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

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Jose S. Padilla State Bar No: 009792 P.O. Box 25128 Phoenix, Arizona 85002 (602) 277-4428 E-Mail: [email protected] Attorney for Defendant

5 IN THE UNITED STATES DISTRICT COURT 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ¶ 7-8 23 24 25 26 27 28 Wherever the symbol -- ¶ -- appears it is meant to denote paragraph Case 2:04-cr-00909-NVW Document 38 Filed 09/15/2005 Page 1 of 9 Page 1 ¶ 10-11 Defendant has no position as to the veracity of the statements and/or information pertaining to the actions or statements of others as he was not privied to some or all of the information, the particular acts, persons or circumstances involved. He can only account for and substantiate his own actions and the actions of others of which he has personal knowledge. He therefore objects. Defendant has no position as to the veracity of the statements and/or information pertaining to the actions or statements of others as he was Defendant, JAMES RYAN BAILEY, herein files his Objections, Corrections, Motion for a Mitigated Sentence and Supplemental Information to the initial presentence report as follows: Pursuant to Blakely v Washington, 542 US ___, 124 SCt 2531, (2004), Shepard v US, 03-9168 (US Decided March 7, 2005), Defendant objects to any and all information in the report that may have or has a tendency to aggravate or enhance Defendant's sentence for the offense that Defendant plead to e.g., Possession of Stolen Mail, and that Defendant did not admit and/or specifically stipulate to as part of his plea agreement, or that was not found beyond a reasonable doubt by the jury beyond a reasonable doubt. Defendant's objections are as follows: 1 Pg 2 Defendant notes that his true Date of Birth is May 9, 1977. His weight is not 145 but is approximately 190 lbs. DISTRICT OF ARIZONA UNITED STATES OF AMERICA, No. CR 04-909-PHX-NVW Plaintiff, OBJECTIONS, CORRECTIONS, MOTION FOR A MITIGATED vs SENTENCE AND SUPPLEMENTAL INFORMATION TO THE INITIAL PRE-SENTENCE REPORT JAMES RYAN BAILEY, Defendant.
Before the Honorable Neil V Wake

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not privied to some or all of the information, the particular acts, persons or circumstances involved. He can only account for and substantiate his own actions and the actions of others of which he has personal knowledge. He therefore objects. Pursuant to Blakely v Washington, 542 US ___, 124 SCt 2531, (2004), Shepard v US, 03-9168 (US Decided March 7, 2005), Defendant objects to any and all information in the report that may have or has a tendency to aggravate or enhance Defendant's sentence for the offense that Defendant plead to e.g., Possession of Stolen Mail and that Defendant did not admit and/or specifically stipulate to as part of his plea agreement, or that was not found beyond a reasonable doubt by the jury beyond a reasonable doubt. Defendant submits that the total offense level should be no more than Total Offense Level 10. Defendant notes his family relocated to Peoria, Arizona in 1981 not 1979. Defendant advises that he tried alcohol at age 16 during social functions but not on a regular basis until he was an adult. Defendant advises that he tried methamphetamine as early as age 16, however he did not do so on a regular basis until the SIDS death of his young son. At age 26 until he obtained treatment for his addiction, he used methamphetamine at a level that ultimately lead him to court on the instant charge. Defendant attended and completed the Recovery Homes Program. The court released defendant from Recovery Homes to his parents home on July 11, 2005. Defendant advises that he tried marijuana as early as age 16, however he did not use it on a regular basis until age 24 through 26. Defendant advises that he used cocaine between ages of 16-18 however, not on any regular basis. Defendant smoked heroin once at age 26 not 24. Defendant recalls this, as it was just prior to going into detox. It is true that he is unemployed at this moment, however, Defendant has a job waiting for him. The employer is waiting to see what happens with the court proceedings. The job is at B & R Plumbing. He will be hired as an assistant with the possibility of moving up to journeyman. For verification of this employment, Defendant provides the following: Contact Person: Robin Laizure @ 602-561-2738. Defendant asks that the contact information be omitted from the final report once the information is verified. Defendant notes that in 1997 through 1998 he worked at Robinsons May, A&W Restaurant and Arrowhead Arcade all at Arrowhead Moll. Page 2

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All of Defendant's credit card debt was discharged as part of the bankruptcy, the remaining indebtedness relates to medical bills including his medical bill for the rehabilitation program at Pacific Hills Treatment Centers in San Clamente, California. Defendant submits that Booker, US v Booker, 125 SCt. 738 (2005), affords the court the authority to impose a sentence of probation without regard to the advisory guideline "zone" after considering the sentencing guidelines and the factors in 18 USC § 3553.

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A mitigated sentence may also be imposed on the basis of the apparent "out of character" nature of the offense vis-a-vis "aberrant behavior," analysis pursuant to US v Dickey, 924 F2nd 836, 838 (CA 9 1991), is also available to the court. These Objections/Corrections are based upon the pleadings on file, the Defendant's plea to the charge and the Presentence report. Additionally, Mr. Bailey herein files supplemental information from the Defendant's family in asking for the court's clemency. Defendant asks that the court consider these letters as well and sentence him to the lowest end of the appropriate sentencing range. It is not expected that excludable delay under Title 18 USC § 3161 (h)(1)(I) will occur as a result of this motion. RESPECTFULLY SUBMITTED this September 15, 2005

____________/s/_____________ Jose S. Padilla Attorney for Defendant

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S OBJECTIONS, CORRECTIONS, MOTION FOR A MITIGATED SENTENCE AND SUPPLEMENTAL INFORMATION TO THE INITIAL PRE-SENTENCE REPORT INTRODUCTION

4 James Bailey has demons. His demons took him to depths where no person should 5 ever go. When he unexpectedly lost his son, Trevor, to SIDS, Jimmy's world crumbled. He resorted 6 to self medication to relief the loss and the pain. In the process, he lost his self-respect and his 7 family. His family would not yield to Jimmy's addiction. With the help of his family and their 8 unwavering love, and the dedicated staff at the rehab centers, James conquered his demons. Through 9 his efforts and in no small part to the support of his family and friends, he completed rehab, 10 extricating himself from the grip of his drug addiction. 11 Mr. Bailey has, not only achieved sobriety but has been successfully weaving himself 12 into the lives of his parents, his brother and sister. No less important, and perhaps more so, his two 13 boys. He has positioned himself to take an active role in the lives of his two boys. 14 James is fearful. He is fearful that he will be set back if he is sentenced to a period 15 of incarceration. He is fearful that all the strides that he has made will be for naught. This court has 16 the authority to insure that James continues on his recovery road and to become a productive member 17 of society once again. 18 ARGUMENT 19 In US v Booker, 125 SCt 738, 2005 WL 50108 (Jan. 12, 2005), the Supreme Court 20 held that the sentencing guidelines are advisory only, not mandatory. The factors set forth in 18 USC 21 § 3555(a) must also be considered in fashioning the appropriate sentence. See US v Ameline, ___ 22 F3rd ___, 2005 WL ______, US App LEXIS 2032 (CA9 Feb. 9, 2005) (advisory guideline range is 23 "only one of many factors that a sentencing judge must consider in determining an appropriate 24 individualized sentence"). 25 Other factors a court is to consider in sentencing include the nature and circumstances 26 of the offense, the history and characteristics of the defendant, the need for the sentence imposed to 27 reflect the seriousness of the offense, to promote respect for law and to provide just punishment for 28 Case 2:04-cr-00909-NVW Document 38 Filed 09/15/2005 Page 4 of 9 Page 4

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the offense, to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant; to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner, the need to avoid unwarranted sentencing disparities, and to provide restitution to the victims. Booker, Id., @ 19. The district court now has wide discretion to consider even those mitigating factors that the advisory guidelines heretofore prohibited: e.g., poverty, racial discrimination and

humiliation, drug abuse and addiction, dysfunctional family background, lack of guidance as a youth, etc. Ameline, Id.; US v Ranum, 2005 WL 161223 (ED Wisc Jan. 19, 2005) ("The guidelines' prohibition of considering these factors cannot be squared with the Section 3553(a)(1) requirement that the court evaluate the "history and characteristics" of the defendant' ); US v Myers, 2005 WL 165314, *2 (SD Iowa, 2005) ("The guidelines prohibition of considering these factors cannot be squared with the § 3553(a)(1) requirement that the court evaluate the "history and characteristics" of the defendant....Thus, in cases in which a defendant's history and character are positive, consideration of all of the § 3553(a) factors might call for a sentence outside the guideline range") see also 18 USC § 3661( "no limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence" (cited in Booker at 15). To be considered also is the congressional directive that the district court "shall impose a sentence sufficient, but not greater than necessary, to comply with [the purposes of sentencing]" (emphasis added). 18 USC § 3553(a). This is the "primary directive" of the sentencing statute. Ranum, Id. DEFENDANT 'S REHABILITATION The District court may now consider Mr. Bailey's efforts and success at rehabilitating himself and extricating himself from the grip of his drug addiction. Federal courts have favorably considered mitigated sentences for defendants in similar circumstances to Mr Bailey's. In a preBooker, Id., case, the district court in US v Kane, 88 FSupp2nd 408 (ED Pa. 2000), found that a sentence of 120 months, down from 188 months, was warranted due to defendant's rehabilitative efforts. The district court viewed the following facts: Defendant was convicted of selling meth; Had Case 2:04-cr-00909-NVW Document 38 Filed 09/15/2005 Page 5 of 9 Page 5

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abused drugs and alcohol for 25 years; Defendant's urine tests since his release from drug program showed he had stopped using drugs and limited alcohol consumption. The court found the downward departure from 188 to 120 months was warranted "in recognition of [defendant's] sincere effort to repair his life" even though the defendant had a number lapses. The court viewed the lapses in the context of defendant's former behavior. see also US v Blake, 89 FSupp2nd 328 (EDNY 2000) (bank robbery, departure from level 29 to level 8 and probation proper in part because incarcerating defendant would "reverse the progress she has made" and considering the decreasing opportunities for rehabilitation in federal prisons resulting from ever-increasing prison populations); US v Griffiths, 954 FSupp 738 (DVt 1997) (13-level downward departure granted on basis of defendant's extraordinary rehabilitative efforts after defendant overcame drug use, left his former lifestyle entirely behind him, and became involved in program for children; defendant's progress would be utterly frustrated if incarcerated); US v Neiman, 828 FSupp 254 (SDNY.1993) (downward departure granted based upon likelihood of rehabilitation in non-narcotics context where religious leaders and family members agreed to supervise home confinement and medical treatment was to be provided). Mr Bailey submits that since Booker, Id., the court clearly has the authority to sentence Defendant to probation in light of his rehabilitation, his having obtained sobriety, reentering into his family's and children's lives and that Mr Bailey would be seriously set back if incarcerated. Incarceration, Mr. Bailey submits, would serve no purpose but to remove him from the path of becoming a productive member of society. DOWNWARD DEPARTURES -- USSG § 5K All his life James has been a hard working, law abiding citizen. James admittedly dabbled in recreational drugs but his use had never resulted in any type of criminal conduct, but for, the mere use. When his addiction took over, he resorted to the conduct that has him before this court in order to feed his habit. There is no evidence that the Defendant was actively involved in any other ongoing activity of the type charged, but for, this one offense. He has no significant criminal record. The court has discretion pursuant to USSG § 5K2.20 to provide for a downward departure. The court can consider the offense as a "single act of aberrant behavior." In doing so Case 2:04-cr-00909-NVW Document 38 Filed 09/15/2005 Page 6 of 9 Page 6

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Defendant asks that the court consider the circumstances leading up to the commission of the offense. James lost his young child to SIDS. Unable to handle the loss, James resorted to selfmedication. Within a short period of time, the "cure," became the disease. He has addressed the problem. James did not merely address the symptoms, he went right to the cause for his criminal conduct - his addiction. A single act of aberrant behavior has been defined by some circuits as, "an act that is spontaneous and seemingly thoughtless." See eg, US v Marcello, 13 F3rd 752, 761 (CA 3 1994). The act referred to in the plea agreement is the end result of James' addiction. The Ninth Circuit has recognized the aforementioned behavior as a basis for departure. The court stated: It is clear under the Guidelines that "aberrant behavior" and "first offense" are not synonymous. The Guidelines make due allowance for the possibility of a defendant being a first offender. . . Nevertheless, the Guidelines recognize that a first offense may constitute a single act of truly aberrant behavior justifying a downward departure. See Guidelines Manual, Ch. I, Part A, Introduction para. 4(d) (with respect to first offenders, "[t]he Commission ... has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures"); US v Russell, 870 F.2nd 18, 20 (CA 1 1989) (the Sentencing Commission made clear that departures are permitted in atypical cases . . .such 'aberrant behavior' ... may justify departures in appropriate cases"). US v Dickey,2 924 F2nd 836, 838 (CA 9 1991). In Zecevic v US Parole Commission, 163 F3rd 731 (CA2 1998), the court recognized that "single acts of aberrant behavior" should be

17 assessed "in the context of the defendant's day-to-day life" rather than solely "with reference to the 18 particular crime committed," Zecevic, Id. at 735. The court stated that the factors district courts may 19 consider in assessing such behavior include: 20 21 22 23 24 25 26 27 28 Case 2:04-cr-00909-NVW Document 38 Filed 09/15/2005 Page 7 of 9 Page 7 If Russell and Carey may be said to represent the terminal points on what, for lack of a better expression might be called the aberrant behavior spectrum, then the instant appeal would appear to fall somewhere between the two. Dickey, Id., 924 F2nd @ 839. Dickey, involved possession of an engraved plate for the printing of counterfeit $20 bills, printing of counterfeit $20 bills, and possession of three counterfeit $100 bills. US v Russell, 870 F2nd 18, 20 (CA1 1989) (involved a driver of an armored truck who, as the result of a bank error, had a bag containing $80,000 in cash literally dumped in his lap. In a spontaneous act the driver temporarily yielded to the temptation to keep the money, but shortly thereafter confessed his wrongdoing, returned his share of the loot, and cooperated fully in the subsequent investigation). US v Carey, 895 F2nd 318 (CA7 1990) (involved a defendant who engaged in a check-kiting scheme over a period of at least fifteen months. The defendant's actions could not be characterized as aberrant behavior because they consisted of hundreds of overt acts taking place over a prolonged period of time).

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(1) the singular nature of the criminal act; (2) the defendant's criminal record; (3) the degree of spontaneity and planning inherent in the conduct; (4) extreme pressures acting on the defendant . . .; (5) the defendant's motivations for committing the crime, including any pecuniary gain he derived therefrom; and (6) his efforts to mitigate the effects of the crime. Zecevic, Id., at 736. Not only is this list non-exclusive, but "no one factor shall be dispositive." Id. Defendant qualifies under the analysis. This departure has been made part of the Guidelines. USSG § 5K2.20, Aberrant Behavior (Policy Statement) (a) IN GENERAL.-Except where a defendant is convicted of an offense involving a minor victim under section 1201, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, of title 18, United States Code, a downward departure may be warranted in an exceptional case if (1) the defendant's criminal conduct meets the requirements of subsection (b); and (2) the departure is not prohibited under subsection (c). (b) REQUIREMENTS.-The court may depart downward under this policy statement only if the defendant committed a single criminal occurrence or single criminal transaction that (1) was committed without significant planning; (2) was of limited duration; and (3) represents a marked deviation by the defendant from an otherwise law-abiding life. Mr. Bailey notes that none of the prohibitions apply. Additionally, Mr. Bailey notes

15 that pursuant to Booker, Id., the court may, after considering the guideline, fashion a sentence that 16 comports with the requirements of 18 USC § 3553 as to this particular defendant. 17 Finally, Defendant notes that the possibility of rehabilitation has returned as a forceful 18 mitigating factor because it is a goal of punishment. 18 USC § 3553(a)(2)(D). That goal "cannot be 19 served if a defendant can look forward to nothing beyond imprisonment. Hope is the necessary 20 condition of mankind, for we are all created in the image of God. A judge should be hesitant before 21 sentencing so severely that he destroys all hope and takes away all possibility of useful life. 22 Punishment should not be more severe than that necessary to satisfy the goals of punishment." US 23 v Carvajal, 2005 WL 476125 (SDNY Feb 22, 2005) (emphasis added). 24 CONCLUSION 25 Based upon the foregoing, Defendant, James Ryan Bailey, respectfully requests that 26 the court permit him to continue on his road to recovery, to become a productive member of society, 27 to repay society by becoming productive and thereafter making restitution to the victims in a 28 Case 2:04-cr-00909-NVW Document 38 Filed 09/15/2005 Page 8 of 9 Page 8

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reasonable amount and to continue to re-integrate in with his sons, his family and the community. RESPECTFULLY SUBMITTED September 15, 2005.

____________/s/_____________ Jose S. Padilla, Esq. Attorney for Defendant Copies of the Foregoing Delivered this September 15, 2005, to: CLERK OF THE FEDERAL DISTRICT COURT The Honorable Neil V Wake District Court Judge - Arizona United States District Court 401 West Washington Avenue Phoenix, Arizona 85003 and Mr Michael A. Lipscomb US Probation by ______ Fed\Bailey.Obj Copies of the Foregoing Mailed this September 15, 2005, to: PAUL K. CHARLTON United States Attorney Messr Paul Rood, Esq. (514-7500) Assistant US Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408

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