Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona ANN BIRMINGHAM SCHEEL Assistant U.S. Attorney Arizona State Bar No. 011399 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-04-1050-PHX-JAT Plaintiff, v. Takisha Jernagin, Defendant. The United States of America, by and through undersigned counsel, hereby responds to defendant's objections to the draft presentence report. In the objections, the defendant objects to portions of the presentence report and asks the court to grant a downward departure for a variety of reasons. 1. Paragraph 21 - Defendant also objects to a seven level enhancement for the use of a firearm during the armed bank robbery. The defendant claims that she should not be given the "full" seven level enhancement for discharge of a firearm. She does not, however, offer how many levels she should receive. The Guidelines provide for a seven level enhancement for discharge of a firearm. U.S.S.G. § 2B3.1(b)(2). "In the case of jointly undertaken criminal activity," the sentencing court should take into consideration "all reasonably foreseeable acts and omissions of others in furtherance of jointly undertaken criminal activity that occurred during the commission of the offense of conviction." U.S.S.G. § 1B1.3, comment. (n.1). A defendant may receive an upward adjustment for possession of a firearm even if the gun was in the possession of a co-defendant and the defendant had no actual knowledge that his co-defendant possessed a gun. See United States v. Garcia, 909 F.2d 1346, 1349-50 (9th Cir.1990). "Actual GOVERNMENT'S RESPONSE TO DEFENDANT'S OBJECTIONS TO THE DRAFT PRESENTENCE REPORT

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1 knowledge of the details of the robbery plan is irrelevant" to the issue of foreseeability. United 2 States v. Shaw, 91 F.3d 86, 89 (9th Cir.1996). The defendant knew that her codefendants, in 3 particular, William Tribble and Roger Parker were members of a street gang in the Los Angeles 4 area. She also knew that they were in Phoenix to rob a bank and that she was helping them do 5 that. It is reasonably foreseeable that these individuals would be carrying weapons into the bank 6 during the robbery. It is likewise reasonably foreseeable that one of the weapons would or could 7 be discharged during the robbery. 8 2. Paragraph 22. Defendant also asks that the amount of loss somehow be adjusted so that

9 she is only responsible for the allegedly $7,850 she was paid for her illegal activity. Defendant 10 has no authority for this position. Additionally, asking the court to arbitrarily calculate a loss 11 figure which somehow corresponds to defendant's activity in the case is absurd. A group of 12 individuals were responsible for the armed robbery of the Bank One on September 18, 2002. 13 Defendant clearly aided and abetted those individuals who went into the bank and physically 14 robbed it. She was the lookout for law enforcement so that those individuals could flee the bank 15 should police arrive. Defendant claims that she was paid only $7850 from the $312,000 that was 16 stolen, for her work. She knew what she was doing and she knew the consequences of helping 17 them. Additionally, she reaped a huge reward for this "minor" amount of work. She is just as 18 responsible as the other actors in the crime and is, likewise, responsible for the full amount of 19 the loss to the bank. 20 3. Paragraph 34. The defendant objects to the use of a 2003 conviction which took place 21 after the defendant committed the instant offense. U.S.S.G. § 4A1.2, note 1 specifically states 22 that a "prior sentence" means any sentence imposed before sentence is imposed on this case, 23 even if the conduct occurred after the conduct charged in the instant case. 24 `Prior sentence' means a sentence imposed prior to sentencing on the instant 25 offense....A sentenced imposed after the defendant's commencement of the instant offense, but prior to sentencing on the instant offense, is a prior sentence.... 26 27 28
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1 Consequently, the defendant's sentence for burglary, imposed on 3/22/04 should be used to 2 calculate defendant's criminal history category. 3 4. Downward departure for aberrant behavior. Defendant also asks this court for a

4 downward departure for aberrant behavior. Because the defendant is a criminal history category 5 II, she is not eligible for such a downward departure. Even if the court finds that the criminal 6 history points do not apply because the conduct occurred after the instant offense, she should 7 still not receive a downward departure for aberrant behavior. The defendant's burglary from 8 2003 clearly shows that her conduct in this case was a single aberrant act. The defendant 9 provides the court with a list of prohibitions for this departure. U.S.S.G. § 5K2.20, note 3 10 provides the court with factors, aside from past criminal conduct, the court should consider 11 when determining if such a departure is appropriate, 12 In determining whether the court should depart under this policy statement, the court may consider the defendant's (A) mental and emotional conditions; (B) employment 13 record; (C) record of prior good works; (D) motivation for committing the offense; and (E) efforts to mitigate the effects of the offense. 14 15 16 17 18 19 20 Conclusion. As stated above, defendant has offered no valid basis for downward departure. She has been In looking at these factors, along with defendant's past criminal conduct, it is clear that her conduct in the instant case is not a single act of aberrant behavior but it is indicative of her propensity to reoffend.

21 unable to show that her conduct in this case, although not extensive, rises to the level of aberrant 22 behavior. As a result, the defendant is not entitled to the departure she has requested. 23 24 25 26 27 28
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Respectfully submitted this 6th day of December, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/ ANN BIRMINGHAM SCHEEL Assistant U.S. Attorney
CERTIFICATE OF SERVICE

10 I hereby certify that on December 6, 2005, I electronically
following CM/ECF registrants:
Roger Margolis, [email protected] Scott Talbott, U.S. Probation, [email protected] S/

transmitted the attached document to the Clerk's Office using the CM/ECF

11 System for filing and transmittal of a Notice of Electronic Filing to the 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Joyce Stern

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