parents were together and when they were living apart. She was bounced from school to school, but made sure that she received her high school diploma. After high school, she went to work and lived with her boyfriend, Jesse Waters, in a cooperative near Wayne State University in Detroit. She was active in political and social causes, but was not a member of any group that engaged in either illegal or violent acts. Her boyfriend, however, was a friend of Marie Mason. At her boyfriends invitation, Stephanie traveled to Empire, Michigan to spend the New Years Holiday with him and others that he knew. It was the first and last occasion on which Stephanie spent any time with Marie Mason or Frank Ambrose. Stephanie had just turned 19. Stephanie did not know that Mason and Ambrose had planned an ELF action at MSU for the same weekend and she did not participate in the MSU activity. Rather, she remained in Empire, which is about 200 miles past Lansing, for the entire weekend. She learned of Mason and Ambroses action after the fact, and even then knew only that Mason had set a fire at MSU,

but not the full extent of what had transpired. She knew, however, that the actions of Mason and Ambrose, were serious and criminal. She has also indicated that she knew that keeping a secret about how Marie Masons hair was singed while setting the fire, coupled with her own actions in cutting Masons hair, were wrongful. Unlike Mason and Ambrose, who were emboldened by the MSU arson, and who went on to continue their criminal activities on behalf of ELF and others, Stephanie cut all ties with those involved in the MSU incident and within a short time, ended her relationship with her boyfriend, moved, and concentrated on bettering her life. She had no continuing relationship with Mason, Ambrose, or Waters, nor any involvement whatsoever in ELF or other ELF activity, despite the fact that it appeared that the investigation into the MSU incident had not produced any suspects for a substantial period of time. Stephanie kept no connection because she did not share any commitment to the cause, methods, philosophy or people involved in the ELF. B. Stephanie Fultz today

Nine years later, a much different and much more mature Stephanie Fultz now appears before the Court. Determined to avoid the turmoil which was present in her youth, she has consistently maintained steady and gainful employment, sometimes even working more than one job at a time. Stephanies daughter was born in 2005. Despite the fact that her relationship with her daughters father ended, Stephanie redoubled her efforts to make sure that her child was well provided for. She worked two jobs and returned to school. She ultimately was forced to give up school for the time being, when the demands of work and motherhood became too much. In 2006, she met her future husband, Marcel, whom she married in 2007. Stephanie gave birth to her first son later that year. Also in 2007. she began working for Avalon International

Breads, a commercial bakery in Detroit. She is a valued and trusted employee, and her maturity is reflected in the recommendations received both from those she works for and those she supervises. (See attached letters of reference). Just a few weeks ago, she gave birth to their third child, another boy. Her children are the center of her universe and the time demands of caring for three children under the age of four are daunting. Stephanie and her husband have struggled mightily to provide stability for their growing family. Doing whatever they need to do to provide, they run a household with very little margin for error. Her husband works several jobs he cleans offices and cooks in a restaurant and is at home every night for the children. Stephanie is on the opposite schedule. She stays at home during the day, caring for her children, sleeping when she can, and then she works a full shift in the bakery from night to early morning. While Stephanie and her husband are barely making ends meet, she is an excellent parent, as is evident by the references of those who know her well, including her childcare providers. Probation has confirmed that the family lives in a modest, but tidy apartment, where each child has their own room, while the parents sleep on a mattress in the living room. All this currently hangs in the balance, as Stephanies possible incarceration has the very real potential to tip the family into a serious crisis. C. SentencingStandards

Federal sentences are controlled by the statutory directives of 18 USC 3553(a). In light of the Supreme Courts holding in United States v Booker, 543 US 220 (2005), the Sentencing Guidelines are advisory rather than mandatory, and therefore, only one of the factors to be considered by the court in fulfilling its statutory duty to individualize its sentence. More importantly and contrary to the Governments contention in its sentencing memorandum a sentencing court is no longer permitted to presume that a sentence within the guidelines is reasonable. Nelson v U.S., 555 US ______ (decided January 26, 2009) [The Guidelines are not 4

only not mandatory on sentencing courts; they are also not to be presumed reasonable.], Rita v U.S., 551 US 338 (2007) (Reasonableness of a guideline sentence is an appellate court presumption. [T]he sentencing court does not enjoy the benefit of a legal presumption that the Guideline sentence should apply. Rita at 351), Gall v U.S., 552 US ____ (2007) (district judges may not presume that the Guidelines range is reasonable.) A sentencing court must first determine the correct guideline range. The court must then determine if a guideline sentence serves the factors set forth in 3553(a), and, if not, then the Court should impose a sentence within statutory limits that serves the considerations of the statute. Further, the court should consider whether a departure is appropriate based on the Guidelines Manual or case law, and may depart from the guidelines if an appropriate basis exists. If the resulting range still does not serve the factors set forth in 3553(a), the court may grant a variance and impose a non-guideline sentence, but must articulate the reasons for the sentence imposed. The remainder of this Memorandum will address the correct scoring of the guidelines, highlight the relevant factors which militate in favor of a guideline departure or variance, and explain how the requested sentence of probation would satisfy the requirements of 18 U.S.C. 3553 (a). II. A. Analysis of Guideline Sentencing Factors

Base Level Offense

Misprision of a felony is scored 9 levels lower than the underlying felony, to a maximum offense level of 19. See U.S. Sentencing Guideline 2X4.1. The PSR and the Government have scored the underlying offense (the arson conspiracy entered into by Mason and Ambrose) at 24 points and therefore score the misprision offense at 15 points. The defense has objected to the scoring.

Generally, the version of the Guidelines Manual in effect at the time of the sentencing controls. See,18 U.S.C. 3553(a)(4). The exception is when the current version imposes a more severe penalty than that in effect at the time of the offense, which would raise Ex Post Facto concerns. Miller v Florida, 482 US 423, 430-431 (1987), U.S. v Nagi, 847 F.2d 211, 213 n.1 (6th Cir. 1991), cert den., 504 US 958 (1992); U.S. v Kussmaul, 987 F.2d 345, 352 (6th Cir. 1993). Additionally, if the underlying offense is conspiracy, the Defendant should only be held responsible for misprision of the conspiracy to the extent that the conduct was known or reasonably foreseeable. U.S. v Warters, 885 F.2d 1266 (5th Cir. 1989). In this matter there has been a material change in the Guideline since the date of the offense. The guideline for the underlying arson, 2K1.4, in the 2000 version of the Manual, scored the base-level offense as : (1) 24, if the offense (A) created a substantial risk of death or serious bodily injury to any person other than a participant in the offense, and that risk was created knowingly; or (B) involved the destruction or attempted destruction of a dwelling; (2) 20, if the offense (A) created a substantial risk of death or serious bodily injury to any person other than a participant in the offense; (B) involved the destruction or attempted destruction of a structure other than a dwelling; or (C) endangered a dwelling, or a structure other than a dwelling; (3) 2 plus the offense level from 2F1.1 (Fraud and Deceit) if the offense was committed in connection with a scheme to defraud; or (4) 2 plus the offense level from 2B1.3 (Property Damage or Destruction). The current sentencing guidelines add several other types of structures in the second clause of subsection (1), including a state or government facility . . . or place of public use which would apply to the Agricultural Hall at MSU. Under the ex-post facto limitations then, the imposition

of 24 points under the Guideline would only be permissible if the offense created a substantial risk of death or serious bodily injury to any person other than a participant in the offense, and that risk was created knowingly. (emphasis added). Otherwise, Ms. Fultz would properly be scored at only 11 points (20 points on the underlying offense minus 9 level for the misprision). While there is no question that Mason and Ambrose set a fire deliberately, several factors indicate that they did not knowingly create a substantial risk of death or a serious bodily. To the contrary, the fact that the act was committed at night, and then on New Years Eve, when the campus population was sure to be at its absolute lowest point, indicate that the timing was chosen precisely to minimize the risk that anyone else would be present. Further, reports produced in discovery indicate that while Ambrose was lighting a wick to ignite gasoline in the upper-floor lab, which was the sole situs of the arson, Mason was occupied spray-painting slogans on the wall. If the goal was to destroy the building with an explosion or fire, the slogans would be superfluous. The pre-sentence report acknowledges that the goal was to destroy papers and records of a particular class of research. According to Stephanie, she was not provided with details of the incident other than Masons statement that they had set a fire at MSU, that the situation was serious, and that Mason had singed her hair. Given the date of the action (New Years Eve) and the lack of further information, Ms Fultz did not know, nor was it reasonably foreseeable, that Mason and Ambrose either knowingly created a serious risk of death or serious bodily injury to another person, nor would she have concluded that their intent was either to destroy or attempt to destroy the building. Rather, at most, 20 points should be assessed, under 2K1.4 (2) of the 2000 guidelines, because it would have been reasonable to conclude that Mason and Ambrose created a substantial risk of death or serious bodily injury, but not knowingly, and that their intent was to

endanger the building.1 The analysis would lead to the same result under the 2008 Guideline Manual, if the Court agrees that Ambrose and Mason did not knowingly create the substantial risk, did not intend to destroy or attempt to destroy the building, or that those factors were not known or reasonably foreseeable to Ms. Fultz. B. The Terrorism Enhancement

Both the PSR and the Government assert that the Terrorism Enhancement, U.S.S.G. 3A1.4 should apply to the guideline scoring. Application of the guideline would result in a seventeen level enhancement and a Criminal History category of VI. As the guideline range indicated by application of the enhancement far exceeds the statutory maximum of 36 months, the statutory maximum would become the guideline term if the enhancement applies. The terrorism enhancement, however, is not properly assessable in this matter. 3A1.4(a) indicates that the terrorism enhancement applies to a felony that involved, or was intended to promote, a federal crime of terrorism. Recognizing that misprision of a felony is not an offense that involved a federal crime of terrorism, the PSR and the Government take the position that the offense falls within the intended to promote clause. Application Note 2 reads as follows: Harboring, Concealing, and Obstruction Offenses. For purposes of this guideline, an offense that involved (A) harboring or concealing a terrorist who committed a 1 The government or probation officer may attempt to argue that there was a substantial, and somehow knowingly created, risk of harm to the firefighters who responded. Courts of this circuit, as well as others, have held that the risk to firefighters, standing alone, will not justify the enhancement unless a defendant knows that a specific fire poses a substantial risk of death or serious bodily injury to firefighters. See, e.g., U.S. v Georgia, 279 F.3d 384 (6th Cir. 2002), U.S. v Johnson, 152 F.3d 553 (6th Cir. 1998); U.S. v Honeycutt, 8 F.3d 785 (11th Cir. 1993). Alternatively, an argument that an intentionally set fire always presents a substantial risk to responders, ignores the fact that all of the conduct covered by the guideline relates to arson, and that even the 20 point score covers situations involving the destruction, attempted destruction, or endangering of a variety of structures.

federal crime of terrorism (such as an offense under 18 U.S.C. 2339 or 2339A); or (B) obstructing an investigation of a federal crime of terrorism, shall be considered to have involved, or to have been intended to promote, that federal crime of terrorism. Ms. Fultz, in her plea, admitted that she cut Masons singed hair, after learning that Mason had been involved in setting a fire in a building the previous night. She also agreed not to tell anyone about Masons hair. The haircut took place in Empire, Michigan approximately 200 miles from the MSU Agricultural Building where the fire occurred. There is no allegation nor evidence that Ms. Fultz was ever questioned about this incident, provided information about it, nor had any contact with investigating law enforcement agents, until her arrest in early 2008. Indeed, Mason and Ambrose were not connected by the authorities to the MSU fire for more than seven years. Under the plain language of the guidelines, the terrorism enhancement only applies if the offense was intended to promote a federal crime of terrorism. Intent to Promote requires a common plan or goal. In its ordinary usage, promote means to "to help or encourage." See Random House Webster's College Dictionary 1042 (2d ed. 1997). As a result, the word "promote," as used in 3A1.4, signifies that where a defendant's offense or relevant conduct helps or encourages a federal crime of terrorism as defined in 18 U.S.C. 2332b(g)(5)(B), 3A1.4 is triggered. U.S. v Mandhai, 375 F.3d 1243, 1249 (11th Cir 2004). In its sentencing memorandum the Government urges the Court to find that misprision is obstructive in nature because it requires an affirmative act of concealment or participation. The concealment required for a misprision offense, however, does not automatically rise to the level of concealment, or share the same intent, as other offenses which result in actual obstruction. For instance, in distinguishing misprision offenses from the offense of accessory after the fact, the 7th Circuit explained

Probably most instances of misprision involve, in actuality, being an accessory after the fact. Comparing the statutes literally, however, 18 U.S.C. 3 (accessory after the fact) requires a purposeful relationship between the acts of the accessory and the principal offender. The accessory must receive, relieve, comfort or assist the principal offender in order to hinder or prevent his apprehension, trial or punishment. 18 U.S.C. 4 (misprision) requires concealment of the commission of the felony, a fact not necessarily required by 3, but does not require an intent to benefit the principal offender, although such benefit usually results. We conclude the offenses are distinct for the purpose of imposing cumulative penalties. US v Daddano, 432 F.2d 1119, 1129 (7th Cir 1970). This is not a distinction without a difference. Rather, the intent of the offender is precisely the relevant inquiry under the guideline, as there must be an actual intent to promote the federal crime of terrorism in order to make the enhancement applicable. Furthermore, actual obstruction of an investigation is required under the guideline. U.S. v Biheiri, 356 F. Supp.2d 589, 598-600 (E.D. Va. 2005). In Biheiri, the Court found the terrorism enhancement [3A1.4] inapplicable, even where a defendant provided false information to investigating agents and the agents had actual knowledge that the information was false. In reaching its conclusion, the court found that pursuant to the plain language of the guideline and the application notes, the enhancement is inapplicable where there is only an attempt to obstruct an investigation into a federal crime of terrorism, and that the permitted assessment applies only when the Defendants conduct actually obstructed the investigation. Here, there is no evidence of an actual obstruction of a federal investigation. Stephanies acts were limited to the weekend of New Years 1999-2000, when she cut Masons hair after learning that Mason was involved in a fire at MSU. In her plea, she also acknowledged that she agreed not to tell anyone about her actions. After that weekend, Stephanie had no contact with Ambrose or Mason, and most importantly, had no contact with investigators until shortly before her indictment, after the agents had received information from Ambrose. Not only did Stephanie

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not share the goals or intent of Ambrose or Mason, she did not actually obstruct the investigation into their criminal acts. Even if Stephanies actions had risen to the level of actual obstruction, she would be entitled to a variance from the application of 3A1.4. The guideline has a draconian effect on guideline scoring it results in the imposition of a 12 level-enhancement of the offense level, to a minimum level of 32, and a criminal history category of VI. The rationale behind the enhancement gives a clear indication of the appropriate circumstances which would support its application, as well as an indication as to when is application would be unwarranted and excessive. A rational basis exists for creating a uniform criminal history category for all terrorists under 3A1.4, because even terrorists with no prior criminal behavior are unique among criminals in the likelihood of recidivism, the difficulty of rehabilitation, and the need for incapacitation. US v Meskini, 319 F.3d 88, 92 (2nd Cir 2003). A downward departure or variance from the enhanced sentence, however, is warranted when a defendant does not share the same characteristics or conduct as a terrorist, and therefore does not share the same likelihood of recidivism, difficulty of rehabilitation, or need for incapacitation. US v Benkhala, 501 F. Supp2d 748 (E.D. Va., 2007); affd at 530 F.3d 300 (4th Cir 2008). When a defendant has no other criminal history, and does not share the characteristics or conduct of a terrorist, the Court may grant a departure under U.S.S.G 4A1.3, because the enhancements elevation of the criminal history to category IV over-represents the seriousness of the defendants criminal history and the likelihood that the Defendant will commit other crimes. Benkhala 501 F. Supp. at 759. Even if a guideline departure is not warranted, the Defendant may still be entitled to a variance after applying the factors set forth in 18 USC 3553(a). Benkhala 501 F. Supp at 760 .

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Stephanie Fultz is not a terrorist. Unlike those who are that focus of this enhancement those whose adherence to the advancement of an ideology or position leads them to commit a federal crime of terrorism, and whose dedication to their goals renders standard sentences ineffectual as a deterrent, Stephanie was not motivated by any desire to advance the causes or methods of Ambrose or Mason . Not only was she not part of the planning process for the MSU arson, Stephanie was not motivated by any desire to promote or advance the cause or methods of the ELF, nor has she in any way indicated a desire to influence the actions of government or private individuals by violent or intimidating means. There is no clearer indication that she did not share their motivation, commitment or methods than her lack of any further contact with Ambrose and Mason, her withdrawal from those who were present that weekend, no other contact with anyone affiliated with ELF, and the complete absence of any criminal behavior in the nine years since this incident. C. Basis for Departure or Variance

A district court may depart from the Guidelines if it finds that there exists an aggravating or mitigating circumstance . . . not adequately taken into consideration by the Sentencing Commission in formulating the guidelines. 18 U.S.C. 3553 (b). The Sixth Circuit uses a three-part analysis to determine whether such a departure is justified: (1) whether the circumstances are sufficiently unusual to warrant departure; (2) whether the circumstances, if conceptually proper, actually exist in the particular case; and (3) whether, in light of the first two factors, the degree and direction of the departure is reasonable. U.S. v Feinman, 930 F.2d 495, 501-502 (6th Cir 1991); U.S. v Todd, 920 F.2d 399, 409 (6th Cir 1990). The court has the ability to grant a downward departure for extraordinary family circumstances. U.S. v Baker, 502 F.3d 465 (6th Cir 2007) (defendant was the caretaker for another family member); U.S. v Husein, 478

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F.3d 318 (6th Cir 2007). Even if the court determines that the sentencing guidelines do not grant the district court discretion to depart downward from a guideline sentence, the guidelines only advisory, not mandatory, and the court may depart from the overall sentence computation, provided that it considers the advisory provisions of the guidelines and the other factors identified in 18 U.S.C. 3553(a). US v Ibarra-Hernandez, 427 F.3d 332 (6th Cir 2005). In this matter, Ms Fultz family situation is not given adequate weight or consideration under the guidelines. A prison sentence would unduly punish three altogether innocent parties, namely Ms. Fultzs three children under the age of four. Her youngest child is only a month-old and is in that significant period of infancy where bonding with his mother is particularly critical. In addition, without a second parent present, Stephanies husband would be forced between being physically present for his children or working to make sure that their financial needs are met. For a family which is getting along by the narrowest of margins, the two alternatives presents a Hobsons choice, and justify a variance from the guidelines. IV. Application of 18 U.S.C. 3553(a) Factors

Stephanie Fultz respectfully requests that this Court impose a sentence which does not require incarceration. A sentence of probation would satisfy the statutory directive of 18 USC 3553(a), to impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. Subsection (a)(2) requires the court to consider 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.

There is no argument that the underlying offense committed by Ambrose and Mason was anything other than serious. There is also no argument Ms. Fultzs offense conduct was both wrong and violative of the law, and Stephanie has accepted responsibility for her actions with her

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plea. Nevertheless, there is a wide gulf between her actions and those of Ambrose and Mason, with whom she shared neither a commitment to their cause or their methods. Her involvement started after the underlying offense had already been completed and ended shortly thereafter. Nevertheless, Ms. Fultz will always stand convicted of a federal felonya significant mark on her life, given that since the time she committed her offense, Stephanie has always strived to be an example for her family and others. The Supreme Court, in Gall, has explained that probation, rather than an act of leniency is a substantial restriction of freedom. 553 U.S. at ____. Probationers are not free to change or make decisions about significant circumstances in life, such as where to live or work, which are prized liberty interest, without first seeking authorization from [a] Probation Officer or, perhaps, even the Court. They must seek permission to travel, are required to report regularly, and may be required to refrain from associating with certain people, and must permit unannounced visits to their homes. They are also subject to harsh consequences if they violate their probationary conditions. In the context of Stephanies life, a probationary sentence, and its restrictions on her liberty, will be substantial punishment for an offense which was committed while barely an adult. Given Ms. Fultzs commitments to family and work, probation will provide a daily reminder of the seriousness of her offense and a deterrent. With regard to promoting respect for the law, the Supreme Court in Gall has provided guidance. In Gall, the defendant, a drug user himself, had joined an ongoing conspiracy to distribute Ecstasy while in college, where he netted more than $30,000. Within a few months he stopped using drugs, and a few months later notified his co-conspirators that he was withdrawing from the conspiracy and did not sell drugs after that point. In addition, after withdrawing, he graduated from college, moved out-of-state, and became gainfully employed. When approached

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by law enforcement a year and a half later, he admitted his involvement in the offense. After being indicted, Gall started a successful business, pled guilty, and presented a number of letters of support at sentencing, which praised his character and work ethic. At sentencing, the Court concluded that Gall had self-rehabilitated and that his conduct since the offense had been motivated by a true desire to improve his life. Despite a guideline range of 30-37 months of imprisonment, the district court instead imposed a 36 month term of probation. In reviewing the findings at sentencing and affirming the district courts sentence, the Supreme Court found that [T]he unique facts of Galls situation provide support for the District Judges conclusion that, in Galls case, a sentence of imprisonment may work to promote not respect, but derision, of the law if the law is viewed as merely a means to dispense harsh punishment without taking into account the real conduct and circumstances involved in sentencing. 522 U.S. at ____. These same factors are present in this case as it relates to Ms. Fultz. B. To afford adequate deterrence to criminal conduct

In the years since the offense, Stephanie had no further contact with Ambrose or Mason, no involvement in any ELF action, and no further involvement in criminal activity of any kind. Rather, she dedicated herself to improving her life, maintained steady employment, and on her own has become a valued supervisor in a commercial baking operation. She works primarily at night, so that she is available to her family as a wife and mother to her to her three children, including a newborn child. By all accounts, she is the glue of her family and has done a remarkable job in providing for them under difficult circumstances. All of this progress has taken place in the nine years since her offense, without any supervision or court intervention. Simply put, much like the defendant in Gall, she has self-rehabilitated and has objectively demonstrated her desire to live her life both within the bounds of the law, and in a manner which provides the best for her family. She needs no further deterrence.

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Even if deterrence was needed, there is no stronger or more devastating reminder of the need to respect the law than the ever-present possibility that she could be separated from her husband and three young children, for whom she represents the difference between stability and ruin. This is a family that is being run with virtually no margin for error. Their expenses are just being met each month, and both parents have arranged their lives to make sure that their children have a parent with them at all times. She is devastated that this fragile balance could be shattered, and the threat of prison, for Ms. Fultz, is a substantial deterrent, in and of itself, in the event of a misstep on her part. C. To protect the public from further crimes of the defendant

Once again, Stephanie has proven by her post-offense conduct her desire to lead a lawabiding life. Her focus is on her work and on her family. In both aspects, there is no need to protect the public from Stephanie; her goals and actions and the public interest is harmonious. She is, and has been focused, on making sure that she and her family members are productive and contributing members of the public. The large number of reference letters attached to this Memorandum speak volumes about Ms. Fultzs character and positive qualities. Furthermore, while on probation, she would be subject to the terms and conditions imposed by the court. She would also be subject to harsh consequences for any violation of probation. Given her goals and post-offense conduct, the time she has dedicated to supporting her family and the support network that she has in place, the possibility of committing further crime is simply not a possibility. D. To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner

This factor is not a consideration. Stephanie is a high-school graduate with some advanced training. She has also had on the-job-vocational training with increasing responsibility

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and is now a trusted and valuable supervisor at a commercial bakery. Importantly, her employers are fully aware of her situation and have rallied to support her. IV. CONCLUSION

For the above-state reasons, it is respectfully requested that this Honorable Court grant a departure or variance from the advisory guidelines and, after considering all of the factors set forth in 18 U.S.C. 3553(a), impose a sentence which does not include incarceration. Respectfully Submitted, RUBIN & SHULMAN PLC /s/ Lawrence B. Shulman_____________ Lawrence Bryant Shulman (P45075) 29800 Telegraph Road Southfield, MI 48034 (248) 358-9400 lbs@rs-mi.com Attorney for Defendant Dated: February 3, 2009 CERTIFICATE OF SERVICE The undersigned does certify that on this 3rd day of February, 2009, he did file the above document using the CM/ECF system which will send notice of its filing to all counsel of record. Any party not participating in the CM/ECF system was served via U.S. Mail. /s/ Lawrence B. Shulman_____________ Lawrence Bryant Shulman (P45075) 29800 Telegraph Road Southfield, MI 48034 (248) 358-9400 lbs@rs-mi.com Attorney for Defendant

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APPENDIX TO DEFENDANT STEPHANIE FULTZS SENTENCING MEMORANDUM AND BRIEF IN SUPPORT OF REQUEST FOR VARIANCE AND/OR GUIDELINE DEPARTURE