Free Objection to Presentence Investigation Report - 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. Defendant Yaughn Marcellus Robinson, by and through undersigned counsel, hereby submits the following objections to the draft presentence report. Mr. Robinson pled guilty to conspiracy, in violation of 18 U.S.C. § 371. Sentencing is United States of America, Plaintiff, DISTRICT OF ARIZONA No. CR-04-373-PHX-JAT OBJECTIONS TO DRAFT PRESENTENCE REPORT (Oral Argument Requested)

20 currently set for September 19, 2005. Objection to Paragraph 7 21 I. 22 Defendant objects to the statement that "Begley and Robinson were 23 likely managers as they supervised one or more of the defendants during the 24 commission of the offense." Defendant asserts that he was not a manager, and he did 25 26 27 28 not supervise anyone during the commission of the offense. Mr. Robinson received instructions regarding what to do in relation to the crime from another person involved in the conspiracy. Mr. Robinson did not supervise Desiree Smith. All instructions on how to proceed came from someone else.

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Objections to Paragraph 11 The presentence report states that Defendant provided Smith with a batch

3 of checks in her name. However, it should be added that Ms. Smith obtained a new 4 driver's license with a Tucson address at the direction of another co-conspirator, and 5 not at Robinson's direction. This other conspirator, known as "Capone," provided 6 Smith with an address to use and, after obtaining the driver's license, Capone directed 7 8 Smith to open the bank account with the mailing address in Tucson, Arizona. See 9 Exhibit A at ¶ 8 (Affidavit in Support of Search Warrant). 10 Defendant objects to the statement that he "provided Smith with $1,920 11 which she deposited into the checking account." Mr. Robinson denies that he gave 12 her the money. See Exhibit A at ¶ 9. 13 Defendant also objects to the statement that he "directed" Ms. Smith to 14 15 16 17 purchase merchandise. He did not direct her. She and Mr. Robinson acted on instructions that they received from another conspirator (Foster). They were given a list of places from which to make the purchases. Mr. Robinson drove Ms. Smith

18 around while she made the purchases. The presentence report says that Ms. Smith left the merchandise and 19 20 receipts with Robinson. However, what happened was that they (Robinson and 21 Smith) went back to the hotel room where several of the conspirators were residing 22 and, at the hotel, Mr. Robinson gave the merchandise to another person who was 23 involved. 24 25 26 27 Lastly, defendant objects to the statement that, at his direction, Smith then withdrew $2,000 from the checking account; this is incorrect. Another person who was involved told Ms. Smith to withdraw the money. See Exhibit A at ¶ 10; see

28 also Exhibit B at p.4, ¶ 3 (Glendale Police Report containing statement of Desiree
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1 Smith) (stating that "On Monday morning, `Capone' told me to go to the bank and 2 withdrawal (sic) the two thousand dollar deposit."). 3 III. Objection to Paragraph 36 4 5 6 7 Defendant objects to the two-level adjustment for having an aggravated role in the offense, pursuant to U.S.S.G. § 3B1.1. Defendant asserts that there should be no role adjustment. Defendant did not supervise any individuals in this scheme.

8 The presentence report asserts that defendant supervised Ms. Smith, but this is not 9 true. Mr. Robinson accompanied Ms. Smith on one shopping spree. Both of them 10 were acting based on directions from another conspirator. Ms. Smith approached 11 another defendant regarding involvement in this scheme, and this other person got her 12 involved ­ not Mr. Robinson. In fact, Ms. Smith opened another account and 13 purchased merchandise on another occasion with another defendant. It is apparent 14 15 16 17 that Ms. Smith chose to participate in this scheme, and that her involvement went beyond what she did with Mr. Robinson. Mr. Robinson's involvement was not extensive. At paragraph 25, the

18 presentence report states that there were many "runners" who simply opened accounts 19 and purchased or returned merchandise. This is exactly what defendant's 20 involvement was. He was simply a runner, too. Therefore, because defendant was 21 not an organizer, leader, manager, or supervisor in the offense, there should be no role 22 adjustment. 23 It is expected that excludable delay under Title 18 U.S.C. § 3161(h)(1)(I) may 24 25 26 27 28
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occur as a result of this motion or from an order based thereon. /// ///

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Respectfully submitted: August 11, 2005. JON M. SANDS Federal Public Defender s/ Jane L. McClellan JANE L. McCLELLAN Asst. Federal Public Defender

transmitted 8 Copy of the foregoing this 11th day by CM/ECF for filing 9 of August, 2005, to: 10 Clerk's Office United States District Court 11 Sandra Day O'Connor Courthouse 401 W. Washington 12 Phoenix, Arizona 85003 13 Richard Mesh 14 Assistant United States Attorney Two Renaissance Square 15 40 North Central Avenue Suite 1200 16 Phoenix, Arizona 85004-4408 17 Guillermo Pena 18 United States Probation Sandra Day O'Connor U.S. Courthouse 19 401 W. Washington Street Suite 410 20 Phoenix, Arizona 85003 21 Copy mailed to: 22 Yaughn Marcellus Robinson 23 Defendant s/ Jane L. McClellan 24 JANE L. McCLELLAN 25 Asst. Federal Public Defender 26 27 28
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