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September 25, 2013

The Honorable Kiyo A. Matsumoto
United States District Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, NY 11201

                   Re:    United States v. M K
                             12 CR 457 (KAM)

Dear Judge Matsumoto:

          I submit this letter in advance of MK’s sentencing.  For the reasons set forth  below, the defense respectfully requests that the Court impose a sentence of time served.

As mule cases go,  this one is particularly heartbreaking.  K is not yet 32 years old.  With the death of his father and three siblings, he became the sole provider of a family of nine, including the young children of his deceased siblings as well as his two children. Working as a salesman of second hand copy machines and computers, K earned a monthly salary of $200, not nearly enough to properly feed and clothe his large extended family.  K had never committed a crime before and was a religious man of excellent character. Nevertheless, in these desperate circumstances he was ripe for the picking when someone looking for a mule offered him cash for traveling to the United States and picking up drug money and later smuggling heroin hidden in his luggage and a laptop computer into the U. S. He agreed to commit these crimes, not out of greed or to satisfy his own needs, but rather to feed his wife, two children of his own, his two surviving sisters and their young children.  There was simply no one else to take care of them, and he could not support them all on his meager salary.  This is not an excuse for committing these serious crimes, and he knows that very well.  His dire straits do however explain why he broke with his law-abiding and religious past to commit crimes.

          Although K has pled guilty to a crime carrying a 10-year mandatory minimum, the Court is free to impose any sentence it deems fair and appropriate.  K has satisfied all of the safety valve requirements.  Moreover, this case appears to fall under the Holder Memorandum, which instructs the United States Attorney not to charge a person such as K with an offense carrying a mandatory minimum sentence. 

          As K writes to Your Honor, his family’s needs far outweighed his meager income of $200 per month.  He was driven to crime out of a misguided sense of responsibility for his extended family.   He and his family lived in poverty and would continue in that state even if he had been a successful courier.  His greatest fear was that, without his financial support, his two sister  would be forced to resort to prostitution in order to feed their children and that they would eventually die from AIDS.  Your Honor knows that the HIV/AIDS epidemic in Tanzania is unchecked, with 1.6 million people infected by this disease.  His fears were realistic.

          K has been locked up since June 2012.  He has already served 15 months, as much time as he would serve on an 18-month sentence. A Guidelines sentence of at least 37 months would be considerably greater than is necessary to satisfy the goals of sentencing set forth in 18 U.S.C. §3553(a).  In light of the defendant’s unblemished background, the desperate circumstances which drove him to commit this crime,  his good character, and his sincere remorse, it is respectfully suggested that a sentence of time served is sufficient to reflect the seriousness of the crime, promote respect for the law, provide just punishment and to deter others from committing similar crimes.  In view of his good background and remorse, Mwarami Kimbengele can be relied upon to resume his law abiding life.

          Letters from the defendant and his wife, H , are attached.  


                                                                   Respectfully submitted,

Jonathan Marks

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