Free Motion for Departure - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 District of Arizona 3 850 W. Adams Street, Ste. 201 Phoenix, Arizona 85007 4 Telephone: (602) 382-2700 5 JANE L. McCLELLAN, #015902 Asst. Federal Public Defender 6 Attorney for Defendant [email protected] 7 IN THE UNITED STATES DISTRICT COURT 8 9 10 11 12 13 14 15 16 17 18 19 -vsYaughn Marcellus Robinson, Defendant. United States of America, Plaintiff, DISTRICT OF ARIZONA No. CR-04-373-PHX-JAT MOTION FOR DOWNWARD DEPARTURE AND SENTENCING MEMORANDUM (Oral Argument Requested)

Defendant Yaughn Marcellus Robinson, by and through undersigned counsel, hereby submits the following motion for downward departure for overrepresentation of criminal history and sentencing memorandum. Mr. Robinson pled

20 guilty to conspiracy, in violation of 18 U.S.C. § 371. Sentencing is currently set for 21 November 14, 2005. 22 I. 23 24 Motion for Downward Departure for Over-Representation of Criminal History This Court has the authority to depart downward by criminal history

25 category based on the fact that a defendant's criminal history is over-represented. 26 Under the Sentencing Guidelines, the Court may downward depart if it "concludes 27 that a defendant's criminal history category significantly over-represents the 28 seriousness of a defendant's criminal history or the likelihood that the defendant will

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1 commit further crimes." U.S.S.G. § 4A1.3; see also United States v. Reyes, 8 F.3d 2 1379, 1386-89 (9th Cir. 1993) (granting downward departure because defendant's 3 convictions were less serious than the "typical" career offender because they 4 uniformly involved minor offenses); United States v. Summers, 893 F.2d 63, 66 (4th 5 Cir. 1990) (holding that district court could downward depart based on overstatement 6 of seriousness of criminal history). "In considering a departure under this provision, 7 8 the Commission intends that the court use, as a reference, the guideline range for a 9 defendant with a higher or lower criminal history category, as applicable." U.S.S.G. 10 § 4A1.3. 11 Looking at his criminal history as a whole, it appears that Mr. 12 Robinson's criminal history category over-represents the seriousness of his criminal 13 history. Defendant respectfully suggests that a criminal history category of III more 14 15 16 17 accurately reflects his history. Specifically, defendant points to the convictions for traffic violations described in paragraphs 46 and 49 of the draft presentence report. Mr. Robinson received one criminal history point for no proof of insurance (¶ 46),

18 because he received one year of probation, and one criminal history point for driving 19 on a suspended license and no insurance (¶ 49), because he received two years of 20 probation. These are offenses that do not typically carry sentences this long, and they 21 are minor offenses. Failure to have insurance is often caused by an individual's lack 22 of funds to obtain insurance. In other words, it is an offense committed by persons 23 of limited economic means. It is noteworthy that he has no convictions for more 24 serious traffic violations such as speeding, which can pose a risk of danger to the 25 community, or DUI. Lastly, defendant points to the conviction described in 26 paragraph 50 for possession of marijuana. While this is a more serious offense, the 27 28 ///
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1 punishment in this case was more serious than it would be in many jurisdictions. 2 Defendant was sentenced to 12 months of custody for the offense. 3 Based on the relatively minor nature of the offenses listed above, 4 defendant respectfully moves for a downward departure to criminal history category 5 III. This more accurately reflects the seriousness of defendant's criminal history and 6 the risk of recidivism. 7 Yaughn Robinson's Background and Current Life 8 II. 9 Mr. Robinson is 30 years old. He recently was married to Theresa 10 Simmons. He has one child from a previous relationship who resides with his mother. 11 Mr. Robinson provides support for the child and sees him during the summers. Mr. 12 Robinson's wife, Theresa, has two children from a prior relationship ­ two boys, ages 13 11 and 10. These children live with defendant and he provides support for them. 14 15 16 17 Mr. Robinson does not have a serious history of drug or alcohol abuse. He has been on pretrial supervision since his release for this offense on March 9, 2005, and has consistently tested negative for any illegal substances. He has complied with all

18 terms of his pretrial release. Defendant was temporarily living in Arizona in the fall of 2000 when he 19 20 became involved in the instant offense. Mr. Robinson was not the mastermind of this 21 crime. There were many, many persons who became involved in this conduct, and 22 only some of them were charged in this case. Mr. Robinson was following 23 instructions from others. He understood it was wrong and he is sorry for what he did. 24 25 26 27 He knows it was a poor decision and caused substantial harm to the financial institutions involved. Since being arrested on these charges, defendant has changed his life.

28 In fact, after he served the sentence for the marijuana charge described in paragraph
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1 50, he decided that he no longer wanted to be involved with the wrong crowd or 2 criminal activity. He has maintained employment and is involved in a committed and 3 positive relationship with his wife and children. He is ready and willing to accept his 4 5 6 7 punishment in this case. Mr. Robinson recently suffered a different type of

punishment inflicted by fate. He was living in Biloxi, Mississippi, at the time Hurricane Katrina hit. His residence was destroyed, and he lost all of his belongings.

8 His parents lost their home as did his grandparents and virtually everyone he knew 9 that lived in Biloxi. His family is all safe, but they are scattered in different states 10 across the country. For a time after the hurricane, Mr. Robinson and his wife and 11 children lived in a shelter. They have since moved to Meridian, Mississippi, and are 12 trying to rebuild their lives there. 13 After the hurricane, defense counsel lost contact with defendant. 14 Eventually, he was located in a shelter. Mr. Robinson poignantly was concerned that 15 he might be "in trouble" for not reporting to his pretrial services officer after the 16 hurricane. Defense counsel found out he couldn't have contacted anyone if he tried 17 18 ­ the pretrial services office in Biloxi appears to have been destroyed or at least 19 closed by the hurricane. Mr. Robinson reinitiated contact with his pretrial services 20 officer and continued to report despite his desperate situation. This shows that he has 21 truly become a responsible person. 22 23 24 25 26 27 III. Conclusion Defendant respectfully requests that the Court take into account the age of this offense, the fact that much of his prior criminal history is not serious, and his transformation into a responsible citizen. Any further incarceration for Mr. Robinson is not warranted. Defendant respectfully requests that the Court impose a sentence

28 of time served followed by supervision.
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1 2 It is expected that excludable delay under Title 18 U.S.C. § 3161(h)(1)(I) may 3 occur as a result of this motion or from an order based thereon. 4 Respectfully submitted: November 3, 2005. 5 JON M. SANDS 6 Federal Public Defender 7 8 9 10 Copy of the foregoing transmitted by CM/ECF for filing this 3rd day 11 of November, 2005, to: 12 Clerk's Office 13 United States District Court Sandra Day O'Connor Courthouse 14 401 W. Washington Phoenix, Arizona 85003 15 Richard Mesh 16 Assistant United States Attorney Two Renaissance Square 17 40 North Central Avenue 18 Suite 1200 Phoenix, Arizona 85004-4408 19 Guillermo Pena 20 United States Probation Sandra Day O'Connor U.S. Courthouse 21 401 W. Washington Street Suite 410 22 Phoenix, Arizona 85003 23 Copy mailed to: 24 Yaughn Marcellus Robinson 25 Defendant 26 s/ Kathy A. Kruckeberg Kathy A. Kruckeberg 27 28
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s/ Jane L. McClellan JANE L. McCLELLAN Asst. Federal Public Defender

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