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

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FEOLA & TRAICA
A PROFESSIONAL CORPORATION ATTORNEYS and COUNSELLORS at LAW

2800 N. Central Avenue, Suite 1400 Phoenix, Arizona 85004-1045 [email protected] _____________

(602) 277-7473 Fax (602) 274-2129

David L. Lockhart State Bar No. 018475 Attorneys for Defendant IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, vs. NICK MANGIARCINA, Defendant. No. CR 04-01178-PHX-RGS DEFENDANT MANGIARCINA'S OBJECTIONS TO DRAFT OF INVESTIGATION REPORT

DEFENDANT NICK MANGIARCINA, by and through undersigned counsel, hereby submits his objections to the Presentence Investigation Report disclosed on or about November 3, 2005. RESPECTFULLY SUBMITTED this 4th day of January, 2006.

FEOLA & TRAICA, P.C. By s/David L. Lockhart David L. Lockhart, Esq. 2800 North Central Avenue Suite 1400 Phoenix, Arizona 85004 Attorney for Defendant

Case 2:04-cr-01178-RGS

Document 26

Filed 01/04/2006

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OBJECTIONS TO PRESENTENCE REPORT Defendant Mangiarcina objects to several of the findings and conclusions set forth in the Presentence Investigation Report (hereinafter, "PSR"). The following are the specific objections with reference to the paragraph of the PSR. Release Status Mr. Mangiarcina objects to the presentence incarceration calculation as calculated by the probation department. Mr. Mangiarcina contends that the correct starting date for the calculation of presentence incarceration in this matter is July 29, 2004, not December 8, 2004. In support of this contention, Mr. Mangiarcina argues that upon being arrested and detained on July 29, 2004, a Bureau of Alcohol Tobacco and Firearms and Explosives (hereinafter, "ATF") detainer was placed on him. Thus, federal jurisdiction attached to his person while he was in custody pending prosecution by Maricopa County Attorney's Office on Misconduct Involving Weapons, a class four (4) felony. Subsequent to the prosecution of Mr. Mangiarcina in the present matter by the United States government, the Maricopa County Attorney's Office dismissed all charges against him. However, Mr. Mangiarcina remained in custody due to the ATF detainer. Thus, Mr. Mangiarcina believes that he is entitled to receive approximately 551 days of presentence incarceration should sentencing occur on February 6, 2006 pursuant to 18 U.S.C. § 3585 (b). If appropriate, counsel will address this issue at a later date. PART A-THE OFFENSE The Offense Conduct Paragraph 8 Mr. Mangiarcina objects to any statements contained in the presentence report that he specifically told the arresting officers that the sawed-off shotgun found inside of the vehicle when he was arrested belonged to the passenger, Tammy J. Barnes. Further, Mr. Mangiarcina objects to any statement that he told the arresting officers that the baggies of methamphetamine found in the vehicle also belonged to Ms. Barnes.

FEOLA & TRAICA, P.C.

10
2800 N. Central Ave., Suite 1400 Phoenix, Arizona 85004-1045

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Undersigned has reviewed all of the departmental reports generated in connection with the investigation of this matter and has not observed one statement in which Mr. Mangiarcina, specifically told any law enforcement officer, that the shotgun and the baggies of methamphetamine belonged to Ms. Barnes. It appears that when specifically asked by law enforcement if the shotgun and baggies of methamphetamine belonged to Ms. Barnes, Mr. Mangiarcina responded by nodding his head up and down. Paragraph 15, Specific Offense Characteristic Mr. Mangiarcina objects to any upward adjustment pursuant to §2K2.1 (b)(4). First, the offense to which Mr. Mangiarcina pled guilty to is Possession of an Unregistered Sawed-off Shotgun, a class C felony. The sawed-off shotgun at issue bore no serial number because it was manufactured without a serial number. Further, Mr. Mangiarcina was never charged with possession of any other firearm. Second, neither the charge to which Mr. Mangiarcina pled guilty to nor the factual basis contained in the Plea Agreement makes any reference to Mr. Mangiarcina being in possession of any other firearm other than the sawed-off shotgun. It is assumed that the probation department is contending that the Court should also take into account that during the investigation of this matter, law enforcement found a disassembled, .22 caliber handgun in the vehicle with Mr. Mangiarcina when he was arrested. This handgun apparently bore either no serial number or the serial number "appeared to be defaced". Pursuant to §2K2.1(b)(2), the Court is allowed to add two (2) levels to the base level offense should it be determined that the serial number on firearm at issue has been "altered or obliterated". In this matter, Mr. Mangiarcina contends that there is insufficient information and or evidence for this Court to determine beyond a reasonable doubt that the handgun, like the shotgun, ever even bore a serial number. Further, even if the handgun did bear a serial number, it is impossible to tell from the evidence whether the serial number was ever altered or obliterated. Undersigned has been credibly informed that the handgun in dispute appeared to have been submerged in paint.

FEOLA & TRAICA, P.C.

10
2800 N. Central Ave., Suite 1400 Phoenix, Arizona 85004-1045

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PART C- OFFENDER CHARACTERISTICS

Mr. Mangiarcina objects to any statement that his father and other relatives were involved in the Italian Mafia. Further, Mr. Mangiarcina objects to any statement that he specifically is aligned with the Aryan Brotherhood. Mr. Mangiarcina contends that he has never told anyone that his family, including his father, was a member of the Italian Mafia. Mr. Mangiarcina believes that these statements contained in the PSR regarding his family's association with the Italian Mafia were taken out of context during his intake interview at CCA. Mr. Mangiarcina recalls being questioned about his family's criminal history. He contends reporting that a number of his relatives, including his father, had been in prison in the past. However, he does not recall ever informing anyone that they were involved in the Italian Mafia. Regarding Mr. Mangiarcina's alleged alignment with the Aryan Brotherhood, Mr. Mangiarcina contends that he was asked with whom he associated with when he was in custody during the intake interview. Mr. Mangiarcina reported that he associates with the "whites". Mr. Mangiarcina did not specifically state he was a member or that he aligned with any white supremacist group or gang, including but not limited to the Aryan Brotherhood. Mr. Mangiarcina contends that he is not a documented member or associate of the Aryan Brotherhood or any other white supremacist group. PART D ­ SENTENCING OPTIONS Paragraph 64, Guidelines Provisions For the reasons stated herein, Mr. Mangiarcina objects to the Total Offense Level 25. Mr. Mangiarcina contends that the correct offense level that should apply to him is Level 23. PART F-OTHER SENTENCING FACTORS PURSUANT TO 18 U.S.C. § 3553(a) Defendant is still exploring whether he intends to file a Sentencing Memorandum for the Court prior to Sentencing. However, at a minimum, Defendant will present oral argument, if

FEOLA & TRAICA, P.C.

10
2800 N. Central Ave., Suite 1400 Phoenix, Arizona 85004-1045

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necessary, at the time of Sentencing for the Court to consider in determining the appropriate disposition in accordance with the Advisory Sentencing Guidelines. RESPECTFULLY SUBMITTED this 4th day of January, 2006. FEOLA & TRAICA, P.C.

By s/David L. Lockhart David L. Lockhart, Esq. 2800 N. Central Avenue Suite 1400 Phoenix, AZ 85004 Attorneys for Defendant CERTIFICATE OF SERVICE I certify that on January 4, 2006, I electronically transmitted this document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Clerk of the Court, District of Arizona Sandra Day O'Connor U.S. Courthouse, Suite 130 401 West Washington Street, SPC 1 Phoenix, Arizona 85003 The Honorable Roger G. Strand United States District Court Judge 401 W. Washington Phoenix, Arizona 85003 Jon Evanko United States Probation Sandra Day O'Connor U.S. Courthouse, Suite 160 401 W. Washington Street Phoenix, Arizona 85003 Michael Lee, Esq. Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue Suite 1200 Phoenix, Arizona 85004-4408 By: s/David L. Lockhart David L. Lockhart, Esq.

FEOLA & TRAICA, P.C.

10
2800 N. Central Ave., Suite 1400 Phoenix, Arizona 85004-1045

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