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

1 JON M. SANDS Federal Public Defender 2 District of Arizona 850 W. Adams, Suite 201 3 Phoenix, Arizona 85007 Telephone: (602) 382-2753 4 DONNA LEE ELM, #012127 5 Asst. Federal Public Defender Attorney for Defendant 6 [email protected] 7 8 9 10 11 12 13 14 15 vs. James D. Perino, Defendant. The Defendant, James D. Perino, through undersigned counsel, United States of America, Plaintiff, No. CR-04-1071-PHX-REJ DEFENDANT'S OBJECTIONS TO PRE-SENTENCE REPORT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

16 respectfully objects to errors in the pre-sentence report prepared in this case, and asks 17 the Court to correct those. He has already provided the Court with a memorandum 18 regarding sentencing. His objections are based upon his right to a fundamentally fair 19 sentencing process pursuant to the Due Process clause of the fifth amendment of the 20 U.S. Constitution as well as U.S. Rules of Criminal Procedure 32(b)(6). His request 21 is supported by the following Memorandum of Points and Authorities, incorporated 22 by this reference. Respectfully submitted: June 16, 2006. 23 24 25 26 27 28 s/Donna Lee Elm DONNA LEE ELM Asst. Federal Public Defender JON M. SANDS Federal Public Defender

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MEMORANDUM Mr. Perino has several objections to the pre-sentence report prepared in

3 this case. The Defense would ordinarily attempt to correct those cooperatively with 4 the parties before bringing objections to the Court, but given the short time period 5 before sentencing, must resort to formal objections as here. His objections concern 6 his Criminal History calculation under the U.S. Sentencing Guidelines. 7 I. Objection to Paragraphs # 40, 46-47, 49-50, 52, 56-63 8 Mr. Perino objects to inclusion in his criminal history a series of alleged 9 convictions where there was no documentation indicative that he was represented by 10 counsel in those convictions. That includes items in paragraphs 40, 46, 47, 49, 50, 11 52, 56, 57, 58, 59, 60, 61, 62, and 63. The Court should not include in its Criminal 12 History calculation any convictions where it is not apparent that the Defendant either 13 had the assistance of counsel or validly waived his right to counsel. 14 The U.S. Supreme Court has long evaluated and protected the right to 15 counsel and since Gideon v. Wainwright, 372 U.S. 335 (1963), the Court has held 16 that to permit a conviction obtained in violation of Gideon "...to be used against a 17 person either to support guilt or enhance punishment for another offense is to erode 18 the principle of that case." Burgett v. Texas, 389 U.S. 109, at 114-115 (1967). 19 More recently, the U.S. Supreme Court again reiterated that in felony 20 cases, "...in contrast to misdemeanor charges, the Constitution requires that an 21 indigent defendant be offered appointed counsel unless that right is intelligently and 22 competently waived." Nichols v. United States, 511 U.S. 738, at 743 fn.9 (1994). 23 In our case, from the facts available as reflected in the pre-sentence 24 report, there is no way to know if Mr. Perino was represented by counsel in that 25 felony matter or if there had been a valid waiver of counsel. This cannot be assumed. 26 "Presuming waiver of counsel from a silent record is impermissible. The record must 27 28 2

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1 show, or there must be an allegation and evidence which show, that an accused was 2 offered counsel but intelligently and understandingly rejected the offer. Anything 3 less is not waiver." Carnley v. Cochran, 369 U.S. 506, 516 (1962). 4 Consequently, the Court should not include in any Criminal History 5 Category calculus convictions where assistance of counsel is unknown or speculative. 6 There are, happily, only three (3) of these many priors which are of moment (because 7 they contribute criminal history points): those in paragraphs #61, 62, & 63. Mr. 8 Perino therefore asks the Court not to include the eight (8) points represented by 9 those three (3) cases in his Criminal History calculation. 10 II. Objection to Paragraph #55 11 Mr. Perino objects to including his May 1, 1989 Transportation in 12 Foreign Commerce conviction in his Criminal History. Mr. Perino does not dispute 13 that he was convicted of an offense of that nature and at about that time, rather he 14 disputes the accuracy of several critical details as reported in the pre-sentence report. 15 Under the Sentencing Guidelines, sentences of greater than thirteen (13) 16 months only count when the prior sentencing occurs within fifteen (15) years of the 17 instant offense, or the defendant's incarceration extends into that fifteen-year period. 18 USSG § 4A1.1, app. note 1. Note that the date of this sentencing is reported to be 19 May 1, 1989. Mr. Perino agrees that he committed an offense of this sort and was 20 convicted in the late 1980's, though he does not necessarily agree with the date given. 21 His memory is that the sentence was much briefer than (3) three years, however. He 22 also questions whether the offense (Transportation in Foreign Commerce) was indeed 23 the charge he stood convicted of. In short, though he recalls being convicted of one 24 of his forgery-type offenses in New York sometime in the late 1980's, without 25 documentation reflecting the actual conviction information, he does not and cannot 26 agree with the details cited in the pre-sentence report. 27 28 3

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In United States v. Ameline ("Ameline III"), 409 F.3d 1073, 1085-86 (9th

2 Cir. 2005), the Ninth Circuit Court of Appeals held that the defendant does not bear 3 the burden of proving any facts necessary to establish his sentence under the 4 Guidelines. The burden may not be shifted to the Defendant to disprove any 5 allegations in the pre-sentencing report. Id. Instead, the Government bears that 6 burden. Id. When the Defense objects to matters in the pre-sentence report, the 7 Government or probation department ought to provide the facts necessary to establish 8 any matter increasing the sentence. Id. Because Mr. Perino objects to ¶ #55 (and 9 absent court records to establish what in fact occurred in this case), he asks the Court 10 not to include this dubitable and apparently unverified prior (i.e., the nature of the 11 offense convicted of, the date of conviction, the length of sentence, and the time of 12 his release from custody) in deciding his correct criminal history score, pursuant to 13 Ameline III. 14 III. Objection to Paragraphs #61, 62, & 63 15 Note that these three paragraphs are also subject to challenge (as 16 discussed above) because there is no record that Mr. Perino was represented by 17 counsel in them. Note, too, that the burden-allocation issue of Ameline III applies to 18 these paragraphs as well. 19 The Defense is at a loss concerning the offenses alleged in paragraphs 20 # 61-63 in the pre-sentence report. Mr. Perino acknowledges that he was arrested for 21 a number of charges that were combined, to his recollection, into one case in that 22 court and at around that time frame. He acknowledges that he plead to one (1) count 23 of those, and was sentenced to sixteen (16) months. Hence he does not dispute that 24 of these three paragraphs, there is a usable sixteen-month sentence that would count 25 as three (3) criminal history points. He thinks that the other counts were dismissed, 26 but is not certain and will readily defer to actual court records. However, absent 27 28 4

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1 actual verification, he objects to these three alleged convictions, and would accede 2 that there are only three (3) criminal history points among these paragraphs. 3 IV. Objection to Paragraph #64 4 Note that this paragraph is also subject to challenge (as discussed above) 5 because there is no record that Mr. Perino was represented by counsel. Note, too, that 6 the burden-allocation issue of Ameline III applies to these paragraphs as well. 7 Mr. Perino objects to inclusion of the information in paragraph #64 from 8 the pre-sentence report. He contends that he has never been prosecuted in West Palm 9 Beach, Florida, and in particular that he was not arrested there at all around 1999. A 10 review of the NCIC print-out on Mr. Perino reveals that the person convicted of this 11 also went to trial ­ an occurrence he is really unlikely to forget, given that he had not 12 taken any matter to trial before or since. 13 More telling, however, is the date of the offense. Note that this offense 14 allegedly occurred in February of 1999. However, Mr. Perino was imprisoned from 15 May of 1998 through until June of 1999. See paragraph #61 in the pre-sentence 16 report. He could not have been out in West Palm Beach, writing "bad checks" given 17 those circumstances. 18 The Defense submits that this is a mistake, recorded improperly under 19 Mr. Perino's name in the criminal records data base. Consequently, he objects to 20 inclusion of it in his criminal history calculation. 21 V. Conclusion 22 The Criminal History Category calculation appears incorrect to the 23 Defense. It includes matters that have not been substantiated, may have been 24 consolidated (but are represented separately and therefore repetitiously), a number do 25 not do not show representation by counsel or a valid waiver thereof, and one that is 26 not apparently a crime that Mr. Perino was capable of committing. The objections are 27 28 5

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1 well-taken and supported by law. When the Court sustains these objections, Mr. 2 Perino's Criminal History tally is reduced by nine (9) points. With a resulting 3 Criminal History sum of nine (9) points, his Criminal History Category is IV, as 4 opposed to VI. 5 7 months. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 28 That is especially true given his substantial diminished capacity as well 27 as the established fact that he poses no real threat to the victims in this case. 6
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The Offense Level was correctly computed to be fourteen (14), and Mr. This fairly represents his Guidelines calculus as well as a fair and Respectfully submitted: June 16, 2006. JON M. SANDS Federal Public Defender s/Donna Lee Elm DONNA LEE ELM Asst. Federal Public Defender

6 Perino has no dispute with that. The Sentencing Guideline range, then, is 27-33 8 "reasonable" under Booker sentence for the offense.1

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1 Copy of the foregoing transmitted by ECF (and courtesy 2 copy faxed) this 16th day of June, 2006, to: 3 HONORABLE ROBERT E. JONES 4 1007 Mark O. Hatfield U.S. Courthouse 1000 SW Third Avenue 5 Portland, OR 97204-2802 6 CLARENCE BUTLER 7 Assistant U.S. Attorney 5400 Federal Plaza, Ste 1500 8 Hammond, IN 46320 9 Copy of the foregoing faxed this 16th day of June, 2006, to: 10 11 GUILLERMO PENA United States Probation Officer 12 401 West Washington St. Phoenix, AZ 85003 13 14 Copy mailed to: 15 JAMES D. PERINO Defendant 16 17 s/Donna Lee Elm 18 19 20 21 22 23 24 25 26 27 28 7

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