Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona RICHARD I. MESH Assistant U.S. Attorney Arizona State Bar No. 002716 Two R enaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-0373-03-PHX-JAT Plaintiff, v. Noel Anthony Begley Defendant. The United States of America, through its undesigned attorneys, hereby files this response to the defendant's objections to the pre-sentence report. This response is supported by the attached memorandum points and authorities. Respectfully submitted this 19th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/ RICHARD I. MESH Assistant U.S. Attorney GOVERNMENT'S RESPONSE TO DEFENDANT'S OBJECTIONS TO PRE-SENTENCE REPORT

Case 2:04-cr-00373-JAT

Document 158

Filed 08/19/2005

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MEMO RANDUM OF POINTS AND AUTHORITIES A. Criminal History Calculation

3 The defendant recites that the criminal history calculation set forth in paragraph 64 of the 4 pre-sentence report is incorrect. 5 defendant's criminal history to a total of 17 points which still falls within criminal history 6 category 6. 7 represents the defendant's criminal history because a number of the defendant's prior offenses 8 were of a traffic offense nature, were committed sometime ago, and in many cases resulted in 9 a concurrent sentence. The defendant's complaint is not directed at the presentence report but 10 rather the guidelines themselves, which are now advisory in their application. However, even 11 if the 4 criminal history points were eliminated, the defendant's criminal history would still a 12 category 6, which is the highest level for recidivist sentencing. 13 14 B. Specific Offense Characteristics 15 The defendant complains that the presentence report "lumps in another $97,503.88 for 16 acts undertaken by anyone else charged," and "the amount is somewhat speculative." The losses 17 caused by other co-conspirators are properly attributable to the defendant under the Pinkerton 18 Theory of coconspirator liability. The amounts listed in the presentence report were derived 19 from the dollar figures on checks dishonored by coconspirators. These fraudulent accounts were 20 opened pursuant to a scheme where the checks were used to obtain merchandise by the co21 conspirators and was then refunded by yet other coconspirators. The proceeds from these illegal 22 acts were shared among the participants in the conspiracy. Therefore, the defendant having pled 23 to the conspiracy count, should be held responsible for the total amount of losses caused by any 24 participant in the conspiracy. 25 26 27 28 2 The defendant's memorandum complains that the presentence report over However, paragraph 65 reflects an adjustment of the

Case 2:04-cr-00373-JAT

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C. Defendant's Request for Downward Departures The defendant requests a downward departure based upon his "showing of remorse and acceptance of responsibility for his misconduct." However the defendant has already been credited with a reduction of 3 levels on this basis. It would be inappropriate to grant the defendant further credit on the basis. Additionally, although 2000 Sentencing Guidelines serve as "an advisory" basis in the court's calculation for sentencing purposes, it should be noted that the 2004 Sentencing Guidelines presently in effect specifically precludes under §5K2.0(d)(2) a further downward departure for acceptance of responsibility beyond that taken into account Section 3E1.1. In the previously filed government's sentencing recommendation, the government laid out its reasons for agreeing to a limitation of a maximum sentence of 33 months for this defendant, which in of itself was a reduction of that recommended in the presentence report. The government submits the reasons stated in that earlier pleading, filed under seal, are still appropriate reasons for the to court accept the plea agreement. However, it would be

inappropriate for the court upon accepting the plea agreement to further reward the defendant with any additional leniency as to the imposition of the sentence. Respectfully submitted this 19th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/ RICHARD I. MESH Assistant U.S. Attorney

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Case 2:04-cr-00373-JAT

Document 158

Filed 08/19/2005

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Guillermo A. Pena Senior US Probation Officer 401 W. Washington Street Phoenix, AZ 85003 S/ RICHARD I. MESH S/ RICHARD I. MESH

CERTIFICATE OF SERVICE I hereby certify that on 19TH day of August, 2005. I electronically transmitted the attached document 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: Mark Paige Attorney for Defendant 45 W. Jefferson Suite 806 Phoenix, AZ 85003-2317 [email protected]

I hereby certify that on 19TH day of August, 2005. I served the attached document by fax on the following, who are not registered participants of the CM/ECF system:

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Case 2:04-cr-00373-JAT

Document 158

Filed 08/19/2005

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