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

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PAUL K. CHARLTON United States Attorney District of Arizona FREDERICK A. BATTISTA Assistant U.S. Attorney Maryland State Bar Member [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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United States of America, CR-04-378-PHX-SRB Plaintiff, v. Scott Segal, Defendant. OBJECTIONS TO AMENDED PRESENTENCE INVESTIGATION REPORT

The United States of America, by and through undersigned counsel, hereby submits the following Objections to the Amended Presentence Report through the attached memorandum of points and authorities. Respectfully submitted this 11th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona

FREDERICK A. BATTISTA Assistant U.S. Attorney

Case 2:04-cr-00378-SRB

Document 118

Filed 08/11/2005

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MEMORANDUM On August 11, 2005, the government received the amended Presentence Investigation Report (PSR) from the Probation office. The amended PSR contains several errors the government originally addressed in its responses to defendant's objections to the PSR. I. Offense Level Computations ­ PSR ¶ 21, Base Offense Level The amended PSR does not note the alternative means of justifying a base offense level of 20 pursuant to U.S.S.G. § 2K1.2(a)(4)(A) (commission of the instant offense with a prior conviction for a crime of violence). In this case, defendant has a prior conviction for Possession of an Unregistered Silencer Bearing No Serial Number. PSR ¶ 34. The possession of an unregistered NFA weapon such as an unregistered silencer has been found to be a crime of violence for purposes of the Sentencing Guidelines. See United States v. Huffhines, 967 F.3d 314 (9th Cir. 1992) (possession of an unregistered silencer is a crime of violence as defined in U.S.S.G. § 4B1.2). Therefore, defendant falls squarely within Section 2K1.2(a)(4) and the base offense level of 20 on this basis, as well as for possession of weapons that meet the definition of a firearm under 26 U.S.C. § 5845(a), e.g. Trial Exhibit 28, a smooth bore pistol.1 II. Offense Level Computations ­ Obstruction of Justice Defendant originally objected to the imposition of a 2 offense level enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1. The government's response to defendant's objection to the enhancement set forth an additional basis for obstruction of justice, i.e., the suborning of perjury. The amended PSR no longer contains the

enhancement. As detailed in the government's response to defendant's objection to the PSR, a 2 offense level enhancement for obstruction of justice should apply in this case due to

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A base offense level of 22 under U.S.S.G. § 2K2.1(a)(3) may also apply since defendant has a prior conviction for a crime of violence and the offense involved a firearm as defined in 26 U.S.C. § 5845(a), e.g., Trial Exhibit 108, a smooth bore pistol. 2

Case 2:04-cr-00378-SRB

Document 118

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defendant's obstruction of the ATF investigation into the offense of felon in possession of firearms by defendant and the suborning of perjury at trial by defendant's mother. III. Conclusion For the forgoing reasons, the PSR should be amended in accordance with the responses set forth above and in the government's responses to defendant's objections to the PSR. Respectfully submitted this 11th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona

S/ Frederick A. Battista 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3 S/ Frederick A. Battista

FREDERICK A. BATTISTA Assistant U.S. Attorney I hereby certify that on August 11, 2005, I caused the attached document to be electronically transmitted 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: Douglas A. Passon Assistant Federal Public Defender [email protected] Craig W. Haraga U.S. Probation Officer 401 W. Washington, Suite 160 Phoenix, Arizona 85003-2119

FREDERICK A. BATTISTA Assistant U.S. Attorney

Case 2:04-cr-00378-SRB

Document 118

Filed 08/11/2005

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