Free Sentencing Memorandum - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOHN BOYLE Assistant U.S. Attorney Arizona State Bar No. 015640 Two Renaissance Square 40 N. 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-04-1115-003 PHX-MHM Plaintiff, v. EDUARDO MEDINA-LUI, Defendant. GOVERNMENT'S SENTENCING MEMORANDUM

The United States of America, through undersigned counsel, hereby submits two transcripts, an un-executed plea agreement, and its position regarding sentencing.

Procedural Summary The defendants in this case were indicted on October 20, 2004. Ernesto Gutierrez pled guilty on April 28, 2005. Juan Carlos Gutierrez pled guilty on June 21, 2005. The defendant pled guilty on July 15, 2005. The government made two plea offers to the defendant in this case. The first offer (hereinafter : "cooperation plea offer") entailed the defendant's cooperation and the potential for a U.S.S.G. 5K1.1 request on behalf of the government. This "cooperation plea offer" was faxed to the defendant's counsel on April 19, 2005. The government and the defense attorney had several conversations in April and May of 2005. The government was informed by defense counsel that the defendant had not accepted the plea at that time. The government conveyed to

Case 2:04-cr-01115-MHM

Document 91

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defendant Lui's counsel that the defendant needed to accept the plea before both codefendants accepted their plea offers. The defendant's agreement to testify against the codefendants would have no value if both codefendants had already agreed to plead guilty. During the first week of June, 2005, undersigned counsel was advised by Mark Berardoni that defendant Juan Carlos Gutierrez had accepted the plea. During the following week, and prior to the June 13 status conference, defendant Lui's attorney was notified the cooperation plea was revoked as both codefendants accepted their plea offers. The transcript of the June 13, 2005 status conference reflects defendant Lui had not accepted a plea and was preparing for trial. (A part of this conference is sealed, and is unavailable for the government to review.) The transcript also reflects defendant Juan Carlos Gutierrez had accepted the government's plea. Juan Carlos Gutierrez pled guilty on June 21, 2005. During that same day, counsel for defendant Lui faxed a signed copy of the cooperation plea to the government. Undersigned counsel called defendant's counsel the same day and informed him the cooperation plea had been revoked previously. The government informed Lui's counsel of the new offer with the stipulation to a 120 month sentence.1 This plea agreement was faxed to defendant's attorney the next day on June 22, 2005. The defendant entered into this agreement on July 15, 2005. On September 26, 2005, undersigned counsel spoke with defendant Lui's attorney prior to the anticipated sentencing. After this discussion, the government had concerns the defendant was not proceeding in good faith regarding his plea. Therefore, the government requested a confirmation from the defendant that he voluntarily accepted this plea and was prepared for sentencing.

Conclusion. The government requests the Court ask the defendant if he voluntarily accepted this plea
On the date of the defendant's arrest, the defendant spoke with Mesa Police Department detectives. The defendant admitted moving the guns in the home. He also agreed the guns were in the home for him and others to protect the drugs and money. This plea offer is predicated upon the defendant's possession of a firearm in connection with a drug offense. 2
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offer. The government also requests that any disputes regarding the timing of the two plea offers be stated on the record at the time of sentencing.

Respectfully submitted this 25th day of October, 2005.

PAUL K. CHARLTON United States Attorney District of Arizona

S/ John Boyle JOHN BOYLE Assistant U.S. Attorney

CERTIFICATE OF SERVICE

:

I hereby certify that on _October 25, 2005_, I electronically transmitted the attached 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: Mark Berardoni Jason Leonard Gabriel Valdez

S/ Lea R. Lucy

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