1 BRIAN J. STRETCH (CABN 163973)
United States Attorney
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BARBARA J. VALLIERE (DCBN 439353)
3 Chief, Criminal Division
4 JOSEPH M. ALIOTO JR. (CABN 215544)
SCOTT D. JOINER (CABN 223313)
5 Assistant United States Attorneys
450 Golden Gate Avenue
San Francisco, California 94612
Telephone: (415) 436-7200
Joseph.Alioto@usdoj.gov
Scott.Joiner@usdoj.gov

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9 Attorneys for the United States of America
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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Plaintiff,

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Case Nos. 13-818-003 PJH

UNITED STATES OF AMERICA,

UNITED STATES’ SENTENCING
MEMORANDUM

v.
DAMION McDANIEL,
Defendant.

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INTRODUCTION
On April 27, 2017, Damion McDaniel pled guilty to racketeering conspiracy, attempted VICAR

23 murder, VICAR assault with a dangerous weapon, and discharge of a firearm in furtherance of a crime of
24 violence. (Presentence Investigation Report (“PSR”) ¶ 1, 4.) These charges stemmed principally from
25 Mr. McDaniel’s participation in two serious crimes: he shot or shot at two different people in two separate
26 incidents in just over a 24-hour period. In January, 2013, Mr. McDaniel joined with co-defendants
27 Pennymon and Ellis to ambush a young man caught unaware, and then he beat and shot an investigating
28 officer the following day. The charges stemming from these crimes included attempted murder, assault
UNITED STATES’ SENTENCING MEMORANDUM
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 1 with a dangerous weapon, and two 924(c) discharges of a firearm in furtherance of a crime of violence.
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The total offense level for the attempted murder, assault, and racketeering charges was correctly

3 calculated in the Presentence Investigation Report as level 34 which, combined with a criminal history
4 category V, results in a range of 235 to 293 months, or 19.5 to 24.5 years. (PSR ¶ 86.) That range does
5 not include the mandatory consecutive 10 years of imprisonment for the first 924(c), nor does it include
6 an additional mandatory consecutive 25 years of imprisonment for a second charged 924(c). In all, these
7 crimes would normally result in a sentencing guidelines range of 54.5 to 59.5 years – nearly a life sentence.
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In this case, the United States has agreed to dismiss the second 924(c), along with its mandatory

9 25-year consecutive sentence. The resulting guidelines range is 29.5 to 34.5 years. (PSR ¶¶ 84-86.) The
10 parties agreed to a further reduction of 27 to 33 years.
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The plea in this case was entered pursuant to a Rule 11(c)(1)(C) agreement which stipulates to the

12 27- to 33-year sentencing range. Under the rule, if the Court accepts the plea, it must sentence within that
13 range. Any references in the defendant’s Sentencing Memorandum or the Presentence Investigation
14 Report to the range being a “recommendation” are not technically accurate. The sentencing range is
15 binding on the Court, if it chooses to accept the plea agreement.
DISCUSSION

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The crimes the defendant committed are of the most serious nature. His criminal history is long

18 and involves repeated acts of violence. The United States respectfully requests the Court sentence the
19 defendant to 29.5 years’ imprisonment (355 months), which is the low-end sentence of the defendant’s
20 actual guidelines range.
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Mr. McDaniel did not know Victim-1 personally; he only knew of him. (4/27, 2017 Change of

22 Plea Transcript (“COP Tx”) at 45.) Yet, the defendant tried to kill the victim and his friends –jumping
23 out from behind a corner and firing his gun at the men from just 10 or 12 feet away (COP Tx at 41) – for
24 no reason other than allegiance to a violent gang. Mr. McDaniel felt no remorse in the immediate
25 aftermath of his crime. He did not contemplate the lives he helped steal, of the victim, the victim’s mother,
26 the victim’s loved ones. Instead, the following day, Mr. McDaniel got back to business and bravado,
27 beating and shooting an Oakland Police Officer investigating the prior day’s shooting. Mr. McDaniel
28 appears not to have felt remorse for these actions either – even as recently as the time of his interview –
UNITED STATES’ SENTENCING MEMORANDUM
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 1 suggesting instead that the trespassing officer should have identified himself sooner. (PSR ¶ 22.) In fact,
2 there is at least some evidence that the defendant’s statements to the Probation Officer as described in
3 paragraph 22 were accurate. In a recent letter written by the defendant dated June 7, 2017, Mr. McDaniel
4 justified his attack on the officer as self-defense (Exh. A.):
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The disrespect for the lives of others has been Mr. McDaniel’s mind set for many years. A decade

17 before the shootings in this case, he was placed on 12 months’ probation for Assault with a Deadly
18 Weapon – a very significant sentence considering it was his first offense and he was just 14 years old.
19 (PSR ¶ 47.) At 15, Mr. McDaniel was arrested for Battery on a Person on School Property (PSR ¶ 58), a
20 crime the defense psychologist euphemistically described as “throwing a stapler.” (Def. Exh. 1 at 3.) Still
21 just 15, Mr. McDaniel was arrested in 2005 for Threaten Crime with Intent to Terrorize and sent to juvenile
22 hall. (PSR ¶ 60.) In 2008, when the defendant was 18, he led officers on a high-speed chase in a stolen
23 car. (PSR ¶ 50.) During the chase, Mr. McDaniel led the officers past “The Bungalows,” an apartment
24 complex that used to serve as the gang’s clubhouse before they moved across the street to 1759 Seminary.
25 (The “5900” tattoos on Mr. McDaniel and the other defendants are references to “5900 Bromley,” where
26 The Bungalows were located.) Officers would testify that as Mr. McDaniel drove past The Bungalows,
27 he slowed his car down dramatically, forcing the police car behind to slow down. As it did, a man came
28 out of The Bungalows and fired an assault rifle at the officers chasing McDaniel.
UNITED STATES’ SENTENCING MEMORANDUM
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 These acts, along with the offenses Mr. McDaniel committed in this case, depict a violent man

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2 who poses a significant danger to the community. Moreover, the repeated violations of the law,
3 progressively more serious in nature, reflects a need for specific and general deterrence.
In his report, the defense psychologist listed various events that led to his conclusion that Mr.

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5 McDaniel suffers from PTSD. (Def. Exh. 1 at 4.) That specific conclusion is not contested for purposes
6 of this hearing, and the government agrees the defendant should receive adequate mental health services.
7 However, the psychologist’s report does not, and cannot, conclude that Mr. McDaniel’s violence in this
8 case was caused by his PTSD. Mr. McDaniel was showing a tendency toward violence well before most
9 of the acts listed in the psychologist’s report. The psychologist conducted one interview. (Def. Exh. 1 at
10 1.) He did not review the facts associated with the violent acts described in the paragraphs above. (Def.
11 Exh. 1 at 1.) He did not specifically conclude that Mr. McDaniel’s PTSD caused the violent acts in this
12 case. Mr. McDaniel is violent because he is violent, not because he suffers from a mental illness.
RECOMMENDATION AND CONCLUSION

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The actual “natural” sentencing guidelines range for Mr. McDaniel’s crimes is 29.5 years (355

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15 months) at the low-end. The parties stipulated to a lower range. But, that does not change the fact that
16 the defendant’s crimes are serious and violent. His history is replete with acts of violence, dating back to
17 his youth. The seriousness of the crime, the need to protect the public, the need to deter the defendant and
18 others from committing similar offenses, and the need to promote respect for the law all suggest a sentence
19 in the middle or even the high-end of the actual guidelines range. The government in this case asks only
20 that he be sentenced to the low-end of 29.5 years.
For those reasons, the United States respectfully requests the Court impose a sentence of 355

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22 months’ imprisonment – 235 months each on Counts 1 and 6, and 120 months on Count 2, all to run
23 concurrently; followed by 120 months consecutively for Count 7. The government further requests the
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UNITED STATES’ SENTENCING MEMORANDUM
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 1 Court impose a supervised release term of 5 years and $400 in special assessments.
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4 Dated: September 14, 2017

Respectfully submitted,

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BRIAN J. STRETCH
Acting United States Attorney

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/s/ Joseph M. Alioto Jr.

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JOSEPH M. ALIOTO JR.
SCOTT D. JOINER
Assistant United States Attorneys

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UNITED STATES’ SENTENCING MEMORANDUM
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