Free Objection to Presentence Investigation Report - District Court of Arizona - Arizona

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Theron M Hall III T h e H a l l F i r m p. c. State Bar Number 019114 One Renaissance Square Two North Central Avenue Suite 735 Phoenix, AZ 85004 (602) 222­6699 Fax (602) 443­2221

Attorney for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, v. Kristina Nichole Ingles (04) Defendant

Case No. CR-03-854-004-PHX-JAT REDACTED OBJECTIONS TO THE PRESENTENCE INVESTIGATION REPORT AND SENTENCING MEMORANDUM

Defendant Kristin Ingles makes the following objections to the Presentence Investigation Report (i.e. Report) and presents the following information as mitigation pursuant to 18 U.S.C. §3553. Paragraph 39: The Presentence Investigation Report correctly notes that Ms. Nutt was the leader of this scheme and was the only one with knowledge and expertise

21 22 23 24 25 to create the false checks. (See Paragraph 12). Of the remaining seven co-defendants, all but one (i.e. Rebecca Williams) would cash or attempt to cash the forged checks created by Ms. Nutt. Ms.

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Williams provided a check to Ms. Nutt that was used as a template for the forged checks. In determining the level of participation of Ms. Ingles, it is helpful to compare her participation as to the other co-defendants. To begin, Ms. Ingles only attempted to cash two checks. The total number of transactions by all codefendants (i.e. the cashing or attempted cashing of checks) numbers 126, as noted in Paragraph 11 of the Report. Therefore, Ms. Ingles participation equals just 1.6% of the total number of transactions. With eight co-defendants, an equal and average share would be expected to be 12.5% (i.e. one-eighth of the amount); however, 1.6% is substantially lower than an average of 12.5%. Furthermore, of the charged co-defendants, Jeremy Thomas Arnold attempted to negotiate 18 counterfeit checks (Paragraph 19); Dustin Gregory Arnold attempted to negotiate 48 counterfeit checks (Paragraph 20); Melanie Kobylinski attempted to negotiate seven counterfeit checks (Paragraph 23); Robert Williams attempted to negotiate 12 counterfeit checks (Paragraph 27); and Erik Bird attempted to negotiate 17 counterfeit checks (Paragraph 28). Ms. Ingles' attempt at just two counterfeit checks is substantially lower than all the codefendants in this case. In comparing the dollar amounts, Ms. Ingles' two checks totaled $1,341.00, which equals 1.1% of the intended $121,912.16 loss, which again is substantially

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lower than that of her co-defendants. Additionally, Ms. Ingles' share of the total actual loss is only 4.2%, which again is substantially lower than 12.5% or oneeighth. The numbers simply do not imply that Ms. Ingles was an average participant in this matter. Rather, the numbers illustrate that Ms. Ingles had a very minor role in this matter. Furthermore, due to Ms. Ingles' minor participation, she was only one of two co-defendants that was offered an opportunity to participate in a diversion program. And even after failing to pay the restitution amount as part of diversion, Ms. Ingles was offered a misdemeanor plea offer. Had her participation been greater, such opportunities would not have been available. Therefore, Ms. Ingles should be given a four level reduction due to her minimal participation in this matter pursuant to §3B1.2. Paragraph 40: Probation is attempting to assign an additional two level adjustment pursuant to §3C1.1, App. Note 4(e). Note 4(e) states that "escaping or attempting to escape from custody before trial or sentencing; or willfully failing to appear, as ordered, for a judicial proceeding" could be considered an example of conduct warrant a two level adjustment. It must be noted that Ms. Ingles never escaped, nor did she ever attempt to escape from custody. Second, Ms. Ingles never failed to attend a judicial proceeding. Rather, a warrant was issued when allegations were made that she had

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violated the terms of Pretrial Services. Therefore, Ms. Ingles' conduct simply does not fall within the conduct outlined in Note 4(e). Furthermore, Note 5 describes conduct that does not ordinarily warrant the application of the two level adjustment. Note 5(d) states that "avoiding or fleeing from arrest" does not ordinarily warrant the application of this adjustment. In this case, a warrant was issued before Ms. Ingles ever had the opportunity to miss a scheduled court proceeding. Her failure to report to Pretrial Services at best can be considered avoiding or fleeing from arrest. Therefore, no adjustment should be given pursuant to §3C1.1. Paragraph 42: Ms. Ingles cashed two checks. In one incident, she admits that she knowingly and intentionally cashed the check, even though she knew that the check was fraudulent. In other instance, Ms. Ingles had been shot up with drugs by another co-defendant and was forced to cash that check. Nevertheless, Ms. Ingles accepts full responsibility for knowingly and intentionally cashing the first check. Therefore, she clearly demonstrates acceptance of responsibility and should be given an adjustment of two levels for acceptance of responsibility pursuant to §3E1.1 and Paragraph 2(d) of the Plea Agreement. Furthermore, Ms. Ingles failure to follow the terms of Pretrial supervision does not equate in failure to accept responsibility for the criminal conduct in this case. Additionally, if Probation is attempting to seek an enhancement for both

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§3C1.1 and §3E1.1, it should be noted that App. Note 4 clearly explains that only in "extraordinary cases" should adjustments be given under both §§3C1.1 and 3E1.1. Paragraph 43: The total Offense level should be level 12 (i.e. Base Level 6, with a ten level adjustment as noted in Paragraph 26, a two level adjustment as noted in Paragraph 37, and a reduction of four levels for minor participation, a reduction of at least two levels for acceptance of responsibility, and no adjustment for obstruction of justice). Paragraph 56: Her father, Herald Ingles, was originally married to lady named Dixie, and that union resulted in a son, Joshua Johnson. Later, Harold entered a relationship with Ms. Ingles' mother. After separating from Ms. Ingles' mother, Harold married yet another woman. That relationship resulted in yet another son. Paragraph 57: The three successive deaths were in 1998, as opposed to 1999. Paragraph 60: Ms. Ingles moved to Blackstone, Virginia with a friend. This friend was not a boyfriend. Paragraph 68: Ms. Ingles did not use drugs illegal drugs during her pregnancies. Paragraph 70: At the time of the interview for the Presentence Investigation Report, Ms. Ingles was in denial about her drug issues. Since she was arrested and placed into custody, Ms. Ingles has come to understand that she has a serious drug problem. Furthermore, Ms. Ingles desires to undergo treatment and counseling for

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her drug addiction. Having spent time in adult custody, she wants to make every change necessary to avoid further incarceration. Paragraph 77: The Total Offense Level should be 12 and the guideline range

should be 10 to 16 months.

Pursuant to 18 U.S.C. §3553, Ms. Ingles presents the following for consideration at the time of sentencing: 1. To maintain equal sentences among co-defendants, Ms. Ingles should not receive more than probation. A comparison of the sentences of all codefendants is helpful in this regards. a. Dustin Gregory Arnold, who attempted to negotiate 48 counterfeit

checks received three years of probation and was ordered to pay restitution in the amount of $10,448. b. Melanie Kobylinski, who attempted to negotiate seven counterfeit

checks, received three years of probation and was ordered to pay $23,868 in restitution. c. Robert Williams, who attempted to negotiate 12 counterfeit checks,

received five years of probation and was ordered to pay $1,482 in restitution.

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d.

Erik Bird, who attempted to negotiate 17 counterfeit checks, was

sentenced to time served, three years of supervised release and ordered to pay restitution in the amount of $6,142.43. e. Jeremy Thomas Arnold, who attempted to negotiate 18 counterfeit

checks, received time served, and three years of supervised release and ordered to pay $23,868 in restitution. f. Oneida Nutt, the ring leader, was sentenced to 10 months in prison

followed by three years of supervised release. g. Rebecca Williams appears to have had her case dismissed upon

completion of diversion. As noted above, Ms. Ingles' level of participation was one of least among the co-defendants. Considering that three of the co-defendants received probation and one had her case dismissed, it seems appropriate that Ms. Ingles not receive anything more than probation in this matter. Ms. Ingles contract for Pretrial Services Diversion called for the payment of

$1,341 and supervision for only one year. During the first year of the Pretrial Services Diversion Report, Ms. Ingles complied with the terms of the program. Had she paid the restitution, this case would have already been dismissed with prejudice. Since restitution had not been paid off in full, the program was

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continued. It was only in the second year that Ms. Ingles began to incur serious infractions to the diversion program. 3. Mental Health Issues: Ms. Ingles had a very difficult childhood. She was

abandoned by her father at very young age and has had very limited contact with him her entire life. Likewise, Ms. Ingles has two half siblings that she hardly knows, one of whom she doesn't even know his name. Ms. Ingles also had difficulty in her relationship with her mother. It is clear that Ms. Ingles needs to receive continued treatment for mental health. As was noted by Pretrial Services while she was in the diversion program, when Ms. Ingles is taking her medications, she does very well. 4. Ms. Ingles is always willing to help and assist others in need. This has been

noted by her mother. Furthermore, upon review of Ms. Ingles' juvenile records several such examples were documented. As a student, she would volunteer to help and assist special needs students. Once while in juvenile detention in February of 2000, it was written in her file that she is "always eager to help out and is respectful to staff." 5. New outlook and changes made by Ms. Ingles: In the last while, Ms. Ingles

has started making significant changes in her life. To begin, she has developed a much closer relationship with her mother. Communication is much more open, and Ms. Ingles understands that her mother will provide much support.

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Second, Ms. Ingles recognizes the need to overcome her substance abuse issues. She greatly desires to participate in drug treatment and programs. Third, Ms. Ingles understands that she needs to obtain her GED and develop job skills through training and experience. Ms. Ingles has great potential and desires to renter the workforce as soon as possible. Fourth, Ms. Ingles does not oppose the idea of participating in a half-way house where she will have close supervision, receive drug counseling and treatment, and possibly gain job skills. Ms. Ingles proved in her first year of diversion that she can follow and abide by rules. She greatly desires to pay off the restitution and put this case behind her as soon as possible. Respectfully submitted this 15th day of August, 2007.

s/Theron M Hall III Theron M Hall III

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