Free Other Notice - District Court of Arizona - Arizona

1 2 3 4

Mark J. Berardoni
State Bar No. 012970 Luhrs Tower 45 West Jefferson St., Suite 810 Phoenix, Arizona 85003-2317 (602) 257-1295 Attorney for Defendant - Jeffrey Howard Feingold

5 6 7 8 United States of America, 9 10 11 12 13 14 15 Defendant, Jeffrey Howard Feingold, by and through undersigned counsel, hereby files his the process the Court should follow in re-sentencing Defendant under the now) ) Plaintiff, ) ) v. ) ) Jeffrey Howard Feingold, ) ) Defendant. ) ) ____________________________________) CR02-0976-001-PHX-SMM DEFENDANT'S SENTENCING BRIEF PURSUANT TO COURT'S ORDER DATED FEBRUARY 1, 2007 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

16 brief M ARK J. B ERARDONI addressing A TTORNEY A T L AW

17 advisory guidelines and in accordance with the United States v. Booker, 543 U.S. 220 (2005). 18 Booker and its progenies marked a major transformation in federal criminal sentencing when the 19 Supreme Court struck down as unconstitutional, "the provision of the federal sentencing statute that 20 makes the Guidelines mandatory." Id., at 245. 21 There appears to be some black letter law. For example, the guidelines are now

22 discretionary, and the court must partake in an analysis of the factors of 18 U.S.C. § 3553(a) and 23 consider the guidelines to determine a "reasonable" sentence. supra. However, not all of the 24 procedure is currently black letter law, including Ninth Circuit law, which is still in a major influx. 25 For example, just how much weight is to be placed on the guideline calculations, "should they be 26 considered 'presumptively reasonable'?" Should the sentencing judges at least start with the 27 calculations. Must the court articulate its consideration of the factors in 18 U.S.C. § 3553(a)? United 28 States v. Zavala, 443 F.3d 1165 (2006). We can anticipate some of the answers and guidance will Case 2:02-cr-00976-SMM Document 260 Filed 03/23/2007 Page 1 of 2

1 2 3 4 5 6 7 8 9

be forthcoming because the Ninth Circuit will sit en banc to address more specifically the sentencing procedures and the weight to be afforded to the advisory Guideline range. (see United States v. Carty, 462 F.33d 1066; United States v. Carty 465 F.3d 976) In the interim, what appears to be clear is that the Guidelines are now discretionary, and the court must partake into an analysis which includes considering the factors set forth in 18 U.S.C. § 3553(a) along with a consideration of the advisory guideline range and impose a "reasonable" sentence. United States v. Booker, 543 U.S. 220 (2005). Counsel has set forth this legal analysis, however, advises the court that it is anticipated that a sentencing memorandum, which includes objections and requests for departures, and an18 U.S.C.

10 § 3553(a) analysis, will be filed prior to sentencing. Though counsel has had telephonic contact with 11 his client, it is in the interest of justice for him to meet face-to-face to compile information for the 12 sentencing memorandum. 13 14 15 16 17 CERTIFICATE OF SERVICE 18 I hereby certify that on March 23, 2007, I electronically transmitted the attached document to the 19 Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 20 Honorable Stephen M.McNamee 21 Chief United States District Judge Sandra Day O'Connor U.S. Courthouse 22 401 West Washington Street Phoenix, Arizona 85003 23 Mary Beth Pfister 24 Assistant United States Attorney Two Renaissance Square 25 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 26 Jeffrey Howard Feingold (mailed) 27 28 By: s/Todd E. Babel Case 2:02-cr-00976-SMM Document 260-2- Filed 03/23/2007 Page 2 of 2 s/Mark J. Berardoni Mark J. Berardoni Attorney for Defendant- Jeffrey Howard Feingold RESPECTFULLY SUBMITTED this 23rd day of March, 2007.