Free Motion for Departure - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona PETER SEXTON Assistant U.S. Attorney Arizona State Bar No. 11089 [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-03-1280-PHX-RGS Plaintiff, v. Gary Hirth, Defendant. UNITED STATES' SENTENCING RECOMMENDATION AND MOTION FOR DOWNWARD DEPARTURE

1. Loss/Restitution. The United States recommends that the Court use a lower loss figure than the amount

17 used by Probation ($9,146.50 vs. $25,895.00). In the plea agreement, the parties stipulated that 18 the loss was $9,146.50, which was the loss associated with the false tax return defendant pled 19 guilty to from the indictment in this matter (CR 03-1280-PHX-RGS). Probation added another 20 $16,749.00 in loss for the false 1997 tax return Hirth help prepare in the other indicted tax matter 21 (CR 03-1279-PHX-RGS). 22 While Probation's calculation and approach is reasonable, the parties believe that relevant 23 conduct is best confined to the one indictment covered by defendant's plea of guilty. Because 24 each indictment covered distinct conduct, and defendant pled to only one count from one of three 25 indictments, the parties thought it fairer to limit the relevant conduct to that one indictment, and 26 not include relevant conduct from any other indictment which was to be dismissed against Hirth 27 in its entirety at sentencing. Thus, the lower, stipulated loss figure is the amount the parties 28 would ask the Court to use at sentencing.

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1 2 3 2. Cooperation.

Before and after his change of plea, defendant cooperated with the prosecution. His

4 cooperation included the conduct charged in the indicted cases, as well as cooperation associated 5 with other investigatory matters. Defendant was honest and forthright in his dealing with the 6 prosecution. For his efforts, the United States moves for a downward departure for cooperation 7 pursuant to Section 5K1.1 of the Sentencing Guidelines. 8 9 3. Relinquishing CPA License.

At the request of the prosecution, defendant voluntarily relinquished his CPA license.

10 As a result, his past livelihood as an accountant and tax preparer is unavailable to him in any 11 meaningful way. His cooperation, in not contesting or seeking to retain his CPA license, confers 12 a benefit on a brethren oversight agency (Arizona State Board of Accountancy), which is akin 13 to the benefit conferred on the government when an illegal alien receives a downward departure 14 for not contesting deportation at a mandatory deportation hearing. By voluntarily relinquishing 15 his administrative rights with the Board of Accountancy, defendant's conduct further warrants 16 a downward under Section 5K2.0 of the Sentencing Guidelines. 17 18 4. Sentencing Recommendation.

If the Court uses the sentencing recommendation suggested by the United States above, the

19 Sentencing Guidelines calculation would be as follows: 20 21 22 23 24 25 26 27 28
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§ 2T1.41(a)(1)/2T4.1 - Base Offense Level § 2T1.4(b)(1)(B) - Business of Preparing Tax Returns Subtotal § 3E1.1(b) - Acceptance of Responsibility Total Offense Level Before Departure

+10 +2 12 -2 10

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1 2 If no adjustment is made to the PSR calculation, the United States would recommend that the 3 Court depart downward to Zone B for the reasons expressed above, and that defendant be given 4 probation with home confinement and community service. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 12th day of August, 2005.

PAUL K. CHARLTON United States Attorney District of Arizona s/ Peter Sexton PETER SEXTON Assistant U.S. Attorney

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1 2 3 CERTIFICATE OF SERVICE I hereby certify that on this 12th day of August, 2005, I electronically transmitted the

4 attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of 5 a Notice of Electronic Filing to the following CM/ECF registrants: 6 Frederick Richard Petti 7 8 and mail on the following: 9 10 11 Frederick Richard Petti Lewis & Roca LLP 12 40 N Central Ave 13 Phoenix, AZ 85004-4429 Fax: 602-734-3949 14 15 Kelly Heitkam Probation Officer 16 Fax: 602-322-7409 17 18 19 20 21 22 23 24 25 26 27 28
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[email protected]

I also certify that on this 12th day of August, 2005, I served the attached document by fax

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