Case 2:11-cr-01137-DMG Document 318 Filed 12/03/14 Page 1 of 7 Page ID #:1761

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STEPHANIE YONEKURA
Acting United States Attorney
ROBERT E. DUGDALE
Assistant United States Attorney
Chief, Criminal Division
DAFFODIL TYMINSKI (Cal. Bar No. 243680)
Assistant United States Attorney
OCDETF Section
1400 United States Courthouse
312 North Spring Street
Los Angeles, California 90012
Telephone: (213) 894-0917
Facsimile: (213) 894-0142
E-mail: Daffodil.Tyminski@usdoj.gov

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Attorneys for Plaintiff

UNITED STATES OF AMERICA

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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Plaintiff,

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v.

MARC PETER WILLEMS,

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Defendant.

No. CR 11-1137-DMG
GOVERNMENTS POSITION WITH RESPECT
TO SENTENCING FACTORS
Hearing Date: December 10, 2014
Hearing Time: 4:00 p.m.
Location:
Courtroom of the
Hon. Dolly M. Gee

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Plaintiff United States of America, by and through its counsel

of record, the United States Attorney for the Central District of

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California and Assistant United States Attorney Daffodil Tyminski,

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hereby files the governments position with respect to sentencing

defendant Marc Peter Willems (defendant).
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Case 2:11-cr-01137-DMG Document 318 Filed 12/03/14 Page 2 of 7 Page ID #:1762

This sentencing position is based upon the attached memorandum

of points and authorities, the files and records in this case, and

such further evidence and argument as the Court may permit.

Dated: December 3, 2014

Respectfully submitted,
STEPHANIE YONEKURA
Acting United States Attorney

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ROBERT E. DUGDALE
Assistant United States Attorney
Chief, Criminal Division

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/s/
DAFFODIL TYMINSKI
Assistant United States Attorney

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Attorneys for Plaintiff

UNITED STATES OF AMERICA

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Case 2:11-cr-01137-DMG Document 318 Filed 12/03/14 Page 3 of 7 Page ID #:1763

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MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION
On September 2, 2014, pursuant to a plea agreement, defendant

pled guilty to Counts One and Two of the twelve-count indictment.

(Presentence Investigation Report dated October 29, 2014 (PSR)

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following controlled substances: (a) LSD, in violation of 21 U.S.C.

846, 841(a)(1), (b)(1)(A)(v); (b) MDMA, in violation of 21 U.S.C.

846, 841(a)(1), (b)(1)(C); (c) fentanyl, in violation of 21 U.S.C.

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Count One charges that defendant conspired to sell the

846, 841(a)(1), (b)(1)(C); and (d) marijuana, in violation of 21

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U.S.C. 846, 841(a)(1), (b)(1)(D) and Count Two charges that

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defendant conspired to launder the proceeds of his drug-selling

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activities, in violation of 18 U.S.C. 1956(h).1

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from defendants role in running an extensive online business selling

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controlled substances, and, Count One is a ten-year mandatory minimum

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offense.

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Defendant is in Criminal History category I.

The charges stem

(PSR 85-89.)

In defendants plea agreement, the parties agreed that the base

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offense level should be 32, pursuant to U.S.S.G. 2D1.1(c)(1) and

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U.S.S.G. 2S1.1(a)(1), and that, pursuant to the recent amendments

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to the Sentencing Guidelines, that defendants base offense level

should be reduced by two levels to an adjusted base offense level of
30.

(See Plea Agreement, 16 and PSR 63-39 (relying on the

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sentencing guidelines in place as of November 1, 2014.)

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also agreed that a two-level enhancement should apply for use of a

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mass marketing device, under U.S.S.G. 2D1.1(b)(7), a two-level

The parties

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Defendant is named in all Counts of the Indictment.

Case 2:11-cr-01137-DMG Document 318 Filed 12/03/14 Page 4 of 7 Page ID #:1764

enhancement should apply for defendants conviction under Section

1956(h), under U.S.S.G. 2S1.1(b)(2)(B), and a two-level enhancement

should apply for defendants aggravating role under U.S.S.G.

3B1.1(c), for an adjusted offense level of 36.

parties agree that the government may agree to argue for (1) a two-

level upward adjustment under U.S.S.G. 2D1.1(b)(14)(C) for

defendants importation of controlled substances,2 and/or (2) a four-

level upward adjustment pursuant to U.S.S.G. 3B1.1(a) for

defendants aggravating role. (Id.)

Finally, the

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(Id.)

Despite defendants criminal

history, the government submits that defendant does not the criteria

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for application of the Safety-Valve in U.S.S.G. 5C1.2, given the

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leadership role he had in the conspiracy in this case.

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In the PSR, the USPO, finds that the agreed-to factors in the
plea agreement apply in this case, and concludes that additional

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upward adjustments are warranted, largely based on defendants a two-

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level enhancement for importation of controlled substances and a

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four-level enhancement for aggravating role (as opposed to the agreed

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upon two-level enhancement in the plea agreement) in the conspiracy,

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for an adjusted offense level of 40, and a total offense level (after

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acceptance) of 37.

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(See PSR at 71 and 78.)

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The government concurs with the USPOs guidelines analysis in

the PSR, and as set forth below, submits there is ample evidence of
defendants role in the offense to support that aggravating role and

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importation enhancements apply.

The government also agrees with the

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USPO that no basis exists for any downward departure in this case.

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The plea agreement sets forth an adjustment under U.S.S.G.

2D1.1(b)(14)(C), but the government believes guidelines section
actually at issue is U.S.S.G. 2D1.1(b)(15)(C).
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However, given the extremely high guidelines levels at issue in this

case, the government submits that, under the principle of lenity, the

Court should adopt the following offense level calculation, which

excludes additional enhancements for defendants importation and

aggravating role:

Base Offense Level

Use of Mass Marketing

U.S.S.G. 2D1.1(c)(1)
U.S.S.G. 2S1.1(a)(1)
U.S.S.G. 2D1.1(b)(7)

Section 1956 Conviction

U.S.S.G. 2S1.1(b)(2)(B)

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Aggravating Role

U.S.S.G. 3E1.1

+2

Acceptance of Responsibility

U.S.S.G. 3E1.1

-3

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+2

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30

Total Offense Level

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33

At offense level 33, and at criminal history category I, the

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applicable guidelines range for defendant is 135-168 months, and the

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government recommends that the Court sentence defendant to the low-

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end of the range, or 135 months, followed by a five-year period of

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supervised release, no fine, and a special assessment of $100.

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II.

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NO FURTHER VARIANCE OR DEPARTURE UNDER SECTION 3553(a) APPLIES.

A.

The History and Characteristics of the Defendant and the

Nature and Circumstances of the Offense.

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The history and characteristics of the defendant and the nature

and circumstances of the offense support a sentence of 135 months.

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Defendant came from a privileged upbringing and was not motivated, as

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is often the case, by addiction or a dire upbringing.

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disputes that the quantity of controlled substances sold was

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overstated (based on the defense calculation of LSD quantities), and

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as noted above, the government believes that defendant was one of the
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The government

Case 2:11-cr-01137-DMG Document 318 Filed 12/03/14 Page 6 of 7 Page ID #:1766

two major organizer and leader of this conspiracy, the facts of which

are discussed at length in the PSR.

the factual basis of the plea agreement, defendant does not dispute

this conduct, and admits that he was active in orchestrating both the

sales of controlled substances into the United States, and the

laundering of proceeds from those sales. (See Plea Agreement,

Appendix.)

laundered the proceeds.

conspiracy in this case began in 2006 and ran for many years.

(See PSR at 23-58.)

Based on

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Defendant agrees that his role was extensive and that he

The government also notes that the

Defendant only curtailed his involvement in the last two years of the

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conspiracy, and even during that time, profited from the scheme.

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On the mitigating side, defendant has no gang affiliation or no

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cartel ties, and, at some point, defendant did begin to distance

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himself from the conspiracy.

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with law enforcement upon his arrest, and took responsibility for his

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conduct.

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sentence is a sufficient, and not greater than necessary, punishment

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for the crime charges.3

B.

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The Seriousness of the Offense, Deterrence,

and the Need to Protect the Public

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For this reason, the government submits that a 135 months

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Defendant also immediately cooperated

Defendant was convicted of taking part in a narcotics

distribution conspiracy involving a significant quantity of

narcotics.

It is a serious offense.

As discussed above, however,

In asserting that a sentence of 135 months would be sufficient

to punish the defendant for his conduct, the government is not
disagreeing with the conclusions of the USPO that the facts of this
case support a guidelines calculation of 37 and a sentencing range of
210 months. The government feels, however, that, when compared with
what the lesser members of the conspiracy will or have faced in
sentencing, a sentence of 210 months will create an unwarranted
sentencing disparity between defendant and the lesser co-defendants.
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the government believes the facts in this case warrant a lesser

sentence, and that a sentence of 135-months will both provide

adequate deterrence to prevent this defendant and others from

committing future crimes and protect the public from any future

crimes by this defendant.

will be extradited to The Netherlands following his sentencing, and

that, pursuant to the United States treaty with The Netherlands, his

sentence will be reviewed by a court in that country.

III. CONCLUSION

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For the foregoing reasons, and based on the sentencing

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The government also expects that defendant

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guidelines as well as the factors set forth in 18 U.S.C.

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3553(a), the government requests that the Court impose a sentence

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of a 135 months, followed by a five-year period of supervised

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release, no fine, a special assessment of $100.

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Dated: December 3, 2014

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STEPHANIE YONEKURA
United States Attorney

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Respectfully submitted,

ROBERT E. DUGDALE
Assistant United States Attorney
Chief, Criminal Division
/s/
DAFFODIL TYMINSKI
Assistant United States Attorney
Attorneys for Plaintiff
UNITED STATES OF AMERICA

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