Free Sentencing Memorandum - 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 DISTRICT OF ARIZONA United States of America
CR-02-0976-PHX-SMM

Plaintiff, v. Jeffrey H. Feingold, Defendant. (Sentencing scheduled for April 10, 2007 at 9 a.m.) GOVERNMENT'S SENTENCING MEMORANDUM

Pursuant to the Court's order dated February 1, 2007, the government hereby submits its Sentencing Memorandum addressing the process the Court should follow in re-sentencing defendant under the now-advisory Sentencing Guidelines and in accordance with United States v. Booker, 543 U.S. 220 (2005). For the reasons set forth below, the government asks that the Court sentence defendant to the same term of imprisonment it originally ordered - 144 months in prison. The Ninth Circuit Court of Appeals considered and rejected all of defendant's arguments on appeal, including his challenges to his 144-month sentence. The Ninth Circuit explicitly rejected defendant's argument that his sentence was the product of constitutional error. United States v. Feingold, 454 F.3d 1001, 1013 (9th Cir. 2006). The Ninth Circuit also rejected defendant's argument that he was entitled to a reduction in his offense level under section 2D1.1(b)(7) of the Sentencing Guidelines, finding that this Court's denial of defendant's request for reduction on the grounds that defendant had not "truthfully provided to the government all the information he has concerning the offense," was not clearly erroneous. Id. at 1014. For this 1

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1 reason, any error in the District Court's original ruling that defendant was not entitled to this 2 reduction because his offense of conviction carried no mandatory minimum was harmless. Id. 3 In short, the Ninth Circuit upheld all of the District Court's rulings on the calculation of

4 defendant's guideline sentencing range. It remanded the case for re-sentencing only so that the 5 District Court could address the issue of whether it would have imposed a different sentence if 6 it had known that the Sentencing Guidelines were merely advisory. Id. Accordingly, at 7 defendant's re-sentencing, the Court should adopt its findings from defendant's original 8 sentencing regarding defendant's appropriate guideline sentencing range and give defendant an 9 opportunity for allocution. The Court then should consider that the Sentencing Guidelines have 10 been ruled advisory and, taking into account that fact and the factors set forth in 18 U.S.C. § 11 3553, decide whether it will impose a difference sentence than that originally imposed. 12 Among the factors the Court should consider are: the nature and circumstances of the

13 offense, the need for the sentence imposed to reflect the seriousness of the offense, to promote 14 respect for the law and to provide just punishment, to afford adequate deterrence, to protect the 15 public, and the advisory guideline sentencing range. The government believes that a sentence 16 of 144 months is appropriate in light of these and the other factors set forth in 18 U.S.C. § 3553 17 and asks that the Court sentence the defendant accordingly. 18 19 20 21 22 23 24 25 26 27 28 2 S/Mary Beth Pfister MARY BETH PFISTER Assistant U.S. Attorney Respectfully submitted this 22nd day of March, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona

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1 I hereby certify that on March 22, 2007 I electronically transmitted the attached 2 document to the Clerk's Office using the CM/ECF System for filing and transmittal 3 of a Notice of Electronic Filing to the following CM/ECF registrants: 4 5 Attorney for Defendant 6 7 S/ Raquel Lopez 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
Mark Berardoni

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