Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JACKI IRELAND Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 019144 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, No. CR 04-1199-PHX-JAT Plaintiff, v. Michael Christopher Ambrose, Defendant. The United States, through undersigned counsel, respectfully requests the Court overrule Defendant's objections to the presentence report for the reasons set forth in the attached Memorandum of Points and Authorities. Respectfully submitted this 10 th day of May, 2006. PAUL K. CHARLTON United States Attorney District of Arizona S/ Jacki Ireland JACKI IRELAND Assistant U.S. Attorney GOVERNMENT'S RESPONSE TO DEFENDANT'S OBJECTIONS TO PRESENTENCE REPORT

Case 2:04-cr-01199-JAT

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1 2 I. 3 4 Facts

MEMORANDUM OF POINTS AND AUTHORITIES

The defendant was charged by complaint on October 18, 2004, with a violation of Title 8, U.S.C. §1324(a)(1)(A)(ii), and was subsequently released on his own recognizance on 5 October 21, 2004. (Docket #1, 7). One of the terms of his pretrial release was to "appear at all 6 proceedings as required and to surrender for service of any sentence imposed." (Docket #7). 7 The defendant was subsequently indicted on November 16, 2004, and pled guilty to the charge 8 of Transportation of Illegal Aliens on January 5, 2005. (Docket #16, 26). Sentencing was 9 originally scheduled for April 4, 2005, but was continued to May 16, 2005, at which time, the 10 defendant failed to appear and a bench warrant was issued. (Docket #30, 31). 11 II. 12 First, the defendant clearly deserves to have an upward adjustment for obstruction of 13 justice under §3C1.1 based on his failure to appear at sentencing. This Court had to issue a 14 bench warrant and then wait for the defendant to be arrested before the case could continue. 15 Nearly one year passed between the time the defendant failed to appear and his arrest on the 16 warrant. During that time, the defendant could have turned himself in, yet he chose not to, 17 knowing that he was in violation of his pretrial release conditions. 18 Next, U.S.S.G. §3E1.1, n.4 clearly states that "[c]onduct resulting in an enhancement 19 under §3C1.1 ordinarily indicates that the defendant has not accepted responsibility for his 20 criminal conduct. There may, however, be extraordinary cases in which adjustments under both 21 §§3C1.1 and 3E1.1 may apply." This is not such a case. The defendant has done nothing 22 extraordinary in this case to show his acceptance of responsibility. He pled guilty, pursuant to 23 a written plea agreement, and then willfully failed to appear for sentencing. 24 25 District Court after it denied a defendant a downward adjustment for acceptance of 26 responsibility. In that case, as in the present case, the defendant pled guilty with a plea 27 agreement and then willfully failed to appear for sentencing. Id. at 369-70. Once the defendant 28 In United States v. Thompson, 80 F.3d 368 (9 th Cir. 1996), the Ninth Circuit affirmed the Law and Argument

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was caught and appeared before the District Court, the PSR recommended no downward adjustment for acceptance, and further recommended an upward adjustment for obstruction under §3C1.1. Id. at 370. The Ninth Circuit held that the District Court did not clearly err and stated that the defendant's timely guilty plea and her verbal apology at sentencing were not "so strong as to outweigh the fact that she absconded before sentencing." Id. at 371. As in Thompson, there are no facts in the present case which outweigh the defendant's conduct of failing to appear at sentencing. The defendant has made no extraordinary showing of acceptance of responsibility, and in light of his obstruction of justice, he should be denied a downward adjustment for acceptance of responsibility. Finally, the defendant argues that it would be "inappropriate to ignore" his past and current showing of acceptance of responsibility." (Defendant's motion, p. 3). However, giving the defendant a downward adjustment for acceptance would place him in the same situation as a defendant who pled guilty and then timely appeared for sentencing and truly accepted the consequences of his criminal behavior. The defendant simply does not deserve the benefit of this downward adjustment based on his actions. III. Conclusion Based on the foregoing, the Government requests the Court overrule Defendant's objections to the presentence report, and further requests the Court sentence Defendant within the range listed in the presentence report. Respectfully submitted this 10 th day of May, 2006. PAUL K. CHARLTON United States Attorney District of Arizona S/ Jacki Ireland

24 25 26 27 28 Certificate of Service I hereby certify that on this day, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Doug Passon JACKI IRELAND Assistant U.S. Attorney

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