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Case 3:14-cr-00239-MPS Document 41 Filed 02/09/15 Page 1 of 10



: No. 3:14-cr-239 (MPS)
: February 9, 2015


Defendant Wilfrido Anibal Cardenas Hoffmann requests a sentence of time
served on the grounds that (1) he suffers from schizophrenia, (2) he cannot receive
adequate medical care in prison, (3) he is more vulnerable to abuse in prison, and
(4) he would suffer the effects of incarceration more severely because he is not a
citizen of the United States.
The government draws the Courts attention to its agreement not to take a
position on the defendants request for time served [i]n light of [his] psychiatric
diagnoses and proposed treatment plan in Venezuela, *two specific considerations
that are directly related to the defendants first argument. The government
respectfully submits this memorandum of law to address the last three of the
defendants arguments. To be clear, we take no position on a sentence of time
served. Our purpose in submitting this sentencing memorandum is to provide the
The plea agreement provides: In light of the defendant's psychiatric
diagnoses and proposed treatment plan in Venezuela which has been set forth in
more detail in a letter dated November 24, 2014, from the defendant's examining
physician at the Yale School of Medicine which will separately be provided to the
Court by defense counsel, the defendant will request a sentence of time served, and
the Government will take no position.

Case 3:14-cr-00239-MPS Document 41 Filed 02/09/15 Page 2 of 10

Court with the relevant case law, and an accurate characterization of certain facts,
that must be considered with respect to those three arguments made by the
defendantwhich are distinct from the defendants psychiatric diagnoses and
proposed treatment plan in Venezuela. Nothing herein is intended to, nor should be
construed as, taking a position on the defendants request for a sentence of time
served, based on his diagnoses and proposed treatment plan.


The Offense Conduct

On December 16, 2012, two days after the shootings at Sandy Hook

Elementary School, Hoffmann made over 90 telephone calls to 47 different

telephone numbers in the Newtown area. See Presentence Report, dated Jan. 28,
2015 (PSR), 7. At least 17 of the calls were successful, meaning that Hoffmann
spoke to an individual or left a message. Id. Hoffmann obtained the telephone
numbers by searching on Google for the Newtown-area extension, i.e., the area code
and prefix. See PSR 11.
During these calls, Hoffmann made a series of threats. In one instance,
Hoffmann was answered by a 15-year-old high school student, who described
Hoffmann to investigators as creepy and young and stated that she was terrified
by the threats. PSR 7. Other threats made by Hoffmann included the following:

A recorded message stating: This is Adam Lanza.Im gonna kill

you.Youre dead. With my machine gun. Youre dead bitch. Id.

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A recorded message stating: All right. This is Adam Lanza. Im gonna

fucking kill you. Youre dead. Youre dead. You hear me? Youre dead.

The statements Im going to shoot you in the face with a shotgun, and
Im going to fucking kill you. PSR 8.

The statements You and your wife are dead meat, and Your wife and
family are dead meat. The victim in this case advised investigators
that he was particularly unsettled that the caller seemed to know that
he had a wife and family and that he believed the threat to be real. Id.

The statement I will have sex with your little daughter. PSR 11.

Following a lengthy investigation, complicated by the facts that Hoffmann

was in Venezuela and used various methods to hide his identity, an arrest warrant
was obtained in May 2013. See PSR 9-10. Hoffmann was arrested while
transiting through Miami International Airport in June 2014. See PSR 11. When
interviewed, Hoffmann stated that he had researched Lanza on the Internet and
was interested in Lanzas mental disorder. See id. Hoffmann also stated that he was
interested in other mentally troubled individuals, such as Jeffrey Dahmer, and he
wanted to know why such individuals did what they did. See id. Hoffmann admitted
to making the calls to Newtown after the Sandy Hook shootings. See id.


The Defendants Background

Hoffmanns psychiatric condition is adequately described in his sentencing


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Hoffman was raised, primarily in Venezuela, in a stable family environment.

See PSR 34 & 36. His parents are married and he has two sisters, all of whom
are gainfully employed. See PSR 34-35. His family was financially comfortable
and he had a good relationship with his parents. See PSR 36 & 38.
Hoffman attended a private high school in Caracas, Venezuela, graduating in
2002. See PSR 61. Hoffmann did extremely well, with the majority of his grades
being As or Bs. Id. Hoffmann attended a university in Caracas but did not
graduate, with school records indicating that he was a below-average student who
excelled in computers. See PSR 62.
Hoffmann reported having a limited employment history, consisting mostly of
minimum-wage jobs that he held for short times. See PSR 63-66.

Adequate Medical Treatment in Prison

To reiterate, the government takes no position on the defendants request for

a sentence of time served, in light of his psychiatric diagnoses and his proposed
treatment plan in Venezuela. The governments agreement in this regard, however,
was not premised on any notion that the Federal Bureau of Prisons would be unable
to provide Hoffmann with adequate medical treatment.
At the time of his arrest, Hoffman was not taking any medication. See PSR
54. Shortly thereafter, while detained at Wyatt, Hoffmann began exhibiting
delusional behavior. See PSR 53. Hoffmann was moved to the medical unit, where
he was placed under round-the-clock observation. See id. He was prescribed

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medication, see id., and he is now compliant and remarkably improved, Letter to
U.S.P.O. Kristin Moran, dated Jan. 21, 2015, at 3 (attached to PSR).
The government makes two observations about articles cited by the defense,
simply to ensure that the governments general position about the availability of
treatment provided by the Federal Bureau of Prisons, in all criminal matters, is not
misconstrued. The first article, a report issued in 2008 by the Office of the Inspector
General (OIG), found a number of federal correctional institutions where specific
medical services were not provided. See U.S. Department of Justice, The Federal
Bureau of Prisons Efforts to Manage Inmate Health Care, Feb. 2008, at 32-34. The
report made several recommendations in connection with this finding, see id. at 35,
all of which were accepted by the Bureau of Prisons, see id. at 112-13. As a
consequence, the OIG determined that the issues had been resolved, see id. at 11718, and the issues were not raised in a subsequent OIG report, See U.S. Department
of Justice, Follow-up Audit of the Federal Bureau of Prisons Efforts to Manage
Inmate Health Care, July 2010 (available at
The second article, a report issued in 2006 by the Bureau of Justice Statistics
(BJS), provided numerous statistics on mental health issues in federal, state, and
local facilities. The defendant cites to one statistic from the 11-page report to
support the proposition that the vast majority of mentally ill inmates . . . do not
receive therapy, but this is misleading: the report examined only three types of
treatment, one of which was professional mental health therapy, and it

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specifically noted that it excluded other mental health treatment. U.S.

Department of Justice, Mental Health Problems of Prison and Jail Inmates, Sept.
2006, at 9. Nothing in the report suggested that all inmates with a mental health
problem require professional mental health therapy (as opposed to medication, for
example), nor did the report find that inmates who required professional mental
health therapy failed to receive it.

Vulnerability to Abuse in Prison

The defendant seeks a downward departure on the basis of his vulnerability

to abuse in prison, separate and distinct from his argument for a downward
departure based on his psychiatric condition and reduced mental capacity. The
government provides the Court with the relevant legal standards for such a
The Sentencing Guidelines do not identify vulnerability to abuse as a basis
for departure, so a departure on that basis is warranted only in an exceptional
case. U.S.S.G. 5K2.0(a)(2)(B) (2014); see also id. cmt. 3(a)(ii) ([D]epartures based
on such unidentified circumstances will occur rarely and only in exceptional cases).
[A] defendants mere membership in a class of offenders that may be targeted by
other inmates cannot make his case extraordinary otherwise every such offender
would be eligible for a departure . . . . United States v. DeBeir, 186 F.3d 561, 567
(4th Cir. 1999) (alterations and internal quotation marks omitted); United States v.
Kapitzke, 130 F.3d 820, 822 (8th Cir. 1997); compare DeBeir, 186 F.3d at 568
(finding brief taunts insufficient to warrant departure) with United States v.

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LaVallee, 439 F.3d 670, 708 (10th Cir. 2006) (upholding departure where, inter alia,
other inmates threatened defendants lives and described the types of sexual acts
they would commit upon their bodies once they were dead).

Status as a Deportable Alien

Finally, Hoffmann argues that the criminal justice system has treated him

more harshly as a deportable alien because (1) he was not able to obtain mental
health treatment in the community while his case was pending, (2) he is not eligible
for less restrictive sentences such as home confinement, (3) he will not receive credit
for any time that he is detained pending deportation, and (4) he will not be eligible
to serve his sentence, if any, in a minimum security prison.
A defendants alienage is not ordinarily relevant under the Sentencing
Guidelines. See United States v. Restrepo, 999 F.2d 640, 644 (2d Cir. 1993).
Accordingly, alienage can be a basis for a departure only if the collateral
consequences of such alienage are extraordinary in nature or degree. Id.; see
U.S.S.G. 5K2.0(a)(4) (2014). Although the Court may depart on the basis of such
collateral consequences, see, e.g., DeBeir, 186 F.3d at 569-70, the Second Circuit has
explained that such departures are generally not warranted with respect to claims
that an aliens conditions of confinement are more restrictive, see Restrepo, 999 F.2d
at 644-46, or that an alien will be detained pending deportation, see id. at 646.
The first collateral consequence identified by Hoffmannthat he was
ineligible for mental health treatment in the community while his case was
pendingwould require Hoffmann to demonstrate that an application for release

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pending trial would have been granted. The government would certainly have
opposed such an application. Only the Court can say whether it would have granted
such an application in this case.
The second collateral consequence identified by Hoffmannthat he is not
eligible for a sentence such as home confinementis speculative, because Hoffmann
has not been sentenced yet.
The third collateral consequences identified by Hoffmannthat he will be
detained pending deportationwas specifically rejected in Restrepo as a ground for
departure. See id. at 646. The Second Circuit said, inter alia, that granting
[a]nticipatory relief from a possible delay [during deportation] is speculative and
inappropriate. Id.
The fourth collateral consequencethat Hoffmann is not eligible for a
minimum security prisonwas also rejected in Restrepo as a ground for departure.
Because of the great deal of flexibility given by Congress to the Bureau of Prisons
with respect to the assignment of inmates, see id. at 645, and the very limited
control that courts can typically exercise over how and where an inmate is housed,
it would be exceedingly difficult for the Court to determine, in a consistent manner,
whether to reduce a deportable aliens jail term and by how much. Moreover, a term
of imprisonment is punitive primarily because of a defendants loss of freedom, not
because a defendant is housed in one facility over another. Therefore, whether a
defendant is eligible for a particular facility or not does not warrant consideration in
fashioning an appropriate sentence.

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The government respectfully requests that the Court impose an appropriate
sentence based on all of the relevant circumstances in this case, and reiterates that
it takes no position on Hoffmans specific sentencing request.
Respectfully submitted,
Federal Bar No. ct24433
1000 Lafayette Boulevard, 10th Floor
Bridgeport, Connecticut 06604
(203) 696-3026
Federal Bar No. ct26472
157 Church St., 25th floor
New Haven, CT 06510
Tel: (203) 821-3796

Case 3:14-cr-00239-MPS Document 41 Filed 02/09/15 Page 10 of 10

I hereby certify that on February 9, 2015, a copy of the foregoing was filed
electronically and served by mail on anyone unable to accept electronic filing. Notice
of this filing will be sent by e-mail to all parties by operation of the Court's
electronic filing system or by mail to anyone unable to accept electronic filing as
indicated on the Notice of Electronic Filing. Parties may access this filing through
the Court's CM/ECF System.

February 9, 2015
Assistant United States Attorney