Free Sentencing Memorandum - District Court of Arizona - Arizona

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JERRY HERNANDEZ ATTORNEY AT LAW BAR #13021 115 W. HU-ESTA DR. TEMPE, AZ 85282 (480) 231-3053 [email protected] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, Plaintiff, vs. ROSA PASQUAL, Defendant.

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No. 04CR-1070-PHX-DGC (Assigned to the Honorable David G. Campbell) DEFENDANT'S REQUEST FOR DOWNWARD DEPARTURE AND CONCURRENT SENTENCES MEMORANDUM

Comes now the Defendant, Rosa Pasqual, and respectfully petitions this court for a downward departure. The basis for this request is that the conduct for which the defendant will be sentenced in District Court is the same conduct that she has been in State custody for since June 8, 2004. The defendant also petitions this court to order that her federal sentence run concurrently with the balance of her State sentence.

MEMORANDUM OF POINTS AND AUTHORITIES

On May 5, 2005, the defendant was convicted in Maricopa County Superior Court
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of illegally conducting an enterprise and assisting a criminal syndicate. That CR number is CR2004-016553. The defendant received a total of three years for both offenses. Presentence report, page 8, paragraph 31.

The defendant was taken into custody for the State charges on June 8, 2004. Presentence report, page 5, paragraph 11. The defendant's projected release date from the Arizona Department of Corrections is October 19, 2006. Pre-sentence report, page 8, paragraph 31.

The conviction in Federal Court for which the defendant will be sentenced on March 6, 2006, is the same conduct for which the defendant was sentenced in State Court on May 10, 2005. Pre-sentence report, page 8, paragraph 8.

On March 6, 2006, the defendant will have been in custody twenty-one (21) months (from June 8, 2004). This is the defendant's calculation. This court has the authority to downward depart for time served on Ms. Pasqual's State sentence. U.S. v. Hagan, 139 F.3d 641, 657 (8th Cir. 1998); U.S. v. White, 354 F.3d 841 (8th Cir. 2004); U.S. v. Blackwell, 49 F.3d 1232, 1241-42 (7th Cir. 1995).

The court should depart downward in this case. Failure to do so will essentially make all but seven months of Ms. Pasqual's Federal sentence consecutive to her State

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sentence. This would be a draconian result since both sentences were engendered by precisely the same conduct.

U.S.C 18 § 3553 does not contemplate such an inequitable result. A consecutive sentence would be greater than necessary to comply with the purposes set forth in § 3553 (a) (2). All of the § 3553 (a) (2) concerns have been addressed by the defendant's State court sentence.

The defendant points out that the State sentence of three years and the recommended guideline range of twenty-seven (27) months punish this conduct with roughly equivalent sentences. This should convince the court that the consecutive sentences would fly in the face of § 3553 (a).

Technically speaking, the court can sentence Ms. Pasqual to any sentence it deems reasonable per § 3553 (a), even after weighing in the now advisory guidelines. U.S. v. Booker, 125 S.CT. 738 (2005).

The defendant recommends the following course of action. The defendant is currently situated at a guideline range of eighteen. The court should grant her a downward departure of seven levels.

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This puts her at a level eleven. The low end of level eleven with her criminal history is eight months. This result will in essence give her the credit for time served that justice requires. The court can then order the remaining eight months to be served concurrently with her State sentence.

Respectfully submitted: February 24, 2006 s/ JERRY HERNANDEZ JERRY HERNANDEZ 115 W. Hu-Esta Dr. Tempe, Arizona 85282 BAR #13021 I hereby certify that on February 24, 2006 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/ECT registrants: Emery Hurley Assistant United States Attorney Copy Mailed to: Rosa Pasqual Defendant

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