sentencing memorandum

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION UNITED STATES OF AMERICA v. Case No. 3:24-cr-40-HES-LLL EVAN SIMS EVAN SIMS’ SENTENCING MEMORANDUM The Defendant, EVAN SIMS, by and through his undersigned attorney, pursuant to Federal Rule of Criminal Procedure 32 and 18 U.S.C. Section 3553(a), submits this memorandum to aid the Court at the sentencing currently set for July 17, 2024, at 10:00 a.m. and asks the Court to consider the following in determining the appropriate sentence herein: I. INTRODUCTION Evan Sims stands before the Court in full acceptance of his responsibility for the acts that he committed and for which he will be sentenced. Mr. Sims pled guilty to False Information and Threats, a Class D felony, in violation of 49 U.S.C. § 46507(1) and 49 U.S.C. §46505(b)(3). Mr. Sims is facing a statutory maximum penalty of 5 years imprisonment. Based on a total offense level of 13 and a criminal history category of IV, the guidelines range, as calculated by the Probation Officer, is 24 to 30 months. Case 3:24-cr-00040-HES-LLL Document 43 Filed 07/10/24 Page 1 of 10 PageID 143 2 This Court must impose a sentence that is “sufficient, but not greater than necessary, to comply” with the purpose of sentencing. 18 U.S.C. §3553(a). The goal of sentencing “is to lock in a sentence that is not too short and not too long, but just right to serve of purposes of §3553(a).” United States v. Irey, 612 F.3d 1160, 1197 (11th Cir. 2010) (en banc). Mr. Sims has been in continuous custody for this offense since December 5, 2023, and undersigned Counsel respectfully submits that a sentence of time served, followed by three (3) years of supervised release, is a reasonable sentence that is sufficient to satisfy the purposes of sentencing in this case, as set forth in 18 U.S.C. § 3553(a) and that a more restrictive punishment would be greater than necessary. Under the facts of this case, such a sentence will protect the public, provide just punishment, and afford adequate deterrence. II. LEGAL STANDARD Section 3553 of Title 18 of the United States Code enumerates certain factors a district court is to consider when sentencing a defendant who has been convicted of a federal offense. Primarily, the court shall consider the nature and circumstances of the offense and the history and characteristics of the defendant. See 18 U.S.C. §3553(a)(1). The court shall also consider the need for the sentence imposed to: reflect the seriousness of the offense, promote respect for the law, and provide just punishment; afford adequate deterrence to criminal conduct; protect the public from further crimes of the defendant; and provide the defendant with needed educational Case 3:24-cr-00040-HES-LLL Document 43 Filed 07/10/24 Page 2 of 10 PageID 144 3 or vocational training, medical care, or other correctional treatment in the most effective manner. Id. At §3553(a)(2) (A-D). Section 3553(a) further sets forth the factors that the Court must consider in fulfilling this provision: 1. The nature and circumstances of the offense and the history and characteristics of the defendant; 2. The need for the sentence imposed; 3. The kinds of sentences available; 4. The kind of sentence and the sentencing range….; 5. Any pertinent policy statements issued by the Sentencing Commission; 6. The need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct; and 7. The need to provide restitution to any victims of the offense. 18 U.S.C. §3553(a) (1-7). III. FACTORS AND LEGAL ARGUMENTS SUPPORTING A DOWNWARD DEPARTURE OR VARIANCE Mr. Sims argues that his criminal history score over-represents his threat to recidivate in the future and the likelihood that he would do so in a manner that is a dangerous to the community. The age and nature of his prior criminal history reflect that Mr. Sims has made some strides in conforming his behavior to societal expectations. Before his arrest on the current offense, Mr. Sims had not been arrested or accused of any criminal conduct since 2016. He was making efforts to turn his life around and had begun to try to control his use of both substances and alcohol. Unfortunately, his volatile relationship and his subsequent loss led to very poor decision-making at that airport bar. Given the significant time period since his last offense, Mr. Sims submits that his danger to recidivate has been diminished. Case 3:24-cr-00040-HES-LLL Document 43 Filed 07/10/24 Page 3 of 10 PageID 145 4 Furthermore, that danger further diminishes when Mr. Sims is undergoing mental health and substance abuse treatment. The Court may use that information to support a downward variance on his guidelines as calculated. IV. NATURE OF THE OFFENSE/HISTORY AND CHARACTERISTICS Evan Sims, 41, was born in Worcester, Massachusetts, to a family bedeviled by alcoholism, drug addiction, domestic violence, and severe mental health problems. His mother struggled with depression, his father is an alcoholic and uses drugs, and his older brother, Willie Sims Jr., died of an accidental fentanyl overdose in 2022. Evan Sims has been an alcoholic since he was a teenager.1 Sadly, Mr. Sims’ early childhood was pockmarked with traumatic episodes that are directly related to his parents’ mental health and substance abuse issues. When Mr. Sims was 2 years old and Willie Jr. was 5, their mother placed them in her car in the garage, rolled down the windows and ran the engine in a murder-suicide attempt.2 Her father came home and found them and called 911. Both boys were rushed by ambulance to a local hospital with carbon monoxide poisoning. Evan Sims’ carboxyhemoglobin level was 20 percent, right at the level where carbon 1 Letters from Mr. Sims’ mother, Carolyn Kinsley, and girlfriend, Jazzlyn Jaxzyn, who was with him during this episode, are attached as Exhibit 1. Both attest to his alcoholism. 2 Selected records from the Massachusetts Department of Children and Families are attached. The undersigned received 751 records from the agency pertaining to Mr. Sims and his brother, which can be provided upon request. Case 3:24-cr-00040-HES-LLL Document 43 Filed 07/10/24 Page 4 of 10 PageID 146 5 monoxide poisoning is considered severe.3 Their mother ultimately pleaded guilty to two counts of attempted murder and was sentenced to four years’ probation. The incident began a cycle of involvement with the Massachusetts Department of Children and Families (MADCF) for Mr. Sims and his brother. They had no stable home or positive influence growing up because of the recurrent shuffling between their father, paternal grandparents, and short-term foster homes. The boys initially went to a foster home, then returned to their mother a year later when MADCF decided she had made enough mental health progress to get them back. That arrangement lasted about four years, when despite their father’s alcoholism and instability, she inexplicably gave 10-year-old Willie Jr. the choice of where the boys should live, and he chose their father. The result was both predictable and disastrous. Within three months, MADCF removed the boys from him because of physical abuse against Willie Jr. and neglect of both boys. In one report, he locked them out of the house, went to a neighbor’s home to get high and refused to return home even after a MADCF worker called him and told him what was going on. Eventually, Willie Jr. went into foster care permanently and Evan Sims went to live with his paternal grandparents. He returned to his mother’s custody when he was 14. He still has only very limited contact with his father. 3 According to WebMD, carbon monoxide poising is generally diagnosed at anything more than 10 percent carboxyhemoglobin, and severe poisoning occurs at levels over 20 percent. Carbon monoxide poisoning can lead to severe long-term cognitive, behavioral, and mental health problems, which may help account for the difficult life Mr. Sims and his brother both led. Case 3:24-cr-00040-HES-LLL Document 43 Filed 07/10/24 Page 5 of 10 PageID 147 6 Mr. Sims reported being sexually abused by his older brother during this time, though that report is unverified. It should come as no surprise that Mr. Sims began self-medicating by numbing his emotional turmoil with both alcohol and drugs at a very young age. He first started drinking when he was just 9 and was using marijuana by age 11. By age 14, he was a full-fledged alcoholic. Alcohol underlies most entries in his criminal history. Both his mother, Carol Kinsley, and former girlfriend, Jazzlyn Jaxzyn, said Mr. Sims is particularly susceptible to the effects of hard liquor, and it changes his personality. Both, as well as Mr. Sims himself, said unequivocally that he would not have acted out in the aircraft the day of his arrest had he and Ms. Jaxzyn not stopped at the airport bar while waiting to embark. Both Ms. Kinsley and Ms. Jaxzyn said he is a good, smart, and stable person when sober, but he simply could not stop drinking. As Ms. Kinsley stated in her letter to the Court, she hopes this period of forced sobriety, no longer how long it lasts, will finally turn her remaining son around. For his part, Evan Sims desperately wants substance abuse treatment and mental health counseling to be part of any sentence he receives. He is tired of drinking and causing trouble because of it. This period has helped him to realize that he needs to cut not just substances, but also alcohol, out of his life completely. Mr. Sims recognizes that he needs help getting there though. His mother and Ms. Jaxzyn also believe treatment is necessary. Case 3:24-cr-00040-HES-LLL Document 43 Filed 07/10/24 Page 6 of 10 PageID 148 7 Mr. Sims and his mother said he was diagnosed with attention deficit disorder (ADD) when in school and was prescribed Ritalin for it until he was 13.4 Ms. Kinsey said she and his pediatrician believed he had outgrown the condition by then. Mr. Sims dropped out of school in the 12th grade. He obtained his GED while in prison in 2005.5 Mr. Sims childhood trauma is likely a significant factor in his mental health issues as well. He was diagnosed with major depressive disorder after he sought out counseling while staying with his mother in South Carolina in 2021 (Presentence Report, paragraph 76). Unfortunately, he has not been able to access sustained treatment to this point. Extensive and sustained mental health treatment and substance abuse treatment are the best sentencing options available to the Court to protect the public and provide adequate deterrence. Warehousing Mr. Sims for an extended period of time is not going to change the underlying causes of his behavior. Addressing the underlying trauma and treating the substance abuse issues that are the root causes of that behavior will change his conduct. Sober, Mr. Sims would never have acted in such a way. Ensuring his sobriety helps Mr. Sims in exercising sound judgment moving forward. More importantly, it protects and helps any community that he is part of after his release. The fact that he committed this offense 4 School records were but were not available, however the MADCF records confirm the ADD diagnosis and the use of Ritalin to treat it.. 5 Verification of his GED is attached as Exhibit 3. Case 3:24-cr-00040-HES-LLL Document 43 Filed 07/10/24 Page 7 of 10 PageID 149 8 while under the influence is not an excuse for his behavior but it does help explain that behavior. Defense counsel submits that the context within which Mr. Sims committed these acts are a significant factor that the Court should consider in determining an appropriate sentence. Mr. Sims clearly accepts responsibility in this case. Once sober, he was horrified by his behavior. He pleaded guilty to an information within three months of his arrest. That acceptance of responsibility should be considered by the Court as another appropriate reason for a downward variance from the applicable guidelines. It is with this information that Mr. Sims prays the court fashion a sentence that will fairly punish his actions without imposing a sentence that is greater than necessary to achieve the purposes of sentencing. Those purposes include punishment, rehabilitation, general deterrence, specific deterrence, and incapacitation. Incarceration is not needed to punish, provide a deterrence, or protect the public. A period of supervised release that would include conditions that Mr. Sims serve a period of home confinement, perform community service, and undergo mental health treatment and substance abuse treatment, while continuing to work and support a stable life, are far greater tools to rehabilitate, and therefore, protect than longer incarceration. Further, an unnecessarily harsh sentence when reasonable alternatives exist would not encourage respect for the law or promote just punishment. Case 3:24-cr-00040-HES-LLL Document 43 Filed 07/10/24 Page 8 of 10 PageID 150 9 V. CONCLUSION For the reasons laid out above and such other reasons that may appear just and proper, Evan Sims respectfully asks this Court to fashion a sentence of time served followed by 36 months of supervised release. With the conditions recommended above, Mr. Sims will be supervised within the community while getting the treatment and help that will keep him from recidivating. This sentence is “sufficient but not greater than necessary.” A. FITZGERALD HALL, ESQ. FEDERAL DEFENDER Respectfully Submitted By: /s/ Waffa J. Hanania, Esquire Waffa J. Hanania, Esq. Assistant Federal Defender Florida Bar No. 0888631 200 West Forsyth Street, Suite 1240 Jacksonville, Florida 32202 Telephone: (904) 232-3039 Fax: (904) 232-1937 Email: [email protected] Case 3:24-cr-00040-HES-LLL Document 43 Filed 07/10/24 Page 9 of 10 PageID 151 10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 10th day of July 2024, a true copy of the foregoing was served by electronic notification to Ashley Washington, Office of the United States Attorney and Kyle McCrohan, United States Probation Office. /s/Waffa Hanania, Esquire Waffa Hanania, Esq. Case 3:24-cr-00040-HES-LLL Document 43 Filed 07/10/24 Page 10 of 10 PageID 152 Carol Kinsley Bluffton, SC 29910 The Honorable Judge Harvey E. Schlesinger U.S. District Court, Middle Division of Florida Jacksonville Division 300 North Hogan Street Jacksonville, Florida 32202 Dear Judge Schlesinger, I am writing this letter to provide the court with additional information for Evan Sims for his upcoming sentencing hearing and I hope it will be helpful to you, Judge Schlesinger. My name is Carol Kinsley, and I am a 65-year-old retired widow. I spent more than 40 years in the food and beverage and hospitality industry, prior to my retirement in July of 2020, after losing my husband Jeff, who was the love of my life for 23 years. I am also Evan Sims’ mother. I am aware that Evan has pleaded guilty to a federal charge which not only disappointed me but hurt me deeply. At 41 years of age, Evan certainly knows better, and I was upset to learn of his behavior and subsequent arrest. Although, I do believe it was the right course of action. Evan is an admitted alcoholic, and I wholeheartedly believe, if he was sober on that aircraft, his behavior would have been much different, and we would not be where we are today. Evan has not contacted me since his arrest last December, because I am certain he did not want to disappoint me by informing me of his arrest. Evan is genuinely an intelligent, thoughtful, articulate and respectful man, and we have always had a loving relationship. Evan came to stay with me at our home in South Carolina for 5 months last year, where he was employed full time and made more than a good wage. He was very helpful around the home and offered me some money weekly to assist me with our expenses. However, his drinking became a problem, and I was forced to ask him to leave. Case 3:24-cr-00040-HES-LLL Document 43-1 Filed 07/10/24 Page 1 of 4 PageID 153 When Evan does not drink hard liquor, he is a wonderful person and an asset to the community. However, he cannot stop consuming alcohol. Hopefully, these past 7 months have detoxified him and his desire for hard liquor. I firmly believe, if Evan can abstain from alcohol, he will be an exceptional human being. He always has been when he is not drinking. Thank you for your time, Your Honor. Respectfully, Carol Kinsley Case 3:24-cr-00040-HES-LLL Document 43-1 Filed 07/10/24 Page 2 of 4 PageID 154 Jazzlyn Jaxzyn Pawtucket RI, 02861 Dear Honorable Judge Schlesinger, I am writing this letter to provide a character reference for the court with additional information about Evan Sims for his upcoming sentencing hearing and hoping it can be helpful. My name is Jazzlyn Jaxzyn. I'm 37 years old from Pawtucket Rhode Island. I am an Outreach & Case manager for a non profit organization. I met Evan about 9 years ago. He was very charismatic, respectful, and opened the door for you kind of gentleman. Very outgoing and social. A very hardworking man. We dated for a year until it blossomed into a relationship that lasted 7 years. Within those years, I've seen and dealt with 2 different Evans. Sober Evan is sweet, kind & loving. An awesome family man. But intoxicated Evan was not. It has always been his downfall even years before we met. I love sober Evan so I saw past it. On the night of December 5th, I was on Flight 717 with Evan Sims heading back to Rhode Island from ending our vacation. Once we settled at our gate, we both decided to get food and drinks. I didn't keep tabs on how many drinks Evan had. I did realize he was intoxicated. I honestly thought he would fall asleep on the plane. I, as well as everyone on that flight, was very shocked, infuriated and extremely scared by Evan’s action and despicable choice of words on that flight. After 9/11 there are words you don't mention at an airport or on a flight in the sky. I am aware that Evan pleaded guilty to a federal charge and has taken full accountability for his actions. Evan has always struggled with alcoholism. Both his parents struggle from it too. I believe Evan has taken accountability for his actions. I believe that Evan Sims is remorseful and has empathy for everyone affected by his behavior on 12/05/2023. I think this was a wake up call. I have high hopes that Evan will make every effort to ensure that he does not repeat them in Case 3:24-cr-00040-HES-LLL Document 43-1 Filed 07/10/24 Page 3 of 4 PageID 155 the future. I think Evan needs professional help and counseling for his addiction. He is really an outstanding guy when sober. Honorable Judge Schlesinger, I want to thank you for taking the time to read this letter. I respectfully request that you take this letter into consideration when making your decision. 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