Free Transcript - Appeal - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA _________________ ) ) Plaintiff, ) ) vs. ) ) JOHN DAVID JOHNSON WHITE, ) ) Defendant. ) ) ______________________________) UNITED STATES OF AMERICA, BEFORE:

CR 06-1073-PHX-FJM CR 03-0550-PHX-FJM Phoenix, Arizona March 3, 2008 1:32 p.m.

THE HONORABLE FREDERICK J. MARTONE, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS SENTENCING/DISPOSITION HEARING

APPEARANCES: For the Government: U.S. Attorney's Office By: MICHAEL ALLEN LEE, ESQ. 40 North Central Avenue, Suite 1200 Phoenix, AZ 85004 For the Defendant White: Law Office of Robert J. Kavanagh By: ROBERT J. KAVANAGH, ESQ. 51 West Elliott Road, Suite 109 Tempe, AZ 85284 Official Court Reporter: Linda Schroeder, RDR, CRR Sandra Day O'Connor U.S. Courthouse, Suite 312 401 West Washington Street, Spc. 32 Phoenix, Arizona 85003-2151 (602) 322-7249 Proceedings Reported by Stenographic Court Reporter Transcript Prepared by Computer-Aided Transcription

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THE CLERK:

This is criminal matter 06-1073,

United States of America versus John David Johnson White, on for sentencing, and criminal matter 03-550, on for final disposition hearing. Counsel, please announce. MR. LEE: Good afternoon, Your Honor. Michael Lee

here on behalf of the United States.

Also Mike Lipscomb from

U.S. Probation is sitting at government's table. THE COURT: Welcome. Good afternoon. Robert Kavanagh for

MR. KAVANAGH:

Mr. White, who is present and ready to proceed. THE COURT: Welcome. Please come forward. We've

Well, we have two things here this afternoon.

got sentencing in 06 CR 1073, and we've got disposition on the supervised release violation in 03 CR 550. In the sentencing matter, I've read the presentence report, the sentencing recommendation, the defendant's objections to the presentence report, the probation officer's addendum responding to the objections, the defendant's motion for a downward departure and its sentencing memorandum, the government's response to the defendant's objections, and the defendant's sentencing memorandum. And then in the supervised release case, I have a supervised release disposition report dated February 11, 2008. Mr. Kavanagh, have I identified everything that's been UNITED STATES DISTRICT COURT

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filed in connection with these two matters? MR. KAVANAGH: THE COURT: Yes, Your Honor. In 06 CR 1073, there was a And pursuant to that

All right.

determination of guilt by jury verdict.

jury verdict, it's the judgment of the Court that the defendant is guilty of felon in possession of a firearm and ammunition, in violation of 18 U.S.C. Section 922(g)(1) and 924(a)(2). And in 03 CR 550, pursuant to the Court's findings that the defendant was in violation of his supervised release, it's the order of the Court that supervised release is revoked. The presentence memorandum computes this out as a pre-departure guideline range of offense level 14, criminal history category III. Mr. Kavanagh, have you read the report, and are there any remaining objections that we need to go over? MR. KAVANAGH: Judge, I have read the report, and

there is nothing further. THE COURT: All right. And, Mr. White, have you read

the presentence report? THE DEFENDANT: THE COURT: Yes.

And is it correct? Yes. And, Mr. Lee, have you read

THE DEFENDANT: THE COURT: the report? MR. LEE:

All right.

I have, Your Honor. UNITED STATES DISTRICT COURT

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THE COURT: MR. LEE: THE COURT:

All right.

Is it correct?

It is, Your Honor. All right. Then the pre-departure

advisory guideline range is offense level 14, criminal history category III. There were factual objections in the defendant's objections that -- There was one there that I wanted to go over. This was the objection to Paragraph 29. The defendant

objected to the number of firearms as between 25 and 30 and based it on the, I believe, the statement of reasons in that case in which we, I believe, sustained the defendant's objection, so that he was held accountable for 8 to 24. Did anyone want to be heard on that objection, and has that been fully resolved? MR. KAVANAGH: Mr. Kavanagh?

Judge, our objection was just to make

the record clear that he was only found accountable for those numbers that you just mentioned, 8 to 24. I think that

anything above that, 25 or more, were probably from the ATF report and just approximations, nothing in concrete. I think

when there was a trial, when all was said and done, I believe that it was determined that there were 8 to 24. I think even

at sentencing in the previous case, you found, I believe, 8 to 24. THE COURT: case reflects that. Yeah. The statement of reasons in the

And, Mr. Lee?

UNITED STATES DISTRICT COURT

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MR. LEE:

Your Honor, I have nothing further to add. I simply added some of the But, again, it doesn't Therefore, I have

The Court made that determination.

facts that we had argued at that time. affect the sentencing in this situation. nothing further to add. THE COURT: No, it doesn't.

Well, let me ask you this.

We can go one of two ways.

We can put in the statement of reasons that the Court at that prior sentencing had found that there were 8 to 24 firearms, or we could leave the sentence alone in the presentence report and have the presentence writer add a sentence that the Court found at sentencing that there were 8 to 24 firearms. preference? MR. KAVANAGH: Judge, I think, probably saying the Do you have a

same thing, I would like it to be actually in the presentence report that the Court found 8 to 24. THE COURT: And would that be easy enough for you to

PROBATION OFFICER MICHAEL LIPSCOMB:

I can do that,

Your Honor, or the other option is to let the record reflect that he was held accountable for the 8 to 24 if the defendant is okay with that. THE COURT: Well, I think what he wants is -- See,

both the statement of reasons -- If it's in the statement of reasons, it will accompany the presentence report. UNITED STATES DISTRICT COURT But if it's

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just in the transcript, it won't. PROBATION OFFICER MICHAEL LIPSCOMB: report. THE COURT: Do you want to do that? Yes. I can amend the

PROBATION OFFICER MICHAEL LIPSCOMB: THE COURT:

So you can just add a sentence there right

after you have 25 to 30 firearms, you can say that at sentencing the Court found 8 to 24 firearms or found that he was accountable for 8 to 24 firearms. All right. Then having resolved the issues

surrounding the presentence report, Mr. Kavanagh, did you want to be heard in connection with both sentencing and disposition? MR. KAVANAGH: Yes, Your Honor. Judge, as you know,

we filed a sentencing memorandum.

I would just like to point Whether it's a

out some of the things I've already written.

downward departure or whether it's called a reasonable sentence, I would like the Court to look at Mr. John White outside of the criminal context. I mean, you've seen him twice

now, and each time it's surrounding guns and hanging out with friends that maybe he shouldn't be hanging out with. seen that twice. Judge, what you haven't seen a whole lot is some of the things he's done in the community. He -- And I've got his mom here too. have his mom speak, as well, when I'm done. UNITED STATES DISTRICT COURT I would like to You've

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THE COURT:

Of course I saw quite a bit of that the We had, I think, some

first time around in the first trial.

substantial evidence at sentencing in connection with that, and we did an enormous downward departure the first time around. MR. KAVANAGH: aberration, I think. was not involved in. But, anyway, the Court knows about the Anytown participation that John was in, Boys and Girls Club. I I saw that. I think that was for

This was at that time something that he

actually called the Boys and Girls Club this time because I guess their records weren't good enough. far enough. They didn't go back

But I spoke with one of the employees who So, I mean, I verified it. I think the

remembered John.

previous PSR also verified that John had worked at and actually been a member of the Boys and Girls Club. But I went and doublechecked that, because I had read that, in the current PSR, that they couldn't verify his participation. But I did that. And the gentleman could not do But he

anything official because he was a low-level employee. did tell me -- And his name was Daniel Davilon. probation office has that name and number.

I think the

But the MLK block parties John was very instrumental in getting that together for the neighborhood. He's done a

good job at the Ascending Roots Charter School doing above and beyond what a lot of teachers would do. I don't think this was

UNITED STATES DISTRICT COURT

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in the previous PSR.

He would take kids to movies, the mall,

sporting events, the Cardinals spring training out there on Elliot and Warner, I believe it was, or -- excuse me -- Warner and Hardy. He did a lot of extra things, and most of that is his own expense and time. So he's not just donating money. He's

donating time, which I think is important. Some of the post-offense in this case and post-conviction in the other case information that I want the Court to know about: John went to CCA on December 13th, I

believe it was, 2006, and he did some good things down there. I mean, instead of just blending in and just sitting in his cell, he got out and did things. He became an instructor He

helping people get their GED's, teaching math class. coordinated a lot of the recreational activities, the

basketball tournaments, some card playing, spades tournaments. He worked in a weight room supervising that. things. And certainly it's good to get out of your cell and do those things, but also it's good for John and the other inmates. He was a pretty positive impact or had a pretty He did a lot of

positive impact on others down there. While John was out between the last case and this case, he went back to South Mountain Community College and got two associate arts degrees, one in general studies and one in UNITED STATES DISTRICT COURT

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education.

And he put that to use teaching the kids at the So he's done some good things.

Ascending Roots Charter School. And we're seeing two sides.

We're seeing John White with these guns, and we're seeing John White doing things in the community. a disconnect. Employment, John's been working since he was a kid, not necessarily drawing a paycheck, but he's been working helping his mom at Park 'n Swap, and then finally working at the Boys Club, and then into adult life getting actual jobs. So he's done some good things. Some of the factors in 13 or -- excuse me -- 18 U.S.C. 3553 cover the things I just talked about. of this offense, it's serious. I mean, the nature But if you It's kind of

It certainly is.

balance that against other things that John has done, I think it's a wash. He needs to stay away from these guys he's He needs to concentrate on his job, his

hanging out with.

school, his family, and not go to these clubs and do promoting and things of that nature where he's working the side business. He just needs to stop doing that. If he does that, then we won't be in the environment where he'll be exposed to firearms. Other factors, John's history and characteristics, I've gone through that already. memorandum. UNITED STATES DISTRICT COURT I also wrote about it in my

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I think a reasonable sentence in this case, of course the Court's going to do that here in a few minutes, but that's one of the factors. I'm just asking the Court to be

reasonable, take into all the consideration -- take into consideration all the facts that you've heard and seen and impose a just punishment. Deterrence, I'd like to say John is not going to be back here again. I think that his time in CCA, considerable

time in CCA, has given him a lot of time to think and to make plans for the future. Plans for the future include getting out, getting a job at a warehouse, shipping and receiving. guy who owns a warehouse. His mom knows a I don't

He's going to do that.

think he will be able to teach again because of these felony convictions. But he has a plan. I think he still wants to

continue helping kids in the community. Regarding the supervised release violation -THE COURT: By the way, I'm glad you turned to that,

because I don't know whether I asked you whether you read the disposition report, but did you read it? MR. KAVANAGH: THE COURT: disposition report? THE DEFENDANT: THE COURT: Yes. I believe that suggested that I did. And, Mr. White, did you read the

Good.

All right.

UNITED STATES DISTRICT COURT

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the advisory guideline range policy statement suggested four to ten months with a two-year maximum. I'm sorry. Go ahead, Mr. Kavanagh. That's okay, Judge.

MR. KAVANAGH:

I just want to point out one thing -- well, two things. I disagree with the recommendation of 22 months. I

think something in the line of 4 to 10 months, which is the guideline range, is more appropriate. And I say this because I believe it was

John White was arrested on April 15th, 2006.

the very next day he told his probation officer what happened. The probation officer got a copy of the report eventually, I want to say, May 2nd or sometime shortly thereafter. The probation officer took no action against John at all. They met. They discussed it. And that's about it.

It wasn't until December 13th when John is arrested on a federal warrant that he's revoked. custody all that time. seriousness of this. And so he's out of

And I don't want to downplay the It is serious. But if John were a danger

to the public, he should have been arrested that night and revoked and had a hearing fairly quickly, even though the state didn't bring charges, even though the federal government hadn't brought charges yet. So I have a hard time with the government recommending 22 months when they let him out, taking no action, for probably about six months. UNITED STATES DISTRICT COURT

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So I think that more of a guideline range is appropriate. When Mr. Castaneda referenced this, the instant

case, the 2006 case, he recommended middle range, 24 months. That's a fair recommendation. I think it might be more

reasonable to lower that somewhat because of the things that John has done, some good things since his last conviction and since he was arrested in this case. What I'd like to do, Judge, is propose this as a final comment before Mrs. White would like to address you. A

reasonable sentence, I think, in both these cases would be to give John White time served for supervised release violation. He's done almost 15 months. in his new case. If he can do what he says he can do, what he's been telling me and he's been telling everybody else, you'll never see him again. If he doesn't part ways with his previous And give him five years probation

friends, people he grew up with down on 24th Street and Broadway, if he doesn't put those in his past life, if he doesn't move on, you will see him back again. And for a

probation violation involving a new charge, he's probably going to do significant time, and he knows that. conversation very recently. And I would ask the Court to consider that and test this man, see whether or not he in fact is who he says he is with all these charity activities and community activities and UNITED STATES DISTRICT COURT He and I had that

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his education and the good things he's trying to do. to cut ties with his old friends, no doubt about it.

He's got I think

one more chance, I think you won't see this man back again. THE COURT: suggestion. You're suggesting probation in the new case and approximately 15 months time served in the supervised release case? MR. KAVANAGH: Yes, Your Honor. It's way above the Let me see if I understand your

guideline range for the supervised release, but it's less than what Mr. Lipscomb recommended. THE COURT: And the suggestion of probation in the Is that based

original case is outside the guideline range.

upon Booker, or is that based upon a specific section of the guideline manual? MR. KAVANAGH: Judge, it's based on Booker and using

some of the departures or -- well, some of the provisions in the guideline manual such as the charitable and community activities, things he's done, good works, good deeds, looking at those things, and his excellent employment history, as outlined in my memorandum. Again, we're in a different era now, whether you call it a downward departure or whether you call it a reasonable sentence, but I think it's probably more apt under Booker. But

I did try to connect it up with potential downward departures UNITED STATES DISTRICT COURT

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in the Guidelines. THE COURT: Let me ask you this. The defendant has He still quarrels

not accepted responsibility in the new case. with the jury's verdict. sentencing? MR. KAVANAGH: consider it.

What role should that play in

Judge, I think the Court should The jury heard the evidence. I

I wasn't there.

think he has accepted responsibility for the fact that he shouldn't have even been there in the first place. tell the -THE COURT: weren't where? MR. KAVANAGH: know what happened. THE COURT: Oh, I'm sorry, but you were at the trial. Certainly. And I heard all the I wasn't at the crime scene. I don't When you say you weren't there, you I can't

MR. KAVANAGH:

evidence, and I read the reports, and I did what I had to do, I think. But he is maintaining his innocence. possess the weapon. was certainly there. The jury -- And he respects the jury's verdict. mean, he's not disrespecting the criminal justice system. I He's He was there. He didn't He

That was our defense.

not disrespecting the police officers and the agents in this case, the prosecution. He does respect the system, the Court's

UNITED STATES DISTRICT COURT

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orders and the judgment in this case. didn't have that weapon. about that. THE COURT: All right.

But his position is I

And I'm not sure what else to say

Thank you very much.

Mr. Kavanagh, did you want me to hear from the defendant first or your witnesses? MR. KAVANAGH: Judge, I would like you to hear his

mom, Ms. Rita White, if I may. THE COURT: All right. Have her come on up.

MR. KAVANAGH:

Judge, also my client's sister would

also like to speak after his mom is done. THE COURT: RITA WHITE: THE COURT: RITA WHITE: THE COURT: RITA WHITE: mother. Thank you. Hello. Welcome. I just -- He already told you about -For the record -My name is Rita White. I'm John's

And Mr. Kavanagh, he did a really good job telling you And, first of all, I

of some of the good things that John did.

want to give honor and praise to our heavenly father for blessing me with a son like John. John has been my backbone.

John has helped me since I -- He's come from a single parent home, and John has worked since he was nine years old. started helping me at the Park 'n Swap. he's done everything he could to help me. UNITED STATES DISTRICT COURT John

And from that time on,

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At the age of 14, he got his first job with the summer program, and he worked for the Boys and Girls Club. worked for the youth center. worked in the neighborhood. When I became sick in the '90s, at first they diagnosed me with cancer, but it was benign. I just had tumors He's He's

He's worked at our school.

and cysts, and I had to have five surgeries, and John's been there to help me. And then lately I have a bone disease, and it's deteriorating my bones, so, you know, I'm in pain a lot. But

John is at my house every day to check on me, to help me if I need work. I've started a new business for myself. And I But

can't lift and do the things that I was able to do before. John's been there for me. We've started a new business because we know that

until these things hopefully are erased with John, he won't be able to be back in the education field. the business field. But he's very good in

And we have started a family business so

he would have somewhere to work. I also have a best friend with a warehouse that said that he's known John since he was nine years old. He said that

if John got on a work program or whatever, he's willing to give John a full-time job so that he can keep doing the things that he was doing before, helping me, his two kids, doing his volunteer work in the community. UNITED STATES DISTRICT COURT

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And I was going to go over it, but it's just a long list, and it would just be repeating, like, the community things that John did. And the only thing I want to say is I'm I know it's --

very proud to have John as my son, you know.

you see some of the bad things or things that John has done. But on the overall, all that John has been, the help of over 120,000 kids at Anytime Camp, he was one of the youngest ones that went to this camp as a delegate and then as a counselor starting back in 1995. So if you look back in the records there, they'll have records of all the things that he's done. So thank you. THE COURT: Thank you very much for coming. Good morning. I'm Kisha I

KISHA SPELLMAN WHITE: Spellman White.

I'm John's older sister.

You've seen me.

testified in court with him a little while back. THE COURT: If it would be more comfortable for you,

you can pull that microphone up to reach you. KISHA SPELLMAN WHITE: THE COURT: I'm sorry.

There you go. Being a six footer, it's kind

KISHA SPELLMAN WHITE:

But, anyway, I just wanted to -- my mom was telling

you about some things that John has done in the past, and I'm going to tell you about some things that John has done in the present. UNITED STATES DISTRICT COURT

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I just purchased my first ABA franchise here in Arizona with the help of my brother from prison. how he did it. Don't ask me

But, you know, any letters that I need, any

documents that I need to look over, any old contacts that John has had, he's passed them on to me. another business. So he's helped me purchase

So that's something to be praised for.

What the ABA does, it's amateur athletic association, so what we do is kind of like the NBA development league. We're a feeder program for the NBA. at-risk youth. But what we do is we take

We put them through a development league

through basketball with mentoring, professional development, and, like, different coaches that we bring in. And we help

them either go to the CBA, stay in the ABA, or -- hopefully -there has been six in the last six years that have actually entered into the NBA. So that's just another program that John has helped me to bring it to fruition and make -- to make it something that's true. So I know the courts, you know, know John with what's black and white, and I can't -- I can't make you believe certain things about my brother, because you're going to read what's in black and white, and you're going believe, you know, whatever -- whatever versions of the truth that you've read in your little, you know, in -- what's in black and white. from what I know is that if you look at the statistics of UNITED STATES DISTRICT COURT But

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what's going on in South Phoenix, it's a shame that John hasn't been there, because over 16 of the youth that he used to mentor are dead. And I'm pretty sure everybody has seen it on the TV.

There's different gangs going back and forth and doing whatever, when here in court they make it seem like, oh, John is a gang member or John was this or John was that. John was a peaceful person, and John stood right in the middle of combat and created peace. the streets. There's no peace on

And it's a shame that, you know, that there's

been a distortion of the truth to make it seem like he's done things that he hasn't done. So, you know, whatever the jury, the verdict -- And I'm not going to get here -- And my mom was saying, oh, don't say this, don't say that. I'm going to speak from my heart, And

and I'm going to speak from the truth as I've seen it.

with John in prison, it's negatively affecting what goes on in the community. So I hope you take that into consideration. I'm saying it

And I'm not saying it because he's my brother. because it's the truth.

So thank you for your time, and no matter what, I'm going to support my brother. THE COURT: Thank you.

Thank you very much.

Mr. Kavanagh. Mr. White, is there anything that you wanted to say about both your sentencing and your disposition? UNITED STATES DISTRICT COURT

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THE DEFENDANT:

Just with the sentencing, with the

time served and the five years probation, I told him, I said I have no problem with probation, supervised release, community service, anything. I try to avoid as many things as possible

to keep myself out of trouble. A lot of people who I try to go back and help were people who I've grown up with and I still will go out with sometimes. It seems that sometimes I would still get in

trouble or be in a bad situation because of doing stuff like that. But being in here now away from my kids, my family, my mom who has been sick -- I like helping people, and I'm a people person, and I'm always helping people and always doing stuff -- but if I'm going to get in trouble or be back in jail or anything like that, I'm going to have to just -- to me, it's a cold thing to do -- but cut off almost all friends, all past ties. And it's bad, because I heard about numerous friends. Over ten different friends died in these 15 months I've been in jail. A few little girls that go to our school came up A few little guys that are in high school now are in

pregnant. jail.

And usually I'm the one to try to help everyone else and

keep them on the straight path. I was going over the police reports that they have. I've got pulled over 15, 20 times, and almost every single time UNITED STATES DISTRICT COURT

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it's been stopped and released. South Phoenix, you know.

That's how they do people in

And I'm not holding anything against them, but the stops that they have, they have three different things in the record that they showed me or whatever. 2000. That's eight years ago. The last stop was in

They couldn't find anything I've

current or anything that I have done personally myself. never done anything dangerous or harmful to anyone. what I'm about. That's not what I do.

That's not

I was trying to refocus my life with going back to school. Every summer I was going back to South Mountain trying At the time I had a girlfriend who She

to finish up my degrees.

was supporting me, and she was making money selling loans.

even told me take off one whole complete year so you can finish up your bachelor's at ASU. And that's what my plans were, to

finish up school so I could get my bachelor's and teach either grade school level or even at the high school level, because I know different people at the different schools. They were

trying to get me at North, North High School, because they thought I had my bachelor's, but I only have my associate's degree. But I wasn't able to do that. But I was just looking for me in the future. And what

I got to do is, as bad as it may hurt or whatever, if I cannot help and if -- if I can't help people and then it ends up hurting me, if I have to cut off ties, then that's what it has UNITED STATES DISTRICT COURT

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to be, because I can't, like with the case now, I can't accept full responsibility because I know myself that I never touched the weapon. fingerprints. That's why I'm the one who ordered the I know I didn't touch the weapon. Could I

But could I have avoided going to the club? have avoided hanging out by the van, you know?

That's something that I could have done to avoid what happened. And that's what I'm going to have to do for the

future, just avoid as many situations as possible that could potentially get me in trouble. And from now on, it's, when I'm helping the kids, there's little chance for me to get in trouble. It's the old

friends who are still doing the same stuff, who I try to get to get out and do different stuff, is when the problems occur. So there's certain stuff that I just won't be able to do no more and certain people I just won't be able to help. And that's about it. They got me now doing the recreation with the CCA. pick all the movies that they watch. We do the bingo -- the I

bingo, the spades, the dominoes, the basketball tournaments, the volleyball tournaments. events. well. And just talking to a lot of people in there, because once they get to know you, they don't treat you the same way. UNITED STATES DISTRICT COURT I referee different sporting

And we also fix all the weight machines in there as

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And I've had a lot of positive talk.

And they just keep on

telling me the same thing, hey, man, you got to cut your ties. So that's pretty much what I have to do. And I'm just

wasting my time and my life with being in jail or sitting in jail or taking the risk of being around people that could land me back in jail, you know. now; stay away. THE COURT: Mr. Lee. MR. LEE: Your Honor, in the government's sentencing All right. Thank you very much. So I just know what I have to do

memorandum we indicated a sentence of the defendant's -- in the defendant's supervised release that he receive 24 months and that in his jury trial, 06-1073, he receive five years probation. The reason behind this is not -Excuse me just a minute. Where is that?

THE COURT:

Because I'm looking at Page 8 of your memo, and I'm looking at the last paragraph of it. Is that what you meant by the language in the last paragraph? It says, "The government suggests the Court

consider imposing the remainder of defendant's supervised release sentence in -- " MR. LEE: clear with that. THE COURT: MR. LEE: What are you suggesting by that language? I'm suggesting that he receive the maximum UNITED STATES DISTRICT COURT Yes, Your Honor. I'm sorry if I wasn't

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sentence for that, which is 24 months, and then five years probation on the jury trial conviction. a departure per se for either sentence. It is not by means of It is simply an

attempt by the government to come up with a more creative sentence that is similar to what the low end of both sentencing ranges would be. In the supervised release, it's 4 to 10 months is the normal range. In the jury trial conviction, the normal range Taking the low end of both is

is 21 to 27 months.

approximately 25 months. We're recommending 24. But what it allows the Court

to do is it allows the defendant to be under -- to be monitored by the Court to keep him moving on the straight and narrow, as they say, for a period of five years instead of just a period of three. We're concerned with the statements that we're still hearing regarding lack of responsibility, and we've noted that. I don't really know how to address that other than in this manner we'd recommend a sentence that allows the Court to monitor him to keep him motivated to move forward. His activities while on supervised release demonstrate someone who has not given up the lifestyle. And that's the

best that we can see as to what is occurring in this situation. Out at the club multiple times. bad reputation. There's firearms present. The club has a very He inspects it. He

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looks at it.

Whether it's his or not, cannot say, but the

reality is we have the testimony of two of the three police officers on the scene who indicated they saw him holding that firearm. And his denials at that time as well as his denials here the Court has heard. But we submit to the Court that this

is a better way to have him receive just punishment for the offense but further to make sure that we don't see him hopefully in the future. THE COURT: Well, are you -- as you know, offense Is

level 14 is not probation eligible under the Guidelines. the government asking for a downward departure or a Booker variance? MR. LEE:

This would be a Booker variance to allow, on

both -- in both situations, an upward departure in the supervised release violation to move it to 24 months instead of 4 to 10 and a downward departure in the -- or downward variance -- excuse me, and let me use the terms correctly -- an upward variance under Booker on the supervised release and a downward variance under the jury trial sentence to allow for a sentence of 24 months to be followed by five years probation. In essence we're just trying to make the math work a little better so that the defendant is not looking at, quote-unquote, three years of supervised release, but he's under five years probation, an extended -- a more extended UNITED STATES DISTRICT COURT

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period of time to allow him to, again, do what he says he wants to do, and that is straighten up. Again, we're still concerned with the idea that he's not taken responsibility, but we believe this is the best way to handle that issue. THE COURT: Wouldn't three years of supervised release

be adequate to see whether the defendant is a person of his word? MR. LEE: Your Honor, given the fact that we've been

here in 2000 -- the defendant was in this court in 2003, now the Court is here in 2006 -- we had a three-year gap in that time frame; obviously he didn't complete the full amount of supervised release -- we believe an extended period of time would allow him to, with the additional court supervision, it will help him mature past apparently what he has not gotten past out of the neighborhood. THE COURT: All right. Thank you. I think we have

two probation officers here. Mr. Lipscomb.

Why don't we hear from you both.

PROBATION OFFICER MICHAEL LIPSCOMB:

Yes, Your Honor.

I don't really have anything further to submit other than my report. I would go along with the government's recommendation.

I think that's appropriate. THE COURT: And then let me hear from our presentence

writer in connection with the new case. UNITED STATES DISTRICT COURT

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PROBATION OFFICER RICARDO CASTANEDA:

We've got two

probation officers, as the Court noted, and different recommendations being proposed. I just want to add, in

addition to what I put in the report, in response to Mr. White and to his family, is that Mr. White has this feeling that the government's after him, that the criminal justice is against him, and that we think that he's a bad person. And by all

means, me, myself, I don't think he's a bad person, an evil person. I look at Mr. White, and I see an individual who's had He's made some bad choices. And now

a difficult upbringing.

he's got to suffer the consequences of those choices. The problem is he's never accepted responsibility, even with this instant offense. responsibility. He doesn't accept

And he wants to exercise his constitutional

rights to take his case to a jury, and that's what he did. But it's -- the evidence, the facts, they all point to And he just needs -- he needs to just confront what he His family needs to accept that he's made a bad He's not a bad person. He's got a lot of potential. He wants to

has done. decision.

He's done a lot of good things in the community. take care of people.

I think he needs to focus on taking care of himself. He doesn't need to worry about everybody else but himself. While on supervised release, there's no reason to be living this other life of going out in the clubs and -- where you're UNITED STATES DISTRICT COURT

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going to get in trouble.

There's no reason to do that.

Once you're off supervised release and you want to live a lifestyle however you want, that's up to him. But I

think while you're on supervised release, there is a higher expectation of what kind of lifestyle you want to be living. You don't want to be around that. There's no reason why he

should be out such late in the evenings in those kind of nightclubs. And so I look at all the facts, and the recommendation of the 24 months, which was the mid-range, I believe is appropriate. As far as the supervised release, the Chapter 7 policy statement is that he serve a sentence within that range to be consecutive. And so I don't -- I don't disagree with the But at the same time he's been

government's recommendation.

given -- he was given a big opportunity the first time, and then what has he proven? He's proven that he was on supervised release but then was not. In fact, he's, to the contrary, he's -- he's And so it's --

continued to justify that he is a criminal. it's like he's living a double life.

We've got the John who's

struggling to live his criminal livelihood life and then the good John who wants to move forward, and I believe he's got good goals. I believe he's got potential to do, you know, and

there is a lot of goodness in him. UNITED STATES DISTRICT COURT

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But at the same time, he just needs to accept responsibility he's made some bad decisions and just move forward. THE COURT: I appreciate it very much. Thank you.

And, Mr. Kavanagh, anything in reply? MR. KAVANAGH: good points. Judge, Mr. Castaneda makes some very There is a

He and I have spoken before.

disconnect from what we see with John regarding his community activities and his education and just the things he does from the positive side. friends. But he has got to cut ties with his old

No doubt about it. So that's the issue. What the government is

suggesting is reasonable.

However, if the Court's not inclined Perhaps

to do that, I think we can get there in another way.

impose a guideline sentence of 21 to 24 months, somewhere in there. months. I'd like to see John get some credit for some of the things he's done while in custody, some really good things. See some positive reinforcement in that area. And then run the supervised release violation concurrent. Find something less than the 22 months. Based on Mr. Castaneda recommended 24. Impose that or 21

my argument before, I don't think 22 months is reasonable based on the fact that they let the guy stay out there for six months before they actually violated him. And then put him on

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two or three years supervised release. place.

We get to the same

So I think the Court has some options.

But I think by

running the sentences concurrent, I think that with the three years supervised release, we can get to the same place. So I would ask the Court to, A, either do what the government suggested but give him time served for the supervised release, let him start probation right now, or take my suggestion, which is go with Mr. Castaneda's recommendation, perhaps 21 months, and run the supervised release concurrently, and give him three years supervised release on the current case. I think we get there -- either way is reasonable. THE COURT: All right. Thank you very much.

I have of course considered the presentence report. I've considered the written submissions. disposition report. produced. I've considered the

I've considered the letters that have been

I've considered the statements that have been made I've considered

here by the defendant and his family members. the arguments of counsel.

I've considered the recommendations There's considerable

of two separate probation officers. variety here in what is proposed.

I've considered the advisory guidelines. considered the policy statements.

I've

Most importantly, I've

considered 18 U.S.C. Section 3553 that requires me to consider the nature and circumstances of the offense and the history and UNITED STATES DISTRICT COURT

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characteristics of the defendant. The nature and circumstances of the offense are felon in possession. We take the jury verdict as gospel as we are

bound to do under the law unless and until it's set aside. And in connection with the supervised release, we have someone on supervised release for a felony committing yet another felony. Those are the bare facts as it relates to the

nature and circumstances of the offense and the supervised release violation. We consider the history and characteristics of the defendant and there, I think, the suggestion that there's ambiguity in the record as to just who the defendant is and what is he about. He's now collected two separate federal

felonies, and yet it seems to be clear from the record that he has participated in the community both with his family members and otherwise in a positive way. There's no -- There are no convictions for violent offenses, and yet the defendant here has two firearms-related convictions that when you're dealing with firearms, you certainly present the risk of violence. And in fact some of

the weapons in the earlier case, the supervised release violation, indeed ended up in the hands of people who used them in connection with crimes. So we have two sides of the same coin here operating. It may be complex, or it may be just as simple as the defendant UNITED STATES DISTRICT COURT

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and his family members make it out to be, that he's a person who is an otherwise good person but who's grown up in an environment in which violence and bad things go on as a matter of course, and by some relative standard he isn't doing too badly. Of course the law doesn't judge people based upon a skewed standard like that. It expects everybody in the

community to play by the same rules. The statute requires us to consider the objectives of sentencing, deterrence, both general and specific, societal safety, punishment, needed rehabilitation. The last time

around, we gave the defendant a substantial departure from the advisory guidelines, substantial. The guideline range for the dealing in firearms was 21 to 27 months, and we gave the defendant a five-month sentence. It may be that we made a mistake. Sometimes when you deal too

leniently, you send the wrong message. The guideline range in the instant case is 21 to 27 months, and the disposition range in the supervised release case is 4 to 10 months. The parties have suggested creative

variations on the theme in terms of trying to reach an end result. The defendant has already served close to 15 months, which would be credited surely against what we do here today. I don't believe that, in light of the fact that the UNITED STATES DISTRICT COURT

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defendant committed this felony while on supervised release for another related felony, that probation works, nor do I believe that a protestation of innocence in the face of a jury verdict of guilty is particularly satisfying. The defendant of course has the right to maintain his innocence and appeal from the Court's judgment that would be entered pursuant to the jury's verdict. propriety of the jury verdict. But we start with the

And having sat through the

trial, there was sufficient evidence for the jury to make the findings that it did. I think Mr. Castaneda's recitation of the circumstances surrounding the defendant and this offense is right on target. And there is a measure of denial going on

here both in terms of the original felony and the new one that -- And I don't know whether the defendant casts himself as a victim or not. But it seems to me that at some point in

one's life, one has to accept adult responsibility for crimes and errors and move on. I have of course, in addition to the statutory factors, as I said, considered the Guidelines. They do make

some sense, particularly in cases in which there's some ambiguity. At least they afford us some measure of sentencing

uniformity around the United States so that similarly situated people get roughly similar sentences. I don't believe there's any basis for a departure or a UNITED STATES DISTRICT COURT

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variance in either case.

I think the goals sought to be

achieved by the statute are easily met, in this case pursuant to the guideline ranges. I think to the extent that the defendant has been committed to community affairs, it would suggest that the sentence should be in the low range of the advisory guideline range. So I believe the reasonable sentence, in light of all of these considerations, would be the low range of the advisory guideline in the new offense and the low end of the policy statement in the supervised release case, to be run consecutively, because they are separate cases. And Guideline

Section 7B1.4 suggests that and with good reason, because they are separate issues. And there must be some additional penalty

for having committed a new felony while on supervised release. So for all of those reasons -- Oh, and one last comment before we impose sentence. Both the government and the

defendant have, in the process of recommending probation, at least the government I know was suggesting, well, we have a longer tail out there within which to ensure that the defendant complies. And there's some merit to that. And it also greatly

increases the potential punishment that would be available on probation revocation in contrast to supervised release violation. On probation revocation, it could go up to ten years. UNITED STATES DISTRICT COURT

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On supervised release violation, it is likely that it only goes up to two years. But I think given the nature of these offenses and the history and characteristics of the defendant, we don't need a tail that's that long, nor do we need an exposure that is that great. One of two things is going to happen. Either the

defendant is going to accept responsibility for himself and move on or he isn't. And if he isn't, then the penalties

associated with new offenses will more than take care of it. So for all of those reasons, in 06 CR 1073, it's the judgment of the Court that the defendant is committed to the Bureau of Prisons for a period of 21 months, which is the low end of the advisory guideline range. He'll pay the special assessment of $100. I agree

with the probation officer's recommendation of a modest fine, because, although it's unusual in cases of this sort, I think it reinforces the notion of personal responsibility. So the defendant will pay a fine of $500. And he'll

pay the total of the special assessment and the fine in accordance with the payment schedule that will be in the judgment of conviction. And on release from prison, the defendant will be placed on supervised release for three years and while on supervision comply with all the standard conditions of supervision. UNITED STATES DISTRICT COURT

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Among the more important are, as you now know, not to commit another federal, state, or local offense during the term of the supervision and the additional conditions that you submit to reasonable search and that you not be involved with gang members or any gang activity. Now, in connection with the new case, that is to say, 06 CR 1073, you have the right to appeal. And if you want to

appeal, you'd have to file a notice of appeal within ten days of the entry of judgment. And if you want the clerk to file a

notice of appeal on your behalf, that can be done as well. So let's move to the other case, number 03 CR 550, the supervised release case. In that case, we had, based upon the

findings of a violation, revoked the defendant's supervised release. And pursuant to that, it's the judgment of the Court that the supervised release be revoked, and the defendant will be committed to the Bureau of Prisons for a period of four months, which is the low end of the policy statement, but consecutive to the sentence in 03 CR 550. And, for that

matter, let me also make sure that the judgment in 03 CR 550 indicates that the 21-month sentence in that case is consecutive, as well, to the four-month sentence in the disposition case, the 03 CR 550. And in the disposition case, there will be no supervised release to follow because there will be the three UNITED STATES DISTRICT COURT

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years of supervised release in the new case. And in the disposition case, as well, you have the right to appeal. And if you want to appeal that, you need to

file a notice of appeal within ten days of the entry of that order. Let me see. Hold on, please. The clerk has handed me a copy of a letter that the defendant sent to me filed on December 4, 2007, asking for the appointment of counsel in connection with a Section 2255 motion. I'm not sure whether that -- Oh, yes. That's in The clerk filed The clerk has handed me a letter here.

connection with the supervised release case.

the letter and I believe sent copies to all counsel of record. Mr. Kavanagh, do you have anything to say about that letter? MR. KAVANAGH: Judge, I would ask the Court to appoint That's the old matter, the 2003 I think the appeal was

CJA counsel on that matter.

matter, that's been up on appeal. denied.

Mr. White raised some issues with the appellate

lawyer, what he didn't do, what he should have done. And I would ask the Court to appoint an appellate lawyer to do the habeas corpus motion. all I can say about that. THE COURT: Under what authority do we appoint counsel So that's pretty much

for indigent defendants for collateral attacks on judgments of UNITED STATES DISTRICT COURT

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conviction after appeals have affirmed the judgment? MR. KAVANAGH: Judge, I believe it's in that

particular statute, 2255, but I may be reading the wrong statute, but I believe it's in there. But I can check quickly. THE COURT: You're welcome to. Go ahead.

MR. KAVANAGH:

Assuming I've got the right statute The

under 28 U.S.C. 2255, it's at the end of the statute.

statute really isn't numbered or lettered in any way, but it's toward the end of the statute. because there really isn't one. THE COURT: says the Court may? MR. KAVANAGH: Yes, Your Honor. Is it that permissive language where it I can't cite you a subsection

It says, "Appointment of counsel under this section shall be governed by Section 3006(a) of Federal 18. that's the CJA statute. THE COURT: And have you looked at that one too? Not lately. I believe

MR. KAVANAGH: THE COURT:

I think that Section 3006(a) describes the

mechanism by which counsel are appointed rather than the occasions in which one is entitled to counsel. MR. KAVANAGH: THE COURT: Right. Correct. Thank you.

All right.

Mr. Lee, did you want to be heard in connection with UNITED STATES DISTRICT COURT

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that letter, or did you give that any thought when you got a copy of it? MR. LEE: Your Honor, I can't speak to the Court about I can only indicate to

the subsections that you're discussing.

the Court that I have never received a 2255 from anything other than a pro per defendant. I'm not sure if that means that they That's

don't receive counsel when they're indigent or not. just been my experience. THE COURT: officers? PROBATION OFFICER MICHAEL LIPSCOMB: PROBATION OFFICER RICARDO CASTANEDA: THE COURT: All right. All right.

Anything from our probation

Nothing. No, Your Honor.

I have no recollection of ever

appointing counsel in a case arising under Section 2255 or, for that matter, Section 2254 for state prisoners. I believe the

right to counsel under the Constitution of the United States and the Sixth Amendment extends to the trial and the appeal and not post-conviction relief. So construing this letter as a motion for the appointment of counsel under Section 2255, it's denied. Mr. Kavanagh, is there anything else from the defendant, anything by way of geographic designation or program recommendation? MR. KAVANAGH: THE COURT: Judge -When you run

There's not much time left.

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the two consecutively, you're talking about -- you're looking at your watch -- I'm not talking about time here at the proceeding. I'm talking about remaining time on the sentence. He's There's not But if you

With the 21 consecutive to the 4, that's 25 months. served 15. There's likely to be good-time credit. He may be left at CCA.

an awful lot of time left.

do have a geographic or a program recommendation, I'd be happy to make it. MR. KAVANAGH: Judge, a couple things. I want to make

sure that we get this clear he's going to do four months on the supervised release. Will he get the excess time then

accredited toward his new sentence? He's done 446 days. So if four months are

credited against his supervised release, he's already done that. So he's going to have probably 11 months additional time

that I would like the Court to apply toward his current sentence, if that makes sense. THE COURT: No, I don't understand it. But I know

this; that the Bureau of Prisons calculates credit and application of credit, and because they do, I don't count the days. I do know this; that he will get credit for every day he has served. MR. KAVANAGH: Okay. All right. Getting back to your

question, if he's moved out of CCA, then I would ask that he be UNITED STATES DISTRICT COURT

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placed somewhere in the southwest. special program.

I'm not sure if there's any

I don't think John needs anything special.

But I would like to have him placed somewhere close to Phoenix if possible. THE COURT: Was the last sentence the five months

served at CCA as well, Mr. White? THE DEFENDANT: THE COURT: Yes.

You've never been out of CCA? No.

THE DEFENDANT: THE COURT:

So you've never been to a Bureau facility? No.

THE DEFENDANT: THE COURT:

That's too bad, because you'd have better

programs at a Bureau facility. Well, we'll recommend that the Bureau consider designating the defendant to somewhere within the southwestern part of the United States if it is consistent with the Bureau's needs and its evaluation of the defendant. Anything else, Mr. Kavanagh? MR. KAVANAGH: Just one more thing, Judge. I would

like to orally motion to withdraw from the case.

And I think

Mr. White would probably want to file a notice of appeal to protect his rights in case he decides to actually do that. would ask the Court to appoint a CJA appellate lawyer if possible. THE COURT: All right. Let me ask you -- I think we I

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can do that.

That is to say, no notice has been filed, so we

still have jurisdiction to appoint. So let's do that. We will grant Mr. Kavanagh's motion

to withdraw in both of these cases, and we'll ask the clerk to appoint appellate counsel for the defendant in both of these cases. Now, in terms of the filing of the notice of appeal -I'm sorry -- the notices of appeal, Mr. Kavanagh, are you going to do that for the defendant, or did you want the clerk to do that on his behalf? MR. KAVANAGH: Judge, we've got them prepared, but I They're signed by

can get them and hand them to the clerk now.

Mr. White, and he prepared -- I prepared them for him, but it's in his signature. THE COURT: squared away. Excellent. All right. Then I think we're

Is there anything else, then, Mr. Kavanagh? Just a second, Judge.

MR. KAVANAGH:

(The defendant and his counsel confer off the record.) MR. KAVANAGH: Judge. THE COURT: government? MR. LEE: THE COURT: No, Your Honor. Thank you, all. Good luck with this. Mr. Lee, was there anything else from the We have nothing further. Thank you,

(Proceedings recessed at 2:39 p.m.) UNITED STATES DISTRICT COURT

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C E R T I F I C A T E

I, LINDA SCHROEDER, do hereby certify that I am duly appointed and qualified to act as Official Court Reporter for the United States District Court for the District of Arizona. I FURTHER CERTIFY that the foregoing pages constitute a full, true, and accurate transcript of all of that portion of the proceedings contained herein, had in the above-entitled cause on the date specified therein, and that said transcript was prepared under my direction and control. DATED at Phoenix, Arizona, this 28th day of April,

s/Linda Schroeder Linda Schroeder, RDR, CRR

UNITED STATES DISTRICT COURT

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