Free Sentencing Memorandum - District Court of Arizona - Arizona

Copy of the foregoing was mailed/faxed/delivered this 30th day of September, 2005 to: The Honorable David G. Campbell United States District Court Judge 401 W. Washington Phoenix, AZ 85003 Sharon Sexton Assistant United States Attorney Two Renaissance Square 40 N. Central Phoenix, AZ 85004

By /s/ Rena P. Glitsos

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Case 2:04-cr-00423-DGC

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only 46 months in BOP for his sentence. Reducing the offense level by 2 points, coupled with the mathematical correction discussed above, would bring Mr. Rivers' total adjusted offense level down to 22. Since Mr. Rivers falls under criminal history category I, the sentencing range at level 22 would be 41 to 51 months. This would enable Mr. Rivers to be sentenced to 46 months, the minimum sentence under the plea, and still be within the sentencing guidelines. Mr. Rivers has a minimal criminal history and what little there is clearly appears to be related to his substance abuse issues. He has no history of violence and his participation in this offense is also related to substance abuse. Had he not been drinking and seeking drugs, Mr. Rivers would never have found himself in this position. He is 34 years old and has no history of violent conduct. Mr. Rivers takes responsibility for his actions in this case, however, he objects to having the violent actions of his codefendant being used to sentence that is more harsh than that of the more culpable individual. Parity requires that Mr. Rivers receive no more than his codefendant. CONCLUSION: Based on all of the above, defendant Everett Rivers respectfully moves the Court to deduct 3 points from the adjusted offense level which would result in a total adjusted offense level of 22 with a sentencing range of 41 to 51 months. Mr. Rivers further moves the Court to sentence him to 46 months in BOP, which is the minimum sentence he can receive pursuant to his plea agareement. RESPECTFULLY SUBMITTED this 30th day of September, 2005 By /s/ Rena P. Glitsos

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Page 2 of the presentence report indicates that Mr. Rivers has a GED. This is correct, but Mr. Rivers also has a certificate in cooking earned at Job Corps. Page 4, paragraph 7 states that Mr. Rivers grabbed and pushed one of the victims. Mr. Rivers denies that this ever took place. According to Mr. Rivers, he did not enter the room where the codefendant was with two of the victims. Instead, the codefendant came to where Mr. Rivers was and ordered the victim in the living room to come into the bedroom with the others. Mr. Rivers was unaware that his codefendant was brandishing a gun until that time. There is an error in the offense level computation contained on page 5 of the presentence report. Line 17 states that 5 levels should be added for brandishing a firearm, but 6 points are actually computed. One point should thus be subtracted from the adjusted offense level. Page 5, line 18 sets forth facts in support of adding 2 additional points for physical restraint of the victims pursuant to 2B3.1(b)(4)(B). The text of that paragraph reads, inter alia, "[t]he defendant ordered Everett Rivers to prevent V3 from leaving the room. Further, he ordered the victims to put their heads down and not to get up while he rummaged through the room and exited. The defendant was armed with a shotgun and the victims had no choice but to comply and no known alternate means of escape." Emphasis added. It is clear that the writer is referring to actions committed by Mr.Rivers'codefendant and not to Mr.Rivers. Although Mr. Rivers was present in the trailer and took the TV set, he never handled a weapon or restrained any of the victims.

OBJECTIONS: Mr.Rivers objects to increasing the offense level by 2 points as a result of conduct attributed to his codefendant. The codefendant was clearly more culpable than Mr. Rivers, and he received
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FACTS: Defendant Everett Rivers was originally charged with one count of burglary, one count of armed robbery, 4 counts of use of a firearm during a crime of violence, and 3 counts of kidnapping for events that occurred on December 15, 2003 on the Gila Indian Reservation. Mr. Rivers and a codefendant went to the trailer of the alleged victims to purchase drugs. Mr. Rivers had been drinking at the time. His codefendant was in possession of a shotgun and proceeded to kick open the door of the room that the female victim occupied with her male cousin. Mr. Rivers was in the living room with another occupant of the trailer. The codefendant held the two victims in the bedroom at gunpoint and robbed them. He directed Mr. Rivers to look for money. On page 4 of the presentence report, the facts set forth indicate that Mr. Rivers restrained one of the victims at the direction of his codefendant. Mr. Rivers denies that this ever occurred. He does not dispute that he took the television set at the direction of the codefendant, however, he adamantly denies ever pushing a victim during the course of the robbery. Mr. Rivers was unarmed and was surprised as the events began to unfold. Mr. Rivers has pled guilty to count 2, armed robbery, in violation of 18 U.S.C. 1153 and 2111, a class C felony. The plea agreement stipulates the Mr. Rivers shall be sentenced to a term between 46 and 57 months. All of the remaining counts will be dismissed pursuant to the plea.

CORRECTIONS:
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Rena P. Glitsos
45 W. Jefferson, Suite 512 Phoenix, AZ 85003 (602) 528-0882 AZ State Bar No. 013009 Attorney for Defendant [email protected] IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ________________________________________ ) ) UNITED STATES OF AMERICA ) ) Plaintiff, ) ) v. ) ) EVERETT RIVERS, ) Defendant. ) ) _______________________________________ ) No. CR 04-0423-PHX-DGC

DEFENDANT'S SENTENCING MEMORANDUM

Defendant Everett Rivers hereby submits his sentencing memorandum in the above-referenced cause number. Defendant moves the Court to subtract 3 levels from the offense level calculation contained in the presentence report and to sentence him to the minimum sentence pursuant to his plea agreement for reasons set forth below.

RESPECTFULLY SUBMITTED this 30th day of September, 2005

By /s/ Rena P.Glitsos MEMORANDUM

Case 2:04-cr-00423-DGC

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