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

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Joanne F. Landfair, Esq. 331 North First Avenue, Suite 106A Phoenix, AZ 85003-4528 (602) 452-2945; fax (602) 452-2997 Arizona State Bar # 009173 [email protected] Attorney for defendant

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

) ) Plaintiff, ) ) vs. ) ) ) Marilyn Gail Fisher, ) ) Defendant. ) __________________________________)

UNITED STATES OF AMERICA,

No.CR-03-0421-013-PHX-SMM

DEFENDANT'S OBJECTIONS TO PRESENTENCE REPORT

COMES NOW the defendant, Marilyn Gail Fisher, by and through counsel undersigned, and hereby files the following objections to the presentence report:

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P. 4, ¶ 8 to P. 7, ¶ 28: The defendant objects to all of these paragraphs as irrelevant, except for P. 5, ¶ 11 & P. 6, ¶ 15, as these are the only paragraphs that deal

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with her offense conduct. Mrs. Fisher was only charged with one count, and she was not charged with the conspiracy. As to P. 7, ¶ 24, Mrs. Fisher denies any financial

participation in any drug transactions.

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P. 8, ¶ 31: The firearm in the attic was apparently left there years before by Mrs. Fisher's daughter Sonya Brown's estranged husband. P. 8, ¶ 34: The defendant objects to the purposed two-level enhancement for possession of a dangerous weapon. Mrs. Fisher was not charged with being in

possession of a weapon. There is not sufficient evidence that the defendant knew or should have known that a co-defendant was going to possess a firearm. There is not sufficient evidence that the possession of a weapon by a co-defendant was a reasonably foreseeable act of another in furtherance of jointly undertaken criminal activity. There is not sufficient evidence to show that the weapon facilitated the drug offense. See Smith v. United States, 508 U.S. 223 (1993). To give this increase would violate the defendant's Due Process, Ex Post Facto, and Sixth Amendment rights. See Blakely v. Washington, 542 U.S.___, 124 S. Ct. 2531 (2004), and United States v. Booker, ___U.S. ___, 125 S. Ct. 738 at 756 (2005). P. 9, ¶ 37: Mrs. Fisher should receive a decrease in offense level under §3B1.2, as she had a mitigating role in the offense. If she is not held responsible for other drug amounts outside the offense of conviction, as Mrs. Fisher argues that she should not be, she is not precluded from consideration for an adjustment under this guideline. See Application Note 3(A):

For example, a defendant who is convicted of a drug trafficking offense, whose role in that offense was limited to transporting or

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storing drugs and who is accountable under §1B1.3 only for the quantity of drugs the defendant personally transported or stored is not precluded from consideration for an adjustment under this guideline. Mrs. Fisher was not necessary for the drug organization to continue, as evidenced by the move of the operations to another location after the search warrant was executed. Receiving a mitigated role adjustment would also make Mrs. Fisher eligible for an offense level reduction under §2D1.1. This guideline currently allows a reduction of three levels from a level 34. Mrs. Fisher should receive the benefit of the prior amendment capping the base offense level at 30. P. 9, ¶ 47: The defendant objects to listing her daughter's activities as the defendant's prior criminal conduct. There is insufficient evidence to show that the defendant had knowledge of any drug sales occurring at her home at that time. P. 16, ¶ 93: Under United States v. Booker, ___U.S. ___, 125 S. Ct. 738 (2005),

the court must now impose a sentence that is "sufficient but not greater than necessary' to achieve the purposes of sentencing under 18 U.S.C. § 3553(a)(2), after considering : (1) the nature and circumstances of the offense and the history and characteristics of the defendant. (a) the nature and circumstances of the offense: Mrs. Fisher was charged with allowing her daughter to stay at her house, and was not able to force her to leave. There is no information indicating that the

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defendant ever received any monetary benefit from the drug sales. Under the equal protection component of the Fifth Amendment's Due Process Clause, the decision whether to prosecute may not be based on an arbitrary classification such as race or religion. Oyler v. Boles, 368 U.S. 448, 456. In order to prove a selective-prosecution claim, the claimant must demonstrate that the prosecutorial policy had a discriminatory effect and was motivated by a discriminatory purpose. To establish a discriminatory effect in a race case, the

claimant must show that similarly situated individuals of a different race were not prosecuted. Ah Sin v. Wittman, 198 U.S. 500. United States v. Armstrong, 517 U.S. 456 (1996). This is a very difficult burden for a defendant to meet, but the prosecution of the African American defendants in this case, and the high drug equivalency tables for crack cocaine, a drug more common in African American communities, raise the question of selective prosecution. (b) the history and characteristics of the defendant Mrs. Fisher is now 50 years old, and she has no prior criminal convictions. Her traumatic family experiences made it impossible for her to be able to force her daughter to leave the house, although she had made efforts to do so. Mrs. Fisher's current age makes her less likely to re-offend, as the likelihood an adult will commit a criminal act is lower as he ages. Greenberg,

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David F. (1985), "Age, Crime, and Social Explanation," American Journal of Sociology, 91:1-21.

(2) the kinds of sentences available One of the purposes of sentencing is "to provide the defendant with needed education or vocational training, medical care, or other correctional treatment in the most effective manner." See United States v. Jones, 158 F.3d 492 (10th Cir. 1998). Mrs. Fisher could receive any needed medical, psychological, and substance abuse treatment more effectively in the community than in prison. (3) the guidelines and policy statements issued by the Sentencing Commission, including the (now non-mandatory) guideline range The totality of the circumstances in this case leads to the conclusion that the offender herein falls outside the heartland of cases, §5K2.0; and there is evidence of psychological coercion and duress §5K2.12. Thus, a sentence of probation would be sufficient in this case. (4) the need to avoid unwarranted sentencing disparity among defendants with similar records that have been found guilty of similar conduct; and Defendant number eight received probation; Mrs. Fisher's involvement seems comparable to hers.

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(5) the need to provide restitution to any victim of the offense. This factor does not apply here. Finally: Rehabilitation is also a goal of punishment. 18 U.S.C. §3553(a)(2)(D). That goal cannot be served if a defendant can look forward to nothing beyond imprisonment. Hope is the necessary condition of mankind .... A judge should be hesitant before sentencing so severely that he destroys all hope and takes away all possibility of useful life. Punishment should not be more severe than that necessary to satisfy the goals of punishment. United States v. Carvajal, 3 ___ F.Supp.2d ___, No. 04-CR-222AKH, 2005 WL 476125, ** 5-6 (S.D.N.Y. Feb. 22, 2005) (a drug case, where career offender guidelines were found to be too great; the defendant would be 48 years old when released from prison.) RESPECTFULLY SUBMITTED this 23rd day of August, 2005.

s/ Joanne F. Landfair, Esq.

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Copy of the foregoing mailed/delivered this 24rd day of August, 2005, to: Stephen M. McNamee United States District Court, District of Arizona AUSA Timothy T. Duax USPO Craig W. Haraga By: s/
Fisher-obj to presentence rpt

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