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

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Plaintiff, ) ) vs. ) ) Patrick Russell Wayne, ) ) Defendant. ) __________________________ ) Case No. CR 04-938-PHX-SMM SUPPLEMENT TO OBJECTIONS TO PRESENTENCE REPORT

8 United States of America, 9 10 11 12 13 14

COMES NOW the Defendant, Patrick Russell Wayne, by and

15 through undersigned counsel, and supplements his objections to the 16 presentence report and refutes any attempt that either the 17 Probation Department and/or the United States Attorney's Office is 18 making for an upward departure, which of course, if the Court 19 agreed with same, would increase Mr. Wayne's exposure to and 20 ultimately increase his time in the Bureau of Prisons. 21

The recommendation authored by United States Probation

22 Officer Justine Kozak requests that the Court sentence the 23 Defendant to 120 months, even though by her own calculations, with 24 a criminal history category V and a total offense level of 19, the 25 Defendant is facing an advisory sentencing guideline sentence of 26 imprisonment of 51 to 71 months. 27

The United States Probation Officer justifies this

28 recommendation by saying that "the instant offense reflects the

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1 defendant's sixth felony conviction" and with that, Defendant 2 takes issue.

The Probation Officer also writes in paragraph 63 on

3 page 15 of the presentence report "the defendant significantly 4 benefitted from the plea agreement as had he been convicted of 5 court 2 of the indictment, he would have been an armed career 6 criminal and been facing a mandatory sentence of 15 years 7 imprisonment pursuant to § 4B1.4 and 18 U.S.C. § 924(e)(1)." 8 Again, with that, the Defendant takes issue. 9

The requested upward departure of 5 points cannot be

10 justified against Mr. Wayne because possession of a firearm is not 11 criminal conduct, it is a civil disability enforced by a criminal 12 sanction.

In other words, 18 U.S.C. § 922(g)(1) is the crime for

13 which a jury would find a defendant guilty (assuming that the 14 government has proven its case beyond a reasonable doubt), but 15 924(e) is the sentence. 16

The Defendant maintains that the 7th Circuit case of U.S.

17 v. Conner, 950 F.2d 1267, 1270 (1991), stands for the proposition 18 that "a single arrest is the same occasion."

In Mr. Wayne's case,

19 Mr. Wayne was arrested for the crimes found in paragraphs 25, 26, 20 27 and 28 of the presentence report at the same time.

Thus, the

21 conviction for all four of the crimes found in those paragraphs 22 should be considered one single arrest and one single conviction. 23

Indeed, when looking at paragraph 28, if that one

24 criminal history point is deleted, then there would be a total of 25 9 criminal history points as opposed to 10 (nothwithstanding the 26 argument propounded to the Court in the November 14, 2005, 27 28

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1 Objections to Presentence Report1) and the criminal history 2 category would be IV instead of V.

Thus, the exposure to the

3 Bureau of Prisons, according to the advisory guidelines, would be 4 46 to 57 months instead of 57 to 71 months (again, notwithstanding 5 the arguments made by Defendant in his original Objections to 6 Presentence Report). 7

Finally, it is requested that the sentence in CR 04-938-

8 PHX-SMM run concurrently with whatever disposition this Court 9 orders in case number CR 90-00388-001-PHX-EHC.

It should be noted

10 that Mr. Wayne self-surrendered and did not remain at large. 11

In conclusion, the Defendant still believes that

12 criminal history category III should be used with the offense 13 level of 14 for a guideline range of imprisonment between 37 and 14 46 months in case number CR 04-938-PHX-SMM and should run 15 concurrently with whatever the Court sets for disposition in the 16 companion case (supervised release violation).

However, if the

17 Court does not find in accordance with the initial objections to 18 the presentence report, it is requested that at the very least, 19 the Court find in accordance with this supplement, that the 20 criminal history category is IV and that an upward departure is 21 neither necessary nor warranted.

For the reasons stated in the

22 objections and the address that Mr. Wayne will give to the Court 23 upon allocution, the supervised release case should run 24 concurrently with the substantive case. 25 26 27 28
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As the Court know, the argument in the November 14, 2005, objections to the presentence report dealt with the calculation of good time (double time) at the Arizona Department of Corrections. Attached hereto for the Court's consideration are State v. Davis, 148 Ariz. 62 (App. 1985), Brown v. State, 117 Ariz. 476 (1978), and State v. Valenzuela, 144 Ariz. 43 (1985), as examples of how computations were supposed to work (including Copper time in the Valenzuela case).

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RESPECTFULLY SUBMITTED this 28th day of February, 2006. PHILIP A. SEPLOW, ESQ.

By: s/Philip A. Seplow Philip A. Seplow, Esq. Attorney for Defendant

CERTIFICATE OF SERVICE

X I hereby certify that on February 28, 2006, I electronically transmitted the attached document to the Clerk's Office using the 9 CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 10 Michael T. Morrissey, Esq. 11 ASSISTANT UNITED STATES ATTORNEY
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X I hereby certify that on February 28, 2006, I served the 13 attached document by hand delivery on the following, who are not registered participants of the CM/ECF System: 14 Justine Kozak 15 U. S. PROBATION OFFICER Sandra Day O'Connor U.S. Courthouse - SPC 7 16 401 West Washington - Suite 160 Phoenix, AZ 85003 17
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S/Philip A. Seplow

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