Free Sentencing Memorandum - District Court of Arizona - Arizona

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

40 North Central Avenue Phoenix, Arizona 85004-4429 Facsimile No.: (602) 734-3949 Telephone: (602) 262-0222 [email protected] Frederick R. Petti, (State Bar No. 011668) Attorneys for Defendant Gary Hirth

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, vs. Gary Hirth, Defendant. I. Background On October 19, 2004, Gary Hirth entered a guilty plea to aiding and abetting the preparation of a false tax return. Ostensibly, Mr. Hirth prepared a tax return for a client showing $0 dollars for wage income when Mr. Hirth knew that in all likelihood the client did, in fact, have wage income for that year. Under the terms of the Plea Agreement, Mr. Hirth voluntarily surrendered his CPA license and agreed to cooperate with the government in exchange for a Section 5K1.1 motion for downward departure. The government has made such a motion. II. Objections to the Presentence Report Mr. Hirth's only objection to the Presentence Report is that the Probation Officer found that the total loss attributable to Mr. Hirth pursuant to § 1B1.3 was $25,895.00. In the Plea Agreement, Mr. Hirth and the government stipulated that the loss was $9,146.50, which is the amount of loss associated with the false tax return Mr. Hirth prepared for his client. As the government points out in its sentencing memorandum, the additional $16,794.00 in losses attributed to Mr. Hirth by the Probation Officer are losses alleged in two other indictments involving Mr. Hirth, indictments which were dismissed against
Case 2:03-cr-01280-RGS Document 48 Filed 08/25/2005 Page 1 of 4

) ) ) ) ) ) ) ) ) )

No. CR-03-1280-PHX-RGS DEFENDANT HIRTH'S SENTENCING MEMORANDUM

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

him pursuant to the Plea Agreement. The amount of loss stipulated to by Mr. Hirth and the government is the appropriate amount of loss for sentencing purposes, and Mr. Hirth urges the Court to use the $9,146.50 loss figure stipulated to in the Plea Agreement. III. The Effect of the Plea Agreement on Mr. Hirth Pursuant to the Plea Agreement, Mr. Hirth voluntarily surrendered his CPA license to the State of Arizona. In addition, he has cooperated with the government and provided the government with information that the government found useful. Moreover, the government found Mr. Hirth to be honest and forthright in his dealings with the government. Further, since January 2004, Mr. Hirth has been on pretrial release, and he has kept all court appearances and has been in compliance with his terms and conditions of release. Agreeing to plead guilty in this matter has been a life altering event for Mr. Hirth. Prior to being indicted, Mr. Hirth was never in trouble with the law and has been a licensed CPA since 1979. As the defendant stated to the Probation Officer, he did something stupid and was just "overzealous" in trying to make a client happy when he agreed to prepare a false tax return. As a result, his entire life was changed and he will carry the shame and the stigma of this prosecution from here on out. Mr. Hirth is truly sorry for his actions, and he has accepted responsibility for his conduct. There is no reason to believe that Mr. Hirth will be anything but a productive citizen from this point forward, and he has already been punished severely for his transgression. IV. Sentencing Recommendation It will come as no surprise to the Court that counsel for Mr. Hirth recommends that he be sentenced to probation. Mr. Hirth has paid a high price for his crime, and he has cooperated fully with the government and has fully accepted responsibility for his actions. Nothing will be gained from restricting Mr. Hirth's liberty at this point. For all of the reasons stated in this Memorandum, Mr. Hirth's counsel recommends that the Court sentence Mr. Hirth to a period of one year probation with the standard conditions of supervision adopted by the Court in General Order 04-11.
Case 2:03-cr-01280-RGS Document 48 Filed 08/25/2005 Page 2 of 4
1664342.1

2

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

RESPECTFULLY SUBMITTED this 25th day of August, 2005. LEWIS AND ROCA LLP

By s/ Frederick R. Petti Frederick R. Petti Attorneys for Defendant Gary Hirth

Case 2:03-cr-01280-RGS

Document 48

Filed 08/25/2005

Page 3 of 4
1664342.1

3

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
Case 2:03-cr-01280-RGS

CERTIFICATE OF SERVICE I hereby certify that on this 25th 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: Peter Sexton [email protected]

I also certify that on this 25th day of August, 2005, I served the attached document by fax on the following: Peter Sexton Assistant U.S. Attorney United States Attorney's Office 40 North Central Avenue Phoenix, AZ 85004-4408 Kelly Heitkam Probation Officer (602) 322-7409 FAX

s/ Sherry Samford

Document 48

Filed 08/25/2005

Page 4 of 4
1664342.1

4