Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona PATRICK J. SCHNEIDER Assistant U.S. Attorney Arizona State Bar No. 011697 [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-03-0061-PHX-HDM Plaintiff, v. Robert Stewart, Defendant. GOVERNMENT'S RESPONSE TO DEFENDANT'S SENTENCING MEMORANDUM AND OBJECTIONS TO PRESENTENCE REPORT

The United States, by and through undersigned counsel, respectfully responds to the

15 defendant's sentencing memorandum and objections to the presentence report as set forth in the 16 accompanying memorandum of points and authorities. 17 Excludable delay under 18 U.S.C. § 3161(h) may occur as a result of this motion or an 18 order based thereon. 19 20 21 22 23 24 25 26 27 28 s/ PATRICK J. SCHNEIDER Assistant U.S. Attorney Respectfully submitted this 12th day of April, 2006. PAUL K. CHARLTON United States Attorney District of Arizona

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1 2 Facts: 3

MEMORANDUM OF POINTS AND AUTHORITIES

The defendant is currently pending resentencing in this matter. This matter proceeded

4 to trial, with a federal jury finding the defendant guilty on all counts. The defendant was 5 previously sentenced to imprisonment for a term of 292 months on November 20, 2003. 6 Following an appeal to the Ninth Circuit Court of Appeals, the Court affirmed the convictions 7 on Counts 1 (Retaliating Against a Federal Official); Count 2 (False Statements); and Count 4 8 (Solicitation to Commit a Crime of Violence). The Court of appeals overturned the defendant's 9 conviction on Count 3 (False Statements). The Court of Appeals then remanded the matter back 10 to the District Court for resentencing in light of the dismissed count. This matter is currently set 11 for resentencing on April 27, 2006, at 11:00 am. 12 Law: 13 The defendant contends that this court must impose a different sentence than that imposed

14 previously because of the case of United States v. Booker, 543 U.S. 220 (2005), which issued 15 after the appeal in this case had been submitted, but before the Court of Appeals issued its 16 opinion. The thrust of the defendant's argument is that Booker and its predecessor Blakely v. 17 Washington, 542 U.S. 296 (2004), require that any facts which increase punishment must be 18 found by a jury beyond a reasonable doubt, and that several guideline enhancements found to 19 exist in the prior sentencing proceeding had not been presented to the jury for their 20 determination. The defendant's argument fails. 21 In United States v. Cantrell, 433 F.3d 1269, 1279-81 (9th Cir. 2006), the Ninth Circuit

22 adopted a two-step process for reviewing sentences imposed after the Supreme Court opinion 23 in Booker. The Court concluded that district courts were not mandated to sentence within an 24 applicable guideline range because the Sentencing Guidelines were advisory and not mandatory. 25 Id. at 1279. The Court indicated however, that the district courts must consult the guidelines and 26 take them into account when sentencing even though the court has discretion to impose a non27 Guideline sentence. The Court concluded that this consultation requirement from Booker 28
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1 requires that the district court correctly calculate the sentencing range prescribed by the 2 Guidelines, and then apply the factors enumerated in 18 United States Code, Section 3553 in its 3 sentencing decision. Id. at 1279-80. 4 Contrary to the contentions of the defendant, the Ninth Circuit has concluded the

5 "advisory Guidelines remedy in Booker "gives the judge discretion to sentence outside the 6 guideline range, but still allows the sentencing judge (as distinct from a jury) to make the 7 findings of fact necessary to determine the guideline range in the first place." United States v. 8 Dupas, 419 F.3d 916, 919 (9th Cir. 2005); See Also United States v. Mix, 2006 WL 802535 (9th 9 Cir. 2006). Thus the court is authorized to make the necessary findings of fact without the need 10 for those facts to have been presented to the jury at trial. Indeed, this court presided over the 11 trial and is well-equipped to make the necessary factual findings from which to determine the 12 initial guideline range. This guideline range then becomes the "starting point" for the court in 13 deciding the appropriate sentence. See United States v. Zavala, 2006 WL 914528 *3 (9th Cir. 14 2006). The evidence at trial relative to the factual findings that the defendant correctly asserts 15 were not presented to the jury for a determination include: 16 17 18 1. Pecuniary Motive:

The evidence presented at trial indicated that the defendant, Robert Stewart, offered to

19 pay inmate August Weiss machineguns, and to arrange for him to receive a reward of $100,000 20 from the Aryan Brotherhood in return for inmate Weiss arranging the murder of United States 21 District Court Judge Roslyn O. Silver. In the recording played at trial, the defendant can be 22 heard describing the machineguns to Weiss, and describing how he would make arrangements 23 for Weiss to receive the guns.. Additionally, with respect to the $100,000 reward, the defendant 24 can be heard telling Weiss, "I'll hook you up to that." Indeed, the defendant himself, despite 25 denying any involvement in a plan to kill Judge Silver, admitted to FBI Agent Gallante as well 26 as on the witness stand that he was aware of a reward being offered within the prison by the 27 Aryan Brotherhood for the murder of Judge Silver. 28
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Obstruction of Justice:

The evidence at trial relative to the defendant's obstruction of justice related to his refusal

3 to provide handwriting exemplars from which a comparison could be made with other writings. 4 The court issued an order requiring the defendant to provide such exemplars, but the defendant 5 refused. These handwriting samples were important in order to compare the writing of the 6 defendant with a number of letters which had been intercepted being sent from the prison. In 7 them, the defendant expressed his hatred of Judge Silver, as well as his beliefs about the 8 government. While the defendant ultimately admitted to having authored many of the passages 9 in these documents, his refusal to comply with the court's order is no less an obstruction of 10 justice. Indeed, the defendant contended that the tape recording admitted at trial contained the 11 voice of someone other than himself, because the speaker uttered a line in Spanish. One of the 12 intercepted letters, which the government sought to prove had been written by the defendant 13 began with one or more sentences in Spanish. 14 15 Conclusion: 16 There was sufficient evidence presented at trial for the court to make the findings of fact

17 necessary to the initial guideline determination. Pursuant to Cantrell, Mix, and Zavalla, the 18 court should then use this guideline determination as a starting point from which to then review 19 the factors set forth in 18 United States Code, Section 3553, and determine the appropriate 20 sentence under the circumstances. It is the contention of the government that the sentence 21 previously imposed was indeed appropriate in light of the guidelines and the sentencing factors 22 enumerated within the statute. 23 24 25 26 27 28
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Respectfully submitted this 12th day of April, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /s PATRICK J. SCHNEIDER Assistant U.S. Attorney

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1 2 **Note Certificate is applied to the last page** 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
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I hereby certify that on April 12, 2006, 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: Thomas E. Haney 101 N. 1st Avenue, Ste. 2460 Phoenix, AZ 85003-1918 [email protected]

I hereby certify that on April 6, 2006, I served the attached document by United States Mail on the following, who are not registered participants of the CM/ECF system: Robert Wilson Stewart, Jr. #04650-081 CADC - Florence Central Arizona Detention Center P.O. Box 6300 Florence, AZ 85232 S/ PATRICK J. SCHNEIDER

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