Bob Mcdonnell Sentencing Memo

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
UNITED STATES OF AMERICA,
v.
ROBERT F. MCDONNELL
MAUREEN G. MCDONNELL

)
)
) CRIMINAL NO. 3:14-CR-00012
)
) JUDGE JAMES R. SPENCER
)

DEFENDANT ROBERT F. MCDONNELL’S
SENTENCING MEMORANDUM

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TABLE OF CONTENTS
INTRODUCTION ......................................................................................................................... 1
BOB MCDONNELL’S BACKGROUND .................................................................................... 1
A.

Early Years (1954 – 1976) ..................................................................................... 1

B.

Military Service (1976 – 1997) .............................................................................. 3

C.

Early Career (1980 – 1991).................................................................................... 4

D.

Virginia House of Delegates & Law Practice (1992 – 2005) ................................ 6

E.

Attorney General (2006 – 2009) ............................................................................ 8

F.

Governor (2010 – 2014)....................................................................................... 11

G.

Personal & Family Life ........................................................................................ 18

ARGUMENT ............................................................................................................................... 20
I.

THE PROPER SENTENCING GUIDELINES RANGE IS 33 TO 41 MONTHS ......... 20

II.

APPLICATION OF THE 18 U.S.C. § 3553 FACTORS COMPEL A VARIANT
SENTENCE ..................................................................................................................... 21
A.

Bob McDonnell’s history and characteristics support a sentence well
below the Guidelines range .................................................................................. 21
1.

Exceptional character ............................................................................... 22

2.

A lifetime of public service...................................................................... 25

3.

Strong family bonds ................................................................................. 26

4.

Mercy to others ........................................................................................ 28

B.

The nature and circumstances of the offense compel a below-Guidelines
sentence ................................................................................................................ 29

C.

Mr. McDonnell’s trial and conviction act as powerful deterrents to
criminal conduct................................................................................................... 32

D.

A prison sentence is not needed to protect the public from further crimes
by Mr. McDonnell ............................................................................................... 35

E.

A sentence far below the Guidelines range is needed to avoid unwarranted
disparities ............................................................................................................. 36

F.

A prison sentence would heighten the disparate treatment of Mr.
McDonnell and his alleged co-conspirator Mr. Williams .................................... 40

G.

A non-incarcerative sentence would be a just punishment for Mr.
McDonnell’s offense ............................................................................................ 40

H.

A sentence based on the Guideline § 2B1.1 loss table would be unjust in
this case ................................................................................................................ 42

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I.

An alternative sentence of rigorous community service is sufficient, but
not greater than necessary, to fulfill the statutory goals ...................................... 45

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TABLE OF AUTHORITIES
Page
CASES
Gall v. United States,
552 U.S. 38 (2007) .............................................................................................................21, 45
Kimbrough v. United States,
552 U.S. 85 (2007) ...................................................................................................................21
Koon v. United States,
518 U.S. 81 (1996) ...................................................................................................................29
Rita v. United States,
551 U.S. 338 (2007) ...........................................................................................................21, 25
United States v. Adelson,
441 F. Supp. 2d 506 (S.D.N.Y. 2006)..........................................................................25, 33, 34
United States v. Anderson,
533 F.3d 623 (8th Cir. 2008) ...................................................................................................33
United States v. Argo,
No. 07-CR-683 (S.D.N.Y. Jan. 28, 2008) ................................................................................40
United States v. Autery,
555 F.3d 864 (9th Cir. 2009) ...................................................................................................21
United States v. Benkahla,
501 F. Supp. 2d 748 (E.D. Va. 2007) ................................................................................22, 27
United States v. Carmona-Rodriguez,
No. 04-CR-667, 2005 U.S. Dist. LEXIS 6254 (S.D.N.Y. Apr. 11, 2005) ...............................35
United States v. Carter,
538 F.3d 784 (7th Cir. 2008) ...................................................................................................35
United States v. Cherry,
366 F. Supp. 2d 372 (E.D. Va. 2005) ......................................................................................23
United States v. Cooper,
394 F.3d 172 (3d Cir. 2005).....................................................................................................22

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United States v. Coughlin,
No. 06-CR-20005, 2008 U.S. Dist. LEXIS 11263 (W.D. Ark. Feb. 1, 2008) .........................47
United States v. Edwards,
303 F.3d 606 (5th Cir. 2002) ...................................................................................................37
United States v. Edwards,
595 F.3d 1004 (9th Cir. 2010) .................................................................................................33
United States v. Hamilton,
No. 3:11-CR-00013 (E.D. Va. Nov. 22, 2011) ........................................................................38
United States v. Harding,
No. 05-CR-1285-02, 2006 WL 2850261 (S.D.N.Y. Sept. 28, 2006) ......................................27
United States v. Howe,
543 F.3d 128 (3d Cir. 2008)...............................................................................................23, 25
United States v. Hutcherson,
No. 6:05-cr-00039 (W.D. Va. Dec. Aug. 30, 2006) ................................................................48
United States v. Jefferson,
No. 1:07-CR-00209 (E.D. Va. Nov. 13, 2009) ........................................................................37
United States v. Litvak,
No. 3:13-CR-00019-JCH (D. Conn.) .......................................................................................44
United States v. Lukens,
No. 1:95-CR-00041 (D.D.C. June 29, 1996) ...........................................................................37
United States v. Morales,
972 F.2d 1007 (9th Cir. 1992) .................................................................................................22
United States v. Myers,
353 F. Supp. 2d 1026 (S.D. Iowa 2005) ..................................................................................27
United States v. Nellum,
No. 2:04-CR-30, 2005 BL 88941 (N.D. Ind. Feb. 3, 2005).....................................................27
United States v. Ney,
No. 1:06-CR-00272 (D.D.C. Oct. 13, 2006)............................................................................37
United States v. Pauley,
511 F.3d 468 (4th Cir. 2007) ...................................................................................................32

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United States v. Prosperi,
No. 1:06-CR-10116 (D. Mass. May 25, 2010) ........................................................................47
United States v. Prosperi,
686 F.3d 32 (1st Cir. 2012) ......................................................................................................47
United States v. Ranum,
353 F. Supp. 2d 984 (E.D. Wis. 2005).....................................................................................23
United States v. Renzi,
No. 4:08-CR-00212 (D. Ariz. Oct. 28, 2013) ..........................................................................37
United States v. Rivernider,
No. 3:10-CR-222-RNC (D. Conn.) ..........................................................................................44
United States v. Sachakov,
No. 11-CR-120, 2013 WL 101287 (E.D.N.Y. Jan. 8, 2013) ...................................................33
United States v. Stewart,
590 F.3d 93 (2d Cir. 2009).................................................................................................33, 42
United States v. Warner,
No. 1:13-CR-00731 (N.D. Ill. Jan. 14, 2014) ..........................................................................47
United States v. Warner,
498 F.3d 666 (7th Cir. 2007) ...................................................................................................37
United States v. Whitehead,
532 F.3d 991 (9th Cir. 2008) ...................................................................................................48
STATUTES
18 U.S.C. § 3553 .................................................................................................................... passim
OTHER AUTHORITIES
Alan Suderman, “FBI, Senators met after McDonnell conviction”, The Associated
Press, Oct. 9, 2014 ...................................................................................................................34
Brian MacQuarrie, “Rowland Pleads Guilty to Fraud Charge”, The Boston Globe,
Dec. 24, 2004 ...........................................................................................................................37

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Court & Community: An Information Series About U.S. Probation & Pretrial
Services: Community Service, Office of Probation and Pretrial Services,
Administrative Office of the U.S. Court, 2007 ........................................................................46
Eric Holder, Speech of Attorney General Eric Holder at the Congressional Black
Caucus Foundation Criminal Justice Issues Forum, September 19, 2013 ...............................45
Evan Osnos, “Embrace the Irony”, The New Yorker, Oct. 13, 2014 ............................................39
Jill Wilson, “Former Governor Agrees to Plead Guilty to Extortion, Fraud”,
Associated Press, April 13, 1990 .............................................................................................37
Leah McGrath Goodman, “Nonsensical Sentences for White Collar Criminals”,
Newsweek, June 26, 2014 ........................................................................................................43
Michael E. Horowitz, “Memorandum: Top Management and Performance
Challenges Facing the Department of Justice – 2014,” Nov. 10, 2014 ...................................46
Michael Pope, “Virginia Lawmakers Cautious About Ethics—And Eggs—After
McDonnell Conviction”, WAMU, December 15, 2014 ..........................................................34
Monica Davey and Emma G. Fitzsimmons, “Jury Finds Blagojevich Guilty of
Corruption,” New York Times, June 27, 2011 ........................................................................37
“Politicians Consider Ethics Legislation after McDonnell Conviction”,
NBC29.com, Sept. 9, 2014 ......................................................................................................35
Report on Behalf of The American Bar Association Criminal Justice Section Task
Force on the Reform of Federal Sentencing for Economic Crimes, November
10, 2014..............................................................................................................................43, 45
United States Courts, Third Branch News, “Supervision Costs Significantly Less
than Incarceration in Federal System”, July 18, 2013 .............................................................46
United States Sentencing Commission, 2010-2013 Quarterly Sentencing Updates......................38
United States Sentencing Commission, Statistical Information Packet, Fiscal Year
2013, Fourth Circuit .................................................................................................................38
United States Sentencing Commission, “Measuring Recidivism: The Criminal
History Computation Of The Federal Sentencing Guidelines,” 2004 .....................................36
United States Sentencing Commission, Preliminary Quarterly Data Report, Fiscal
Year 2014 3rd Quarter Release ................................................................................................38

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United States Sentencing Commission, Symposium on Alternatives to
Incarceration, “Welcome and Introductory Remarks,” July 14-15, 2008,
Washington, DC .......................................................................................................................46
United States Sentencing Commission, “U.S. Sentencing Committee Selects
Policy Priorities for 2014-2015 Guidelines Amendment Cycle”, Aug. 14, 2014....................43
Wilson Andrews, “The perks of politics: A decade of gift-giving”, Washington
Post, June 13, 2013 ..................................................................................................................30
Zvi D. Gabbay, “Exploring the Limits of the Restorative Justice Paradigm:
Restorative Justice and White Collar Crime,” 8 Cardozo J. Conflict Resol. 421
(2007) .......................................................................................................................................33

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INTRODUCTION
Bob McDonnell has devoted his life to public service, family, and faith. This offense is a
total aberration in what was by all accounts a successful and honorable career. Moreover, the
conduct that led to this conviction is far outside of the “heartland” of public corruption cases. No
public official has ever before been convicted of federal or state corruption charges on the basis
of similar conduct. For these reasons and more, a sentence within the Guidelines range presently
calculated by the Probation Office is patently unfair. Instead, a variant sentence of probation
with a condition of 6,000 hours of full-time, rigorous, unpaid community service at a remote
location served over three years is “sufficient, but not greater than necessary” to provide a just
punishment for the offense.
BOB MCDONNELL’S BACKGROUND
A.

Early Years (1954 – 1976)

Bob McDonnell was born on June 15, 1954 in Philadelphia, Pennsylvania. His parents,
John Francis McDonnell and Emma Betty McDonnell, raised Bob and his four younger siblings
in Mount Vernon, Virginia, where his family relocated when he was one year old. Growing up,
Bob learned from his parents the traditional values of Catholicism and the importance of “service
to others and to our country.” Sister Eileen Reinaman. 1 Bob’s father, a decorated World War II
veteran, served in the U.S. Air Force for 23 years before retiring in 1964 at the rank of
Lieutenant Colonel. Following his retirement, he began a second career with the U.S. Naval
Intelligence Service where he was employed for 18 years. John McDonnell, a “tough Irish

1

This letter is one of 440 submitted to the Court regarding Bob’s sentence. All letters are
attached as Appendices 1 through 4 and ordered alphabetically by last name. Also attached as
Appendix 5 is a series of note cards collected by Bob’s staff and given to him as a staff present
commemorating the end of his term in office. The note cards are written by people who know
Bob well or met him during his term and wanted to thank him for his work as Governor.

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Catholic,” was strict and quick-tempered, but he taught Bob valuable lessons about faith,
discipline, hard work, and service. Bob’s mother, a Texan, worked as a tour guide at Mount
Vernon, where she became an expert on the life of George Washington. Mrs. McDonnell was a
kind, gentle, and loving woman who modeled for her children a life of serving and caring for
others.
Bob was greatly influenced by his parents and, at a young age, sought to dedicate his life
to service. 2 He attended high school at Bishop Ireton, an all boys Catholic school in Alexandria,
Virginia, where he was a “popular and well respected member” of his class. John Prominski, Jr.
Thomas Farrell, CEO of Dominion Resources and former classmate of Bob’s, remembers him as
“smart, driven, thoughtful, and civic-minded; a person who wanted to serve his state and
community.” Thomas Farrell.

Another former classmate, Brian Tucker, writes that he “was

impressed with Bob as a leader and outstanding student athlete, but most importantly as a
compassionate, giving human being who was always there to lend a hand, or an ear, to help
others get through problems and issues we all faced as teens and young adults.” Brian Tucker.
After high school, Bob went to Notre Dame on an ROTC scholarship, with a four-year
commitment to serve in the U.S. Army. Bob’s decision to serve his country after college was not
a surprise to those who knew him. One of his college roommates, Michael Apfeld (class
salutatorian), writes that Bob embraced Notre Dame’s values “including both a general
recognition of a higher moral order and a specific call to serve others.” Michael Apfeld. 3 Mr.
Apfeld explains that “the assumption underlying all [Bob’s] plans and dreams was that, whether

2

See Ike Eichelkraut (writing that Bob’s parents had the greatest impact shaping his
character).
3

See also Mary Mints (noting that Bob “always spoke of giving back to his country
[through] service”).

2

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in school, the military, or some other calling, he had a duty to fulfill and that duty was to others,
not himself.” Michael Apfeld. In addition to his “sense of duty,” Bob “loved people . . . not
because of what they could do for him or because his association with them might in some way
magnify his sense of self-worth, but because he could always see the good in them.” Michael
Apfeld.

When Bob was not in class or studying, he was participating in ROTC, playing

intramural football, volunteering with prison ministry, participating on student council, or
working two part-time jobs. While at Notre Dame, Bob met his wife, Maureen. They dated for a
few years and married in 1976, the summer after Bob graduated.
B.

Military Service (1976 – 1997)

In October 1976, Bob entered active duty in the U.S. Army, attending basic training at Ft.
Sam Houston and San Antonio, Texas, through December of that year. He then served as
platoon leader in a medical company with the Second Armored Division in West Germany from
1977 to 1979, and at McDonald Army Hospital at Ft. Eustis in Newport News, Virginia from
1980 to 1981. Afterward, Bob joined the Army Reserve. From September 1985 until October
1993, Bob was a Reserve Officer at the 18th Field Hospital in Norfolk, Virginia—serving as
executive officer, logistics officers, and company commander for a 400-bed field hospital unit.
In 1997, following 21 years of military service, Bob retired from the Army Reserve at the rank of
Lieutenant Colonel. During his service, Bob received various awards and commendations,
including an expert field medical badge and two Army Commendation medals.
According to those who served alongside him, Bob was an “officer of the utmost
integrity, character, and probity in all areas of activity.” Terry Lindvall. Col. Gary Nelson, who
served as Bob’s Commander in the Army Reserve, recalls Bob’s strong work ethic, noting that
he “would regularly be the first officer at the reserve center and frequently the last one to
depart.” Gary Nelson. Bob was “promoted to the rank of Major and later to the rank of

3

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Lieutenant Colonel” due to his “exceptional work.” Id. A Chaplain for the Hospital Unit where
Bob worked and former President of Regent University writes that Bob was “one of the most
compassionate and caring officers [he] had ever served with, demonstrating a charity that
extended beyond the weekends and summer tours of duty.” Terry Lindvall. Stephen Sanders, a
former roommate and fellow ROTC cadet of Bob’s, recalls his care for others at an event they
both attended while junior officers stationed in the Tidewater area:
Bob and Maureen attended a function I hosted for my command fellow officers
when one became injured. Bob did not know this man or any of the other
attendees, but still insisted on accompanying us while I took the injured man to
the Portsmouth Naval Hospital. He even took control of the entire check in and
follow up process saying he felt it was his duty based on his medical service
expertise. This turned into an overnight ordeal and Bob never complained once.
Stephen Sanders.
C.

Early Career (1980 – 1991)

While on active military duty, Bob attended night classes at Boston University, earning a
Masters of Science in Business Administration in 1980.

After completing his four-year

commitment, Bob accepted a managerial job with American Hospital Supply Corporation,
requiring his family and him to relocate to Georgia, Illinois, and then Kansas. During that time,
Bob and his wife had their first two children—Jeanine in 1981 and Cailin in 1984. A friend who
spent substantial time with Bob and his family in Georgia, writes that Bob’s “goals were always
service oriented, not personal gain.” Martin Quirk.

Four years later, the McDonnells moved

back to Virginia so Bob could pursue further education at Regent University. Initially, he was
interested in obtaining a degree in public policy; but during his first year, Regent University
opened its law school, and Bob pursued a law degree as well. To pay for school, Bob worked
three jobs: serving in the U.S. Army Reserve; working as a sales manager for the Virginia Pilot;
and operating a toy franchise with his wife. In 1988, he and Maureen also had their third

4

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daughter, Rachel. Bob describes this period of his life as “the years without sleep.” His hard
work paid off, and he graduated in the top 10 percent of his law school class with a joint degree
in law and public policy. After passing the Virginia Bar exam, Bob accepted a position as an
Assistant Commonwealth Attorney in Virginia Beach—his dream job.

Karen Fortier, who

supervised Bob there as Deputy Commonwealth’s Attorney, writes that Bob “worked very hard,
always spoke respectfully about his professional adversaries, and never engaged in the rough talk
around the courthouse.” Karen Fortier.

As a prosecutor, Bob “was a ‘happy warrior’ who

would execute his duties with maximum effort, and do the right thing professionally and
personally.” Id.
While in law school and later as a prosecutor, Bob continued to display his compassion
and care for others. After learning that his criminal law professor had terminal cancer, Bob
became the messenger between him and 12 others, coordinating an effort to raise $5,000 to aid
the professor’s family. Timothy Battle. Similarly, Cheryl Hargrove, a defense attorney who
worked opposite Bob, recalls his compassion for young people who had been convicted of
crimes:
Many of my young clients had no prior convictions and I knew just how lifechanging a bad record would be as they attempted to obtain employment in the
future. I frequently asked Prosecutor McDonnell to request that the judge allow
the defendant to enter one of the branches of the military to help shape and mold
their lives, and many times he was able to do just that. To this day, I still have
parents coming up to me and thanking me for helping their children during their
troubled years.
Cheryl Hargrove.

Ms. Hargrove states that “[t]hese ‘second chances’ would never have

happened without the mercy shown by Prosecutor McDonnell when he was in a position to
punish for crimes committed.” Id.

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D.

Virginia House of Delegates & Law Practice (1992 – 2005)

After a year of prosecuting, Bob felt motivated to improve the criminal justice system
and decided to run for the Virginia House of Delegates, which he did in 1991. It was that same
year that he and his wife had their twin boys, Bobby and Sean. In 1992, Bob was sworn in and
served as a delegate for 14 years. He served on various committees, including the Committee on
the Chesapeake and its Tributaries (Chairman), the Courts of Justice Committee (Chairman), the
Rules Committee, and the Joint Republican Caucus Policy Committee (Chairman). He also
served as the Assistant Majority Leader from 2002-2005.
Shortly after his election, Bob accepted a position at Huff, Poole & Mahoney, P.C., a
general practice law firm in Virginia Beach where he practiced Health Care Law, Criminal and
Civil Litigation, and Administrative Law. Working at the law firm and serving in the Army
Reserve enabled Bob to support his family while serving in the House of Delegates. Albert
Poole, one of Bob’s former law partners, recalls watching Bob “grow as an attorney, as a public
servant, and as a man during that time period.” Albert Poole (Managing Partner). Bob “always
worked untiringly for his clients, particularly when he felt that someone had been treated
unjustly.” Id.
As a legislator, Bob strove to achieve much needed reforms to victims’ rights, drunk
driving, juvenile justice, tax, and child-protection laws. The former Chairman of Prevent Child
Abuse, Bruce Meyer, states that Bob “would go out of his way working on numerous child
protection bills which eventually became law.” Bruce Meyer. Mr. Meyer adds that the “easy
route” would have been to “not fight for the rights of children; however Bob never believed in
the easy route.” Id. Some of the initiatives Bob pursued included abolishing parole and

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strengthening DUI laws. See Jeb Wilkinson. 4 Victims’ rights advocate Polly Franks writes that
Bob’s efforts in abolishing parole had a “direct impact” on her family, explaining that her two
daughters were sexually assaulted by a man who, because of Bob’s initiative, was sentenced to
life in prison without parole. Polly Franks.
During this period of his life, Bob continued to display the values initially instilled in him
by his parents. Those who knew Bob as Delegate write that he “took his role as a public servant
very seriously” and “was highly thought of by both Democrats and Republicans as a
hardworking and honest person.” Michael Gelardi; Jeb Wilkinson. Bob “was willing to listen
intently to those who needed a moment of his time, even those who disagreed with his position.”
Senator Stephen Newman. 5 When drafting bills, Bob “always worked tirelessly to get every
single word of a bill correct . . . because he was always concerned about how the laws would
affect people in the real world.” Delegate David Albo. Bob would say, “‘We need to get this
right, or we will ruin someone’s life.’” Id. And when “faced with decisions that pitted political
expediency over what was best for Virginians, [Bob] always did what was right, and never what
was easy or politically correct.” Id. Likewise, one of his former law partners explains that Bob
“exhibited the highest ethical standards” in his law practice, always striving to do the right thing.
Jeffrey Brooke. A former client states that he admired Bob because he “played by the rules.”
Edward Garcia. “No matter the stakes or the adversity, [Bob] never turned to dirty tricks or
intimidation but remained the steadfast voice of reason.” Id. His former law partner adds that

4

See also James Fisher (writing about Bob’s commitment to reforming drunk driving
laws after learning that his 26-year-old son was killed by a drunk driver).
5

See also Delegate Scott Lingamfelter (recalls seeing Mr. McDonnell “debate on the
floor of the House and in every instance, he did so with the dignity of others in mind”).

7

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Bob consistently “shrank from matters in the ethical grey zone, refusing representation on
several occasions where he reasonably could have proceeded.” Jeffrey Brooke. 6
Delegate Paul Harris recalls witnessing first-hand Bob’s “character and humility” when
Republicans voted to terminate the services of the House Clerk, who they thought was “a
Democratic operative.” Paul Harris. Mr. Harris explains how Bob “saw it differently”:
He appealed to his colleagues to not let narrow-minded political ambition
override generally accepted standards of decency and propriety. While some
members tried to dispel their own doubts about the severity of the actions they
were about to take – by reasoning that they were in fact being fair, on ground that
they would only be treating Democrats the same way Democrats had treated them
for decades, Bob urged his colleagues to take the high road. I do not remember his
exact words, but the impression he left was that sometimes it's not enough to be
fair; we have to strive to do what's right.
Paul Harris. Ultimately, the clerk retained his position because of Bob’s commitment to doing
“what’s right.” Id. 7 Similarly, Eric Cantor, former U.S. House Majority Leader, who served
with Bob in the legislature for nine years and was his seatmate, writes about Bob’s “commitment
to keeping his word” when Bob “joined only three other of our colleagues in voting against the
Governor’s budget” because spending was too high. Eric Cantor. Mr. Cantor explains that the
“vote was a true test of standing by your principles despite fierce opposition, and Bob never
wavered.” Id.
E.

Attorney General (2006 – 2009)

Bob worked in private practice and served as a Delegate until 2005, when he was elected
Attorney General, winning by a mere 360 votes. He was responsible for an office of 160

6

One of Bob’s friends recalls that “Bob was offered a well-paid position in a local law
firm to simply add his name to the roster and use his status as a ‘rain maker’ without further
work required.” Gary Byler. Bob refused the job offer, “explaining he would not feel right
getting a check without working.” Id.
7

See also Stephen Newman (explaining that in every meeting he attended with Bob, “his
was the strongest voice pressing for honor and responsibility to service”).

8

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attorneys and 250 staff. He viewed his role as running the Commonwealth’s law firm, with his
clients now being state agencies and officials. Committed to the promises he made to Virginians
during his campaign, Bob successfully promoted 83 legislative proposals into law while in
office—combating sexual predators 8 and gang violence, protecting the environment,
safeguarding private property rights, reforming mental health, and strengthening Homeland
Security measures.
Despite his significant legislative achievements as Attorney General, Bob was most
passionate about his work in the community—including honoring veterans, collecting food for
food banks, and assisting in hurricane relief efforts. 9 Bob “put a high priority on doing anything
he could to honor our veterans,” including creating the “Wall of Honor” in the Attorney
General’s Office for deceased service members in the global war on terror, and holding an
annual ceremony where he “made it a point to talk with every family in attendance.” Adam
Zubowsky; Kathy Hayden; Brooke Trible. To help food banks with their collection efforts, Bob
launched the “Statewide Legal Food Frenzy,” which raised over two million pounds of food in
just the first two years, and 11 million pounds since 2007. 10 Since then, it “has grown to be one
of the most important, annual fundraisers for food banks across the country thanks to Bob’s
vision and willingness to get involved.” Kathryn Byler. Bob also took his entire family to Saint
Bernard Parish, Louisiana, where they stayed for a week at an outreach center and helped with
8

See Polly Franks (writing about the “Safe Kids Initiative” that Bob assisted in passing
into law in 2006).
9

Some of Bob’s other community service projects included mentoring young people,
giving Christmas presents to less fortunate Richmond children, volunteering at Habitat for
Humanity, and donating his time to local bar associations.
10

See also Christopher Gill (stating that Bob “traveled the Commonwealth to attend
countless luncheons and receptions promoting the Legal Food Frenzy, showed up for numerous
meetings to organize the program, and personally called on lawyers and law firms to
participate”).

9

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relief efforts after Hurricane Katrina. Pastor Randy Millet. Bob and his family “gutted a lady’s
garage, installed insulation and sheetrock in the garage, cut her grass, and made other needed
repairs to her home.” Id. Bob’s former policy adviser and legal counsel, Jasen Eige, writes that
the “most compelling aspect of this selfless endeavor was that he did not want this trip to be
public,” but instead “wanted this to be a time of service to those in need and a lesson for his
sons.” Jasen Eige.
One of Bob’s happiest moments as Attorney General was helping save Saint Joseph
Catholic School in Petersburg from closure due to insufficient funding. Without hesitation, Bob
showed up at the school and held a press conference asking people to donate. The former
superintendent, Annette Parsons, writes that because of Bob’s dedication, “money poured in and
the school survives until this day.” Annette Parsons. 11 The school lived on “because one man,
Bob McDonnell, took it upon himself to do the right thing without concern for any negative
political repercussions that might come his way.” Annette Parsons. Ms. Parsons remembers a
specific act of kindness shown by Bob that is “so telling of the man he is”:
That same day, after he finished speaking, the camera crews began to pack up just
as I was about to address the press. I turned to Mr. McDonnell, whom I had not
met, and asked him to please help to ensure that my message was heard. Even
though his staff was continuously prompting him to leave, he turned to the press
and said, this young lady has something to say, and he stood by my side until I
had finished my statement.
Id. Bob’s “innate compassion came through and he took the time to help an individual he had
never met who was in a difficult spot.” Id.
People who knew Bob as Attorney General remember him for his integrity, compassion,
and unique ability to care for others. For example, the former Democratic Attorney General of

11

See also Frank Ruff (noting that Bob’s “efforts led to a one million dollar contribution
that kept the school opened”).

10

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Maine, Andrew Ketterer, writes about a specific instance where Bob chose “to take the high road
rather than engage in partisan bickering.” Andrew Ketterer.

Bob was Chairman of the

Republican Attorneys General Association at the time. At a meeting in November 2008, “one
week after Senator Obama became President-elect Obama,” Republican Attorneys General were
“saying that they hoped he was a one term President and that all of his initiatives should be
blocked.” Andrew Ketterer. Mr. Ketterer recounts Bob’s response:
Bob, to his credit, publicly spoke out and said that he disagreed in the strongest
possible terms with his Republican AG colleagues. He said that he hoped that
President Obama could move this nation forward and heal the wounds that
separated us both politically and in other ways. He asked his Republican Attorney
General colleagues to reconsider their wishes that the Obama presidency fail.
Id. Despite the political consequences, Bob “had the guts and integrity to say exactly what
needed to be said.” Id. In addition, former staff members write about how Bob truly cared for
them—calling each of the 300+ employees “to wish them happy birthday,” Samantha Rucker;
“prioritiz[ing] morale and making sure each individual knew how much he valued his or her hard
work,” Brook Trible; and going “out of his way to reach out to staff members to help them –
whether it was a health crisis or death of a loved one or personal problem,” Jane Mims.
Maureen Matsen, former Deputy Attorney General who worked in the McDonnell
Administration as Deputy Secretary of Natural Resources and Senior Advisor on Energy, fondly
recalls Bob commiserating with her after learning she had just dropped off her only child for her
first year of college. Maureen Matsen.
F.

Governor (2010 – 2014)

After serving as Attorney General for a little over three years, Bob resigned in 2009 to
focus on his statewide campaign for Governor. He was sworn in on January 16, 2010 as the 71st
Governor of Virginia. Restricted by Virginia’s one-term limit, Bob was “determined to run a
four-year sprint to the end of the term.” Thomas Farrell (CEO of Dominion). A campaign

11

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volunteer explains that Bob “just wanted to make a difference and leave the Commonwealth
better than he found it.” Crystal Cameron. As soon as he entered office, Bob “assembled an
incredible team of people and inspired them to work tirelessly each and every day to increase
opportunity for all Virginians.” Abigail Sigler (former Deputy Press Secretary). A former
appointee in his Administration recalls Bob’s charge to his team—“serve like a champion
everyday.” Phil Miskovic.
Alongside his team of exceptional public servants, Bob “worked tirelessly to bring good
paying jobs to the state,” signing an executive order creating a commission on job creation and
economic development as soon as he took office. Senator Jeffrey McWaters. Bob’s persistent
efforts succeeded—172,900 net new jobs were created and Virginia’s unemployment rate
dropped from 7.4% to 5.2%, the 13th lowest in the nation and the 3rd lowest east of the
Mississippi River. Bob and his team accomplished other major milestones during his term as
well (see also Appendix 6), including:
•

posting four consecutive budget surpluses, the first administration to do so since
Governor Allen (1994-1998);

•

increasing the Rainy Day Fund by over 350%;

•

passing Virginia’s first long-term transportation fund plan in 27 years;

•

reforming higher education to generate 100,000 new degrees by 2025;

•

increasing Virginia’s agriculture and forestry product exports to $2.61 billion in
2012, an all-time high;

•

reforming the state pension system to reduce unfunded liabilities by $9 billion
over 25 years; reforming K-12 education; and

•

helping Virginia’s most vulnerable citizens—including restoring more civil rights
than any governor in state history, 12 reforming prisoner re-entry which helped

12

See Thomas Farrell (Bob “made more advancements in this area of reform than all of
his predecessors combined”).

12

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lead the Commonwealth to the second lowest recidivism rate in country, enacting
policies that reduced homelessness by 16%, 13 and launching the “Virginia Adopts
Program” which placed over 1,000 foster care children in permanent homes. 14
Of all the milestones achieved during his Administration, Bob was most passionate about
his efforts to reduce homelessness and restore civil rights for convicted felons. 15

Bob first

became interested in the former problem when he served at the Healing Place, a drug and alcohol
rehabilitation center for homeless men in Richmond. Bob Sledd, a friend, cabinet member, and
former CEO of a Fortune 500 company, recalls that Bob “was so moved by these men that he has
taken his family there every Christmas [Eve] for the last 5 years to be with them and serve them
dinner.” Bob Sledd. 16
As for the latter problem, Bob was “especially proud of his efforts to ease the path to
restore voting rights to convicted felons.” Thomas Farrell. U.S. Senator Tim Kaine, who has
known Bob “for nearly 15 years and worked particularly closely with him since 2006,” writes
that “[p]rior to 2002, Governors were generally sparing in their exercise of this power to restore
voting rights.” Senator Tim Kaine. “Governor Warner broke that tradition by restoring voting

13

See Kelly Horne (Director of Homeward) (Bob was “passionate, dedicated, and smart
when working with state agencies and homeless service advocates to improve how Virginians
respond to homelessness”).
14

See Bishop Paul Loverde (noting Bob’s “strong belief that every child deserves a
loving, stable home”).
15

See Matthew Cobb (former Deputy Secretary of Health and Human Resources)
(“Whether combating the homelessness problem in Virginia, encouraging support for the Central
Virginia Food Bank, or seeking innovative ways to find permanent adoptive homes for children
in Virginia’s foster care system, the Governor consistently sought to do what was best for those
in need”).
16

See also Karen Stanley (Executive Director of The Healing Place) (writing that when
Bob served, he “didn’t expect any fanfare – just got in the kitchen, put on his hair net, helped
serve the meal, and gave encouragement to the men in the program”); Tucker Martin (recalling
that Bob wanted to keep his visit to the Healing Place private, without press, because he was
“acting out of the goodness of his heart; not out of personal ambition or vanity”).

13

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rights to more than 3,000 people” and, Senator Kaine “worked hard to restore rights to nearly
4,500 people.” Id. However, “Governor McDonnell went well beyond what I had done and
restored voting rights to 8,000 people.” Id. Senator Kaine explains that this “merciful attitude
exhibited by this positive action is characteristic of him as an individual.” Id.
Many others who wrote letters to the Court also describe then-Governor McDonnell as
someone who always sought to do what was best for Virginians, even if it was politically
unpopular. 17 Virginia state Senator Richard Black, who served with Bob on the Courts of Justice
Committee in the legislature for eight years, explains that Bob “gained [gratification] from
feeling that he had implemented policies that would benefit all the citizens of our state.” Senator
Richard Black.

Former Secretary of the Commonwealth, Janet Kelly, recalls that in the

decision-making process, Bob would always ask, “What is the right thing to do?”18 Jeffrey
Ainslie, President of Sales, Operations, & Finance of the Ainslie Group, who has known Bob for
25 years, writes that Bob “consistently focused on the ‘right thing to do’ for those around him.”
Jeffrey Ainslie. Randall Minchew, former Deputy Counsel in the McDonnell Administration,
recounts a specific incident of Bob acting in the best interest of Virginians:
In his first year in office as the 2010 Census was being taken, Governor
McDonnell had the courage and strength of purpose to call for nonpartisan
17

See, e.g., Wick Moorman (CEO of Norfolk Southern Corporation) (noting that it was
“always clear that [Bob] was solely motivated to do what he felt was best for the Commonwealth
and its citizens); Senator Jeffrey McWaters (“Even at times when legislation was politically
unpopular, [Bob] advocated for policies in the best interest of the Commonwealth”); Secretary
Bryan Rhode (former Secretary of Public Safety) (stating that Bob always made decisions not
looking out “for himself, but because it was right and beneficial for Virginia”); Director Jane
Brown (former Director of Community Partnerships) (noting that in every action he took, Bob
“put the interest of the Commonwealth and of its citizens at the forefront of what he did”).
18

See also Dr. Todd Parker (retired Naval Officer) (writing that “at every turn [Bob’s]
most pressing concern was ‘what was right’…for the State of Virginia and its citizens”); Deputy
Secretary Charles James (former Deputy Secretary of Administration) (recalling that on difficult
issues, Bob “habitually asked, ‘What is the right thing to do?’”).

14

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redistricting despite strenuous opposition from House and Senate leaders of his
own Republican Party. A lesser man would have quickly backed down, but
Governor McDonnell stood strong to his beliefs that nonpartisan redistricting was
in the best interests of Virginia and would yield decennial redistricting plans that
would be more compliant with federal law.
Randall Minchew. Mr. Minchew confirms that he has “never known a man who is more
fundamentally honest and centered on integrity than Governor McDonnell.” Delegate Randall
Minchew. Jasen Eige recalls a similar example relating to the “historic transportation funding
legislation” that Bob initiated in 2013. While “[m]any told him that the political risks were too
high and that the legislation would never pass,” Bob pursued it anyway because he “strongly
believed this legislation was needed to serve the best interests of the Commonwealth and its
citizens.” Jasen Eige.
Hundreds of letters also describe Governor McDonnell as someone who genuinely “loved
people and showed that love and respect equally toward those he met.”

Senator Stephen

Newman. Bob demonstrated his remarkable care and compassion for others by helping the
injured, loving and respecting his staff, listening to people’s needs and concerns, and consoling
those who were suffering. Former Secretary of Natural Resources, Douglas Domenech, recalls
Bob helping an individual who was injured on a boat ride following their plant tour:
I was standing next to Rex when he literally “hit the deck”. And he hit hard. Not
knowing how injured he might be, I propped him up with my legs. To my
surprise, it was not the trained marine law enforcement agents or the boat captain
or the Governor’s protective agents who jumped to administer aid. It was Bob
McDonnell. The Governor of the Commonwealth of Virginia, the former Boy
Scout, the former Army Officer was immediately there offering first aid. With
Rex leaning on my legs I had a front row seat to the compassionate Bob
McDonnell, checking his vital signs, unbuttoning Rex’s shirt, asking him
questions about his pain and medical history.
Douglas Domenech. Former members of the Administration praise Bob for his compassion and
care for them—treating “everyone with the utmost dignity and respect,” and going out of his way

15

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to make them feel “so appreciated for their work,” including “handwritten notes to phone calls
on birthdays” and “countless words of encouragement.” Ashley Myers; Kristin Jennings; Phil
Miskovic. 19 Many others write about how Bob cared for them by listening to their needs and
concerns. A leading Virginia businessman and longtime friend, Bruce Thompson, writes about
Bob’s compassion for patients with ALS, or Lou Gehrig’s Disease, at his annual fundraiser:
He patiently sits for hours with them sorting out sentences and waiting for
translation from care givers. He holds their hand, he consoles care givers and he
focuses on every word as if they are the most important people in the world. . . .
The time the Governor of Virginia spent with them not only lifted their spirits but
gave them hope in that they were not forgotten.
Bruce Thompson. Similarly, former Secretary of Public Safety, Bryan Rhode, writes about
Bob’s compassion towards Virginia’s National Guard soldiers and airmen when he visited
Kuwait and Afghanistan in 2013. Bryan Rhode. “Mr. McDonnell met with as many of service
personnel as he possibly could, hearing their problems and concerns, and thanking them for their
service.”

Id.

As part of his prisoner re-entry initiative, Bob also displayed his care and

compassion towards inmates:
He went through all the units of the prison. He met with staff but spent the
majority of his time talking with those incarcerated. He listened attentively to
their concerns and refused to be rushed or interrupted during those conversations.
And then as was his practice in dealing with all constituents, he followed up. He
had staff and agencies look into the issues brought before him and he asked for

19

See also Geneva Peck (noting that her daughter, Generra, who worked for the Secretary
of Commerce & Trade and later as a policy staffer in the McDonnell Administration, “was
always treated with respect and concern”); Stacey Johnson (former Press Secretary) (noting that,
if she made a mistake, Bob “would reassure [her] that [she] was doing a good job and serving the
Commonwealth well, communicating his understanding that we’re human and make mistakes”);
Jennifer Crown (former Director for the Notary and International Authentication Documents and
Pardons Specialist) (recalling that Bob gave her several handwritten thank you notes for her
work); Annie Morris (recalling her surprise on her first day working on Governor McDonnell’s
policy staff, when the Governor stopped by her office to make sure she “was settling in
comfortably and to ask if there was anything he could do for [her]”).

16

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reports back on their resolution. He also sent a letter to each of the inmates with
whom he spoke and encouraged them on their path of return to the community.
Jane Brown (former Director of Community Partnerships).
Many others write about how Bob cared for them during difficult times. 20 As the letters
attest, Bob never failed to drop whatever he was doing to comfort those who lost a loved one or
check on someone who was hurt. 21 Lisa Hicks-Thomas, former Secretary of Administration,
recalls the “unwavering support” she received from Bob when she lost her mother “to a long
battle with Alzheimer’s.” Lisa Hicks-Thomas. Ms. Hicks-Thomas recounts that she “will never
forget seeing him arrive at the wake on the night before the funeral.” Id. Although Ms. HicksThomas “hadn’t expected him to attend,” she wasn’t surprised “knowing the kind of man he is.”
Id. 22 He even reached out to people he had never met before to provide comfort and support.
When he learned that a 16 year-old Richmond girl had died after running a half-marathon, Bob
immediately called her grandfather to share in his “grief and offer his concern and support.”
Thomas Gallagher. 23

20

See Philip Cox (recalling an incident while serving as Campaign Manager in the
McDonnell Administration where Bob “listened, supported, cried, and prayed” with him during
“a very difficult period following a divorce”); Cheryl McLeskey (recalling Bob’s compassion
toward a woman who had just lost her husband); Matt Lohr (writing about Bob’s “tremendous
compassion” when he comforted him when his wife passed away).
21

See Robert Rhode (writing that when Bob learned his son had been injured on New
Year’s Day, he immediately left his party and drove to the hospital to check on him).
22

See also Deputy Secretary Keith Hare (recalling how Bob stopped a meeting to call
him when his mother unexpectedly passed away).
23

See also Ryan Lodata (recounting when Bob reached out to a man he had never met
who had emailed the Governor to say that his wife had terminal cancer and “wasn’t sure what to
do”).

17

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G.

Personal & Family Life

Bob is very close with his four younger siblings: Nancy Naiswald, age 58, a school
teacher who resides in Lynchburg; Eileen Reinaman, age 54, a federal government investigator
who resides in Stafford; Kenneth McDonnell, age 51, a physician who resides in Yardley,
Pennsylvania; and Maureen McDonnell, age 49, a sales executive who resides in Virginia Beach.
Bob is particularly close with his youngest sister, Maureen, who has always looked to Bob as a
father figure. Maureen C. McDonnell. Bob and his siblings grew even closer when their parents
passed away—first their mother in 1994 at the age of 66, and then their father in 2010 at the age
of 94.
Bob and his wife have been married for 38 years and have raised five accomplished
children.

His oldest daughter, Jeanine, is a 33-year-old vice president of Command Post

Technologies who resides in Virginia Beach with her husband, Adam Zubowsky. Following in
her father’s footsteps, she attended the University of Notre Dame on an ROTC scholarship and is
a former Lieutenant in the U.S. Army and an Iraq War veteran. In January 2015, Jeanine and her
husband are expecting their first child and Bob’s first grandchild. Cailin is a 30-year-old victimwitness coordinator for the Henrico County Commonwealth’s Attorney and resides in Richmond
with her husband, Chris Young. Rachel is a 26-year-old communications specialist at Norfolk
Southern Corporation and lives in Virginia Beach. Bobby and Sean, both 23 years old, are
graduate students who attend Duke University and Vanderbilt University, respectively, expected
to graduate in May 2015 with masters degrees.
Bob has always “tried to be a good father to his five children and he has tried very hard to
be a good husband to Maureen.” Attorney General Andrew Ketterer. A friend who served with
Bob in the House of Delegates recalls witnessing “first-hand his love and affection for his
family.” Delegate Paul Harris. No matter what he was doing, Bob would “put everything on

18

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hold to take calls from his children and ensure that they had uninterrupted access to their father.”
Senator Bill Carrico. 24 As Bob recently said to one of Cailin’s friends, “No title, office, or job
could ever surpass the honor and joy that being a father has brought me.” Josefina Whitmore.
Despite his efforts, Bob has admitted that his family life became overwhelmed by his duties as
Governor, and he failed to give his family the time, attention, and leadership they deserved
during those four years. 25 As one of Bob’s friends from high school concludes, the “lure of
public service and the responsibilities that came with it gave [Bob] pause from what mattered
most, the needs of his family.” Michael Boland.
The other most important part of Bob’s life is his faith, which “influences everything he
does.” Senator Bill Carrico. Delegate Harvey Morgan, who shared an apartment with Bob for
eight years during legislative sessions, writes that Bob is “a person of strong religious faith and
diligent in living by that faith.” Delegate Harvey Morgan. 26 Bob’s former legislative assistant
recalls praying with him each day “before he went into Session to pass the laws that would affect
all Virginians.” Lisa Sutton. Bob continued that tradition when he became Governor, opening
“cabinet meetings in prayer seeking wisdom and strength while serving the Commonwealth.”

24

See also Trixie Averill (former campaign director) (“Every single evening he would
call each one of his kids and talk to them about their day, ask questions about their day at school,
ask how they were doing, say how much he loved them and wish them a good night”); Jennifer
Rodriguez (writing that when “it came to his kids, [Bob’s] love and attention were endless”);
Secretary James Cheng (stating that “no matter how busy he was, before, and sometimes during
our trips, [Bob] would take time to call his family, especially his children”); Lisa Foster (recalls
Bob’s “love for his children and their love for him as he brought them to events”).
25

See Richard Black (stating that Bob was “far more devoted to the Commonwealth of
Virginia than he was to himself”).
26

See also Mary Mints (noting that Bob has always “been a deeply religious man of good
moral character”); Andrew Ferguson (writing that Bob is “a deeply spiritual man, and his faith
governs the way he lives his life”); Bill Carrico (Bob “is one of the most faithful and Godly men
I have ever had the pleasure of knowing”).

19

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Jasen Eige. 27 Throughout his time as Governor, Bob also “continued to be a regular member of
a weekly Bible study that takes place during the General Assembly Session.” Dickie Bell. 28 This
was a Bible study he founded with now Speaker of the House of Delegates Bill Howell in 1992.
These acts were “not a public display intended for show, but a glimpse into the heart of a true
servant leader.” Jasen Eige.
ARGUMENT
I.

THE PROPER SENTENCING GUIDELINES RANGE IS 33 TO 41 MONTHS
As will be explained in more detail in Mr. McDonnell’s Objections to the Presentence

Investigation Report, the appropriate Sentencing Guidelines calculation for Mr. McDonnell
yields a sentence range of 33 to 41 months. A sentence of imprisonment of any length, however,
much less one of ten years or more, would be a severely disproportionate punishment because a
departure is warranted under Guideline § 5K2.0 (Grounds for Departure) and a variant sentence
is appropriate given the sentencing factors that must guide the Court’s decision under 18 U.S.C.
§ 3553. For the reasons explained in Part II, infra, a variant sentence of probation with full-time,
rigorous community service of 6,000 hours best serves the goals of justice, fairness, and mercy in
this case.

27

See also Jasen Eige (recalling that Bob “regularly prayed over meals, whether at a
formal dinner in the Mansion or when having lunch meetings with staff”); Emily Rabbitt
(recounting that Bob always said a “brief prayer of thanksgiving to God before he ate his meal”).
28

See also Speaker Bill Howell (recalling his weekly bible study with Bob and getting “to
know the depth of his character as we shared openly and honestly about our victories and our
struggles”); Attorney General Andrew Ketterer (recounting a trip to Israel with fourteen former
and current Attorneys General where Bob read sections of the Bible when they visited various
religious sites).

20

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II.

APPLICATION OF THE 18 U.S.C. § 3553 FACTORS COMPEL A VARIANT
SENTENCE
While the Court must consider the Guidelines calculation as part of the sentencing

process, the Guidelines merely “serve as one factor among several courts must consider in
determining an appropriate sentence.” Kimbrough v. United States, 552 U.S. 85, 90 (2007).
Rather than simply impose a sentence within the Guidelines range, the Court must consider the
whole range of factors listed in 18 U.S.C. § 3553 and determine the sentence that is “‘sufficient,
but not greater than necessary,’ to accomplish the goals of sentencing.” Id. at 101 (quoting 18
U.S.C. § 3553).

Indeed, the Court may not even “presume that the Guidelines range is

reasonable,” but “must make an individualized assessment based on the facts presented.” Gall v.
United States, 552 U.S. 38, 50 (2007). The sentencing court has wide latitude to impose a
sentence below the Guidelines range, “perhaps because (as the Guidelines themselves foresee)
the case at hand falls outside the ‘heartland’ to which the Commission intends individual
Guidelines to apply, perhaps because the Guidelines sentence itself fails properly to reflect
§ 3553(a) considerations, or perhaps because the case warrants a different sentence regardless.”
Rita v. United States, 551 U.S. 338, 351 (2007) (internal citations omitted). Here, the § 3553(a)
factors overwhelmingly support a sentence that is far below the suggested Guidelines range.
Instead of prison, sentencing Mr. McDonnell to full time, rigorous community service for 6,000
hours would be “sufficient, but not greater than necessary” to satisfy the statutory factors.
A.

Bob McDonnell’s history and characteristics support a sentence well below
the Guidelines range

In determining the particular sentence to be imposed, 18 U.S.C. § 3553(a)(1) directs the
Court to consider the “history and characteristics of the defendant.” A variant sentence is
appropriate where a defendant has no criminal history. See United States v. Autery, 555 F.3d
864, 874 (9th Cir. 2009) (because “Criminal History Level I did not fully account for

21

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[defendant’s] complete lack of criminal history, considering it as a mitigating factor was not
redundant or improper.”) (emphasis added)); United States v. Morales, 972 F.2d 1007, 1011 (9th
Cir. 1992) (“a district court may depart below Criminal History Category I in instances where the
court concludes that the offense of conviction is a single aberrant act of criminal behavior”).
Moreover, a sentencing court may also find downward departure appropriate if a defendant’s life
has demonstrated “exceptional” good works for the community. See United States v. Cooper,
394 F.3d 172, 178 (3d Cir. 2005).
Bob McDonnell’s 38 years of state and federal public service and good character—not
adequately accounted for in the Guidelines range—weigh strongly in favor of a non-incarcerative
sentence. As the hundreds of letters and notes submitted to the Court from Bob’s family, friends,
professional colleagues, and constituents attest, Bob has adhered to the highest ethical standards
throughout his life, and the mistakes in judgment that led to this case are completely inconsistent
with his life as a whole. Moreover, Bob has tirelessly served his country and the Commonwealth
for four decades and has consistently put the needs of others above his own. Finally, Bob has
strong ties with his family and plays an indispensable role in the lives of his siblings and
children. See family letters. Accordingly, any sentence within the Guidelines range would be far
greater than necessary to achieve the § 3553 sentencing goals, and a non-incarcerative sentence
is warranted.
1.

Exceptional character

Courts may impose a sentence below the Guidelines range where, as here, the offense
conduct was an aberration and fundamentally at odds with defendant’s life and character. See
United States v. Benkahla, 501 F. Supp. 2d 748, 761 (E.D. Va. 2007) (awarding downward
variance where letters attest to defendant’s “honor, integrity, moral character, opposition to
extremism, and devotion to civic duty”); United States v. Ranum, 353 F. Supp. 2d 984, 991 (E.D.

22

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Wis. 2005) (imposing non-Guidelines sentence for defendant’s “otherwise outstanding
character”). Bob accepts full responsibility for his poor decision to accept travel, golf, and loans
from Mr. Williams, but these mistakes in judgment are completely inconsistent with the
character that Bob has shown throughout his life.
As the supporting letters and witnesses testifying have and will relate, Bob has
consistently adhered to the highest moral standards, respecting the law and acting with honesty,
integrity, and sound moral character in every situation. 29 That history alone supports a belowGuidelines sentence.

See, e.g., United States v. Howe, 543 F.3d 128, 132 (3d Cir. 2008)

(affirming downward variance where defendant committed “isolated mistake” in an otherwise
“honorable and lawful life”); United States v. Cherry, 366 F. Supp. 2d 372, 377 (E.D. Va. 2005)
(awarding downward variance where letters reflected that offense was “an instance of poor
judgment and aberrational behavior”). Many of the letters attesting to Bob’s character describe
him as: “trustworthy, honest, and of the utmost integrity,” Secretary Todd Haymore; “a man of
impeccable character,” Delegate Scott Lingamfelter; “a paragon of integrity,” Harvey Bryant
(former federal prosecutor); a person of “strong moral fiber and basic integrity,” Michael
Thompson; and “an absolute stickler for complete honesty,” David Hummel. According to Col.
Gary Nelson, “integrity is a cornerstone of who he is.” Gary Nelson.

29

College roommate and

See, e.g., Charles Steger (former President of Virginia Tech) (stating that “there was
never an instance in which I observed him acting in any way inappropriately for his office, nor
did he ever request of me any action which was not appropriate”); Secretary James Duffey
(noting that in working with Bob, he was “honorable, honest and respectful of the applicable
laws and regulations”); Secretary Terrie Suit (stating that she has “never observed a material,
selfish or corrupt characteristic in [Bob’s] person”); Gary Baise (former Acting Deputy Attorney
General of the United States) (“Never once in my many years of association did Mr. McDonnell
ever suggest or commit any action that I felt was unbecoming or demonstrated bad judgment.”);
Paige Hahn (former finance director) (stating that she “never once saw, heard or otherwise
witnessed Governor McDonnell do anything that would have been perceived as unethical”);
Monica Block (former scheduler) (“I have never met a more decent and principled person”).

23

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longtime friend Mike Laird states that “Bob’s character and integrity are second to none.” Mike
Laird.

And, at trial, Reverend Tim Scully testified that Bob “is a person of great moral

character and strength of character.” Trial Tr. 4287:4-5.
Others who wrote letters elaborate further, describing Bob as one of the most ethical
people they know. Delegate David Albo, who served 12 years with Bob in the legislature, states
that “Bob McDonnell has truly been the most honorable, most trustworthy, and absolute kindest
man.” David Albo (emphasis in original). Delegate Glenn Davis, his former legislative aide,
writes that Bob “is one of the most sincere, ethical, and caring men that I have ever met.”
Delegate Glenn Davis. A leading Virginia businessman, who has known Bob for twenty years,
writes that he has “never had discussions with any Governor that displayed more honesty and
integrity” than Bob McDonnell. Heywood Fralin. Gary Byler, an attorney and long-time friend,
states that Bob is “one of the most honorable and truthful individuals to engage in the
Commonwealths’ politics these past 40 years.” Gary Byler.
Those who worked for Bob’s administration hold similar beliefs. Former campaign
manager Phil Cox writes that he “can say with no uncertainty, that Bob McDonnell is the most
ethical, honest, and faithful public servant and politician I have ever worked with.” Philip Cox.
Janet Kelly, former Secretary of the Commonwealth, testified at trial that Bob “is one of the most
honest people I know.” Trial Tr. 3739:19. Finally, former campaign director Trixie Averill
explains that Bob “is one of the most gentle, kind, honest, ethical, and empathetic people I’ve
ever had the privilege of knowing.” Trixie Averill. The hundreds of letters and trial testimony
from both government and defense witnesses confirm that Bob is not a man who regularly
exercises poor judgment, breaks the law, or straddles the line between right and wrong. This fact
was also confirmed by the Government’s own intensive two-year investigation.

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2.

A lifetime of public service

In determining a sentence, the court may also consider a defendant’s good deeds and
public service.

See, e.g., United States v. Rita, 551 U.S. 338, 365 (2007) (Stevens, J.,

concurring) (noting that a sentencing judge may consider public service under § 3553(a));
United States v. Adelson, 441 F. Supp. 2d 506, 513-14 (S.D.N.Y. 2006) (recognizing defendant’s
good deeds, including numerous acts of compassion and generosity). Military service is an
additional basis for downward departure. United States v. Howe, 543 F.3d 128, 139 (3d Cir.
2008) (district court appropriately considered “lengthy and positive records of past military
service”). For the past 38 years, Mr. McDonnell has devoted his life to public service, serving
his country in the U.S. Army and serving the people of Virginia as a prosecutor, legislator,
Attorney General, and Governor. Lowell Morse, a close friend of Bob’s for 25 years, recalls
asking him “why he was willing to pay the price of being a politician.” Lowell Morse. Bob
responded, “That is my calling. I have a heart and a desire to serve the public.” Id.
For Bob, public service “is neither a calling of convenience nor a political parade: he
actually wants to help people.”

Secretary Gerard Robinson.

Rod Rodriguez, a Virginia

businessman who knows Bob personally, recalls having witnessed over the years “the genuine
concern he has for other people and their needs.” Rod Rodriguez. People who worked with Bob
describe him as “an exceptional leader, largely because the things he did were never about him.”
Secretary Bryan Rhode. As his former press secretary explains, Bob “constantly puts others
needs above his own.” Crystal Cameron. 30
Many letters also describe Bob as one of the most caring and compassionate public
servants they have encountered. Former policy analyst, Phil Miskovic, describes Bob as “the
30

See also Aaron Mathes (former Deputy Secretary of Technology) (stating that Bob
“daily put the needs of others ahead of his own needs”).

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most selfless, compassionate public servant I’ve ever known.” Phil Miskovic. His son-in-law,
Chris Young, writes that “Bob McDonnell cares for the well being of others unlike any other
individual I have ever met.” Chris Young. Similarly, Senator Mark Obenshain, who has known
Bob for many years, considers Bob to be “one of the most thoughtful and caring individuals [he]
has encountered in public life.”

Senator Mark Obenshain.

Robert McDowell, former

Commissioner of the FCC, describes Bob as “one of the most upstanding, thoughtful, and caring
people I have ever met.” Robert McDowell. Likewise, Jeb Wilkinson, who has known Bob for
24 years, writes that Bob “is without a doubt one of the most caring and honest people.” Jeb
Wilkinson. Former legislative assistant Lisa Sutton similarly states that Bob “is, by far, one of
the most selfless men I know.” Lisa Sutton.
Bob is a “true public servant and caring human being who, unlike many of us, has his
heart in the right place.” Deputy Secretary Cameron Kilberg. As attested to by the hundreds of
individuals who submitted letters or wrote notes, Bob is an exceptional servant leader who truly
cares for people—listening to people’s needs and concerns, helping those who are injured or in
need, and comforting people in times of suffering. If Bob “is allowed to remain out of prison, it
is without a doubt that he will live an honorable and service-minded life dedicated to the helping
of others.” Chris Young.
3.

Strong family bonds

Under the § 3553 analysis, family ties “are pertinent to crafting an appropriate sentence.”
United States v. Nellum, No. 2:04-CR-30, 2005 BL 88941, at *4 (N.D. Ind. Feb. 3, 2005). Mr.
McDonnell is extremely close with his immediate and extended family, who have supported him
throughout this entire process and will continue to do so. See, e.g., Benkahla, 501 F. Supp. 2d at
760 (awarding downward variance based on, among other things, defendant’s “strong, positive
relationships with friends, family and the community”); United States v. Harding, No. 05 CR

26

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1285-02 , 2006 WL 2850261, at *5 (S.D.N.Y. Sept. 28, 2006) (awarding a non-Guidelines
sentence, taking “note of the significant network” ready to support defendant). As discussed,
Bob shares a close relationship with his four siblings. Bob is also very close with each of his
five children and is a role model to them, their spouses and their friends. See United States v.
Myers, 353 F. Supp. 2d 1026, 1031 (S.D. Iowa 2005) (imposing non-Guidelines sentence where
defendant had “been a steadfast and guiding presence in his family’s life”).

His children

“depend on him and look to him for his advice and love.” Amanda Malbon. Bob’s youngest
daughter, Rachel, writes that he “is a true role model for his children and so many others” and
has “so much more to teach his five children.” Rachel McDonnell. Bob’s son-in-law, Chris
Young, explains that he seeks Bob’s “advice when making major life decisions and value[s] his
input greatly.” Chris Young. His twin boys just began graduate school and need their father’s
guidance deciding on a career path and making other important life decisions. Sean McDonnell
writes that his “Dad is [his] absolute hero” who he “aspire[s] to emulate” every day. Sean
McDonnell. 31 Bob “is their rock, their moral compass, and most importantly, their best friend.”
Jessica Arndt. Moreover, Bob will become a first-time grandfather when his daughter Jeanine
has her first child in January 2015 and his “involvement in [Jeanine’s] life is of paramount
importance.” Russell Curtis. “[T]he entire family leans heavily on each other, respects each
other, and stresses the importance of putting family first.” Alvare Family. 32 As Bob’s daughter
Cailin explains, “My father is the heart and soul of our family and we would be lost without
him.” Cailin Young.

31

See also Jessica Arndt (stating that both Bobby and Sean have “expressed to [her] that
their dad is their hero”).
32

See also Hillary Alvare (noting that she has witnessed “Sean’s admiration, love, and
respect for his father through every decision he makes and through his every day actions”).

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4.

Mercy to others

Throughout his life, Bob has consistently shown mercy to others when he was in a
position to wield power. While an officer in the Army Reserve, Bob always “showed a gracious
and understanding patience with those who strayed from the path, gently piloting those who
erred back onto the right road and successfully shepherding them back into the fold.” Terry
Lindvall. As discussed supra, Bob demonstrated mercy by giving “second chances” to convicted
juvenile defendants as a prosecutor. See Cheryl Hargrove; Senator Tim Kaine. He also felt so
strongly about restoring rights to convicted felons that he made it a centerpiece of his
administration. See Thomas Farrell. Todd Stottlemeyer, CEO of Acentia who has worked
closely with Bob over the years, writes that Bob “did not take on this issue because it was
politically popular,” but rather “because he believed it was the right thing to do, and that he
believed our civil society needed to focus as much attention on forgiveness and redemption as
we do on administering justice.” Todd Stottlemeyer. 33 According to his former Secretary of
Education, Bob restored rights of convicted felons because he firmly believes “that people need a
second chance in life.” Secretary Gerard Robinson. As someone who has consistently shown a
merciful attitude towards others, Bob deserves to be shown mercy in return now that he himself
is facing sentencing. Mr. Lindvall explains it best in his letter to the Court: “To those who show
such grace, I would ask that grace and mercy be given.” Terry Lindvall.

33

See also Jasen Eige (“There are arguably many reasons not to pursue these policies,
but Governor McDonnell believed these actions were the right thing to do for the
Commonwealth and its citizens”); Martin Brown (stating that when talking about restoration of
rights, Bob would say “‘we are a nation of second chances,’ ‘we believe in forgiveness and
restoration’”); Bishop Francis DiLorenzo (noting that restoring rights was “especially
meaningful” to Bob because of his “strong personal belief in the value of redemption and
forgiveness”).

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B.

The nature and circumstances of the offense compel a below-Guidelines
sentence

The Court must consider the “nature and circumstances of the offense” in determining the
sentence to be imposed. 18 U.S.C. § 3553(a)(1). Because “[a]typical cases were not ‘adequately
taken into consideration’” by the Guidelines, “factors that may make a case atypical provide
potential bases for departure.”

Koon v. United States, 518 U.S. 81, 94 (1996) (quoting

Guidelines).
Mr. McDonnell was convicted of performing official acts for Jonnie Williams and Star
Scientific in exchange for receiving things of value from them. Mr. McDonnell’s actual conduct,
however, differs in critical ways from that of others who have been convicted under the same
federal bribery laws. Even accepting arguendo that the Government met its burden of proof with
respect to the quid, the quo, and the pro, a closer examination of the evidence underlying each of
those elements leaves no doubt that Mr. McDonnell’s actions do not deserve to be punished as if
this were a run-of-the-mill bribery case.
First, the quid alleged in this case is atypical. Mr. McDonnell did not demand or receive
cash payments from Mr. Williams. He did not take briefcases of money or hide stacks of $100
bills in his freezer. Rather, the quid that the indictment charges that Mr. McDonnell or his
family members received were gifts— a wedding gift to Mr. McDonnell’s daughter and several
rounds of golf at Mr. Williams’s country club—as well as three loans at commercial rates that
the McDonnells paid back with interest. 34 Mr. McDonnell’s decision to accept these items—
while certainly poor judgment—must be viewed in the context of Virginia state ethics laws,

34

While there was testimony at trial about other gifts from Mr. Williams to Mr.
McDonnell or members of the McDonnell family (about some of which Mr. McDonnell did not
have real-time knowledge), these were not charged in the indictment and so were not part of the
jury’s verdict.

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which (at that time) expressly permitted state officials to accept unlimited gifts of this nature. 35
His actions must also be viewed in the context of the culture of Virginia politics, in which
numerous state officials routinely took advantage of these laws and accepted luxury vacations,
rounds of golf, sports tickets, dinners, and other things of value from donors and wealthy
hangers-on. 36 That Mr. McDonnell and his family failed to resist this culture is, as he has said
many times, a personal failing and one of the greatest regrets of his life. But this background is
essential to understanding the circumstances in which a Governor with a national profile and
seemingly limitless potential would make the decision to accept gifts from a wealthy local
businessman.
Second, the quo alleged is even further outside the realm of a typical bribery case. Mr.
Williams did not receive any state funds, legislation, contracts, or board appointments. Nor did
Mr. McDonnell ask anyone in state government to provide those things. Rather, the actions that
resulted in Mr. McDonnell’s conviction were attending a lunch at the Governor’s mansion with
Star Scientific representatives; requesting that a Department of Health and Human Resources
staffer attend a meeting with Mr. Williams; sending an email to his counsel asking to discuss Mr.
Williams’s company; failing to stop the First Lady’s office from inviting Mr. Williams and his
colleagues to a mansion reception; and possibly suggesting during a staff meeting that health
officials meet with Star Scientific. Critically, Mr. McDonnell never once advocated for any
particular outcome for Star, and apart from hearing him out in meetings, no state official took

35

The Court instructed the jury that “[t]here has been no suggestion in this case that Mr.
McDonnell violated Virginia law.” Trial Tr. 6125 (Court’s jury instructions).
36

See, e.g., Wilson Andrews, “The perks of politics: A decade of gift-giving”,
Washington Post, June 13, 2013, available at http://www.washingtonpost.com/wpsrv/special/local/virginia-gifts/# (reporting $3.1 million in reported gifts to Virginia public
officials between 2002 and 2012, including $3,000 vacation from Jonnie Williams to Attorney
General Ken Cuccinelli and $2,521 ten day bear hunt for Rep. Watkins Abbitt).

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any action on Mr. Williams’s or Star’s behalf. As discussed further in Part II.E, infra, we have
been unable to find a single example of any federal or state bribery conviction in any jurisdiction
in American history based on facts like these. It would be a tremendous injustice to send Mr.
McDonnell to prison for this conduct.
The access-oriented nature of the quo alleged also supports Mr. McDonnell’s testimony
that he never thought that anything he did with respect to Mr. Williams was illegal because all he
intended to provide was “the routine access to government that any donor, non-donor, gift giver,
non-gift giver would be able to get in terms of meetings, having the Governor present for a check
presentation, having people to Mansion events.” Trial Tr. 4367:3-6 (R. McDonnell). While the
Court has ruled that, in its view, Mr. McDonnell’s actions could amount to “official acts,” it
acknowledged that there is a “fine line” between “routine official duties and public corruption.”
Mem. Op. at 4 (ECF #567).

The fact that, even under the Government’s theory, Mr.

McDonnell’s actions fell just on the wrong side of that fine line warrants a lenient sentence.
Third, there is no dispute that as to pro, Mr. McDonnell had at worst mixed motives for
taking actions that benefited Star Scientific. The Government admits that there was never any
stated agreement between Mr. McDonnell and Mr. Williams to trade gifts for state action. See
Trial Tr. 6045:10-11 (Gov’t Closing) (“There is no express agreement in this case.”). In lieu of
such an agreement, the Government argued that the fact Mr. McDonnell did the various things
for Star Scientific noted above supports a conclusion that there was a ‘nod and wink’ deal. But,
as was evident during his testimony, Mr. Williams is a talented salesman who has made a
lucrative career out of convincing sophisticated decision-makers to support and invest in his
companies.

Mr. McDonnell (and many others) genuinely believed Mr. Williams’s claims

(supported by various prominent scientists and researchers) that Anatabloc was a promising

31

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invention that could both improve public health and help revitalize the economically depressed
tobacco region in Virginia. 37 And it is undisputed that the actions he took related to Star are
things that Mr. McDonnell routinely did for countless Virginia businesses. Even though the jury
apparently found that Mr. McDonnell took these actions in part because of the things of value he
received from Mr. Williams, Mr. McDonnell truly believed that Star Scientific could create jobs
and improve the health of Virginia citizens. That good intent weighs against the imposition of a
Guidelines sentence.
C.

Mr. McDonnell’s trial and conviction act as powerful deterrents to criminal
conduct

While the Court must impose a sentence that “afford[s] adequate deterrence to criminal
conduct,” 18 U.S.C. § 3553(a)(2)(B), it is not necessary to imprison Mr. McDonnell to
accomplish that goal. Many courts have recognized that the collateral consequences of a trial
and conviction—especially in a highly publicized case like this one—can serve as a powerful
deterrent to potential criminals. See, e.g., United States v. Pauley, 511 F.3d 468, 474-75 (4th Cir.
2007) (downward departure warranted where defendant “lost his teaching certificate and his state
pension as a result of his conduct,” which provided adequate deterrence under 3553(a)(2)(B));
United States v. Edwards, 595 F.3d 1004, 1016 (9th Cir. 2010) (holding that § 3553 “does not
require the goal of general deterrence be met through a period of incarceration” and upholding
district court’s determination that probation and restitution provided adequate deterrence, despite
Guidelines range of 27-33 months imprisonment); United States v. Stewart, 590 F.3d 93, 141 (2d
Cir. 2009) (sentencing court properly considered that the “conviction itself already visit[ed]

37

See Trial Tr. 4369:5-10 (R. McDonnell) (“I understood that this was actually a
substance coming directly from a tobacco plant and that if this really held any promise and could
in some way not only deliver some human good by its nutritional or healthcare efficacy and it
could create jobs in the tobacco region of the state, that that would be a positive thing.”)

32

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substantial punishment” on defendant by likely barring him from future work in his profession
(internal quotation marks omitted)); United States v. Anderson, 533 F.3d 623, 633 (8th Cir.
2008) (court properly considered “atypical punishment such as the loss of [defendant’s]
reputation”); United States v. Sachakov, No. 11-CR-120, 2013 WL 101287, at *3 (E.D.N.Y. Jan.
8, 2013) (fact that defendant was likely to lose medical license relevant to setting appropriate
sentence); United States v. Adelson, 441 F. Supp. 2d 506, 514 (S.D.N.Y. 2006) (“With his
reputation ruined by his conviction, it was extremely unlikely that he would ever involve himself
in future misconduct.”).
Research on deterrence and criminal sentencing also proves that, particularly for white
collar criminals, “informal sanctions (such as social censure, shame, and loss of respect)” are
“equally important [as imprisonment] in producing the deterrent outcome.” Zvi D. Gabbay,
“Exploring the Limits of the Restorative Justice Paradigm: Restorative Justice and White Collar
Crime,” 8 Cardozo J. Conflict Resol. 421, 448-49 (2007). There is no empirical evidence that
lengthy sentences provide any additional deterrent effect. See id. (no evidence supporting “the
conclusion that harsh sentences actually have a general and specific deterrent effect on potential
white-collar offenders”); David Weisburd, et al., Specific Deterrence in a Sample of Offenders
Convicted of White Collar Crimes, 33 Criminology 587 (1995) (“It has often been assumed by
scholars and policymakers that white-collar criminals will be particularly affected by
imprisonment. Our analyses suggest that this assumption is wrong, at least as regards official
reoffending among those convicted of white-collar crimes in the federal courts. We find that
prison does not have a specific deterrent impact upon the likelihood of rearrest over a 126-month
follow-up period.”). Sentencing courts have recognized the “considerable evidence that even

33

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relatively short sentences can have a strong deterrent effect on prospective ‘white collar’
offenders.” Adelson, 441 F. Supp. 2d at 514.
Here, Mr. McDonnell’s experience of being investigated, tried, and convicted, along with
the accompanying widespread negative media coverage and life-long financial debt he has
incurred in mounting his defense, all serve as powerful deterrents. No elected official would
want to live through the last year of Mr. McDonnell’s life. Indeed, every indication is that the
Government’s message was delivered loud and clear. Elected officials in Virginia are already
scrambling to adjust their behavior to avoid this same fate, making it unnecessary to speculate
about the deterrent effect of this conviction. The Associated Press reported that shortly after the
verdict in this case, Virginia state senators of both parties “quietly met with FBI officials for a
private briefing on how not to run afoul of federal corruption laws.” 38 And the Virginia General
Assembly passed ethics legislation directly in response to this situation in an attempt to protect
themselves by changing the longstanding culture discussed in Part II.B, supra. 39 It has not been
necessary for Mr. McDonnell to serve a single day in prison to accomplish this result.

38

Alan Suderman, “FBI, Senators met after McDonnell conviction”, The Associated
Press, Oct. 9, 2014, available at http://hamptonroads.com/2014/10/fbi-senators-met-aftermcdonnell-conviction. See also Michael Pope, “Virginia Lawmakers Cautious About Ethics—
And Eggs—After McDonnell Conviction”, WAMU, December 15, 2014, available at
https://wamu.org/news/14/12/15/va_lawmakers_cautious_about_ethics_and_eggs_after_mcdonn
ell_conviction (quoting Virginia legislators expressing concern about how to avoid Mr.
McDonnell’s fate).
39

See “Politicians Consider Ethics Legislation after McDonnell Conviction”,
NBC29.com, Sept. 9, 2014, available at http://www.nbc29.com/story/26460749/politiciansconsider-ethics-legislation-after-mcdonnell-conviction (“The McDonnells won't be sentenced
until January, but politicians already say they’re looking over their shoulders, wondering what
they need to do to avoid a similar predicament.”).

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D.

A prison sentence is not needed to protect the public from further crimes by
Mr. McDonnell

The Court must impose a sentence that “protect[s] the public from further crimes of the
defendant.” 18 U.S.C. § 3553(a)(2)(C).

There is no need to imprison Mr. McDonnell to

accomplish that goal because there is no risk that he will commit crimes in the future. According
to a recent study funded by the Department of Justice, recidivism is more likely when a
defendant has a prior criminal history, drug abuse problems, mental health issues, and challenges
with unemployment, housing, and transportation. 40 Factors that decrease risk include having a
strong social support system, marketable educational skills, a motivation to change, and age. 41
Many courts have noted that older defendants, in general, “exhibit markedly lower rates of
recidivism in comparison to younger defendants,” and have as a result applied below-Guidelines
sentences. United States v. Carmona-Rodriguez, No. 04-CR-667, 2005 U.S. Dist. LEXIS 6254,
at *10 (S.D.N.Y. Apr. 11, 2005); see also United States v. Carter, 538 F.3d 784, 792 (7th Cir.
2008) (sentencing court properly considered defendant’s age of 61 to be “a mitigating factor not
because she was infirm, but because her age set her apart from the average offender and made it
less likely that she would commit these crimes again) (emphasis in original). 42
Mr. McDonnell’s risk of recidivism is zero. He is 60 years old and out of politics. Prior
to this incident, he had never in his long career in public office been accused of any unethical
40

William Rhodes, et al., Recidivism of Offenders on Federal Community Supervision at
1, Abt Associates, Dec. 21, 2012 (prepared for Bureau of Justice Statistics and Office of
Probation and Pretrial Services).
41

Id.

42

See also United States Sentencing Commission, “Measuring Recidivism: The Criminal
History Computation Of The Federal Sentencing Guidelines,” at 28 (2004), available at
http://www.ussc.gov/sites/default/files/pdf/research-and-publications/researchpublications/2004/200405_Recidivism_Criminal_History.pdf (finding that for defendants in
Criminal History Category I, the recidivism rate of defendants who are over 50 years old at
sentencing is 6.2 percent).

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behavior, much less been convicted of a crime. Mr. McDonnell is also fortunate to have a strong
network of family, friends, and colleagues who have and will help him through this difficult
period of his life. All of this supports the conclusion that Mr. McDonnell is exceedingly unlikely
to commit crimes in the future.
E.

A sentence far below the Guidelines range is needed to avoid unwarranted
disparities

18 U.S.C. § 3553(a)(6) instructs the Court to impose a sentence that “avoid[s]
unwarranted disparities among defendants with similar records who have been found guilty of
similar conduct.” This is a difficult factor to apply because no elected official has ever been
convicted of federal corruption offenses on the basis of conduct similar to Mr. McDonnell’s.
Indeed, every recent prosecution of a state governor—prior to this one—involved allegations that
the governor illicitly provided actual official state benefits, rather than simply attending an event
or setting up a meeting. 43 The defense is aware of no instance of the Government successfully
prosecuting any public official on the basis of access-oriented acts like those upon which Mr.
McDonnell’s conviction was based.

43

See United States v. Warner, 498 F.3d 666, 675 (7th Cir. 2007) (Illinois Governor,
when serving as Secretary of State, improperly awarded leases and contracts in exchange for
valuable benefits); United States v. Edwards, 303 F.3d 606, 609-12 (5th Cir. 2002) (Louisiana
Governor with long history of corruption allegations convicted for demanding massive bribes in
exchange for assistance securing valuable licenses); Monica Davey and Emma G. Fitzsimmons,
“Jury Finds Blagojevich Guilty of Corruption,” New York Times, June 27, 2011 (Illinois
Governor offered appointment to President Obama’s former senate seat, to support particular
legislation, or to spend state money in exchange for bribes and payments), http://goo.gl/YjthoA;
Brian MacQuarrie, “Rowland Pleads Guilty to Fraud Charge,” The Boston Globe (Dec. 24,
2004) (Connecticut Governor secured valuable state contracts in exchange for bribes),
http://goo.gl/PkKLa7; Jill Wilson, “Former Governor Agrees to Plead Guilty to Extortion,
Fraud,” Associated Press, April 13, 1990 (West Virginia Governor secured, among other things,
substantial payments from a state health fund in exchange for a cut of those payments),
http://goo.gl/OP8Mgx.

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The fact that there has never been a similarly situated defendant facing sentencing
supports the conclusion that Mr. McDonnell should receive a sentence far below the Guidelines
range. So, too, does the fact that even those elected officials convicted of conduct within the
“heartland” of the public corruption statutes most often receive sentences well below the 121151 month sentence suggested in the Draft Presentence Investigation Report. These include:
•

U.S. Representative Richard Renzi, who received a 36-month prison sentence
after being convicted of supporting federal land exchange legislation in exchange
for personal benefits. Judgment, United States v. Renzi, 4:08-CR-00212 (D.Ariz.
Oct. 28, 2013). The Court rejected the Government’s request for a 108 to 144
month sentence.

•

U.S. Representative Bob Ney, who received a 30-month prison sentence for
taking bribes in exchange for supporting legislation, inserting amendments into
legislation, inserting statements into the Congressional Record, and influencing
agency decisions. Factual Basis for Plea, United States v. Ney, 1:06-CR-00272
(D.D.C. Oct. 13, 2006); Judgment, 1:06-CR-00272 (D.D.C. Jan. 23, 2007).

•

U.S. Representative Donald Lukens, who received a 30-month sentence for taking
money in exchange for attempting to persuade the Department of Education to
cease its investigation into an educational institution. United States v. Lukens,
1:95-CR-00041 (D.D.C. June 29, 1996).

Only where the conduct of elected officials has been exceptionally egregious have courts
imposed lengthier sentences, and even then below-Guidelines sentences are common.

For

example, Rep. William Jefferson was convicted of seeking hundreds of millions of dollars in
bribes in exchange for exercising influence over both U.S. and African officials. Despite a
Guidelines range of 262-327 months, he was sentenced to 156 months. Judgment, United States
v. Jefferson, 1:07-CR-00209 (E.D. Va. Nov. 13, 2009).

State delegate Phil Hamilton was

convicted of procuring $500,000 in public funding for a state university in exchange for
obtaining employment at the university. He was sentenced to 114 months, below the Guidelines
range of 151-188 months. Transcript of Sentencing, United States v. Hamilton, 3:11-CR-00013
(E.D. Va. Nov. 22, 2011). Mr. McDonnell’s alleged conduct, which involves only routine access

37

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to government (with no resulting government action) and no influence over official decisions or
the allocation of public funds, does not warrant a similar sentence.
Statistics published by the United States Sentencing Commission support the conclusion
that sentences substantially below Guidelines range are the norm for convictions under the
federal bribery statutes. Those statistics include the following findings:
•

Of the 134 sentences imposed under Guideline § 2C1.1 nationwide between
October 2013 and June 2014 (excluding cases in which the Government
sponsored a departure), 60 percent of cases (81 sentences) had a below-Guidelines
sentence. See U.S. Sentencing Commission Preliminary Quarterly Data Report,
Fiscal Year 2014 3rd Quarter Release, Table 5, available at
http://www.ussc.gov/sites/default/files/pdf/research-and-publications/federalsentencing-statistics/quarterly-sentencing-updates/USSC-2014-3rd-QuarterlyReport.pdf.

•

That trend holds true for prior years: 2013 (100 of 187 § 2C1.1 sentences below
Guidelines); 2012 (83 of 151 sentences below Guidelines); 2011 (80 of 177
sentences below Guidelines); 2010 (88 of 177 sentences below Guidelines). See
2010-2013
Quarterly
Sentencing
Updates,
available
at
http://www.ussc.gov/research-and-publications/federal-sentencingstatistics/quarterly-sentencing-updates.

•

Among those bribery defendants sentenced below the Guidelines range in the
most recent Sentencing Commission Data Report, the median sentence was 5
months. The median decrease in months from the Guidelines minimum was 15
months, or 75.7 percent below the low end of the Guidelines range. (Fiscal Year
2014 3rd Quarter Release at Table 12).

•

In the Fourth Circuit, the median bribery sentence during Fiscal Year 2013 was 19
months. See U.S. Sentencing Commission Statistical Information Packet, Fiscal
Year
2013,
Fourth
Circuit,
Table
7,
available
at
http://www.ussc.gov/sites/default/files/pdf/research-and-publications/federalsentencing-statistics/state-district-circuit/2013/4c13.pdf. The median sentence for
2011 (18 months) and 2012 (20 months) was comparable.

It is clear that nationwide, Courts have concluded that the sentencing range suggested by the
Guidelines for bribery crimes is far too high, and are reducing sentences accordingly.
Finally, when weighing this factor the Court should also consider that, every day,
countless public officials across the country engage in conduct similar to that of which Mr.

38

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McDonnell was accused without attracting any attention from law enforcement. As noted in Part
II.C, supra, a number of Virginia elected officials have scheduled meetings with FBI officers
because they were concerned that conduct long considered legal in Virginia would lead to their
own prosecution. The Government has not prosecuted (or, to the defense’s knowledge, even
investigated) any of those legislators for this conduct. Many other governors and other public
officials nationwide have provided donors and gift-givers with board appointments, meetings,
and invitations to public and private events. Others have noted that the conduct that led to Mr.
McDonnell’s conviction is remarkably similar to the daily business of members of Congress:
But it was difficult not to see, in McDonnell’s fall, a test of the
fragile boundary between the conduct that sends a man to jail and
the behavior that helps him get reelected. McDonnell faced prison
for promoting a nutritional supplement in return for gifts, while
members of Congress were permitted to accept tens of thousands
of dollars in contributions from the nutritional-and-dietarysupplement industry. For years, Senators Tom Harkin, an Iowa
Democrat, and Orrin Hatch, a Utah Republican, have been two of
the industry’s largest beneficiaries—and two of its strongest
spokesmen, opposing regulations intended to protect consumers.
After the McDonnell verdict was announced, I called
Representative Jim Cooper, of Tennessee, who has served on and
off in the House since 1983, and asked what he thought his peers
would make of the court decision. “I think members will be
secretly terrified,” he said. “Those sorts of favors are
astonishingly commonplace on the Hill.” 44
That others have engaged in conduct similar to that of Mr. McDonnell without being investigated
or prosecuted is a powerful argument in favor of a sentence that does not include incarceration.
See, e.g., Sentencing Tr. at 28:8-29:7, United States v. Argo, No. 07-CR-683 (S.D.N.Y. Jan. 28,
2008) (apparent resolution of comparable cases by means short of criminal prosecution relevant
to the unwarranted disparities analysis).

44

Evan Osnos, “Embrace the Irony”, The New Yorker, Oct. 13, 2014, available at
http://www.newyorker.com/magazine/2014/10/13/embrace-irony (emphasis added).

39

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F.

A prison sentence would heighten the disparate treatment of Mr. McDonnell
and his alleged co-conspirator Mr. Williams

It would be particularly inequitable to sentence Mr. McDonnell to a prison term when his
alleged co-conspirator, Mr. Williams, will receive no punishment at all.

During closing

arguments, the Government admitted that Mr. Williams is, in its view, a criminal. See Trial Tr.
6056:5-8 (Gov’t Closing) (“If you look back on Jeanine Zubowsky’s testimony when she blurted
out that Mr. Williams is a criminal, he is. Absolutely. He’s a criminal because he bribed the
defendants.”). Mr. Williams has been accused not only of bribery, but also of wholly unrelated
and numerous securities fraud, tax crimes, and obstruction of the investigation. Despite that, the
Government gave Mr. Williams unprecedented, total transactional immunity for all his apparent
crimes, including a second immunity deal just before trial. 45

An outcome in which Mr.

McDonnell serves any time in prison (much less a ten to twelve year sentence) while Mr.
Williams suffers no criminal justice consequences at all would neither promote respect for the
law nor provide a just resolution to this case.
G.

A non-incarcerative sentence would be a just punishment for Mr.
McDonnell’s offense

The Court must ensure that the sentence imposed “reflect[s] the seriousness of the
offense,” “promote[s] respect for the law,” and “provide[s] [a] just punishment for the offense.”
18 U.S.C. § 3553(a)(2)(A). An alternative sentence of intensive, rigorous community service
would accomplish these goals.
Any prison sentence, and certainly one driven by the abstract math of the Guidelines, is
unwarranted. The offense level of 32 suggested by the PSIR (which the defense argues in a
separate pleading is erroneous) is the same level that would apply had Mr. McDonnell

45

See Gov’t Trial Ex. 530 and Trial Tr. 849:6-20 (J. Williams).

40

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embezzled up to $200 million (Guideline § 2B1.1), used interstate commerce facilities in the
commission of a murder-for-hire scheme (§ 2E1.4), or sexually exploited a minor by production
of sexually explicit visual or printed material (§ 2G2.1). It is greater than the offense level that
would apply had Mr. McDonnell committed criminal sexual abuse (level 30, § 2A3.1), voluntary
manslaughter (level 29, § 2A1.3), or assault with intent to commit murder (level 27, §2A2.1).
Mr. McDonnell’s conduct certainly cannot be said to rise to the heinous level of those offenses,
and he should not receive a sentence in line with such offenders. 46
Moreover, Mr. McDonnell and his family have already suffered tremendously, and will
continue to suffer the consequences of his investigation, trial, and conviction, even without any
jail time. His once-promising political career is dead and he has lost his post-government
teaching position. His family has suffered tremendously through a trial that put their most
private moments on public display, which has led to adverse health consequences for several
members of his family. His marriage has fallen apart. His sterling reputation in the community
has been irreparably damaged. He has lost his ability to practice law and exercise the most basic
rights of citizenship. 47 He will likely lose his state pension (after three decades of government

46

Even the Guidelines calculation submitted by the defense yields a sentence that is
typically given only for far more abhorrent conduct. An offense level of 22 (before taking into
account the acceptance of responsibility adjustment) is the same level that would apply under the
Guidelines had Mr. McDonnell stolen up to $2.5 million (Guideline § 2B1.1), burgled a
residence of up to $50,000 while possessing a firearm (§ 2B2.1), or trafficked in material
involving the sexual exploitation of a minor (§ 2G2.2). It is greater than the offense level that
would apply had Mr. McDonnell committed aggravated assault resulting in permanent or lifethreatening bodily injury. (§ 2A2.2, offense level 21).
47

See, e.g., Attorney General Andrew Ketterer (requesting that the “court consider Bob’s
fall from grace, his new status as a convicted felon, the fact that he is likely to be disbarred by
the Commonwealth’s State Supreme Court, the fact that he has spent his entire savings on legal
fees trying to defend himself unsuccessfully and the distinct possibility that he will lose his real
property to foreclosure”); Terrie Suit (explaining that Bob “has lost his civil rights, the rights to
participate as a voter and public servant in the very institution, the ideals of self-government,
which he valued so dearly”); Keith Fournier (writing that Bob has “already suffered so much,”
41

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service), and will be in significant debt for the foreseeable future. His future earnings capacity
has been significantly impaired, credit cards have been cancelled, he has suffered other negative
financial consequences and he will have to sell his family home. Courts have considered these
collateral effects when deciding how much, if any, prison time is needed for a just sentence. See,
e.g., United States v. Stewart, 590 F.3d 93, 141 (2d Cir. 2009) (sentencing court properly
considered under 3553(a)(2)(A) that the “conviction itself already visit[ed] substantial
punishment” on defendant by likely barring him from future work in his profession) (internal
quotation marks omitted). Sending Mr. McDonnell to prison would needlessly heighten the
suffering of the McDonnell family, particularly because his children face the potential loss of
both parents to incarceration. His two 23-year old sons, in particular, each of whom have
unfortunately been arrested on charges related to alcohol use, rely on Mr. McDonnell for
guidance and support and would suffer greatly in his absence. Moreover, Mr. McDonnell’s first
grandchild is due to be born in a few weeks.
H.

A sentence based on the Guideline § 2B1.1 loss table would be unjust in this
case

A Guidelines sentence would also not be just in this case because the offense level of 32
recommended in the PSIR is driven largely by a 10-level increase based on the § 2B1.1 loss
table.

There is an increasing recognition, however, that the § 2B1.1 loss table is not an

appropriate measure of the seriousness of economic offenses. Following widespread concerns
that the table compels unreasonably long sentences, 48 the U.S. Sentencing Commission

(continued…)

including “the loss of respect, the pain of fair-weather acquaintances, and the struggles which
have followed in the wake of this entire ordeal”).
48

See, e.g., Leah McGrath Goodman, “Nonsensical Sentences for White Collar
Criminals”, Newsweek, June 26, 2014, available at
42

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announced that among its priorities for the 2014-2015 amendment cycle are “potential changes
to the guidelines resulting from [the Commission’s] multi-year review of federal sentences for
economic crimes.” 49
As part of this effort, the Criminal Justice Section of the American Bar Association
created a Task Force on the Reform of Federal Sentencing for Economic Crimes. In November
2014, the Task Force released a final draft of a proposed rewrite of the § 2B1.1 chart that goes
beyond a simple calculation based only on loss amount. 50 This proposed revision of § 2B1.1
reduces the offense level increase associated with various dollar amounts, and gives the Court
the ability to adjust the offense level increase as appropriate based on the defendant’s level of
culpability and impact of the crime on the victim.
Federal district court judges, many of whom have expressed dissatisfaction with the
inflexible nature of the current Guidelines table, have already begun citing the ABA proposal
during sentencing for economic crimes. During sentencing in United States v. Rivernider, 3:10cr-222-RNC (D. Conn.), Judge Robert Chatigny of the District of Connecticut stated:

(continued…)

http://www.newsweek.com/2014/07/04/nonsensical-sentences-white-collar-criminals256104.html#.U7FqSajPNNs.email (quoting Judge Jed Rakoff commenting that “the arithmetic
behind the sentencing calculations is all hocus-pocus—it’s nonsensical, and I mean that
sincerely. It gives the illusion of something meaningful with no real value underneath.”).
49

“U.S. Sentencing Committee Selects Policy Priorities for 2014-2015 Guidelines
Amendment Cycle”, Aug. 14, 2014, available at
http://www.ussc.gov/sites/default/files/pdf/news/press-releases-and-news-advisories/pressreleases/20140814_Press_Release_Revised.pdf.
50

A Report on Behalf of The American Bar Association Criminal Justice Section Task
Force on the Reform of Federal Sentencing for Economic Crimes, Final Draft, November 10,
2014 (hereinafter “ABA Report”), available at
http://www.americanbar.org/content/dam/aba/uncategorized/criminal_justice/economic_crimes.a
uthcheckdam.pdf.

43

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In looking for better guidance, I took a look at the ABA Task
Force report on this guideline, which was released this fall, and I
did my best to apply the model that they propose. In doing that, I
found that the total offense level that emerged from the analysis
was quite a bit lower than the one that emerges from this guideline,
about 10 levels lower, and I think that there is much in the Task
Force report that is helpful and I think that the guidance provided
by their approach is preferable to what emerges from the existing
guideline.
United States v. Rivernider, Sentencing Tr. at 208-12, 3:10-cr-222-RNC (D. Conn. Dec. 18,
2013) (government requested 324-405 months, PSR recommended 262-327 months, but sentence
imposed was 144 months). Similarly, during sentencing in United States v. Litvak, 3:13-cr00019-JCH (D. Conn.), Judge Janet Hall stated:
And I have to say that I am in complete agreement with the
drafters of this [ABA] proposal, some of whom are very highly
regarded judges in this circuit, in which the drafters urge the courts
not to focus on things that are easily quantifiable. I agree with that.
I think that in this case, obviously loss is easily quantifiable, in my
opinion, but that it shouldn’t overwhelm or cause me to ignore
other important but less easily quantifiable characteristics.
United States v. Litvak, Sentencing Tr. at 136, 3:13-cr-00019-JCH (D. Conn. July 23, 2014)
(PSR recommended 108-135 months, but defendant sentenced to 24 months in prison).
Under the revised § 2B1.1 table, Mr. McDonnell would not receive any offense level
increase for receiving things of value of $20,000 or less. Even if the Court were to impute a
higher value to the items received by Mr. McDonnells or those acting with him, the revised table
provides for only a four level increase for items valued between $20,000 and $100,000, and a six
level increase for values up to $1,000,000. The Court would then consider Mr. McDonnell’s
culpability, and could subtract between 3 and 10 offense levels if it finds that Mr. McDonnell
was a low culpability offender. Factors that would make Mr. McDonnell a low culpability
offender under the ABA proposal include his motive (which was at worst mixed); the degree of

44

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sophistication of the offense (the offense was, even under the Government’s theory, executed in
a simple manner without the involvement of large numbers of participants); and whether the
defendant took steps to mitigate the harm from the offense (Mr. McDonnell publically
apologized and returned the gifts and loans in July 2013, long before the indictment). ABA
Report at 1. Applying the ABA revised table to Mr. McDonnell yields a much smaller offense
level increase than under the current table.
I.

An alternative sentence of rigorous community service is sufficient, but not
greater than necessary, to fulfill the statutory goals

18 U.S.C. § 3553(a)(3) instructs the sentencing court to consider “the kinds of sentences
available.” Increasingly, courts, criminal justice scholars, and prosecutors are recognizing that
“[t]oo many people go to too many prisons for far too long—and for no truly good law
enforcement reason.” 51 In certain cases, “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.” Gall v. United States, 552 U.S. 38, 54 (2007).
For this reason, Courts have recognized that in certain appropriate cases, sentences other
than incarceration—such as probation, home imprisonment, community service, or some
combination thereof—can provide a just punishment that is sufficient, but not greater than
necessary, to satisfy the § 3553 factors. Such an alternative sentence has many societal benefits.
A sentence of probation and community service costs significantly less than incarceration 52 and

51

Speech of Attorney General Eric Holder at the Congressional Black Caucus
Foundation Criminal Justice Issues Forum, September 19, 2013, available at
http://www.justice.gov/opa/speech/attorney-general-eric-holder-delivers-remarks-congressionalblack-caucus-foundation.
52

The cost of incarcerating an inmate in federal prison is approximately $29,000 per
year. See “Supervision Costs Significantly Less than Incarceration in Federal System”, July 18,
45

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can be a very effective means of reparation to society. The Administrative Office of the U.S.
Courts has also endorsed community service as “a flexible, personalized, and humane sanction”
in appropriate cases that “addresses the traditional sentencing goals of punishment, reparation,
restitution, and rehabilitation” and “may be regarded as . . . a form of symbolic restitution when
the community is the victim.” 53 A non-incarcerative sentence would also further the Justice
Department’s stated goal of finding alternatives to incarceration in appropriate cases in order to
alleviate the “persisting crisis in the federal prison system” resulting from chronic overcrowding
and escalating costs. 54 The United States Sentencing Commission has similarly joined the effort
to find alternatives to incarceration in appropriate cases. 55
Sentencing courts that have chosen a community service option have done so even in
cases where the Guidelines suggested lengthy prison terms.

District judges have found

alternative sentences especially appropriate in non-violent cases where a defendant has

(continued…)

2013, available at http://news.uscourts.gov/supervision-costs-significantly-less-incarcerationfederal-system. That cost would be substantially higher in the case of Mr. McDonnell, an older
inmate with chronic health care needs. By contrast, the annual cost of probation in the federal
system is $3,347 per offender. Id.
53

Court & Community: An Information Series About U.S. Probation & Pretrial Services:
Community Service, Office of Probation and Pretrial Services, Administrative Office of the U.S.
Court (2007), available at http://www.miep.uscourts.gov/PDFFIles/court_community_all.pdf.
54

See Michael E. Horowitz, “Memorandum: Top Management and Performance
Challenges Facing the Department of Justice – 2014,” Nov. 10, 2014, available at
http://www.justice.gov/oig/challenges/2014.htm.
55

See United States Sentencing Commission, Symposium on Alternatives to
Incarceration, “Welcome and Introductory Remarks,” July 14-15, 2008, Washington, DC,
available at http://www.ussc.gov/sites/default/files/pdf/research-and-publications/researchprojects-and-surveys/alternatives/20080714-alternatives/01_FINAL_Welcome&Intros.pdf (“The
purposes of this symposium were to gather information regarding the use of alternatives to
incarceration and to provide a forum for idea-sharing concerning possible implementation of
non-incarceration sanctions in the federal system.”).

46

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specialized expertise that might uniquely aid community service organizations and which would
otherwise be wasted by a prison sentence. And circuit courts have recently upheld the sentences
of district court judges who have chosen this option. For example:
•

Ty Warner, the creator of Beanie Babies who was found guilty of tax evasion, was
sentenced to 500 hours of community service, along with probation and a fine,
despite a Guidelines range of 46 to 57 months. The sentencing court stated that
“[o]ne of the considerations for me is whether society would be better off with Mr.
Warner in jail or whether it would be best served by utilizing his talents and
beneficience [sic] to help make this a better world.” Sentencing Tr. at 51, United
States v. Warner, 1:13-cr-00731 (N.D. Ill. Jan. 14, 2014).

•

Thomas Coughlin, the former COO of Wal-Mart who was convicted of
misappropriating company funds, was sentenced to five years probation, including 57
months of home detention and 1500 hours of community service, despite a Guidelines
range of 27 to 33 months. The court justified the sentence by stating: “[t]o the end of
promoting respect for the law, the community will surely appreciate the talents of one
of the nation’s foremost businesspeople flowing to the benefit of nonprofit
organizations. As explained above, Coughlin has been extremely valuable to such
organizations in the past. Coughlin’s expertise is better put to use than wasted in the
physical deterioration of unnecessary imprisonment. In the Court’s estimation, the
substantial requirement of community service adds greatly to the severity of
Coughlin’s punishment.” United States v. Coughlin, 2008 U.S. Dist. LEXIS 11263,
06-CR-20005 (W.D. Ark. Feb. 1, 2008).

•

Robert Prosperi and Gregory Stevenson were subcontractors on Boston’s “Big Dig”
project who were convicted of mail fraud, highway project fraud, and conspiracy to
defraud the government. Their Guidelines range was 87 to 108 months, but the
district court sentenced each to six months of home monitoring, three years of
probation, and 1,000 hours of community service. The sentencing court stated that it
would “impose a substantial term of community service,” rather than a prison
sentence, because “society’s interest in incarceration” in this case was outweighed by
other factors, including the fact that there was little risk of recidivism. Sentencing Tr.
at 54-55, United States v. Prosperi, 1:06-cr-10116 (D. Mass. May 25, 2010). The
district court also noted that the defendants were “plucked out to be the ‘poster
children’ . . . for a larger corporate culture that I agree was morally lazy,” but that it
would be inappropriate to hold the defendants responsible for that culture during
sentencing. Id. at 53. The First Circuit upheld the sentence, holding that the district
court properly found that “other interests at stake made a non-incarcerative sentence
appropriate in this case” and “rejected the view that the interest in general deterrence
could only be served by incarceration.” United States v. Prosperi, 686 F.3d 32, 48
(1st Cir. 2012).

•

Former Lynchburg Mayor Carl Hutcherson was convicted of mail fraud, bank fraud,
Social Security fraud, and obstruction of justice. Despite a Guidelines range of 37 to

47

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46 months, the district court sentenced him to three years of probation, six months of
house arrest, 200 hours of community service, and approximately $15,000 in fines
and restitution. In imposing that sentence, the court stated that it was influenced by,
among other factors, the fact that the offenses were not violent, the defendant had a
“history of honorable public service,” lost his position of public trust because of the
conviction which would serve as a deterrent to others, and was extremely unlikely to
be involved in further criminal activity. Sentencing Tr. at 61-67, United States v.
Hutcherson, 6:05-cr-00039 (W.D. Va. Dec. Aug. 30, 2006).
•

Thomas Whitehead was convicted of selling over $1 million worth of counterfeit
“access cards” that allowed his customers to access DirecTV's digital satellite feed
without paying for it. Despite a Guidelines range of 41 to 51 months, the district
court sentenced him to 1000 hours of community service, a large restitution order,
and five years of supervised release. The Ninth Circuit upheld the sentence, finding
no abuse of discretion where the crime “[di]d not pose the same danger to the
community as many other crimes,” among other factors. United States v. Whitehead,
532 F.3d 991, 993 (9th Cir. 2008).

In the unique circumstances of this case, a multi-year sentence of rigorous, full-time
community service is the option that best offers a just punishment while giving a community
service organization the opportunity to make use of Mr. McDonnell’s unique skill-set. Mr.
McDonnell has spent nearly 40 years in public service, has multiple advanced degrees, military
and business experience, and has amassed considerable skills as an organizer, manager, and
someone who has the ability to connect with and help individuals from all walks of life. 56 While
prison will not provide him with any “needed educational or vocational training,” 18 U.S.C.
§ 3553(a)(3)(D), a community service program would permit Mr. McDonnell to exercise his
existing skills for the benefit of the community in a supervised, rigorous environment. That
would be far better for society than simply imprisoning him—especially where he has already
suffered tremendously and there is no chance that he will commit crimes in the future. Whereas
56

See, e.g., Philip Cox (writing that “Bob believed in building bridges, and always
looked for the best in everyone, even at a personal and political cost to himself”); Alisa Bailey
(stating that Bob “demonstrated leadership” and “shrewd negotiating skills”); Susan Oliver
(noting that the “Commonwealth could benefit from Governor McDonnell’s talents and
professional skills through a program of punishment involving community service”); Brian
Tucker (“On behalf of his many friends and the scores of people Bob has served and assisted
unselfishly and relentlessly, please don’t waste his talents”).

48

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imprisoning Mr. McDonnell for 10 years or more would cost well in excess of $300,000 of
public funds, sentencing him to a long-term community service option would provide many
times that dollar amount of valuable service to needy communities.
Several charitable and faith-based organizations have submitted offers to organize and
supervise this type of intensive program for Mr. McDonnell in poverty-stricken areas within the
United States and in other countries. All of the proposals are attached at Appendix 7 and would
be acceptable to Mr. McDonnell. We highlight the following two proposals for the Court’s
consideration that focus on helping those in Virginia’s impoverished Appalachian region:
•

Operation Blessing International (OBI): OBI is a Christian humanitarian
charity devoted to hunger and disaster relief in the United States and 23 other
countries. OBI operates a 23,000 square foot facility in Bristol, Virginia that
serves as a distribution hub for food and relief supplies for impoverished
communities in Virginia and neighboring states. OBI has proposed that Mr.
McDonnell serve a three to five year unpaid term as manager of this facility,
with responsibilities that would include managing shipments and inventory
control, as well as running a forklift and assisting with loading and delivery of
supplies. OBI has arranged for Mr. McDonnell to live in a nearby church
rectory, so that he can work long hours at the facility. The work there would
be grueling, but would greatly benefit the needy in Southwest Virginia.

•

Catholic Diocese of Richmond: The Catholic Diocese has proposed that Mr.
McDonnell serve a three year term as its Far Southwest Regional Coordinator
in Bristol, Virginia. This service would involve the full-time coordination of a
number of ministries and activities in the Appalachian region, including
prison ministry workshops, outreach to migrant worker communities, direct
service ministries, grant writing, and data collecting. Mr. McDonnell’s work
for the Diocese would be rigorous and challenging. The Diocese would
greatly benefit from the managerial expertise that Mr. McDonnell would bring
to this position. The Bishop of Richmond supports this proposal.

Under any of these plans, Mr. McDonnell proposes to provide 6,000 hours of service over a
period of three years. Mr. McDonnell’s family and close friends have offered to support his
minimal financial needs during the course of such a program.

49

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Any of these proposals would provide a sentence that fulfills all of the factors set out in
§ 3553(a). A prison sentence is not needed to reflect the seriousness of Mr. McDonnell’s
offense, promote respect for the law, afford adequate deterrence to criminal conduct, or protect
the public from further crimes of the defendant. The only conceivable rationale for a prison
sentence in this case is to punish him even more than he has already been. But a sentence of
intensive community service through either of these programs would indeed be punitive. Mr.
McDonnell will be separated from his family and friends and will be engaged in rigorous work
for long hours each day. The proposed term of 6,000 hours is a tremendous amount of time to
devote to this type of intensive work, and would be far greater in length than any previous
community service sentence imposed the defense has been able to find. Unlike prison, however,
this punishment would result in a significant positive impact on the community and give Mr.
McDonnell the opportunity to repay the citizens of Virginia for his mistakes in judgment. As
one letter-writer stated, placing Mr. McDonnell “behind bars would not serve our state or its
communities in any productive way. He still has an incredible amount to offer because of who he
is and his intrinsic talent and desire to help others. Why not let him use those skills in a positive
way, rather than to diminish his ability to help others?” Operation Smile Founder William P.
Magee, Jr. This outcome would be a just and appropriate sentence in this unique case.
CONCLUSION
For the foregoing reasons, and because the Sentencing Guidelines fail to account for Mr.
McDonnell’s long history of public service and the unique nature of this case, we respectfully
request that the Court impose a variant sentence of probation with full-time, rigorous community
service for a term of 6,000 hours.

50

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Dated: December 23, 2014

Respectfully submitted,

/s/ Jonathan A. Berry
Henry W. Asbill (pro hac vice)
Mary Ellen Powers (pro hac vice)
Noel J. Francisco (pro hac vice)
Owen T. Conroy (pro hac vice)
Hilary K. Perkins (pro hac vice)
Jonathan A. Berry (VSB No. 81864)
JONES DAY
51 Louisiana Avenue, N.W.
Washington, D.C. 20001
Telephone: (202) 879-3939
Facsimile: (202) 626-1700
John L. Brownlee (VSB No. 37358)
HOLLAND & KNIGHT LLP
800 17th Street, N.W.
Suite 1100
Washington, D.C. 20006
Telephone: (202) 828-1854
Facsimile: (202) 955-5564
Counsel for Robert F. McDonnell

51

Case 3:14-cr-00012-JRS Document 582 Filed 12/23/14 Page 60 of 60 PageID# 16469

CERTIFICATE OF SERVICE
I, Jonathan A. Berry, am a member of the Bar of this Court. I hereby certify that on this
23rd day of December, 2014, I caused the foregoing to be electronically filed with the Clerk of
Court using the CM/ECF system, causing it to be served on all registered users.

Dated: December 23, 2014

Respectfully submitted,

/s/ Jonathan A. Berry
Jonathan A. Berry (VSB No. 81864)
JONES DAY
51 Louisiana Avenue, N.W.
Washington, D.C. 20001
Telephone: (202) 879-3939
Facsimile: (202) 626-1700
Email: [email protected]
Counsel for Robert F. McDonnell