Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona

PAUL V. ROOD Assistant U.S. Attorney Arizona State Bar No. 004494 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR 04-0909-PHX-NVW Plaintiff, v. James Ryan Bailey Defendant. The government responds to the Defendant's Sentencing memorandum and objections to the pre-sentence report with the attached memorandum. Respectfully submitted this _____ day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /S/ PAUL V. ROOD Assistant U.S. Attorney GOVERNMENT'S RESPONSE TO DEFENDANT'S SENTENCING MEMORANDUM AND OBJECTIONS TO THE PRESENTENCE REPORT

Case 2:04-cr-00909-NVW

Document 39

Filed 09/16/2005

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MEMORANDUM Defendant Bailey filed objections to the pre-sentence report and a sentencing memorandum requesting the court depart downward on September 15, 2005. The objections and memorandum were received by undersigned counsel on September 16, 2005, one business day before sentencing. Thus while this response will be filed, it may not be as complete or detailed as the defendant's pleadings. Objections to Factual assertions in the Pre-Sentence Report 1. Pg 2 objection re: date of birth and weight: Government takes no position. 2. Paragraph 7 and 8 objection re: veracity of statements and amount of loss used to calculate guideline range: No position on paragraph 7. As to paragraph 8, the government submits that the loss amount should be limited to the "amount" calculated based upon the factual basis in the plea, that being $7,899.69. 3. Paragraph 10-11 re: The statements of the victims are "what they are". There is no legal or factual basis to object to these statements. 4. Paragraph 18 re: loss amounts. Government's position is the same as above- the loss amount should be $7,899.69. Thus the base offense level should be raised only two levels, not the four suggested in the pre-sentence report. 5. Paragraph 23 re: Adjusted Offense Level. The government agrees that the paragraph

19 should be amended to establish an adjusted offense level of 10 not 12. 20 This conclusion is reached by the following: a base offense level of 6, two level upward

21 adjustment for loss, four level upward adjustments for number of victims and two level 22 23 24 25 26 27 28 downward adjustment for acceptance of responsibility. 6. Paragraphs 37,43,44-47,50,53-54 and 57 re: defendants personal history. government takes no position. 7. Paragraph 60- there is no objection. Downward Departure for Aberrant Behavior A review of the pre-sentence report specifically paragraphs 5 and 6, to which there is no 2 The

Case 2:04-cr-00909-NVW

Document 39

Filed 09/16/2005

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objection, shows the criminal activity of M r. Bailey during the early part of 2004. The federal indictment and the defendant's plea deal only with specific acts committed on April 1, 2004. It is a fair and reasonable inference that the criminal activity involving theft of mail in February and March of 2004, and the Ramirez residential burglary on April 1, 2004 involved the defendant. The only reason to point this out is to respond to the claim of aberrant behavior made by the defendant. It may well be true that all of the described activity was caused by a drug addiction, but the claim of an isolated act is somewhat empty in light of the available information. The defendant accurately states the laws giving the court broad discretion in sentencing. Conclusion The government's position is that the correct guideline range is 6-12 months and recommends a sentence of 7 months which is at the low end of the guideline range. Respectfully submitted this _____ day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /S/ PAUL V. ROOD Assistant U.S. Attorney

I hereby certify that on Sep temb er 16 th, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM /ECF System for filing and tra nsmittal of a Notice of Electronic Filing to the following CM/ECF registrant(s): Jose S. Pa dilla P.O. Box 25128 Phoenix, Arizona 85002

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Case 2:04-cr-00909-NVW

Document 39

Filed 09/16/2005

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