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

1 JON M. SANDS Federal Public Defender 2 District of Arizona 3 850 West Adams, Suite 201 Phoenix, Arizona 85007-2730 4 Telephone: (602) 382-2755 5 DOUGLAS A. PASSON, # 017423 [email protected] 6 Asst. Federal Public Defender 7 Attorney for Defendant IN THE UNITED STATES DISTRICT COURT 8 DISTRICT OF ARIZONA 9 No. CR-04-381-PHX-JAT 10 United States of America, 11 12 13 14 15 16 The defendant, Norris Marshall, by and through counsel, respectfully 17 objects to the presentence report. The objections are set forth in the following 18 Memorandum. 19 The objections are untimely for the following reasons: In this case, 20 counsel only received the draft pre-sentence report on September 8, 2005. The report 21 was sent to the defendant on September 9, 2005. Rule 32(f)(1) of the Federal Rules 22 of Criminal Procedure, provides that the parties must submit objections to the 23 presentence report within fourteen days after receiving the report. 24 The previous objection deadline was set by the Court on September 16, 25 26 2005, which ended up giving counsel less time to file objections than is allotted under 27 Rule 32(f)(1). Counsel was unable to meet with the defendant and prepare objections 28 prior to the September 16th deadline. Consequently, counsel filed a timely request to -vsNorris Marshall, et al., Defendant. Plaintiff, OBJECTIONS TO PSR

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1 extend the deadline, which for some reason was denied by this Court. Counsel did 2 not receive notice that the motion to extend the deadline was denied until September 3 22, 2005. Consequently, counsel must now file these objections 1 day beyond the 4 time limit prescribed in Rule 32(f)(1). 5 Respectfully submitted: September 23, 2005. 6 JON M. SANDS 7 Federal Public Defender 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 s/ DOUGLAS A. PASSON DOUGLAS PASSON Asst. Federal Public Defender

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OBJECTIONS

3 I. THE CORRECT STANDARD OF PROOF IN DETERMINING SENTENCING ENHANCEMENTS. 4 Mr. Marshall maintains that any enhancement that increases his punishment 5 based upon facts not proven to a jury beyond a reasonable doubt violates the Sixth 6 7 Amendment to the United States Constitution. Without maintaining Blakely's 8 requirement that sentencing enhancements be decided by a jury and by proof beyond 9 a reasonable doubt, the Booker opinion becomes nothing more than sleight of hand. 10 In other words, Booker held that Blakely applied to the sentencing guidelines. 11 Therefore, the court must apply the Blakely rules in calculating applicable guideline 12 13 14 would totally circumvent one-half of the Booker ruling, the half that held Blakely 15 applicable to the United States Sentencing Guidelines. Counsel is aware that the Ninth Circuit recently decided in United States v. 16 17 Ameline (III), 409 F.3d 1073 (9th Cir. 2005), that a sentencing court's consideration 18 of facts and circumstances beyond those found by jury or admitted by defendant does 19 not violate a defendant's Sixth Amendment right to jury trial. Id. At 1077-78. To that 20 21 22 23 end, the defendant's objection to sentence enhancements based upon facts not found by the jury constitutes a good faith argument for modification of current law. Notwithstanding that issue, neither United States v. Booker, 125 S.Ct. 738 (2005), nor ranges, even if those guidelines are only advisory. Otherwise, the "remedial" measure

24 Ameline III definitively resolve the issue of what standard of proof must be applied 25 at sentencing. 26 . . . 27 . . . 28 3

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A. United States v. Booker did not resolve the issue of what standard of proof applies at sentencing Even if the Blakely rule concerning jury findings did not survive Booker, the rule concerning the burden of proof did survive and must be applied here. As the following analysis reveals, Booker, the Fifth Amendment, other related cases, and

7 principles of statutory construction can all be read to require the imposition of the 8 highest burden at sentencing. 9 It should first be noted that the Booker majority opinions did not expressly 10 revert back to the preponderance-of-evidence standard for sentencing determinations. 11 In fact, Justice Thomas, in his dissent to Justice Breyer's opinion in Booker, quotes 12 13 14 15 16 17 preponderance standard applies, stating: [t]he Court's holding today corrects this mistaken belief. The Fifth Amendment requires proof beyond a reasonable doubt, not by a preponderance of the evidence, of any fact that increases the sentence beyond what could have been lawfully imposed on the basis of facts found by the jury or admitted by the defendant. Chapter Six of the Guidelines regarding the Commission's belief that the

18 125 S.Ct. 738 at n. 6 (Justice Thomas's dissent). 19 Justice Thomas's Fifth Amendment argument that the "reasonable doubt" 20 21 22 23 standard should still control is also grounded in statutory construction. The Booker case was resolved solely upon Sixth Amendment grounds. The reasonable-doubt standard derives from the Fifth Amendment under In re Winship, 397 U.S. 358, 364,

24 90 S.Ct. 1068 (1970). The sentencing statutes do not set any standard of proof. The 25 preponderance standard derives from Chapter 6 of the sentencing guidelines. Given 26 the emphasis of the Booker decision on jury trial rights and the absence of clear 27 guidance in the majority opinions on the standard of proof, it is no stretch to continue 28 4

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1 to read a beyond-a-reasonable doubt requirement into advisory guideline calculations 2 or other non-guideline enhancements imposed by the sentencing judge. 3 Another recent Supreme Court decision, Schriro v. Summerlin, 124 S. Ct. 4 2519 (2004), provides additional support for the application of the beyond-a5 reasonable doubt standard to all sentencing enhancements. In Summerlin, the Court 6 7 was faced with deciding the retroactivity of the Ring decision, which held that it was 8 the jury, not the sentencing judge, who had to find aggravating circumstances 9 necessary for the imposition of the death penalty. The Summerlin Court reasoned that 10 Ring was not retroactive in part because the sentencing judge's determinations, which 11 were made under the proof beyond a reasonable doubt standard, were reliable. See 12 13 14 in making those sentencing determinations served to safeguard fundamental fairness 15 in those proceedings. The same can be said of any sentencing determination that 16 serves to increase a defendant's term of imprisonment. 17 As a practical matter, this construction would afford greater reliability and 18 consistency in sentencing. There is a reason the standard of proof is the highest in the 19 land in criminal cases -- to protect innocent individuals from deprivations of life and 20 21 22 23 liberty. The same rationale must apply to protect defendants who, while may be guilty of an offense, must still be protected from unwarranted deprivations of liberty at sentencing.1 Whether the sentencing guidelines are mandatory or advisory should 124 S. Ct. at 2524-25. In other words, the application of the highest burden of proof

24 have no bearing on this issue. 25 . . . 26 . . . 27 28
1

Moreover, such a system will eliminate the evil of "the tail wagging the dog." 5

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B. Ameline III did not resolve the issue of what standard of proof applies at sentencing In Ameline III, the Ninth Circuit held that a sentencing court must "continue

4 to apply the appropriate burdens of proof, consistent with [United States v. Howard, 5 894 F.2d 1085, 1090 (9th Cir. 1990)]." 409 F.3d at 1086 (emphasis added). While it 6 is true that the Howard case holds, in part, that the standard of proof for guideline 7 enhancements is preponderance of the evidence, it is clear that Ameline III's citation 8 to Howard dealt only with the issue of which party bore the burden of proof, not what 9 standard of proof a court should apply. 10 In Ameline, the district court judge incorrectly ruled that the defendant bore 11 12 the burden of proof to disprove facts contained in the presentence report. Id. Thus, 13 the Ninth Circuit's holding was made only in the context of which party (government 14 or defense) bears the burden on a particular factual issue, not what that burden of 15 proof shall be. See Id. This becomes particularly apparent when reading footnote 7 16 17 18 of Ameline II. In that opinion, the Court recognized that the Ninth Circuit has previously determined that the applicable standard of proof has been preponderance,

19 clear and convincing, and even beyond a reasonable doubt. United States v. Ameline th 20 (II), 400 F.3d 646, n. 7 (9 Cir. 2005)(citing Howard, 894 F.2d at 1090, United States 21 v. Johansson, 249 F.3d 848, 853-54 (9th Cir.2001), and United States v. Thomas, 355 22 F.3d 1191, 1202 (9th Cir.2004)). The Court declined to resolve the issue of whether 23 the majority opinion in Booker affected the standards of proof articulated in prior 24 25 26 27 decisions. Id. Likewise, the Ameline III Court similarly declined to address this issue. ...

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C. In The Alternative, The Standard Of Proof Should Be No Less Than Clear and Convincing. Even in a pre-Booker/Blakely world, the facts of this case would warrant

4 elevating the standard of proof to at least the level of clear and convincing for the 5 recommended guideline enhancement. The Ninth Circuit has recognized that clear6 and-convincing evidence is required for proof of disputed enhancements under 7 circumstances where a guideline's application has a disproportionate impact on the 8 sentence. United States v. Restrepo, 946 F.2d 654, 659 (9th Cir. 1999) (en banc); 9 United States v. Jordan, 256 F.3d 922, 927 (9th Cir. 2000); Mezas de Jesus, 217 F.3d 10 th th 11 638, 642 (9 Cir. 2000); United States v. Hopper, 177 F.3d 824, 833 (9 Cir. 1999). 12 This rule cures the due process concerns involved in permitting the government to 13 achieve a much higher sentence (through a cross-reference or relevant conduct) for 14 a crime or conduct proven only by a preponderance of the evidence. 15 In applying the disproportionate impact test, the Ninth Circuit has looked 16 17 18 at various factors affecting the length of sentence and applies a "totality of the circumstances" approach. See United States v. Valensia, 222 F.3d 1173, 1182 (9th

19 Cir. 2000), cert. granted, judgment vacated, and remanded on other grounds at 532 20 U.S. 901 (2001). Jordan illustrates how to apply this rule. The Jordan Court 21 considered the standard of proof applicable to a defendant who pled guilty to one 22 count of bank robbery but received increases for possession of a firearm during a 23 robbery and an additional four levels for abducting a witness. 256 F.3d at 927. This 24 25 26 27 28 7 Court, in finding that the clear and convincing standard was appropriate, articulated the test used to evaluate disproportionate impact. Adopting factors set forth in Valensia, this Court in Jordan identified the following factors:

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(I) (ii)

Whether "the enhanced sentence fall[s] within the maximum sentence for the crime alleged in the indictment"; Whether "the enhanced sentence negate[s] the presumption of innocence or the prosecution's burden of proof for the crime alleged in the indictment"; Whether "the facts offered in support of the enhancement create new offenses requiring separate punishment"; Whether "the increase in sentence [is] based on the extent of a conspiracy"; Whether "the increase in the number of offense levels [is] less than or equal to four"; and Whether "the length of the enhanced sentence more than double[s] the length of the sentence authorized by the initial sentencing guideline range in a case where the defendant would otherwise have received a relatively short sentence."

(iii) (iv) (v) (vi)

Jordan, 256 F.3d at 927 (quoting Valensia, 222 F.3d at 1182). Applying each of the factors from Jordan warrants the imposition of at least

16 the clear-and-convincing standard in this case. Here, the guideline calculation was 17 increased from a base offense level of 4, to a level nineteen. In other words, the 18 enhancement more than quadruples the suggested advisory guideline sentencing 19 range. Of course, the suggested increase is clearly based on the probation 20 departments belief of the extent of the defendant's participation in a conspiracy, 21 and/or jointly undertaken criminal activity. Moreover, the facts offered to support 22 the enhancements arguably create new offenses that would have required separate 23 24 punishment. Given these factors, the burden of proof at sentencing can be no less 25 than clear and convincing evidence. 26 . . . 27 28 8

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In this case, as set forth below, the enhancement for the amount of drugs

2 sold, and in particular, the defendant's responsibility for that weight cannot be proven 3 by any standard, let alone beyond a reasonable doubt. 4 5 6 7 8 II. OBJECTIONS TO PSR. A. Offense Conduct and Obstruction of Justice (Paragraphs 6-24) The defendant does not agree to all facts pertaining to his alleged offense

9 conduct. Moreover, a sentencing court is not entitled to rely on the factual statements 10 contained in the PSR when those facts are in dispute. Ameline, 409 F.3d 1073 at 11 1086. 12 13 14 The defendant objects to the calculations contained in these paragraphs. 15 The defendant asserts it is inappropriate to hold him accountable for the weights 16 charged in the conspiracy indictment. The defendant can only be held responsible for 17 all quantities of drugs "with which he was directly involved and, in the case of a 18 jointly undertaken criminal activity, all reasonably foreseeable quantities [of drugs] 19 that were within the scope of the criminal activity that he jointly undertook." 20 21 22 23 U.S.S.G. § 1B1.3, cmt. n. 2. In this case, there is no evidence that Mr. Marshall directly participated in the sales at issue in the weight calculation. He admitted only to the crime of not B. Offense Level Computations (Paragraph 29, 34, 36, 78)

24 reporting Marvin Williams to the authorities, knowing that he was selling drugs. He 25 did not admit to conduct on any one specific date or during any specific sale. He does 26 not admit to participating in the specific sales that were the source of the undercover 27 buys, nor has evidence of such knowing participation been offered. He did not 28 9

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1 admit to any knowing participation in a conspiracy or any "jointly undertaken 2 criminal activity." He did not know, nor could he have reasonably known the extent 3 of the sales activity occurring. Consequently, his offense level in this matter should 4 be 4. 5 C. Other Arrests (paragraph 47) 6 The defendant denies ever being arrested for Aggravated Assault in Eloy, 7 8 Arizona. In fact, he cannot recall ever traveling to Eloy. He is aware of other 9 individuals who have used his name and/or identity in the past. The defendant moves 10 that this entry be stricken from the report. 11 D. Personal and Family Data (paragraphs 55 and 56) 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 10 JON M. SANDS Federal Public Defender s/ DOUGLAS A. PASSON DOUGLAS A. PASSON Asst. Federal Public Defender Respectfully submitted: September 19, 2005. Alice Groves, not "Minnie". The home is located in Surprise, not "El Mirage". The 15 defendant plans on moving back into the house he owns, not a trailer. At the time of the home visit, the defendant was residing with his sister

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1 I hereby certify that on September 19, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal 2 of a Notice of Electronic Filing to the following CM/ECF registrants: 3 TIMOTHY DUAX 4 Assistant U.S. Attorney Two Renaissance Square 5 40 N. Central, Suite 1200 Phoenix, Arizona 85004-4408 6 7 Copy mailed to: 8 CARLOS VALENTIN U.S. Probation Office 9 Sandra Day O'Connor U.S. Courthouse 401 W. Washington Street, Suite 160 10 Phoenix, Arizona 85003 11 NORRIS MARSHALL 12 Defendant 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 s/ S. Bereolos S. Bereolos

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