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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PAUL K. CHARLTON United States Attorney District of Arizona KEITH E. VERCAUTEREN Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Arizona State Bar No. 013439 [email protected] Telephone (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-03-421-013-PHX-SMM Plaintiff, v. Marilyn Gail Fisher, Defendant. The United States of America, by and through undersigned counsel, hereby responds to defendant MARILYN GAIL FISHER's Objections to Presentence Report. The defendant objects to paragraphs 8-28, except paragraphs 11 and 15. The information contained in all of these defense objections does not impact the sentencing in the case now before this Court. Therefore, the United States will leave these issues to the discretion of the Presentence Report writer and the Court. However, this Court can consider all relevant information regarding this defendant as well as evidence concerning co-defendants. The commentary to § 6A1.3 of the Sentencing Guidelines instructs that, "in determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. Any information can be considered, so long as it has `sufficient indicia of reliability to support its probable accuracy.'" U.S.S.G. § 6A1.3, comment. Using reliability as the threshold for consideration, materially inaccurate information should not be considered in the formulation of a sentence. See United States v. Safirstein, 827 F.2d 1380, 1385 (9th Cir. 1987). The district court's factual findings and interpretation and application of the Sentencing Guidelines are upheld on appeal unless clearly erroneous. United States v. Reyes-Oseguera, 106 F.3d 1481, 1483 (9th Cir. 1997). RESPONSE BY THE UNITED STATES TO DEFENDANT'S OBJECTIONS TO PRESENTENCE REPORT

Case 2:03-cr-00421-SMM

Document 504

Filed 09/08/2005

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

With regard specifically to the defendant's objection to paragraphs 31 and 34, the United States agrees with the defendant that she should not be given any enhancement for the firearms that were found in the house. The defendant also objects to paragraph 37 and requests a reduction pursuant to U.S.S.G. § 3B1.2, and ultimately, a base offense level of 30. The United States does not believe this is the proper calculation based on the plea agreement, and defendant FISHER's base offense level should actually be 26. The parties stipulated that U.S.S.G. §2D1.8(a)(2) would apply and that the defendant had no participation in the underlying controlled substance offense other than allowing the use of the premises. Additionally, the parties agreed that Application Note 1 to U.S.S.G. §2D1.8(a)(2) did not apply to this defendant. Therefore, the defendant's base offense level cannot be greater than 26, but the defendant cannot receive an adjustment under U.S.S.G. § 3B1.2 pursuant to U.S.S.G. § 2D1.8(b)(1). The defendant also objects to paragraph 47 regarding Sonya Brown's prior criminal conduct. The information contained in this objection does not impact the sentencing in the case now before this Court. Therefore, the United States will leave this issue to the discretion of the Presentence Report writer and the Court. Additionally, pursuant to the plea agreement, the United States recommends that the defendant receive a two level decrease for Aberrant Behavior in this case pursuant to Sentencing Guidelines § 5K2.20. Therefore, the United States believes that the defendant should have a base offense level of 26, less 2 levels for Aberrant Behavior, less 2 levels for Safety Valve, less 3 levels for acceptance, for a total offense level of 19 with a criminal history category I, and the applicable guideline range is 30 to 37 months. Pursuant to the plea agreement and Sentencing Guidelines, this is the applicable range. The last issue is what is a "reasonable" sentence in this case looking at all the facts. This defendant is a fifty (50) year old woman with no previous juvenile or adult criminal history. Defendant FISHER knew her daughter was seriously involved in manufacturing and distributing cocaine and crack cocaine for a long time. Sonya Brown had been arrested and convicted in 1997 for the same type of activity that was present in this case. Ms. Brown sold crack cocaine out of defendant FISHER's house, and when police conducted a search of the house in 1997, the
2 Case 2:03-cr-00421-SMM Document 504 Filed 09/08/2005 Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14

police seized crack cocaine, marijuana, three handguns and a large sum of money. On March 24, 2003, a search warrant was executed at defendant FISHER's house after police heard Ms. Brown cooking crack cocaine inside the house. Police seized 524.9 grams of cocaine, 216 grams of crack cocaine, two assault rifles, one handgun, and $2600. Balancing the defendant's lack of criminal history with what she knowingly allowed to go on in her house in this case, the United States agrees with the Presentence Report writer to allow this Court to grant a further downward departure for this defendant. The United States further agrees with the

recommendation and justification of the Presentence Report writer to sentence defendant FISHER to only five (5) months incarceration followed by five (5) months of home detention, with a three (3) year term of supervised release. Respectfully submitted this 7th day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/ Keith E. Vercauteren

15 16 17 18 19 20 21 22

KEITH E. VERCAUTEREN Assistant United States Attorney

I hereby certify that on September 7, 2005, I electronically transmitted the attached 24 document to the Clerk's Office using the CM/ECF system for filing and 25 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
23 26

[email protected]
27 28

s/ Keith E. Vercauteren KEITH E. VERCAUTEREN
3 Case 2:03-cr-00421-SMM Document 504 Filed 09/08/2005 Page 3 of 3