Case: 1:19-cr-00567 Document #: 410 Filed: 02/10/23 Page 1 of 34 PageID #:10903

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA, )

)
Plaintiff, ) No. 19 CR 567
)
-vs- )
) Hon. Harry D. Leinenweber
)
ROBERT SYLVESTER KELLY, )
)
Defendant. )
)

DEFENDANT KELLY'S SENTENCING MEMORANDUM

Jennifer Bonjean
Ashley Cohen
Bonjean Law Group, PLLC
750 Lexington Ave., 9th Fl.
New York, NY 10022
718-875-1850
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TABLE OF CONTENTS

INTRODUCTION...........................................................................................................................1

BRIEF FACTUAL BACKGROUND.............................................................................................3

ARGUMENT..................................................................................................................................4

I. The Guidelines Sentencing Range Is 135 to 168 Months' Imprisonment...........................4

A. Ex Post Facto..........................................................................................................5

B. Offense Levels........................................................................................................5

C. Grouping................................................................................................................14

D. Criminal History Category.....................................................................................14

E. Combined Offense Level.......................................................................................16

II. The Sentence Should Run Concurrent to Kelly's 30-Year EDNY Sentence.....................17

III. Application of § 3553(a) Factors Demands a Low Guidelines-Range Sentence...............19

A. The Nature and Circumstances of the Offense......................................................19

B. The History and Characteristics of the Defendant.................................................21

C. The Sentence Must Be Sufficient But Not Greater than Necessary to Satisfy
the Sentencing Goals..............................................................................................27

1. Reflect Seriousness of the Offense; Promote Respect for the Law; and
to Provide Just Punishment for the Offense...............................................27

2. To Afford Adequate Deterrence................................................................28

3. To Protect the Public from Further Crimes of the Defendant....................30

4. To Provide Defendant With Needed Treatment........................................30

CONCLUSION..............................................................................................................................31

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INTRODUCTION

Robert Kelly, 56 years old, is currently serving a 30-year sentence of incarceration

dispensed by the United States District Court for the Eastern District of New York ("EDNY") in

connection with the case United States v. Kelly, 19 CR 286. A 30-year sentence of imprisonment

for an African American man with diabetes is a life sentence statistically speaking.1 Because the

crimes for which Kelly was convicted in this prosecution could have, and should have, been

brought pursuant to the EDNY Racketeer Influenced and Corrupt Organizations Act ("RICO")

prosecution, significant incremental punishment is not warranted, particularly where Kelly is

already serving a de facto life sentence.

As fleshed out below, the EDNY prosecution charged Kelly with RICO under a theory

that he engaged in a pattern of racketeering activity between 1994 and 2018 as part of an

enterprise that had the purpose of recruiting women and girls to engage in illegal sexual activity

and to produce child pornography. (Ex. A - EDNY Superseding Indictment at ¶2) The charges

brought in this district could have been brought in the EDNY indictment since the conduct

alleged in this prosecution occurred during the relevant time period and was covered by the

purpose of Kelly's alleged RICO enterprise. Kelly faced a guidelines range of life in prison in the

EDNY case and was sentenced to 30 years. As a matter of fairness and double jeopardy, Kelly

should not face consecutive sentencing where piece-meal prosecution by the federal government

was designed to unfairly enhance his punishment. The federal government's obsession with

ensuring that Kelly dies in prison is particularly troubling where it seems to have no appetite for

1
The United States Sentencing Commission Preliminary Quarterly Data Report indicates that a
person held in a general prison population has a life expectancy of about 64 years. People v.
Buffer, 2017 IL App (1st) 142931, ¶59. see also, United States v. Nelson, 491 F. 3d 344, 349-50
(7th Cir. 2007) (acknowledging the decreased life expectancy for incarcerated individuals based
on United States Sentencing Commission data).

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investigating or initiating prosecutions of numerous other famous (White) musicians with

credible histories of sexually abusing underage women.

As set out below, Kelly accepts that he faces a mandatory prison sentence of 10 years in

connection with his convictions here. However, Kelly contends that his guidelines range is 135

to 168 months' imprisonment. The government inappropriately places the range higher at 168 to

210 months' imprisonment on the erroneous claim that the inducement counts carry higher

adjusted offense levels than they do. Because Kelly did not use physical force, threats of force,

or tactics instilling fear in Jane, Pauline or Nia to gain their compliance in the prohibited sexual

conduct, the government's efforts to artificially raise the offense level of the inducement counts

must be rejected.

When considering the factors set forth in 18 U.S.C. § 3553(a), including Kelly's

significant mitigation evidence and the fact that he is already serving a 30-year sentence for a

"pattern of racketeering activity" that could have included the conduct alleged in the NDIL

indictment, a concurrent sentence at the lower end of the guidelines range is sufficient but not

greater than is necessary to comply with the purposes of sentencing. A consecutive sentence will

serve no specific deterrent as Kelly is likely to die in prison either way. Even if he beat the

statistical odds, he would not be released from prison until well into his 80s, long after he is a

threat of any kind to the general public. A consecutive sentence serves no general deterrent

purpose either (at least no stronger purpose than what has been accomplished with his EDNY

sentence) since the government (and society at large) have reserved a unique, unprecedented

contempt for Kelly that is wanting as to his similarly situated White counterparts. In fact, iconic

White musicians like Elvis Pressley, who married his 14-year old girlfriend, are currently being

celebrated in Academy nominated movies. In contrast, the government argues that one life

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sentence isn't enough for Kelly. No one will be deterred by a consecutive sentence in this case

because no one believes that they will ever face the punishment Kelly has faced for the same

exact conduct.

This Court is tasked with sentencing Kelly to an appropriate sentence that addresses the

harms a jury found he caused, but an appropriate sentence is a lower guidelines-range sentence

run concurrent to the EDNY case which is the functional equivalent of a life sentence. Such a

sentence punishes Kelly for conduct that is over a quarter-century old while taking into account

his individual characteristics that include his own horrific child sexual abuse that shaped him and

provides some explanation (not an excuse) for the conduct that underlies his convictions in this

case.

BRIEF FACTUAL BACKGROUND

Kelly was convicted of three separate offenses of 18 U.S.C. §2251(a), stemming from the

creation of three videos depicting sexual conduct with Jane who testified that she was 14-years

old at the time the videos were created. Defendant was also convicted of violating 18 U.S.C.

§2422(b) as to Jane with whom he had a relationship that lasted roughly 12 years.

The jury returned two additional guilty verdicts for violations of 18 U.S.C. §2422(b) as to

Nia and Pauline. Nia testified at trial that Kelly fondled her in a hallway at his studio on a single

occasion when he was 29 years old and she was either 15 or 16 years old. Nia testified that the

isolated encounter occurred the summer of 1996 but she could not state precisely when the

incident occurred. Pauline testified that she began engaging in sexual conduct with Kelly when

she was 15 years old. The prohibited sexual relationship endured long after Pauline became an

adult and she considered Kelly her boyfriend.

Kelly was acquitted of all remaining counts of the indictment.

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ARGUMENT

“[A] district court should begin all sentencing proceedings by correctly calculating the

applicable Guidelines range,” which “should be the starting point and the initial benchmark.”

Gall v. United States, 552 U.S. 38, 49 (2007). After a proper calculation, a sentencing judge

considers the seven factors set forth in 18 U.S.C. § 3553(a): “the nature and circumstances of the

offense and the history and characteristics of the defendant;” the four legitimate purposes of

sentencing, as set forth below; “the kinds of sentences available;” the applicable Guidelines

range itself; and relevant policy statement by the Sentencing Commission; “the need to avoid

unwarranted sentence disparities among defendants;” and “the need to provide restitution to any

victims.” 18 U.S.C. § 3553 (a)(1)-(7); see also, Gall, 552 U.S. at 50, n.6.

In determining the appropriate sentence, the statute directs judges to “impose a sentence

sufficient, but not greater than necessary, to comply with the purposes” of sentencing, which are:

(A) to reflect the seriousness of the offense, to promote respect for the law, and to

provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical

care, or other correctional treatment in the most effective manner. 18 U.S.C. § 3553 (a)(2).

I. The Guidelines Sentencing Range Is 135 to 168 Months' Imprisonment.

Defendant's guidelines range for the instant case is 135 to 168 months' imprisonment -

not 168 to 210 months as the government argues.2

2
The range is certainly not as probation contends where probation clearly did not read the
testimony of the complaining victims, ripped much of the PSR from the EDNY case, and
demonstrated a concerning bias where it attributed a criminal history point to Kelly based on an

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A. Ex Post Facto

The government advocates application of the 1997 Federal Sentencing Guidelines. Kelly

agrees that the 1997 Sentencing Guidelines should apply since the conduct for which Defendant

was convicted occurred prior to November 2000. Probation applies the 2000 sentencing

guidelines. Probation applies the wrong guidelines, but it does not seem to impact the guidelines

range.

B. Offense Levels

1. Counts 1 through 3 - "the child pornography counts"

Base Offense Level 27

Adjusted Offense Level 29

Defendant agrees with the government that the base offense level is 27 pursuant to

Guideline § 2G2.1(a). Defendant further concedes that a two-level enhancement is appropriate

pursuant to § 2G2.1(b)(1) because Jane was over the age of 12 but under the age of 16. This

would be true whether applying the 1997 or 2000 guidelines.

2. Count 9 - "inducement count" as to Jane

"unsourced internet article." In its recommendation of a maximum guidelines sentence, probation

did not even accurately summarize the conduct for which Kelly was convicted. For example,
probation summarized conduct related to Nia that was neither pled in the charging instrument nor
related to the count for which Kelly was convicted. Probation claims that Kelly's conduct against
Nia was "not a one, or two-time occurrence" when it was precisely a two-time occurrence and
did not involve anything more than touching. In its recommendation, probation relied heavily on
facts that a jury expressly rejected and even invented facts that were never alleged by anyone. A
jury rejected the government's evidence that Kelly enlisted people to retrieve contraband. The
jury acquitted all three defendants of receiving child pornography which demonstrates that the
jury clearly rejected the government's claim that Kelly "enlisted persons " to obtain any tapes.
Probation seems to have blatantly ignored the jury's verdict to the extent that it benefits Kelly.
Probation even boldly claims in its recommendation that Kelly began "blackmailing" Jane. This
is nothing short of a fabrication. In sum, probation did not do its job. It demonstrated extreme
bias and a lack of competence in putting together the PSR. Its recommendation should be
ignored.

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Base offense level 15

Adjusted offense level 15

The base offense level for this count is 15 pursuant to §§ 2G1.1(c)(3) and 2A3.2. The

parties agree that the starting point for calculating an offense level for the inducement counts is §

2G1.1 but the parties disagree on which cross reference sub-section applies, if any. Section

2G1.1(c)(2) & (3) read as follows:

(2) If the offense involved criminal sexual abuse, attempted criminal sexual abuse, or
assault with intent to commit criminal sexual abuse, apply §2A3.1 (Criminal
sexual abuse; Attempt or Assault with Intent to Commit Criminal Sexual Abuse)

(3) If the offense did not involve promoting prostitution, and neither subsection (c)(1)
nor (c)(2) is applicable, use the offense guideline applicable to the underlying
prohibited sexual conduct. If no offense guideline is applicable to the prohibited
sexual conduct, apply §2X5.1 (Other Offenses).

The application notes provide that the cross reference at subsection (c)(3) addresses those cases

where the offense did not involve promoting prostitution and neither (c)(1) not (c)(2) applicable

and includes such prohibited sexual conduct as criminal sexual abuse of a minor under 18 U.S.C.

§ 2243(a).

Contrary to the government's position (and the position of probation), Kelly's sexual

contact with Jane did not involve an offense of "criminal sexual abuse" or "aggravated criminal

sexual abuse" as defined by federal law and the law of this Circuit, since it did not involve force

or threat of force or the use of fear to engage Jane in the prohibited conduct. Accordingly, cross

referencing to § 2A3.1 is prohibited.

Section 2A3.1 of the sentencing guidelines applies when a defendant has committed the

offenses of 18 U.S.C. §§2241 or 2242. See USSG § 2A3.1, comment. A violation of 18 U.S.C. §

2241, also known as aggravated sexual abuse, can be reached when a person "knowingly causes

another person to engage in a sexual act - (1) by using force against that person; (2) by

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threatening or placing that other person in fear that any person will be subjected to death, serious

bodily injury, or kidnapping." 18 U.S.C. §2241(a). Force "is the exertion of physical power upon

another to overcome that individual's will to resist." United States v. Cates, 973 F. 3d 742, 745

(7th Cir. 2020) (emphasis added). The Seventh Circuit has expressly rejected any interpretation

of "force" to mean psychological coercion rather than physical force. In re Cates v. United

States, 882 F. 3d 731, 737 (7th Cir. 2018) (emphasizing that in order to convict on aggravated

sexual abuse, the jury must find the defendant used actual physical force against the victim or

made a specific kind of threat like fear of death, serious bodily injury, or kidnapping).

Section 2A3.1 of the sentencing guidelines would also apply if Kelly committed a

violation of 18 U.S.C. § 2242. Notably, the government did not charge Kelly with a violation of

18 U.S.C. § 2242 and a jury was never asked to decide whether the elements of sexual abuse

were satisfied. A violation of 18 U.S.C. § 2242, also known as sexual abuse, requires the

government to prove that the defendant "knowingly causing another to engage in a sexual act by

threatening them or placing them in fear." United States v. Boyles, 57 F. 3d 535, 544 (7th Cir.

1995). The fear contemplated by section §2242(1) excludes such fear that a person will be

subjected to death or serious bodily injury but encompasses the use of any kind of threat or other

fear-inducing coercion to overcome the victim's will. Cates v. United States, 882 F. 3d 731, 737

(7th Cir. 2018).

The record fails to reflect any evidence whatsoever that Kelly used "fear" or threats to

coerce Jane into prohibited sexual conduct; the government never claimed as much at trial. In a

highly instructive case, United States v. Law, 990 F. 3d 1058 (7th Cir. 2021), a jury convicted the

defendant Rita Law of sex trafficking and forced labor. Law owned and operated three massage

spas that offered sex services to its customers. Id. at 1060. Two of Law's "employees," HV and

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XC who were born in Vietnam and China respectively and traveled to work for Law at her

massage spas. They spoke no English and had no support systems in the United States. The

evidence at trial revealed that once at the spa, Law forced HV to provide sex services to

customers by claiming that HV's husband owed her a debt that HV had to work at the spa to pay

off Law. Law bullied XC into providing sex services and demanded money for room and board.

HV and XC were pressured into working at the spas under brutal conditions, were not permitted

to leave the spas unaccompanied, were denied hourly wages and adequate food. Law confiscated

HV and XC's passports and threated to have them arrested if they did comply with her demands

to provide sex services; Law also physically intimidated the women. On one occasion, when HV

called Law and told her she was experiencing severe bleeding and feared a miscarriage, Law did

nothing and forced her back to work at the spa the following afternoon. Id. at 1061. On appeal

from her sex trafficking and forced labor convictions, Law challenged, inter alia, the district

court's application of § 2A3.1 of the sentencing guidelines, as defendant does here, challenging

the "fear" element of a §2242 violations. The Seventh Circuit affirmed finding that Law had

placed HV and XC in fear in a number of ways including threatening to have them arrested,

threatening them financially, and threatening them physically.

In contrast, the record is devoid of any evidence whatsoever that Kelly ever threatened

Jane or placed Jane in "fear" of any type of harm. At no point during her days of testimony did

Jane testified that Kelly made her feel fearful and that was the reason she engaged in prohibited

sex with him. Indeed, the government's entire theory, as kicked off by Dr. Turner's testimony,

was that Kelly groomed Jane, manipulated her, and induced her into prohibited sexual conduct

through a number of ways. But there is simply no evidence that "threats" or "fear" was a tactic

utilized by Kelly.

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Janes testified about how the relationship first turned physical when she was 14 years old:

So we were sitting in the office area of the studio on the couch, talking, watching
TV. And obviously we had began phone sex. And this particular time it became
more physical with touch of the breasts and him rubbing on [her genitalia area]
(R731) Jane explained that the sexual contact eventually escalated (Ex. B - Jane's
testimony at R735)

When asked why she engaged in sex talk with Kelly, Jane responded, "I just kind of went with

the flow. She said, he was an adult and that she looked up to him, "so again, I went with the

flow." (Id. at R753-754) Although at one point in her testimony Jane testified that she

participated in the prohibited sexual conduct because of "intimidation" she immediately

explained that Kelly was an adult and that she "looked up to" him. She called herself a passive

person and stated, "I just kind of went along with things, and then it somewhat became normal."

(Id. at R754) Jane did not say she feared Kelly or that he said or did anything to instill any type

of fear in her that caused her to have sexual contact with him. When asked to elaborate why she

had sexual relations with Kelly, Jane testified "I started having feelings for him. I was attracted

to him in that way and things were happening so frequently, it was kind of just like being done

out of repetition." (Id. at R755) She testified "I developed feelings for him, and I felt good about

our interactions. . . That he loved me, that he would take care of me, that he was my protector."

Jane repeatedly stated that Kelly made her feel good.

Although the government may have plenty to say about Kelly's tactics in inducing Jane

into a sexual relationship when she was underage, the use of threats or fear was not why Jane

engaged in sex with Kelly during the first five years of their decade-long relationship. Jane

testified that the relationship turned darker after Mr. Kelly was acquitted in 2008. When asked

how the relationship changed and when, Jane testified, "[i]t changed after the trial was complete.

It changed for the worse as far as other women being involved, as far as abuse coming into play

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and things of that nature." (Id. at R831-832) Jane was 23 or 24 years old at the time Kelly was

acquitted and when the relationship allegedly "changed."

A fair and honest review of Jane's testimony leads to the inescapable conclusion that the

applicable cross reference provision is § 2G1.1(c)(3) because Kelly's conduct as described by

Jane arguably satisfies the elements of 18 U.S.C. § 2243(a) not 18 U.S.C. §§ 2242 or 2241.

Section 2243(a), sexual abuse of a minor, occurs when a defendant "knowingly engaged in a

sexual act with another person who has attained the age of 12 but has not attained the age of 16;

and is at least four years younger that the person so engaging." 18 U.S.C. § 2243(a).

To find the defendant guilty of the inducement count, the jury had to conclude that

defendant violated the Illinois aggravated criminal sexual abuse statute which generally

incorporates in different sub-sections 18 U.S.C. §§ 2241, 2242, and 2243. The government's

proposed jury instruction only included a theory related to statutory rape and did not ask the jury

to consider whether defendant used threats or force. The jury was instructed that to find that

defendant guilty of the inducement counts, it had to find beyond a reasonable doubt that:

A person commits aggravated criminal sexual abuse if that person commits an act
of sexual penetration or sexual conduct with a victim who is at least 13 years of
age but under 17 years of age and the person is at least 5 years older than the
victim (Ex. E at pg. 38)

This language is akin to the elements of §2243(a) not §§ 2241 or 2242. A person is capable of

committing aggravated criminal sexual abuse under Illinois law by using threats of force but the

evidence was so lacking the government did not even bother to offer this instruction to the jury

as an alternative means of finding a violation of the statute.

The record speaks for itself. Jane did not testify that Kelly used threats of any kind or did

or said anything that created a fear that compelled her to engage in prohibited sexual behavior.

Quite the opposite, Jane described Kelly as showing her affection and love that caused her to

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participate in the prohibited sexual conduct. That Jane testified that defendant later engaged in

some abusive behavior after he was acquitted in 2008 is irrelevant to whether he used threats or

fear to gain her compliance with the prohibited sexual behavior. Accordingly, there is no

evidentiary basis to support application of the cross reference § 2G1.1(c)(2). The most applicable

cross reference is §§ 2G1.1(c)(3) and 2A3.2 which means that the adjusted offense level for this

inducement count is 15.

3. Count 10 - "inducement count" as to Nia

Base offense level 15

Adjusted offense level 15

As was the case with count nine, the base offense level for this count is 15 pursuant to §§

2G1.1(c)(3) and 2A3.2. As argued, supra, the record is devoid of any evidence that defendant

used force, threats of force, threats of any kind, or fear tactics to engage Nia in the prohibited

sexual contact at his studio when she was 15 or 16 years old in the summer of 1996.

Nia testified unequivocally that she met Kelly in a mall in Atlanta when she was 15 years

old and he invited her to a concert in Minneapolis. Nia explained that she was attracted to Kelly

and had romantic feelings for him. (Ex. C -Nia's Testimony at R2591) She stated she spoke to

him numerous times by telephone and she "felt very good" when she spoke to him and she

looked forward to seeing him. (Id. at R2591) Nia testified that she traveled to Minnesota for the

concert and called Kelly when she arrived. She attended the concert but only saw him the

following morning when he came to her hotel room. (Id. at R2598) Nia testified that Kelly kissed

her, touched her breasts, kissed her breasts and then masturbated. (Id. at R2602) Kelly told her

that he wanted her to come to Chicago and she accepted the invitation. (Id.)

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Kelly did not follow up on the invitation and did not book any arrangements for Nia to

come to Chicago. (Id. at R2605) However, Nia made her own arrangements and went to stay

with family in Chicago that summer unbeknownst to Kelly. (Id. at R2605; 2635) Nia called

Kelly and he invited her to his studio but made no arrangements for her to get there. Nia

convinced her cousins to take her to the studio. (Id. at R2606) Nia arrived at the studio with her

cousins and Kelly showed them around and took them to a waiting area where they could see

him record. Nia and her cousins stayed most of the evening but Kelly was recording and was not

hanging out with Nia and her cousins for most of the evening. (Id. at R2610) At some point, Nia

was told Kelly wanted to talk to her in the hallway and Nia went into the hallway to see Kelly.

Nia testified, "he greeted me with a hug, with a kiss, and held on to her for a moment" and they

"kind of made out a little." (Id. at R2611) Nia elaborated, "I remember his hand being around my

waist on my bottom, my butt. And then he motioned his hands into my pants as we kissed. And

he fondled my chest, and he, you know, kissed we just kind of made out within the time frame

that we were in the hallway." (Id. at R2612) Nia stated, "he touched my vagina and he caressed

my bottom, my behind." (Id. at R2612) Nia testified that before she left, she had a similar

encounter with Kelly. She stated they "embraced, hugged. He held on to me, held my bottom and

things of that nature but it wasn't as long as the first on. It was more of like, you know, kind of,

like a good-bye, see you later." (Id. at R2613)

Nia never saw or spoke to Kelly again. But in 2002, Nia sued Kelly and the case settled

for $500,000. (Id. at R2615; 2617)

There is not a single word in Nia's testimony from which any jury or any judge under any

standard of proof could find or infer that Kelly used threats or fear tactics to engage Nia in

prohibited sexual contact. Nia was extremely forthcoming when she testified that she approached

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Kelly for an autograph in Atlanta and that they spoke on the phone and she was excited when he

invited her to Minnesota to see a concert, so excited that she bought him a red rose on the way

there. As to the charged offense in Chicago, Nia admitted that she went to Chicago to see him

and contacted him - not the other way around. There was a quick encounter in the hallway at his

studio where he fondled her; they embraced and kissed; and Kelly touched her vaginal area. Nia

was hurt and upset when Kelly did not return her phone calls after that encounter.

The government cannot point to testimony whatsoever that suggests that defendant

committed an act of sexual abuse pursuant to 18 U.S.C. §§ 2241 or 2242. The applicable statute

in this case is 18 U.S.C. §§ 2243 (which is incorporated into the Illinois criminal sexual abuse

statute on which the jury was instructed). As such, The applicable cross reference is §§

2G1.1(c)(3) and 2A3.2 which means that the adjusted offense level for this inducement count is

15.

4. Count 12 - "inducement count" as to Pauline

Base offense level 15

Adjusted offense level 15

As with the prior inducement counts, the base offense level for this count is 15 pursuant

to §§ 2G1.1(c)(3) and 2A3.2. Pauline's testimony is devoid of any claim that the defendant

threatened her (physically or otherwise) or instilled "fear" in her to gain her compliance in

prohibited sexual conduct. Pauline testified that after she discovered Kelly and Jane engaged in

sexual conduct, she began engaging in sexual conduct with Kelly and Jane. Pauline considered

Kelly her boyfriend and stated she loved Kelly. When asked the objectionable question of why

she was testifying, Pauline testified that she takes responsibility for having sex with Kelly and

that she probably could have just said "no," but she loved him. (Ex. D - Pauline's Testimony at

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R2317) Pauline offered that she still loves him and that he was like "best friend meets boyfriend

meets dad in one person."

While the government's argument that Kelly "groomed" Jane and Pauline and induced

and exploited them in manipulative ways is fair game, the government cannot convert this

testimony into a claim that Kelly used threats or fear to compel the prohibited sexual conduct

with Pauline - or any other victim. In addition to the testimony itself, this Court should look at

the government's closing argument. The government never once argued that Kelly used any

types of threats or fear to compel the prohibited sexual activity.

There is no evidentiary support for the government (and probation's) claim that Kelly

used threats or fear to gain Jane, Pauline, and Nia's compliance. As such, an offense level of 27

(adjusted offense level of 29) for the inducement counts is not permissible.

C. Grouping

Defendant concedes that the production of child pornography is not a groupable offense

pursuant to USSG § 3D1.1 notwithstanding that the counts all involve the same victim.

D. Criminal History Category

Defendant and the government agree that Kelly's criminal history category is II.

Probation contends that Kelly's criminal history category is III because an unidentified "internet

source" reveals that he pled no contest and received unsupervised probation in 1997 in

connection with a simple battery charge. Probation admits that it has been unable to obtain any

court records that reflect Kelly's plea of no contest, his sentence, or proof of how the case was

resolved. Instead, it relies on an unsourced "internet article" containing information that was

allegedly obtained from pleadings in a related civil case. Probation cannot even identify the

"internet article" on which it relies. Critically, Mr. Alper who prepared the PSR contacted

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undersigned counsel earlier this week and conceded that a law enforcement representative from

Louisiana informed him that the arrest and disposition from the 1996 Louisiana arrest was

expunged, but Mr. Alper has yet to amend the PSR to reflect that Kelly should not receive a

criminal history point from this incident since expunged convictions cannot be counted toward

criminal history points.3 See USSG § 4A1.2(j)

An unidentified internet source is hardly reliable information on which probation should

be relying to increase Kelly's criminal history category. In applying the guidelines, the guidelines

range must be established by the government by a preponderance of reliable evidence. United

States v. Moore, 52 F. 4th 697, 700 (7th Cir. 2022). USSG § 6A1.3 (comment "The Commission

believes that the use of preponderance of the evidence standard is appropriate to meet due

process requirements and policy concerns in resolving disputes regarding the application of the

guidelines to the facts of a case.") "The court may consider relevant information without regard

to its admissibility under the rules applicable at trial, provided the information has sufficient

indicia of reliability to support its probable accuracy." Id. see also United States v. Polson, 285

F. 3d 563, 566 (7th Cir. 2002). A district court may consider hearsay evidence in determining a

defendant's sentence but the hearsay evidence must be reliable. Id.

Probation can offer no reliable evidence that shows that Kelly pled no contest to a simple

battery in 1997 for a sentence of unsupervised probation that was not expunged. Indeed, if the

3
Demonstrating probation's clear bias against Mr. Kelly, Mr. Alper told undersigned counsel
that he was trying to get further information about the expungement with the help of the
government. Mr. Alper explained, in sum and substance, that he couldn't just rely on the hearsay
statements of a law enforcement official in Louisiana, "that's just not how we do things." Only
it's exactly how probation did it when they hit Kelly with a criminal history point based entirely
on an unsourced internet article. Presumably the hearsay statement of a law enforcement officer
is more reliable than an unidentified "internet article." Apparently, hearsay is only unreliable to
probation when it works to the benefit of Kelly.

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incident happened at all, it seems obvious that it was expunged based on the representations of a

law enforcement official in Louisiana and the fact that no documents from the proceedings are

available. Expungement aside, an unsourced internet article that probation cannot even cite based

on some information about a civil case that references a prior criminal case is not reliable

evidence. Indeed, this "evidence" is not mere hearsay; it constitutes four or five levels of hearsay

and lacks foundation since probation does not even identify the mystery "internet article" that

serves as the source of the information. An unknown internet reporter for an unknown online

publication obtained information from a civil court proceeding or document that apparently

referenced a distinct criminal proceeding for which there are no available records and then

reported that information in an unknown, unnamed "internet article." This information is not

sufficiently reliable to raise Kelly's criminal history category. Thus, Kelly's criminal history

category is II.

E. Combined Offense Level

The combined offense level is 32. As USSG § 3D1.4 instructs, the offense level

applicable to the Group with the highest offense level is 29 which relates to one child

pornography count. Because Kelly was convicted of two additional child pornography counts

which are equally serious, three levels are added to the highest offense level of 29 for a total

combined offense level of 32. Because the inducement counts have an adjusted offense level of

15 as discussed, supra, they do not increase the offense level.

Accordingly, Kelly's guidelines range is 135 to 168 months' imprisonment. Defendant

concedes that he is subject to a statutory minimum sentence of ten years' imprisonment.

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II. The Sentence Should Run Concurrent to Kelly's 30-Year EDNY Sentence

Pursuant to USSG § 5G1.3(c), the sentence in this case may be imposed concurrently,

partially concurrently, or consecutively to the prior undischarged term of imprisonment to

achieve a reasonable punishment for the instant offense. Application Note 4 directs the court to

consider the following factors:

(a) the type (e.g., determinate, indeterminate/parolable) and length of

the prior undischarged sentence;
(b) the time served on the undischarged and the time likely to be
served before release;
(c) The fact that the prior undischarged sentence may have been
imposed in state court rather than federal court, or at a different time before the
same or different federal court; and
(d) any other circumstances relevant to the determine of an appropriate
sentence for the instant office.

The foregoing factors militate in favor of a concurrent sentence. Kelly has been sentenced

to a 30-year sentence which as discussed, supra, is tantamount to a life sentence. According to

data compiled by the sentencing commission the average life expectancy of an inmate in general

population is 64 years old; Kelly is already 56 years old and has barely begun his sentence.

Kelly's health issues do not improve his chances of discharging his EDNY sentence.

Additionally, the sentence was imposed by another federal court, rather than a state-court.

Another relevant circumstance for this Court to consider is that Kelly's punishment has

been enhanced because the government unnecessarily engaged in piece-meal prosecution of him,

presumably with the purpose of increasing his punishment. In fact, Kelly's northern district

prosecution arguably runs afoul of due process and double jeopardy principles where the

offenses charged in this case were covered by EDNY's RICO prosecution.

Because the government rarely (if ever) prosecutes defendants in separate, simultaneous

prosecutions as the government did here, there is no authority to address whether consecutive

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sentences would violate due process or double jeopardy prohibitions. However, the Supreme

Court decision in Rutledge v. United States, 517 U.S. 292, 307 (1996) is instructive. In Rutledge,

the United States Supreme Court held that narcotics conspiracy is a lesser included offense of a

continuing criminal enterprise and that it is therefore unconstitutional to impose cumulative

punishments for both crimes. That means that if one U.S. attorneys' office prosecuted a

defendant for a narcotics conspiracy and another U.S. attorneys' office simultaneously

prosecuted a continuing criminal enterprise that included conduct addressed by the narcotics

conspiracy, the sentences would have to run concurrently without violating the double jeopardy

clause.

Similarly, the specific RICO theory advanced by the EDNY prosecutors included the

conduct alleged in the northern district indictment. The EDNY indictment alleged that the

purpose of Kelly's so-called enterprise was to, inter alia, sexually abuse minors and produce

child pornography between the years 1994 and 2018. [Ex. A] The offenses charged in this

indictment squarely fall within the alleged purpose of the RICO enterprise. No logical reason

exists for the government's failure to bring the case in a single indictment except to unfairly

enhance Kelly's punishment. Even if consecutive sentences would not run afoul of the double

jeopardy clause, the sentences should run concurrently as a matter of fairness.

The government contends that "significant incremental punishment is necessary in this

case to account for the fact that this case is different from the New York case in nature and

scope. Here, defendant was convicted of sexually abusing minors, and that abuse occurred prior

in time to the abuse of the adult woman and minor victims in the New York case." [Gov. Mem at

19] The government is simply wrong. The EDNY indictment speaks for itself. EDNY charged

conduct from the 1990s like that charged in this case, including presenting testimony that Kelly

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allegedly had a sexual relationship with an underage Aaliyah in 1994. Like the government did

here, the prosecution in EDNY also presented evidence that Kelly recorded sexual conduct with

17-year old Stephanie in 1999 which constituted sexual exploitation. The scope of the enterprise

covered the exact same time period and the EDNY prosecutors maintain that creating child

pornography and having sex with minors was one purpose of the enterprise. Under these

circumstances, there was no reason for the government to engage in piece-meal prosecution

except to attempt to enhance Kelly's punishment (and perhaps give both U.S. Attorney's office an

opportunity to hold press conferences). Under these circumstances, and the fact that Kelly is

serving a de facto life sentence, this Court should exercise its discretion and order the sentence in

this case to run concurrent to the EDNY sentence.

III. Application of § 3553(a) Factors Demands a Low Guidelines-Range Sentence.

Section 3553(a) sets forth various factors that this Court must consider in rendering a

sentence.

A. The Nature and Circumstances of the Offense

Kelly concedes he has been convicted of serious offenses involving three victims,

including three counts of producing child pornography with Jane when she was 14 years old. The

most serious counts of the indictment relate to Jane with whom Kelly had a 12-year romantic

relationship and a seemingly genuine friendship until the government indicted Kelly after the

airing of Surviving R. Kelly in 2019. Indeed, Jane would have been happy to put her experience

with Kelly behind her until the government revived the case and insisted that she cooperate with

the prosecution, including by inducing her to participate with promises of restitution riches.

As the evidence showed, Kelly and Jane texted regularly with one another, attended each

other's birthday celebrations, and frequently socialized including with Jane's parents. When Jane

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lost her grandmother, Jane encouraged Kelly to reach out to her mother to give his condolences.

Kelly assisted Jane with financial needs long after any claims of obstruction could be made, and

Jane told Kelly she "loved" him shortly before he was indicted when she was worried about the

impact the Surviving R. Kelly series had on him. Jane admitted from the stand that her

relationship with Kelly was close and friendly as of 2019.

That Kelly and Jane maintained a close relationship until he was indicted in 2019 is, of

course, not an excuse for the offenses for which Kelly has been convicted and will be sentenced.

But to ignore that Kelly and Jane's illegal and inappropriate sexual relationship that began in

1997 and morphed into a lengthy relationship between adults who remained close friends until

Kelly's indictment 2019 indictment ignores the full nature and circumstances of the offenses for

which he was convicted.

Importantly, it was not Kelly who placed the tapes into the public domain which may

have caused Jane as much harm as the acts themself. That Kelly did not produce child

pornography for any commercial purpose does not relieve him of criminal responsibility, but if

Kelly had been responsible for placing the tapes into the public, the government surely would

point to that fact as aggravating evidence. It is most certainly relevant that the tape of Jane and

Kelly was stolen by her own aunt and given to the Chicago Sun Times. To undersigned's

knowledge, Jane's aunt, Stephanie Edwards, also known as "Sparkle," was never indicted for

trafficking in child pornography.

Similarly, as to Pauline, she testified that her relationship with Kelly that started when

she was a teenager also morphed into an adult-relationship in which she loved Kelly. Indeed,

Pauline testified adamantly that Kelly was wrong for taking sexual advantage of her when she

was underage, but she acknowledged that she loved him and still loves him. Again, these facts

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are not relevant as it relates to Kelly's culpability in the crimes charged, but they are important

factors when considering the circumstances of the offenses and its impact on the complaining

victims. Conduct must be considered on a continuum of seriousness, and Kelly's conduct, while

serious, did not involve some of the aggravation that is typical of child pornography cases and

sex trafficking cases.

Finally, the inducement count as to Nia (count 10) is far less serious than the counts

related to Jane or even Pauline. Nia admitted that she sought out Kelly; she moved to Chicago

for the summer to see him; she insisted on going to his studio; and during an isolated incident in

the hallway Kelly kissed her, embraced her, and touched her genitalia. Nia was either 16 years or

almost 16 years old when this occurred. Kelly was 28 years old. This incident did not involve

threats, violence, coercion, and occurred primarily because Nia wanted to pursue a romantic and

sexual connection with Kelly as she testified to. Of course, a jury found Kelly of an inducement

offense as to Nia and he faces punishment for that offense, but it does not mean the

circumstances of this offense rise to the seriousness of even the other inducement counts in this

case.

There is no denying that Kelly convictions are serious and the harm caused real, but the

government's insistence that there is nothing mitigating about Kelly's conduct or life is

inconsistent with the actual evidence presented at trial and heard by the jury.

B. The History and Characteristics of the Defendant

Defendant is widely accepted as a musical genius with a rags-to-riches story. He is

considered the greatest living R & B singer and has earned multiple Grammy awards. He has

written and produced music for celebrated artists like Michael Jackson and Whitney Houston.

Notwithstanding his legendary status, Robert Kelly is a man with a complicated story that is

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highly relevant to this Court’s goal of fashioning an appropriate sentence for him. Defendant has

been portrayed by the government and the media as a one-dimensional villain, undeserving of

any measure of humanity or dignity. This Court is charged with considering Defendant’s unique

history and characteristics in rendering an appropriate sentence. Defendant’s history and

characteristics reveal that he is not an evil monster but a complex (unquestionably troubled)

human-being who faced overwhelming challenges in childhood that shaped his adult life. This

evidence is critical to understanding how and why Defendant finds himself in the current

situation.

In this vein, this Court must consider the offenses at issue in this case are 25 years old.

Contrary to the government and probation's contentions, Kelly did not engage in a pattern of

creating child pornography after his state-court indictment in 2002. While Kelly was not a child

in the late 1990s, he also was not the middle-aged man he was at the time of his 2019 indictment.

In the mid to late 1990s (the time of the underlying conduct) Kelly was a damaged man in his

late 20s with an extraordinarily traumatic childhood that he failed to confront. He lacked the

insights or ability to appreciate the ways in which his traumatic childhood impacted his

unhealthy sexual development and harmful choices.

As acknowledged in the Presentencing Investigation Report and set out more fully in

extensive reports prepared by Dr. Park Dietz, M.D., M.P.H., Ph.D., and Dr. Renee Sorrentino,

M.D.,4 Defendant experienced a traumatic childhood involving severe, prolonged childhood

4
Kelly has attached the mitigation reports that were prepared in connection with his EDNY
sentencing that occurred last June. Kelly has redacted those portions of the expert reports that
relate solely to the EDNY case. Kelly was unable to retain the experts to modify or amend the
reports specifically for use in this case due to a lack of resources. Even if Kelly had access to
resources, the government has restrained his ability to use any resources for his defense. The
reports are relevant to the extent that they speak to Kelly's personal history and characteristics.

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sexual abuse, poverty, and violence. His victimization continued into adulthood where, because

of his literacy deficiencies, Kelly has been repeatedly defrauded and financially abused, often by

the people he paid to protect him.

Dr. Dietz’s report focuses on adverse childhood experiences, illiteracy, and Kelly's

positive character traits. (Exhibit F – Report of Dr. Park Dietz) Incorporated into Dr. Dietz’s

report are findings of Dr. Daniel Martell, Ph.D. who conducted neuropsychological testing of

Defendant. Dr. Sorrentino’s report contains a complete history of Kelly and focuses on Kelly’s

sexual history, including a detailed discussion of the sexual abuse he suffered as a child. (Exhibit

G – Report of Dr. Renee Sorrentino) Dr. Shawnte Alexander, Ed.D. conducted collateral

interviews in connection with these reports. The reports are lengthy, and Defendant will not

quote from them extensively but will highlight certain portions. (Ex. I – Expert CVs)

Critical to understanding the history and characteristics of the Defendant is understanding

the traumatic childhood that shaped him. As Dr. Dietz writes:

Traumatic childhood events such as abuse, neglect, and witnessing experiences

like crime, parental conflict, mental illness, and substance abuse can result in
long-term negative effects on learning, behavior and health. Often referred to as
adverse childhood experiences (ACEs), these types of events create dangerous
levels of stress that can derail healthy brain development, and increase risk for
smoking, alcoholism, depression, heart disease, and dozens of other illnesses and
unhealthy behaviors throughout life.

Dr. Dietz opines that Kelly endorses a significantly high number of adverse childhood

experiences (“ACEs”) that cannot be overlooked when considering his history and

characteristics. Dr. Dietz writes: “[m]any of Mr. Kelly’s problems are now known to be adverse

outcomes associated with cumulative ACEs, including but not limited to below average

academic and literacy skills by kindergarten age, lower school engagement, learning/behavior

problems, not complete high school, sexually transmitted disease, having 50 or more sexual

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partners, anxiety, panic disorder, and criminal conviction. Separately, there is now substantial

evidence that a history of being sexual abused as a child is associated with subsequent conviction

for sex offenses."

As set forth in detail in Dr. Dietz’s report, Kelly grew up in poverty and experienced a

chaotic home life. One of his long-time employees and friends aptly writes in a letter of support:

Robert was born in poverty. But even as a kid he had a passion for music. He
shared with me some of the abusive circumstances he grew up in. It was a horrible
environment for any child and Robert is amazingly resilient to have even survived
it. As a young adult, he was homeless and earning money as a street performer on
the frigid streets of Chicago. Eventually his hard work and talent earned him a
record deal, but that deal wouldn’t take away his illiteracy or the traumatic
experiences he endured. [Exhibit H – Letter of Diana Copeland]

Kelly never knew his father and was raised by his mother and stepfather who by all

accounts were heavy drinkers and would sometimes violently fight. During one vivid fight,

Defendant’s stepfather pushed his mother and her dress got stuck in a car door before

Defendant’s stepfather drove off, dragging his mother for a short while her sons threw bricks at

his car. By objective accounts, Kelly and his two brothers suffered physical abuse at the hands of

their mother who disciplined them with whippings with cords and switches. On one occasion,

Kelly’s mother grabbed a knife to threaten Kelly and his brothers and accidentally stabbed Kelly

in the left arm. Neither Kelly (nor his brothers) consider the punishments meted out by his

mother as abusive. Indeed, Kelly's mother was beloved by her children.

Kelly lived in a violent neighborhood with significant gang and drug activity. Kelly

steered clear of gang and drug pressures but still witnessed significant violence that made a

lasting impact on him. For example, at the age of 14, Kelly was shot in the arm with a .22 round

while riding his bike down the block.

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Critically, Kelly experienced multiple sources of childhood sexual abuse and premature

sexualization that sheds significant light on some of his behaviors. Dr. Sorrentino and Dr. Dietz

write at length about how Kelly was sexually abused as a child for many years by his older sister.

Both of Kelly’s brothers report being sexually abused by their sister. Defendant was also

sexually abused by a landlord and family friend known as Mr. Henry.

When Kelly was only six or seven years old, his sister started molesting him. The abuse

included oral sex and intercourse and persisted into middle school. Kelly's sister began dating

their first cousin Louis and she would have Kelly take Polaroid photos of them having sex. Mr.

Henry sexually abused Defendant on a weekly basis during the same general period of time. The

abuse included oral and anal sex.

Dr. Sorrentino opines that Defendant’s history of childhood sexual abuse should be

considered a mitigating factor in his sentencing hearing. It is my opinion with reasonable

medical certainty that Mr. Kelly’s history of childhood sexual abuse is consistent with the

definition of mitigating factors as any fact or circumstance that lessen the severity or culpability

of the criminal act. The following evidence supports this opinion:

(1) Mr. Kelly’s history of childhood sexual abuse represents a hardship or circumstance

that was out of his control.

(2) This history has been described in scientific literature as contributing to adult

hypersexual behaviors.

(3) Mr. Kelly’s adult hypersexual behaviors were factors in his criminal convictions.

[Ex. G. at pg. 22]

Defendant suffered other childhood trauma, including witnessing the drowning death of

his first childhood girlfriend Lulu. When they were eight or nine years old, Defendant and Lulu

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lived in Chicago Heights and were walking near a “river” when another boy pushed Lulu into the

river. Defendant did not know how to swim and began screaming as he watched his friend

drown. Multiple sources confirm this traumatic event and opine that it had a significant impact

on Kelly.

Kelly is functionally illiterate. Kelly’s inability to read and write as a child was a

significant source of shame and embarrassment that persists to this day. Kelly was bullied as a

child because he could not read or write and eventually dropped out of high school after being

held back several times. Kelly spoke of the shame and fear he experienced later in life when

accepting Grammy awards since he could not read the teleprompter. At the time of the

underlying offenses, Kelly functioned (and still does to some degree) as a much younger person

than he actually was. Even Lisa Van Allen testified that she and Kelly connected because they

shared the same interests despite their significant age difference. Kelly's intellectual disabilities

shed some light on why he engaged in inappropriate relationships.

Dr. Dan Martell reexamined Defendant and reported that he “had significant impairments

in all areas of academic functioning, placing him in the bottom first to third percentiles and at the

early elementary school level (i.e., first to third grade) overall.” Dr. Martell’s testing indicated

that Mr. Kelly’s “cognitive abilities are not evenly developed, such that his Full-Scale IQ, which

fell in the borderline range (FSIQ=79), does not adequately reflect his overall level of intellectual

ability which is more likely in the low average range,” in part due to “his lack of school

learning.”

Defendant’s literacy deficiencies have led to chronic victimization in adulthood.

Defendant has been financially exploited his entire adult life. At one point in his career, he was

told he was worth $900 million; he is now destitute.

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Dr. Dietz also details a number of positive attributes of the Defendant as reported by

collateral sources. Defendant is by all accounts a generous and forgiving person. Defendant has

employed his family and friends and continually re-employed them after they stole from him.

One of Defendant’s friends’ recounts:

[H]e really has a good heart. He’s not a bad person. He has a real forgiving heart
you know. People that did things to him, people around him that sued him, and
came back and, you know, he forgave them and gave them their jobs back. And,
you know, he, you know, he’s real. He’s a real kind-hearted person. (Ex. F. at pg.
29)

Another friend described Defendant as follows:

He is compassionate and empathetic. When Robert learned of a shooting that took

place that claimed many lives and devastated a small community in Virginia, he
stopped what he was doing and wrote a song called “Rise Up” which to this day is
still played and every penny of the proceeds is shared by the families, the college
and the community. (Ex. H – Letter from Alicia Evans)

Another time I recall worth honorable mention was when Robert saw on the news
that a horrific incident had taken place at the E2 nightclub in his hometown. There
had been a stampede where 21 people were trampled to death. Robert gave 21
families whom he did not know, money towards funeral expenses. Id.

Defendant is also described as down-to-earth and someone who eschewed the celebrity life, more

comfortable keeping close to the community of his childhood.

Reports from Dr. Dietz and Dr. Sorrentino and supporting letters provide additional and

significant evidence of Defendant’s history and characteristics.

C. The Sentence Must Be Sufficient But Not Greater than Necessary to Satisfy
the Sentencing Goals.

The Court shall impose a sentence sufficient, but not greater than necessary, to comply

with the purposes of sentencing as set out below:

1. Reflect Seriousness of the Offense; Promote Respect for the Law; and
to Provide Just Punishment for the Offense.

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A sentence at the lower end of the guidelines range would reflect the seriousness of the

offense, promote respect for the law, and provide just punishment. Kelly has already discussed at

length the nature and circumstances of the offenses. At bottom, Kelly engaged in prohibited

sexual relationship with Jane and Pauline starting in the late 1990s. Unfortunately, Kelly was not

the first or the last man to engage in a sexually prohibited relationship with a teenager. Frankly,

most men who engaged in sexually prohibited relationships in the 1990s (and before) have never

paid any consequence for their actions, let alone facing a sentence of life in prison. Any sentence

of imprisonment for 25-year old conduct reflects the seriousness of the offense and will promote

respect for law in light of the government's apathy toward such crimes prior to the #MeToo

movement. Moreover, Kelly is already serving a de facto life sentence for conduct like that

charged here. Any sentence of imprisonment promotes the respect for law where Kelly is likely

to die in prison no matter what this Court sentences him too in this case.

2. To Afford Adequate Deterrence

At the outset, Kelly's 30-year sentence in connection with his EDNY already solves any

specific deterrence consideration since Kelly is unlikely to survive prison. Defendant is serving a

de facto life sentence in connection with his EDNY case where the life expectancy of the general

prison population is 64 years old; Kelly is 56 years old. The United States Sentencing

Commission Preliminary Quarterly Data Report indicates that a person held in a general prison

population has a life expectancy of about 64 years. People v. Buffer, 2017 IL App (1st) 142931,

¶59. see also, United States v. Nelson, 491 F. 3d 344, 349-50 (7th Cir. 2007) (acknowledging the

decreased life expectancy for incarcerated individuals based on United States Sentencing

Commission data). Kelly would have to defy all statistical odds to make it out of prison alive.

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Kelly's existing 30-year sentence has assured that he will have no opportunity to commit any

crimes in the future.

In the unlikely event that Kelly was to survive his 30-year sentence, there is no reason to

believe he would reoffend as a geriatric in his mid-80s. The overwhelming majority of Kelly's

criminal conduct was committed a quarter century ago. As Drs. Dietz and Sorrentino confirm,

Kelly is not a pedophile despite his convictions for child exploitation where his youngest victim

was Jane who was not a prepubescent minor. As Drs. Dietz and Sorrentino confirm, Defendant is

not a pedophile which is a diagnosis that Kelly has never received.

Dr. Sorrentino opined:

I considered the diagnosis of Pedophilia given Mr. Kelly’s alleged history of

sexual contact with minors. The diagnosis of Pedophilia is used to refer to
individuals who experience recurrent, intense, sexually arousing fantasies or
sexual urges involving sexual activity with prepubescent child or children
(generally age 13 years of younger). I rejected the diagnosis because Mr. Kelly
does not report a history of sexual arousal to prepubescent individual and his
sexual behavior has never involved prepubescent individuals.

In sum, no sentence is necessary to specifically deter Kelly since he is already likely to spend to

the rest of his life incarcerated.

Whatever sentence this Court imposes on Kelly, whether it is 10 years' imprisonment or

something greater than 10 years' imprisonment, the sentence will afford little deterrence to the

general public because the general public has no reason to believe that they would be targeted for

prosecution and enhanced punishment as Kelly has. The following iconic music artists, Bob

Dylan, Elvis Presly, Jerry Lee Lewis, David Bowie, Jimmy Page, Bill Wyman, Ted Nugent,

Steven Tyler, Mick Jagger, Iggy Pop, and Marilyn Manson have all been accused of abusing

underage girls. None have been prosecuted and none will die in prison. The government has

shown a unique appetite in prosecuting and punishment Kelly as compared to his White

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counterparts. Thus, it is unlikely that Kelly's sentence will have any deterrent effect on the

general public. It surely will have no additional deterrent effect than does Kelly's existing 30-

year sentence. The general assumption is that the government would not prosecute anyone but

Kelly as harshly for similar conduct. To have a deterrent value, the general public has to

conclude that they too could face the consequences that Kelly faced if they engaged in similar

conduct. The government's failure to focus its attention on other artists and musicians with

similar backgrounds to Kelly fails to leave the general public with that impression.

3. To Protect the Public from Further Crimes of the Defendant

Whatever sentence this Court imposes will do nothing to protect the public since Kelly

has already been incapacitated by a sentence that is the functional equivalent of life given his

age. Kelly has already addressed this sentencing consideration in the preceding section in

connection with discussion about "specific deterrence."

4. To Provide Defendant With Needed Treatment

As stated already, Kelly is already sentenced to a term that amounts to a life sentence. His

sentence affords plenty of opportunity for Kelly to obtain treatment in prison (with which he

would comply) but he has little to no chance of being released from prison. As such, this factor is

irrelevant.

A concurrent sentence at the lower end of the guidelines range will unlikely change

Kelly's fate, but it leaves a sliver of hope that Kelly may survive prison and have the change to

die outside prison walls. That is the best Kelly can hope for absent reversal of his EDNY

conviction. The § 3553(a) factors, and specifically the mitigation presented to this Court,

demands that Kelly be afforded that tiny chance of leaving prison someday when he far to old to

be any risk of harm to anyone.

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CONCLUSION

For the foregoing reasons, Defendant’s sentencing range is 135 to 168 months'

imprisonment. A concurrent sentence at the lower end of the guidelines range is sufficient but

not more than necessary to satisfy the sentence goals.

Respectfully Submitted,

/s/JENNIFER BONJEAN

Jennifer Bonjean
Ashley Cohen
Bonjean Law Group, PLLC
750 Lexington Ave., 9th Fl.
New York, NY 10022
718-875-1850

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CERTIFICATE OF SERVCE

I, JENNIFER BONJEAN, an attorney at law, certify that I filed Defendant’s Sentencing

Memorandum on February 9, 2023 via the ECF filing system.

/s/JENNIFER BONJEAN

32