How to Respond to a Motion

For your third litigation assignment, you are an Assistant U.S. Attorney in the Criminal Division. You are prosecuting a perjury case in which the defendant, Nick Sutton, fabricated an e-mail message and then lied about it – twice – under oath. Sutton pleaded guilty to the offense and decided, in effect, to “throw himself on the mercy of the court” and request the most lenient sentence possible. To that end, Sutton has filed what is known as a “motion for downward departure,” which is a motion that asks the court, based on special circumstances, to enter a sentence below the recommended range of the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). Your assignment is to prepare the government's response in opposition to Sutton's motion for downward departure. The assignment arrives in the form of the following memo. MEMORANDUM To : Acting Assistant U.S. Attorney Fr : Jon Chapman, Criminal Chief Re : United States v. Nick Sutton Nick Sutton recently pled guilty to perjury. Attached is our Prosecution Version, which explains the facts the government was prepared to prove at trial (had that been necessary), and which form the underlying factual basis for Sutton's guilty plea. Also attached is a copy of the motion filed by Sutton's attorney, which argues for a downward departure based on so-called “aberrant behavior” under the United States Sentencing Guidelines. We have no quarrel with the vast majority of Sutton's motion. However, we believe it fails to establish two necessary elements.