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

1 2 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 Ms. Jernagin pled guilty to Armed Bank Robbery, Aid and Abet in violation of 18 U.S.C. §2113(a) and (d). The Pesentence Report indicates that Ms. Jernagin is in Criminal History Category II, despite the fact that she had no prior criminal history. This is overinclusion and her Criminal History Category should be calculated as level I. Further, even though it is conceded by the presentence writer that Ms. Jernagin played a minor to minimal role as a lookout and was not directly involved in the robbery of September 20, 2002, her offense level is enhanced by firearm discharge (seven levels) by Bam Tribble , and the offense level is further enhanced by the three level increase for the total amount of the loss, $312,000.00 when there is no dispute that Defendant received $10,000.00 or less for her role. 1. Objection to seven level enhancement for the fact of a gun being discharged by Tribble. Ms. Jernagin denied that she knew that any weapons were being used. She went to the scene alone and sat across the street and watched for police. She did not travel to or from the robbery with the perpetrators. She never saw a gun before, during or after the robbery. No enhancement is warranted against this Defendant based on the possession or discharge of the firearm by Tribble. 2. Objection to three level enhancement for loss value. While Ms. Takisha Monique Jernagin, United States of America, Plaintiff, IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) Case No. CR 04-1050-004-PHX-JAT DEFENDANT'S OBJECTIONS TO PRESENTENCE REPORT AND MOTION FOR DOWNWARD DEPARTURE

) ) Defendant. ) ______________________________ )

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Jernagian is jointly and severally liable for repayment of the total amount taken, she received $10,000.00 or less for her role and her offense level calculation should not be enhanced under this specific offense characteristic. 3. Objection to the computation of Criminal History Category, based on the fact that the Defendant had no prior criminal convictions. She was convicted of an offense committed over a year after this offense, and so the offense, set forth as a two(2) guideline point assessment under the cited section, is not applicable as that assessment relates to a subsequent , not a prior conviction and is thus overincluded, so the Criminal History Category should be Category I, based on no guideline points assessed. It is clear that the date of offense controls. As such, the conviction of an offense committed 11/22/03 is a not a prior conviction compared to an offense committed 9/20/02(this offense) under the cited guidelines section, this is obviously a subsequent offense. As such, the two point assessment is incorrect, and Defendant has zero(0) criminal history points. 4. Motion for Downward Departure for Aberrant Behavior. It is well established that a downward departure is not permitted "...unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553 (b); U.S.S.G. §5K2.0. "If the circumstance is one not adequately considered, the court is legally authorized to depart so long as the circumstance is consistent with the sentencing factors prescribed by Congress in 18 U.S.C. sec. 3553(a), with the Guidelines, and, of course, with the Constitution." United States v. Lira-Barraza, 941 F.2d 745, at 746 (9th Cir. 1991).

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In this case, the defendant found herself in a position where she was a minor to minimal participant in a bank robbery. She had no relevant prior criminal history. We are not attempting in any way to minimize the seriousness of the offense. What we are respectfully asking this Court to consider is that she acted out of character. U.S.S.G. § 5K2.20 lists five (5) factors which, if present, preclude such a departure, and they are as follows: 1. 2. the offense involved serious bodily injury or death; the defendant discharged a firearm or otherwise used a firearm or dangerous weapon; 3. the instant offense of conviction is a serious drug trafficking offense; 4. the defendant has more than one criminal history point...; and 5. the defendant has a prior federal, or state, felony conviction. In order to determine if this kind of motion should be granted, the Guidelines are written in such a way as to require a review and the elimination of each of these disqualifying factors individually before a departure can be deemed to be warranted. In our case, there was no death or serious injury, she did not discharge

or possess a weapon, she does not have more than one criminal history point and she has no prior convictions. In light of this, a downward departure is not precluded under U.S.S.G. § 5K2.20. "When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court

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may consider whether a departure is warranted." U.S.S.G. Ch.1 (4)(b). "There is no reason to be so literal-minded as to hold that a combination of factors cannot together constitute a mitigating circumstance. Given the Sentencing Commission's

acknowledgment of the vast range of human conduct not encompassed by the Guidelines, a unique combination of factors may constitute the circumstance that mitigates." United States v. Takai, 930 F.2d 1427, at 1434 (9th Cir. 1991). In Takai, supra, counsel for a co-defendant named Magneson was apparently emphasizing how she was a first-time offender. The Court of Appeals noted that Magneson was a 42 year old housewife with a very small home business and everything pointed to the conclusion that "...she stumbled into something, awkwardly, naively, and with insufficient reflection on the seriousness of the crime she was proposing." Id., at 1432. Her conduct occurred over the course of 8 days. We respectfully urge that under the facts in our case, a sufficient basis exists to allow this Court to see that the defendant acted aberrantly. Like Magneson, the full extent of the then 25 year old Ms. Jernagin's entire involvement in this case can be fairly said to have occurred over the course of a 48 hour period. As in Takai, supra, we urge that Ms. Jernagin, the single mother of two, with a tenth grade education and no vocational skills, stumbled into something awkwardly, naively, and without sufficient reflection as to the seriousness of the actions she was engaging in. The defense respectfully urges that the facts in our case establish that her

circumstances are atypical and unique enough to justify the departure. Keeping in mind who she is, this criminal conduct was an aberration and we urge that she should be granted a downward departure. For all of these reasons, it is respectfully urged that a downward departure be granted. This departure, of perhaps four levels, based on Ms. Jernagin's clean prior

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1 2 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 Copy of the foregoing delivered this 29 th day of November, 2005, to: Ann B. Scheel Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408
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criminal history together with the other factors cited above. CONCLUSION Based on the grant of the objections above , he offense level should be 22. The Criminal history category should be I. If the Court departs for aberrant behavior, a four level departure yields an offense level of 18 with a criminal history category of I. This calculation, together with the three level downward departure for acceptance of responsibility and the three level downward departure for minor to minimal role, recommended by the presentence writer, places Defendant in offense level 12,

Criminal History category I, for a sentence of 10-16 months with probation as an alternative, an appropriate one, based on Defendant's nearly eleven months in custody at the time of sentencing . Respectfully Submitted,

/s/ ____________________________ Roger T. Margolis Attorney for Defendant

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Scott C. Talbot U.S. Probation Officer 401 W est Washington, 1 st Floor Phoenix, Arizona 85003

Takisha M. Jernagin

/s/__________________________ BY: ROGER T. MARGOLIS

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