Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOSEPH E. KOEHLER Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 13288 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, No. CR 04-895 PHX MHM Plaintiff, v. John Everett Langford, Defendant. The United States, through undersigned counsel, respectfully responds to the RESPONSE TO SENTENCING MEMORANDUM AND OBJECTIONS TO PRESENTENCE REPORT

17 defendant's objections to the presentence report (PSR). 18 The government agrees with the defendant's objection regarding ¶ 6 of the PSR. The 19 video depositions corroborate the defendant's version of the placement of the aliens in the 20 defendant's vehicle. 21 The government opposes the defendant's objection regarding ¶¶ 7 and 10 of the PSR. 22 The arresting agents stand by their reports of the defendant's interview. The government 23 notes, however, that miscommunication between the defendant and the agents may have 24 occurred. The parties are in agreement regarding the defendant's statement that someone 25 paid his utility bill and he felt he owed that person a favor. The only dispute is whether the 26 defendant stated his act of driving the car in this case was expected to be in return for 27 cancellation of the debt. The government takes no position regarding the portion of ¶ 7 that 28 relates to where the defendant was picked up by the two Hispanic males, or the portion of ¶

Case 2:04-cr-00895-MHM

Document 58

Filed 09/02/2005

Page 1 of 3

1 10 that relates to the location of the .45 caliber handgun on the defendant's person, because 2 those facts do not affect the guideline calculation in this case. 3 The government takes no position regarding the defendant's objections to ¶¶ 24, 26,

4 31, 33, 42 and 43 of the PSR. The facts that are the subject of those objections do not affect 5 the guideline calculation in this case. 6 The government disagrees with the defendant's analysis regarding the applicability of

7 the enhancement set forth in ¶ 15. The defendant correctly asserts that none of the material 8 witnesses noted the presence of the firearm in the defendant's possession. However, as the 9 defendant correctly notes, U.S.S.G. § 2L1.1 sets forth an enhancement for a firearm that is 10 "possessed," and does not contain any language requiring the firearm to be possessed "in 11 connection with" the offense. Cf. U.S.S.G. §§ 2B1.1(12) (Theft Offenses), 2B5.1 12 (Counterfeiting), 2D1.1 (Drug Trafficking) (enhancement applies "unless it is clearly 13 improbable that the weapon was connected with the offense"), 2D1.11 (Distribution of Listed 14 Chemicals) (same). Likewise, § 2L1.1 does not require any threat of use of the firearm. Cf. 15 U.S.S.G. §§ 2A2.3 (Minor Assault), 2A2.4 (Obstructing/Impeding Officers). The use of 16 limiting language in other guideline provisions when such language does not appear in § 17 2L1.1 creates the inference that the enhancement for possession of a firearm in § 2L1.1 18 applies any time a firearm is possessed during the commission of the offense. 19 This conclusion makes sense in light of the inherent dangerousness of a firearm in the

20 context of an alien smuggling offense. One cannot predict the various scenarios that might 21 unfold during an alien smuggling offense. For instance, if one of the aliens being smuggled 22 is wanted by law enforcement authorities and that person notices that the smuggler is being 23 followed by police, the smuggled alien may attempt to gain possession of the firearm and use 24 it against the pursuing officer. Moreover, the mere presence of a firearm, if noticed by the 25 smuggled aliens, creates an intimidating atmosphere and contributes to the offense regardless 26 of the defendant's intent. The wording of this enhancement sends a simple message: 27 possession of a firearm during an alien smuggling offense is a bad idea and will result in an 28 increased sentence.
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In light of the testimony during the videotaped depositions, the government concurs

2 with the defendant's objection to ¶ 16 of the PSR. 3 The government takes no position regarding the defendant's departure argument and

4 leaves that issue to the Court's discretion. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3 Case 2:04-cr-00895-MHM Document 58 Filed 09/02/2005 Page 3 of 3
Copy of the foregoing served this date via transmittal of Notice of Electronic Filing to CM/ECF registrant(s): Timothy C. Holtzen Copy of the foregoing mailed this date to: Beth Stewart United States Probation Officer

Respectfully submitted via CM/ECF this 2 day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /s Joseph E. Koehler JOSEPH E. KOEHLER Assistant U.S. Attorney