Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona EMORY T. HURLEY Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Arizona State Bar No. 014812 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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United States of America, CR-04-1301-PHX-SRB Plaintiff, v. Francisco Gutierrez-Hernandez, Defendant. GOVERNMENT'S RESPONSE TO DEFENDANT'S SENTENCING MEMORANDUM

The United States of America, by and through its attorneys undersigned, hereby respectfully responds to defendant's Sentencing Memorandum. The United States concurs with the defendant's request that this Court accept the plea agreement in this case and impose a sentence consistent with the agreement, but would recommend a sentence in the top half of the range, based upon defendant's history of criminal conduct. The United States opposes any additional downward departure to which the parties have not agreed in the plea agreement. The United States' position is more fully set forward in the accompanying memorandum. Respectfully submitted this 8th day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /s Emory T. Hurley EMORY T. HURLEY Assistant U.S. Attorney

Case 2:04-cr-01301-SRB

Document 38

Filed 09/08/2005

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MEMORANDUM The United States respectfully requests that this Court impose a sentence consistent with the plea agreement. With a one level downward adjustment pursuant to United States Sentencing Guidelines, Section 5K3.1, defendant's guideline range is 27 to 33 months. A sentence within this range would reflect the seriousness of the offense, promote respect for the law, deter similar conduct in the future, and provide just punishment for the offense. Defendant has a number of misdemeanor convictions that do not affect his criminal history category, but reflect an individual with little respect for the law. For this reason, the government recommends a sentence no lower than the middle of the guideline range. The United States opposes any additional downward departures based upon defendant's economic hardships. His economic circumstances, while unfortunate, do not appear to be so extraordinary that they would justify the downward departure he requests. Downward departures from the guideline range should be considered if the circumstances of the case are so extraordinary that they take the case outside the heartland of such cases as defined in the United States Sentencing Guidelines. See Koon v. United States, 518 U.S. 81, 95100, 116 S.Ct. 2035, 2045-2048 (1996). A court's decision regarding whether a case falls outside the heartland must take into account all of the facts of the case. Koon at 99-100, 116 S.Ct. at 2047. Economic circumstances are often the given reason for a previously deported illegal alien to reenter the United States. Defendant's circumstances do not appear to be so unusual as to take his case out of the heartland of cases under 8 U.S.C. § 1326(a) and (b)(2) that involve economic need. /// /// /// /// ///
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Case 2:04-cr-01301-SRB

Document 38

Filed 09/08/2005

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For these reasons, any request for additional downward departures should be denied. Respectfully submitted this 8th day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/ Emory T. Hurley EMORY T. HURLEY Assistant U.S. Attorney CERTIFICATE OF SERVICE

I hereby certify that on September 8, 2005, I electronically transmitted the attached document 10 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:
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Baltazar Iniguez s/ Emory T. Hurley EMORY T. HURLEY

Case 2:04-cr-01301-SRB

Document 38

Filed 09/08/2005

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