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

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MARK PAIGE 45 West Jefferson Luhrs Tower - Suite #806 Phoenix, AZ 85003-2317 (602) 254-5457 State Bar #020902 Attorney for Defendant

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA _______________________________________ ) UNITED STATES, ) No.: CR-04-373-003-PHX-JAT ) Plaintiff, ) ) DEFENDANT'S OBJECTIONS v. ) AND SENTENCING ) MEMORANDUM Noel Begley, ) ) Defendant. ) _______________________________________) The defendant, Noel Begley, hereby makes the following objections to the Pre-Sentence Report and, also, files the attached Sentencing Memorandum: 1. Pg 3: Gang Associations: The Report alleges that the defendant is a member of the Bloods and the Rolling 20's gangs. This information is incorrect in two manners. First, the Rolling 20's gang and the Bloods gang are one and the same association. Second, the defendant has not been a member of these gangs since approximately 1993 or 1994. 2. Pgh 64, pg. 18-19; Criminal History Calculation: The criminal history computation as set forth in paragraph 64 results in 20 criminal history points and a Category VI. This calculation is incorrect and overstates his present propensity to engage in criminal conduct. 3. Pgh 36, pg 10: Specific Offense Characteristics: Seven levels were added for the loss. The paragraph points out that the loss directly attributed to the defendant was $27, 850.12. The loss attributed to the defendant through Desiree Smith, with whom the defendant worked directly, was $10, 812.58. The report then lumps in another $97,503.88 for acts undertaken by anyone else charged. Two concerns with this accounting, first, the

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probation department is crediting the "organization" with far too much sharing of information, structure and interrelationship. This was a loose-knit group of individuals practicing the same activity. They were aware of each other, but had limited control over one another. Second, the amount is somewhat speculative. Several reports from the retail locations assumed the same "group" because the method was substantially similar. However, the court must recognize that, though the activity involved some thought, it is hardly unique or sophisticated. 4. Pgh 39, pg. 11: Adjustments for Role in the Offense: three levels were added in that the defendant is alleged to have been a leader or supervisor in an activity involving more than five participants or was otherwise extensive. The defendant seems to have exerted some control over Ms. Smith. 5. Pgh 64, pg. 18: Two "bonus" criminal history points were added for being under a criminal justice sentence at the time of this offense. Further, the defendant moves, to the extent necessary (due to the advisory nature of the USSG) for downward departures on the following basis: 1. Criminal history calculation overstates the defendants criminal history and propensity to commit crimes; 2. Post-offense rehabilitation; and, 3. The defendant's showing of remorse and acceptance of responsibility for his

misconduct.

Respectfully submitted this 8 th day of August, 2005. S/Mark A. Paige ______________________________________ MARK PAIGE Attorney for Defendant

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Copy of the foregoing was mailed/delivered this 8 th day of August 2005 to: Richard Mesh Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue Suite 1200 Phoenix, AZ 85004-4408 Guillermo Pena U.S. Probation 401 W. Washington St. Phoenix, AZ 85003

,

S/ Mark A. Paige ______________________ Mark A. Paige

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MEMORANDUM OF LAW The defendant was charged with mail fraud, 18 U.S.C. §1341; conspiracy, 18 U.S.C. §371; and fraudulent use of a social security number, 42 U.S.C. §408. The offenses are alleged to have occurred from June 2000 to May 2001. He pled guilty to Count 15, Conspiracy to Commit Fraudulent Use of a Social Security Number. He entered into a plea agreement with the government which contains a stipulation by the parties to a sentence of no greater than 33 months. Under the United States Sentencing Guidelines (hereinafter, USSG), the District Court has the authority to depart downward if, in its discretion, it concludes that the criminal history is overstated. See, United States v. Cuevas-Gomez, 61 F.3d 749 (9 th Cir. 1995); United

States v. Reyes, 8 F.3d 1379 (9 th Cir. 1993); United States v. Brown, 985 F.2d 478 (9 th Cir. 1993); United States v. Lawrence, 916 F.2d 553 (9 th Cir. 1990); United States v. Mishoe 241 F.3d 214 (2 nd Cir. 2001). The criminal history of the defendant is detailed in paragraphs 48 through 63 on pages 12 through 18 of the PSR. There are several points regarding that history which the defendant believes results in an overstatement of his history and propensity to commit crimes. First, the PSR details several convictions totaling nine (9) criminal history points for misdemeanors (54, 55, 56, 57, 59, 60, 61 and 62). The maximum number of points for misdemeanor convictions is four (4) (See, pgh 65). None of these matters received any significant sentence (except paragraph 56, which will be discussed below), the greatest being 20 days. Some of these offense received little or no jail sentence at all. In addition, several of these offense are approximately ten (10) years old. Paragraphs 54 and 55 are misdemeanor convictions from 1994.
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Two additional offenses, for driving on a

Paragraph 55 is a conviction from 1994 at which time the defendant was placed on 24 months

probation, yet seven years later his probation was revoked. It would seem as though a legal argument may have been overlooked in 2001 by defense counsel, however, undersigned counsel herein is not familiar with the California Criminal Code.

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suspended license, hail from 1996 and 1998 - nearly ten years ago. The responsibility of the court at the time of sentencing is to determine the present day sufficient sentence which is no greater than necessary. 18 U.S.C. §3553 (a). Second, several of the offenses were sentenced concurrently by the State of California, yet those offenses resulted in a total of nine (9) points in the calculations of the probation department. The offenses at paragraphs 50, 52 and 53 all resulted in one sentence. The manner in which they were sentenced seems to provide insight into the seriousness of the offenses in the eyes of the court closest to that situation. That court determined that one sentence was sufficient to effectuate the punitive purpose of the California sentencing statutes. Thus, to now "retroactively" enhance the significance of those offenses for purposes of giving a greater federal sentence seems to contradict the mandate of 18 U.S.C. §3553. Fourth, several of the offenses, four to be exact, are driving after suspension violations. Driving after suspension/revocation offenses are rather circular. Oftentimes these offenses begin with the failure to complete some administrative act, such as payment of a fine, providing proof of insurance, etc... In light of the fact that the defendant has no driving under the influence offenses and only driving after suspension (rather than revocation), it is more than likely that some similar circumstance instigated the suspensions. The "suspensionees" often feel as though they have no choice but to drive in order to accomplish the task required to alleviate the suspension - oftentimes financial requirements. Therefore, they drive, get stopped, get cited for driving after suspension, then, get suspended again (for a longer term) for driving after suspension. Counsel proffers to the court that in many years of representing misdemeanants accused of driving after suspension, the very rare exception would be the individual with only one such violation. The existence of several is "normal" and to give them each weight is to overstate one's propensity to engage in criminal conduct. Paragraph 56 alleges an offense for which the defendant received a sentence of 365 days jail. The defendant, though records show such a sentence may have been imposed, served only two to three days (approximate) on this offense. The defendant was accused of not paying a toll. Again, this offense was more than ten years ago. Giving this offense full weight, pursuant to the

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USSG, at this time results in an overstatement of the defendant's criminal history category. Last, on this topic, paragraph 64 includes the criminal history "bonus" points for committing the instant offense while under a criminal justice sentence. The offense involved is at paragraph 55, discussed above at footnote 1. In 1994, Mr. Begley was placed on two years probation, yet seven years later, in 2001, he was revoked on that probation (in his absence it appears). Such procedure would be most suspect in Arizona. In practice, oftentimes no objection may be raised in that the process for hearing and resolution of the legal issue can result in greater detention than the violation itself. Nonetheless, the bonus points awarded herein unduly inflate the criminal history calculation. Also, counting these points under such questionable circumstances, again, tends to overstate the defendants criminal history categorization. The current offense is the result of conduct undertaken in the years 2000 and 2001. A substantial time passed subsequent to the offense conduct and the time of prosecution of this defendant. During that time the defendant has remained law abiding (with the exception of a traffic matter). He has broken all ties to his previous criminal activities and associates. In fact, he has opened a business and become a productive member of society. Mr. Begley has been in the music production business since 2002 (approximately). He has struggled like all small businessmen when launching a new endeavor. However, there is no evidence to suggest that he continued in his past manner of criminal conduct. He has made these great strides without the intervention of government programing and oversight. In short he has demonstrated the ability to reform his behavior simply because it is the right thing to do. This is an attribute that the case law allows the court to consider, historically, under the USSG. The court may depart downward based upon post-offense rehabilitation. United States v. Green, 152 F.3d 1202 (9 th Cir. 1998); United States v. Bradford, 207 F.3d 76 (1 st Cir. 2000); United States v. Newlon, 212 F.3d 423 (8 th Cir. 2000); United States v. DeShon, 183 F.3d 888 (8 th Cir. 1999); United States v. Jones, 158 F.3d 492 (10 th Cir. 1998); See also, Koon v. United States, 518 U.S. 81 (1996). The facts of the present case warrant such a departure. The opportunity to participate in educational programs will further enhance and solidify this change of behavior. Furthermore, this is precisely the type of evidence for the court to consider under 18

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U.S.C. §3553. The sentence of the court, pursuant to statute, must be limited to a "sentence sufficient, but no greater than necessary to comply with the purposes set forth" in paragraph (2) of the statute. 18 U.S.C. §3553(a). A sentence of less than 33 months can accomplish the goals of the statute best while allowing the defendant to pursue his responsible conduct in the community - running a business - and providing a greater ability to make restitution. The offense for which the defendant has pled guilty occurred between June 2000 and May 2001. The Indictment was issued and filed in April 2004 (with a Superceding Indictment in September 2004). See, United States v. Cornielle, 171 F.3d 748 (2 nd Cir. 1999); United States v. O'Hagan, 139 F.3d 641 (8 th Cir. 1998). The defendant's extensive efforts at rehabilitation during that time period were abruptly halted upon the arrest of Mr. Begley more than three years after the misconduct. Last, the defendant has demonstrated significant remorse and acceptance of responsibility for his misconduct. The defendant met with the case agent after arrest and admitted fully the scheme and his role in the scheme. He acknowledged his responsibility and the necessary consequence. The defendant did not blame any other persons for his decisions. The court's obligation under 18 U.S.C. §3553 is to craft a sentence which: 1. reflects the seriousness of the offense, promotes respect for the law and provides just punishment for the offense; 2. Affords adequate deterrence to criminal conduct; 3. Protects the public from other crimes of the defendant; and 4. Provides the defendant with the needed educational or vocational training, medical care or other correctional treatment in the most effective manner. The factors referenced and discussed above support a sentence, consistent with the plea agreement, of no greater than thirty-three months. Further, the court is permitted to determine the method by which that sentence may be satisfied. 18 U.S.C. §3553(a)(3). The defendant has approximately 9-10 months of custody completed at the time of sentencing. The defendant has a track record of nearly three years of no criminal conduct (But, see, pgh 63). Consideration of options for custody through community confinement is appropriate.

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CONCLUSION The defendant has made mistakes. In the past, it would seem arguable that he lived without regard to the propriety of his conduct. However, acting alone, the defendant changed his ways after recognizing the damage his conduct may cause to others. He also recognized the "dead end street" upon which he traveled. He determined to put in the hard work to develop a business rather than steal from a business. The defendant does have redeeming qualities for the court to consider. The defendant urges the court to accept the plea agreement and sentence him accordingly.

S/ Mark A. Paige ________________________________ Mark A. Paige Attorney for Defendant Begley

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