Case 1:08-cr-20612-PAS

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No: 08-20612-CR-SEITZ/OSULLIVAN

UNITED STATES OF AMERICA ) ) Plaintiff, ) vs. ) ) TRAIAN BUJDUVEANU ) ) Defendant. ) ____________________________ ) OBJECTIONS AND CLARIFICATIONS TO THE PRESENTENCE INVESTIGATION REPORT COMES NOW, the defendant, TRAIAN BUJDUVEANU, by and through Undersigned counsel, who respectfully responds to the Presentence Investigation Report as follows: 1. The defendant responds to the Presentence Investigation Report by initially

reaffirming his acceptance of responsibility regarding his guilty plea to Count I of the Indictment in this case. 2. Prior to his plea in this case, Mr. Bujduveanus position had always been that he

had sold commercial aircraft parts to the co-defendant, Keshari, and not military parts. The Defendant admits that this is a distinction without a difference. Count I of the Indictment to which the defendant pled guilty contains two (2) separate objects: 1. To export and cause the exportation of goods from the United States to Iran in violation of the embargo imposed upon that country by the United States without having first obtained the required licensed authorizations from the department of the treasury OFAC, in

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violation of 50 U.S.C section 1702 and 1705(a), and 31 Code of Federal Regulations, parts 560.203 and 560.204. 2. To export and cause to be exported from the United States to the United Arab Emirates Defense Articles that is military aircraft parts which were designated as defense articles on the United States Munitions List without first obtaining from the Department of State, DDTC, a license or written authorization for an export violation of 22 U.S.C section 2778(b)(2); and 22 Code of Federal Regulations, section 121.1, 123.1, and 127.1. Thus Mr. Bujduveanu realized that it was immaterial whether commercial or military parts were supplied to co-defendant, Keshari; Rather the main inquiry is whether the parts sent by Mr. Bujduveanu were in fact designated as defense articles on the United States Munitions List and whether Mr. Bujduveanu sent these articles to Keshari without first obtaining from the Department of State, a license for such export items. Thus Mr. Bujduveanu violated both objects of the conspiracy alleged in Count I and is was guilty of said conspiracy. For this reason Mr. Bujduveanu entered a plea of guilty to Count I of the Indictment. Had Mr. Bujduveanu come to this realization earlier on in this matter, he may have very well entered his guilty plea prior to Mr. Keshari. The fact that Mr. Keshari cooperated with the government at an earlier stage in this case, is a major reason why he has received a 17 months sentence and why Mr. Bujduveanu presently faces a bottom of the guideline range of 46 months. Mr. Bujduveanu has authorized undersigned counsel to withdraw all of his pro se filings and to will rely on the assertions made in this response to the Presentence Investigation Report.

OBJECTIONS TO THE PRESENTENCE INVESTIGATION REPORT

Role Assessment (par. 29, page 9) The United States probation officer has designated both Mr. Keshari and Mr. Bujduveanu as being equally culpable defendants in this case. Undersigned objects to this role assessment and seeks a minor role adjustment for Mr. Bujduveanu . Section 3(b) 1.2(b) of the United States Sentencing Guidelines.

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In the United States v. DeVaron, 175 F.3d 930, (11th Cir. 1999), the Eleventh Circuit established a two prong approach for determining whether a minor role reduction is warranted. See DeVaron 175 F.3d at 930. Only if the defendant can establish that he played a relatively minor role in conduct for which (he has already been accountable) not a minor role in any larger criminal conspiracy should the District Court grant a downward adjustment for a minor role in the offense. Id. at 944. The Court explained that the purpose behind the downward adjustment is to curtail the risk, given the relatively broad definition of relevant conduct under United States Sentencing Guideline Section 1(b) 1.3, that some defendants may be held accountable for conduct that is much broader than their specific acts. Id. at 941. Second, The District Court may also measure the defendants culpability in comparison to that of other participants in the relevant conduct. Id. at 944. The court outlined two principles that control this comparison, first the District Court should look to other participants only to the extent that they are identifiable or discernable from the evidence. This is a fact intensive inquiry. Second, the District Court may consider only those participants who were involved in the relevant conduct attributed to the defendant. Id. at 944; United States v. Villegas-Tello, 2009 WL 714214 (11th Cir. (Ga.)) quoting DeVaron. See also United States v. Jones, 2008 WL 5064889 (11th Cir. Fla.) holding that "only if the defendant can establish that he played a relatively minor role in the conduct for which he has already been held accountable, not a minor role in any larger criminal conspiracy, should the district court grant a downward adjustment for minor role in the offense. Id at 144.", quoting DeVaron. Reviewing these seminal decisions as they construed DeVaron makes it clear that Mr. Bujduveanu is a minor participant and should obtain the benefit of a two (2) point downward

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adjustment. Mr. Bujduveanu was one of hundreds of airplane part suppliers who could have been recruited by Keshari. Moreover, when viewing the conspiracy as a whole and the defendant's culpability in comparison to other participants in the relevant conduct herein, it is clear that Keshari operated as middleman supplying parts to his two cousins in Iran along with the corporations in Iran who received the benefit of the part orders. Thus the District Court looking at the other participants in this matter can clearly discern the greater fault of both Keshari and his ultimate beneficiaries in Iran. Mr. Bujduveanu is clearly a minor role player when his conduct is analyzed in comparison to the conduct of Keshari and the ultimate recipients of the airplane shipments in this case. Thus Mr. Bujduveanu should receive the benefit of the minor role reduction in this matter. Should the Court grant this objection, then the total offense level,( page 12 paragraph 25), should be reduced the from a level 23 to a level 21. In connection with the Defendant's criminal history category of I this would result in a guideline imprisonment range of thirty-seven (37) to forty-six (46) months. (See page 18, paragraph 89 PSIR). Since the Government has recommended a bottom of the guideline range sentence, should the Court adopt these objections, Mr. Bujduveanu's guideline sentence should begin at thirty-seven (37) months with credit for time served of almost a year.

REASONS FOR DEPARTURE OR VARIENCE FROM THE SENTENCING GUIDELINES To the extent applicable, undersigned counsel adopts, herein, those pertinent portions of the objections to the Presentence Investigation Report filed by co-defendant Hasan Saad Keshari. As stated by the co-defendant, the applicable law regarding such matters are set forth in United

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States v. Booker, 543 U.S. 220 (2005) and those cases cited by the codefendant on page three (3) and four (4) of his sentencing memorandum. As Booker and its progeny have held the guidelines are not even presumptively reasonable; the guidelines are not only not mandatory on sentencing courts they are also not to be presumed reasonable. For reasons set forth on page three (3) and four (4) of the codefendant's sentencing memorandum, the Eleventh Circuit repeatedly has affirmed below guidelines sentences after Booker. As Booker has enunciated, the court must consider all the factors set forth in Title 18 United States Code section 3553 (a), which provides that: The court shall impose a sentence sufficient but not greater than necessary. The Court in determining the particular sentence to be imposed shall consider (1) the nature of the 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 matter; (3) the kinds of sentences available; (4) the applicable category of offenses committed by the applicable category of defendant as set forth in the guidelines; (5) any pertinent (guidelines) policy statements; (6) the need to avoid unwarranted sentencing disparities among defendant's with similar records who have been found guilty of similar conduct; (7) the need to provide restitution to any victims of the offense.

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APPLICABLE SECTION 3553 FACTORS 1. The history and characteristics of Mr. Bujduveanu: Mr. Bujduveanu was a first time, non violent offender. He is a devoted family man and a loving son to his 87 year old mother. He has been an extremely positive influence on his son as evidenced by the letter filed in this matter. Even the Defendant's ex wife has opined that the Defendant is a good man who has provided child support regularly for his former wife's son whose custody they share. (Page 14, paragraph 59 PSIR. See generally paragraphs 52 through 63 of the PSIR.) 2. Cooperation: the Defendant after his arrest immediately admitted knowledge of the export laws and the Iranian embargo; he also confessed his involvement in any transaction for which he was directly shown evidence. Mr. Bujduveanu claimed he did not believe he was violating the law because the parts were old and not considered to be military parts under the law. Your undersigned has previously explained the circumstances supporting Mr. Bujduveanu's initial misunderstanding of the nature of his violation of the export laws in this case. Other matters concerning Mr. Bujduveanu's cooperation will be brought to the attention of the court at the time of sentencing. 3. Family Circumstances: As evidenced by the Presentence Investigation Report, the Defendant's mother has recently suffered a heart attack and she believes it is directly attributed to Mr. Bujduveanu's arrest. Mr. Bujduveanu's mother has indicated that she wants her son to come home so that she can be with him before she dies. (See paragraph 61, page 14 PSIR.) In addition, the Defendant is an excellent father, a loving son, and devoted brother. (See generally paragraphs 52 through 63 of the PSIR.)

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4. Physical Condition: Mr. Bujduveanu suffers from Hepatitis C and is in need of appropriate medical treatment to avoid deterioration of his physical condition. (See generally paragraphs 64 through 68, page 15 of the PSIR.) 5. The Nature of the Offense And Need to Avoid Unwarranted Sentencing Disparities: As set forth in the Codefendant's sentencing memorandum on pages 10 through 13, there are numerous cases where the district court sentenced the defendants in cases factually similar to the case at bar to probationary or time served sentences. These are cited in the above referenced pages of the codefendant's sentencing memorandum and undersigned counsel would refer to these citations in support of Mr. Bujduveanu's position. 6. Since the family of Mr. Bujduveanu resides in the Southern District of Florida, undersigned counsel requests that this Court make a non binding judicial recommendation that Mr. Bujduveanu be incarcerated in a correctional institution in the Southern District of Florida or as close as possible to the Southern District of Florida. Wherefore, based on the foregoing your undersigned counsel respectfully requests that these objections to the Presentence Investigation Report be noted and that the relief requested herein be granted.

Respectfully submitted, s/ *Michael B. Cohen, Esq.* _________________________ Michael B. Cohen, Esq. Florida Bar No: 210196

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CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that a true and correct copy of the foregoing was furnished via CMECF this May 29, 2009 to all applicable parties.

Respectfully submitted, s/ *Michael B. Cohen, Esq.* _________________________ Michael B. Cohen, Esq. Florida Bar No: 210196 6400 North Andrews Ave Ste 460 Fort Lauderdale, Florida 33309 Ph (954) 928-0059 Fax (954) 928-0829