Free Response - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona MARY BETH PFISTER Assistant U.S. Attorney Arizona State Bar No. 015103 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. UNITED STATES OF AMERICA, CR-02-0976-PHX-SMM Plaintiff, GOVERNMENT'S RESPONSE TO DEFENDANT'S OBJECTIONS TO DRAFT PRESENTENCE REPORT AND REQUEST FOR DOWNWARD DEPARTURE Defendant. (Sentencing set for May 31, 2007)

Jeffrey H. Feingold,

The United States of America, by and through undersigned counsel, hereby responds to defendant's objections to the draft presentence report ("PSR") and defendant's motion for downward departure. For the reasons set forth in the following Memorandum of Points and Authorities, the government asks that the Court deny defendant's objection that the PSR fails to give him a two-level reduction for acceptance of responsibility and further asks that the Court deny defendant's motion for downward departure for post-sentence rehabilitation. MEMORANDUM OF POINTS AND AUTHORITIES I. Overview Defendant was convicted at trial of 184 Counts of Illegal Distribution of Controlled Substances, in violation of Title 21, United States Code, Section 841(a)(1). The draft PSR calculates his base offense level at 30 and gives a two-level enhancement for defendant's abuse of trust or use of a special skill to facilitate the offense. Defendant objects to the base offense level 30 on the grounds it is based on a calculation of drug amounts under the 2004 Sentencing Guidelines instead of the 2001 Sentencing Guidelines. He also objects to the draft PSR because

Case 2:02-cr-00976-SMM

Document 269

Filed 05/17/2007

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it does not reduce his base offense level by two points for acceptance of responsibility. Finally, he moves for a downward departure based on post-sentence rehabilitation. Except for

defendant's challenge to the calculation of his base offense level under the 2004 Guidelines, which is valid, his arguments should be rejected. Defendant has not demonstrated acceptance of responsibility, and his post-sentence rehabilitation is not so unusual as to warrant a downward departure. II. Defendant is Not Entitled to a Reduction in Base Offense Level for Acceptance. Defendant bears the burden of demonstrating that he has accepted responsibility for his actions. U.S.S.G. § 3E1.1; United States v. Ochoa-Gaytan, 265 F.3d 837, 843 (9th Cir. 2001). Defendant asserts that he is entitled to a two-level reduction in his base offense level because "[i]t is anticipated that during his allocution to the court that [sic] the Defendant will clearly demonstrate acceptance of responsibility for his offense." Objections at 3. Although a defendant who chooses to go to trial nonetheless can demonstrate acceptance of responsibility, his choice to go to trial deprives him of the ability to offer the "significant evidence" of contrition constituted by a plea combined with truthful admission of his unlawful conduct. Ochoa-Gaytan, 265 F.3d at 843. See also U.S.S.G. § 3E1.1, application notes 2 & 3. In this case, defendant has not met his burden of demonstrating acceptance of responsibility. The only evidence defendant offers to demonstrate acceptance is the statements he may make at sentencing. The Court may consider such statements in assessing whether defendant has accepted responsibility; however, the government does not believe defendant's statements at his second sentencing will be sufficient to meet his burden. To date, defendant has shown no remorse or contrition, nor has he acknowledged responsibility for his actions. Even if defendant were to show remorse at his re-sentencing, given his failure to do so at trial or at his first sentencing, the sincerity of such remorse would be questionable at best. To date, defendant has shown no sympathy for the devastation his conduct caused his victims. He has never expressed acceptance that his conduct was wilful or wrong or damaging to his victims. Under

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these circumstances, the Court should use its discretion to deny defendant's requested reduction in base offense level for acceptance of responsibility. III. No Downward Departure is Warranted by Defendant's Post-Sentence Conduct.. Defendant also moves for downward departure under based on his post-sentence rehabilitation, but points to no specific Guideline Section that would warrant a departure on this basis. Presumably defendant relies on U.S.S.G. § 5K2.0. This section provides that factors taken into consideration elsewhere in determining the guideline range may form a basis for departure "if the court determines that, in light of unusual circumstances, the weight attached to that factor under the guidelines is inadequate or excessive." See 5K20.0 Policy Statement. This section also provides that a circumstance that is not ordinarily relevant may becomes so if the circumstance is "present to an unusual degree and distinguishes the case from the `heartland' cases covered by the guidelines." Id. Under the circumstances presented in this case, no downward departure is warranted on this basis. Although the Ninth Circuit has recognized that post-sentence rehabilitation may be a basis for a downward departure, it also has noted that before departing on this basis the district court must determine whether the defendant's efforts take his case "out of the heartland" of the guidelines. United States v. Green, 152 F.3d 1202, 1207-08 (9th Cir. 1998). The district court's determination is reviewed for abuse of discretion. See Koon v. United States, 518 U.S. 81, 98 (1996). In this case, defendant has not shown that his post-sentence rehabilitation efforts take his case out of the heartland of cases covered by the guidelines. He points to the fact that since being incarcerated he has attended "ACE" courses, has worked in the kitchen, has maintained his camp status and has had no write-ups. Obj. at 3. This demonstrates only that defendant is complying with the rules of his correctional facility and taking advantage of some of the offerings available to him there. Defendant's is not the kind of unusually extensive postsentencing rehabilitation that warrants a downward departure. His request for downward departure should be denied. ...
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IV.

Defendant's Base Offense Level Should be Adjusted. Defendant correctly points out that the offense conduct occurred in 2001 and 2002;

therefore, the Sentencing Guidelines in effect at the time of the offense conduct should have been used. Obj. at 3. Specifically, under the 2001 Guidelines, 1 gram of oxycodone = 500 grams of marijuana. Under the 2004 Guidelines, 1 gram of oxycodone = 6700 grams of marijuana. The PSR writer currently is reviewing and revising her calculations in paragraphs 15-27 and will revise the base offense level as appropriate. Once the government has received the revised PSR, and revised guideline calculation, it will file a memorandum addressing this issue and making a sentencing recommendation, taking into consideration the factors set forth in 18 U.S.C. § 3553. V. Conclusion For the foregoing reasons, the United States asks that the Court reject defendant's objection to the draft PSR that it does not give him a two-level base offense level adjustment for acceptance of responsibility and deny defendant's motion for downward departure. Respectfully submitted this 17th day of May, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona

S/Mary Beth Pfister MARY BETH PFISTER Assistant U.S. Attorney

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I hereby certify that on May 17, 2007, I electronically transmitted the attached document 2 to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic 3 Filing to the following CM/ECF registrant:
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Mark Berardoni Attorney for Defendant

I hereby certify that on May 17, 2007, I sent the attached document via interoffice mail 7 to the following who is not a CM/ECF registrant:
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Shawn Shear U.S. Probation Officer By: s/Raquel Lopez