Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOHN S. JOHNSON Assistant U.S. Attorney Arizona State Bar No. 016575 Two Renaissance Square 40 N Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-1258-PHX-SRB Plaintiff, v. Baylen Boyd Bedell, Defendant. UNITED STATES' RESPONSE TO DEFENDANT'S OBJECTION TO THE PRESENTENCE REPORT

The United States, by and through undersigned counsel, respectfully submits its response to the defendant's objections to the presentence report. The defendant objects to paragraph 10 of the presentence report. He argues that it is double punishment if the court applies U.S.S.G. § 2A3.1(b)(1). However, it is not double punishment to apply the guideline and to make the appropriate adjustment for the specific offense characteristics. The guideline in question, U.S.S.G. § 2A3.1, is applied to offenses defined in 18 U.S.C. §§ 2241 and 2242. There are also cross references to U.S.S.G. § 2A3.1 in U.S.S.G. §§ 2A3.2 and 2A3.4. Thus, U.S.S.G. § 2A3.1 may be applied to a variety of offenses, and appropriate adjustments are made in the base offense level based upon the specific offense characteristics. The defendant in this case applied force against the victim to commit the charged act. As discussed in the application notes and the text of the U.S.S.G. § 2A3.1, where the offense is committed by the means set forth in 18 U.S.C. § 2241(a) or (b), U.S.S.G. § 2A3.1 specifically requires a four level adjustment.

Case 2:04-cr-01258-SRB

Document 37

Filed 08/25/2005

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The defendant in his objections also requests the Court depart downward arguing the

2 defendant's conduct falls out of the "heartland" of the statute and the Guidelines. While the 3 defendant requests a downward departure, there are arguable reasons for upward departure in 4 this case. Indeed, the defendant's conduct arguably falls outside of the heartland in its cruelty 5 and depravity. The defendant also is in a criminal history category one, but has a lengthy tribal 6 criminal history which includes assaultive behavior. Pursuant to U.S.S.G. § 4A1.3, it is arguable 7 that the defendant's true criminal history is under represented. Furthermore, the defendant's 8 testimony at trial was less than credible. Thus, pursuant to U.S.S.G. § 3C1.1, an upward 9 adjustment for obstruction of justice might be warranted in this case. Though the Court may find 10 such adjustments inappropriate, a downward departure or adjustment is not warranted in this 11 case. The defendant's conduct in the instant offense, his trial testimony, and his background 12 indicates the appropriateness of a sentence somewhere between the midpoint of the sentencing 13 range and the high end. It is the government's position that, under all of the circumstances, a 14 sentence at the high end of the range is appropriate. 15 16 17 18 19 20 21 Original filed and copy of the foregoing mailed this 25th day of August 2005 to: 22 PHILIP A. SEPLOW 23 2000 North 7th Street Phoenix, Arizona 85006 24 KATHLEEN STRAND 25 U.S. Probation Officer Sandra Day O'Connor U.S. Courthouse 26 401 W. Washington Street, Suite 160 Phoenix, Arizona 85003 27 28
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Respectfully submitted this 25th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/ JOHN S. JOHNSON Assistant U.S. Attorney

Case 2:04-cr-01258-SRB

Document 37

Filed 08/25/2005

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