Free Amended Judgment - District Court of Colorado - Colorado

Case 1:01-cr-00165-EWN

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Edward W. Nottingham Criminal Case No. 01­ CR­ 165­ 1 N­

UNITED STATES OF AMERICA,

Plaintiff, v. 1. ALBERT CELIO, Defendant.

MEMORANDUM OF SENTENCING HEARING AND REPORT OF STATEMENT OF REASONS

Counsel for the Government, defense counsel, and defendant were present for the sentencing hearing on Friday, July 1, 2006. Based on that hearing, the report concerning presentence investigation of defendant (hereinafter, the " PSR" all other materials submitted to the ), court during or in connection with the sentencing hearing, and all materials in the court' file, the s court enters the following findings, conclusions, and orders: 1. Pursuant to rule 32(b)(6) and (c)(3) of the Federal Rules of Criminal Procedure, the court verified that the defense attorney and defendant (1) were timely provided a copy of the report of the PSR, excluding only the final recommendation as to sentence, together with all addenda, and (2) had read and discussed the report. No other information was withheld. 2. The court afforded all counsel the opportunity to speak, to introduce testimony or other information relating to the report, and to comment on the probation officer' s determination and on other matters relating to the appropriate sentence. The court addressed defendant personally and determined whether defendant wished to make a statement or present any information in mitigation of the sentence.

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RESOLUTION OF FACTUAL DISPUTES AND DISPUTES CONCERNING APPLICATION OF ADVISORY SENTENCING GUIDELINES Base Offense Level 3. Defendant argues that the base offense level should be set at 12, not 14. He concedes the truth of the facts resulting in offense level 14, and his sole argument in support of the lower level is that the PRS prepared on the basis of his subsequently­ withdrawn guilty plea set an offense level of 12. He claims that, by failing to object to the original PSR, the Government has somehow waived the higher offense level. The argument is factually and legally frivolous. Setting the correct offense level is not something the Government can waive. If it were, there is no basis for finding a waiver here. The offense level in the PSR was simply calculated erroneously, and neither party has been prejudiced by the correction. Miscellaneous 4. The court determines that no finding is necessary concerning the remaining issues raised by the objections. The controverted matters were not taken into account in imposing sentence or would not affect the sentence. See Fed. R. Crim. P. 32(c)(1); United States v. Wach, 907 F.2d 1038 (10th Cir. 1990). They also would be unlikely to be considered by the United States Bureau of Prisons in classification and designation decisions. 5. Neither the Government nor the defendant has challenged any other aspect of the PSR. Therefore, the remaining factual statements in the report are adopted without objection as the court' findings of fact concerning sentencing. s

GUIDELINE CALCULATIONS AND FINDINGS 6. Based upon all materials before the court, the court determines the appropriate guideline calculations to be as follows: a. b. c. d. e. Base Offense Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Adjustment for Abuse of Position of Public or Private Trust . . +2 Adjusted Offense Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Adjustment for Acceptance of Responsibility . . . . . . . . . . . . . . 0 Total Offense Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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f. g. h. i.

Criminal History Category . . . . . . . . . . . . . . . . . . . . . . . . . . . . I Imprisonment Range Supervised Release Range Fine Range twenty-one months to twenty-seven months two years to three years $5,000 to $1,000,000

RESTITUTION AND FINE 7. Restitution is not an issue in this case. 8. The court finds that defendant is able, with the use of a reasonable installment schedule, to pay the minimum fine specified by the applicable guideline. Therefore, a fine is imposed.

STATEMENT OF REASONS FOR SENTENCE 9. The reasons for all components of the sentence, see 18 U.S.C.A. § 3553(c) (West 2005), were stated in open court. In determining each component of the particular sentence to be imposed, the court has considered the nature and circumstances of the offense and the history and characteristics of the defendant. The court has also considered the kinds of sentences available and the sentencing range established in the federal sentencing guidelines. Consideration of those guidelines also serves the purpose of avoiding unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. In addition: a. The court finds (1) that a term of incarceration is appropriate and (2) that the length of incarceration imposed is sufficient, but not greater than necessary, to achieve the statutory purposes of such a sentence, including the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, and to protect the public from further crimes of the defendant. The court recognizes " imprisonment is not an appropriate that means of promoting correction and rehabilitation." 18 U.S.C.A. § 3582(West 2005). b. The court further finds (1) that a term of supervised release following imprisonment is statutorily mandated and (2) that the length of the term and the conditions imposed are reasonably related to -- and involve no greater deprivation of liberty than is reasonably necessary to achieve -- the statutory purposes of this -3-

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component of the sentence, including the need for the sentence imposed to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with needed rehabilitation, professional supervision, educational or vocational training, medical care, or other correctional treatment in the most effective manner. 10. Because of the considerations recited in the preceding paragraph, especially the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct, the court will impose a sentence within the recommended guideline range. IMPOSITION OF SENTENCE 11. The sentence imposed is as follows: a. Defendant is committed to the custody of the United States Bureau of Prisons, to be imprisoned for a period of twenty-seven months. The court recommends that the Bureau of Prisons designate FPC Englewood for service of sentence. b. Upon release from his term of imprisonment, defendant will serve a term of three years on supervised release. Within seventy-two hours of his release from the custody of the Bureau of Prisons, defendant will report in person to the probation office in the district to which he is released. Defendant will observe thirteen of the fourteen* " standard"conditions of supervised release heretofore adopted by this court, and the clerk shall specifically enumerate these conditions in the judgment prepared under rule 32(d) of the Federal Rules of Criminal Procedure. Defendant will also observe the following special conditions: i. He will not possess any firearm, destructive device, or any other dangerous weapon, as defined by federal or state statute. ii. He will not illegally possess or use controlled substances.

Because of the Tenth Circuit' decision in United States v. Souser, F.3d , s Case No. 04­ 1101 (10th Cir. May 4, 2005), however, the judgment will delete condition 13 (" as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant' criminal record or personal history or characteristics, and shall s permit the probation officer to make such notifications and to confirm the defendant' compliance s with such notification requirement" ). -4-

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iii. He will submit to one drug test within fifteen days of his release and two periodic drug tests thereafter, the exact timing of all such tests to be determined by the probation officer. iv. He will not commit a federal, state, or local crime.

v. He will pay the fine imposed in paragraph 11.c in compliance with the schedule set forth there. vi. Upon the court' finding, based on the recitations in the PSR, that s defendant has a history of drug abuse, he will participate in a program for testing and treatment of drug abuse, as directed by the probation officer, until he is released from the program by the probation officer. While participating in this program, he will abstain from use of alcohol or other intoxicants. He will pay all costs associated with this program. vii. The defendant shall cooperate in the collection of DNA, as directed by the probation officer. c. Defendant will pay a fine of $5,000. In the interest of justice, the court orders that this obligation shall be fully satisfied no later than the date on which defendant' term of supervised release expires. Upon consideration of defendant' s s ability to pay, the court orders that the fine shall be due and payable during the period of incarceration, with any unpaid balance to be paid in either a lump sum or in equal monthly installments during the period of supervised release, commencing @thirty days after release from a term of imprisonment to a term of supervised release/thirty days after the date of sentencing. d. The defendant shall pay a special assessment of $400. 18 U.S.C.A. § 3013 (West 2000). This amount shall be payable immediately. e. Payments made pursuant to the court' judgment shall be applied in the s following order: (i.) special assessment, (ii.) fine principal, (iii.) fine interest.

ACCEPTANCE OF PLEA AND PLEA AGREEMENT 12. There is no plea agreement in this case which requires scrutiny under U.S.S.G. § 6B1.2(@) (Nov. 2003).

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MISCELLANEOUS 13. Defendant has been advised of his right to appeal the jury' verdict of guilty s and the sentence imposed. If he wishes to appeal, his trial counsel shall assist him in perfecting the appeal. If he cannot pay the cost of an appeal, he may apply to the court for leave to appeal in forma pauperis. If defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of defendant. 14. This Memorandum of Sentencing Hearing and Report of Statement of Reasons is finalized and filed after oral imposition of sentence. It is intended to summarize and supplement the court' findings and conclusions delivered orally at the sentencing hearing. If any errors in the s oral findings and conclusions were noted during the process of finalization, they have been corrected herein. Therefore, in the event of inconsistency between the oral findings and the contents of this memorandum, the contents of this memorandum are intended to control unless and until I expressly order otherwise. 15. Defendant was remanded to the custody of the United States Marshal for the District of Colorado. 16. The probation officer shall prepare the judgment required by rule 32(d) of the Federal Rules of Criminal Procedure, in accordance with this Memorandum of Sentencing Hearing and Report of Statement of Reasons. To comply with 18 U.S.C.A. § 3612(b)(1)(A) (West 2000), a separate section of the judgment styled " ADDENDUM TO JUDGMENT IN CRIMINAL CASE (CONFIDENTIAL INFORMATION CONCERNING DEFENDANT)"shall contain defendant' social security account number, mailing address, and residence address. The s probation officer shall maintain this Addendum, and it shall not be filed with the clerk. Unless otherwise ordered, the Probation Department shall disclose the Addendum only to counsel of record and to any attorney for the Government engaged, pursuant to 18 U.S.C.A. § 3612(b)(1)(A), in collection of a monetary obligation imposed by the judgment The judgment entered and filed by the clerk shall refer to the Addendum and shall recite that it contains defendant' social security number, date of birth, residence address, and mailing address and is s withheld from the file pursuant to court order. The court finds that defendant has a privacy interest in keeping this information confidential, that public disclosure of this information may potentially harm defendant, that the public interest in this information is minuscule, and that the potential harm to defendant outweighs the public interest in disclosure. 17. The court concludes that this statement of reasons for imposing sentence in a criminal case is presumptively a matter of public interest and scrutiny. See S. Rep. No. 225, 98th Cong., 1st Sess. 1983, 1984 U.S.C.C.A.N. 3182, 3263 (1983) (" statement of reasons . . . The informs defendant and the public of the reasons for the sentence. It provides information to criminal justice researchers." No party has made a sufficient showing of " ) good cause,"Fed R. Crim. P. 32(i)(4)(C), why it should not be a matter of public record. Therefore, to facilitate systematic documentation of any decision concerning departure, in compliance with 18 U.S.C.A. -6-

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§ 3553(c)(2) (Supp. 2003), the probation officer shall attach a copy of this Memorandum of Sentencing Hearing and Report of Statement of Reasons to the judgment filed by the clerk. The Probation Department shall attach a copy of this Memorandum of Sentencing Hearing and Report of Statement of Reasons to the PSR. The Probation Department shall also forward copies to the United States Sentencing Commission and the United States Bureau of Prisons. Dated this1st day of July, 2005. BY THE COURT:

s/ Edward W. Nottingham EDWARD W. NOTTINGHAM United States District Judge

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