Free Sentencing Memorandum - District Court of Arizona - Arizona

1 TIMOTHY C. HOLTZEN 2 245 W. Roosevelt St. 3 State Bar No. 004723 4 (602) 368-9140 fax 5 6 7 8 9 United States of America, 10 11 13 14 15
v. Plaintiff, UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) No. CR 04-0895-PHX-MHM SENTENCING MEMORANDUM AND OBJECTIONS TO PRESENTENCE REPORT Attorney for Defendant (602) 799-6336 Phoenix, Arizona 85003 Attorney at Law

12 John Everett Langford,
Defendant.

The defendant submits the attached Sentencing Memorandum and Objections to

16 the Presentence Report for this Court's consideration at sentencing and requests that 17 the court impose a sentence of probation. 18 19 20 21 22 23 24 25 26 27 28
Copy of the foregoing served electronically by ECF August 19, 2005 to: Joseph E. Koehler Assistant U.S. Attorney and faxed to : Beth Stewart U.S. Probation Office John Everett Langford Defendant

RESPECTFULLY SUBMITTED August 19, 2005.

\s Timothy C. Holtzen Timothy C. Holtzen Attorney for Defendant

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1 2

MEMORANDUM The circumstances surrounding the offense in this case and defendant John

3 Langford's subsequent tumbling life were uncommon and results of tragedies. He asks 4 this Court to consider his present life, his past life, the factual corrections he proposes 5 to the presentence report, his two objections to the advisory guideline calculations, and, 6 what is most important, the overall request to this Court's authority to grant him the 7 opportunity to make continuing substantial steps in treatment with probation. 8 I. Langford's Life Has Significantly Improved Recently 9
Langford acknowledges that he badly violated the conditions of his pretrial

10 release due to his personal problems and his severe drug problems. He is very grateful 11 for the grace from this Court and the kindness of his family that made it possible for 12 him to enter a strict residential substance abuse treatment program in California. 13
The Narconon program in California involved approximately nine hours a day

14 of classroom course work, detoxification, and included many other aspects of strict 15 compliance. As the court may be aware, the program required and provided an escort 16 to and from court appearances in this case. Langford graduated from the program after 17 four months. Thereafter, he entered a six-month intern program and he is two months 18 into that program. He has a job posting already as Examiner and Director of Validity, 19 his duties include making sure that everything is honest and true. More specifically, 20 that there is compliance with the requirements of the program. He prepares certificates 21 and attestations. His position is one of honesty and trust. 22
Langford has goals now and is hopeful. He wants to sign a two-year contract

23 with Narconon to continue doing the same kind of work. The staff at Narconon has 24 been very encouraging that he can continue working there, if it will be consistent with 25 the sentence in this case. 26 27 28 2

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1 II. Langford's Background 2 3
a. Life before Tucson As noted in the presentence report, Langford's mother died when he was 1 ½

4 years old. (PSR ¶ 29.) Thereafter, he suffered extreme physical and mental abuse by 5 his Korean stepmother because he is not Korean. This was confirmed by Langford's 6 younger stepbrother, Lee Shin Langford, who believes that it had a serious negative 7 impact on Langford. (PSR ¶ 30.) The abuse evolved into early usage and abuse of 8 alcohol and drugs by Langford, including drinking alcohol and smoking marijuana at 9 age 10 and getting drunk in the 5 th grade. (PSR ¶ 37.) 10
Langford previously had relationships with women which produced two

11 children, I**** and J***, out of wedlock (PSR ¶ 34); married Sandra R****** in 12 1995, had a daughter, T******, and divorced in 1996 (PSR ¶ 33). Langford's ex-wife 13 attempted to kill him. About 6-7 years ago she set fire to Langford's residence, 14 jeopardizing Langford's life and that of his daughter, T******. Langford recalls 15 running around looking for T****** in the burning house. On a later occasion his ex16 wife set fire to his car. Subsequently, when Langford heard his ex-wife at T******'s 17 bedroom window, he yelled out asking "who's there?" and called police. Police caught 18 his ex-wife about 1 ½ blocks away with a Molotov cocktail in her possession. His ex19 wife was convicted of Arson and sentenced to imprisonment. (PSR ¶ 34.) Despite her 20 conviction and imprisonment, his ex-wife and family sought custody of T****** and 21 lost. She repeated her efforts several times and eventually a judge gave custody to her. 22 23
b. Life after Moving to Tucson A couple of months after losing custody of T****** in 2003, Langford left the

24 South and moved to Tucson, Arizona. He also told his other daughter, I*****, that she 25 could go live with her mother J****** for the school year. I*****, who was 13 years 26 of age, returned to live with him after the school year in the summer of 2004. That was 27 28 3

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1 about the time that Langford's life hit financially difficult times. His work hours were 2 cut drastically to just a couple of hours every two weeks, and he ran out of money. 3 Unable to pay his electric bill, the power company shut off his electricity on August 2, 4 2004. Langford was looking for a loan of money, or a way to turn the electricity back 5 on for his little girl. After asking several people for a loan, an acquaintance of 6 Langford introduced him to a man named Jose who had some money and said he was 7 doing okay. Jose gave Langford some money to pay his electric bill, told him that it 8 was for his daughter, and to pay him back later. Langford expected and hoped to get 9 money soon to repay him from his next meager pay check, or perhaps from restitution 10 he occasionally received from his ex-wife for his burned car and house. Langford was 11 not accustomed to being broke. He downsized from a house to a two-bedroom 12 apartment. 13 14
c. The Offense A few days after Langford paid to get his electricity turned back on, the man

15 asked Langford to do him a favor by driving for some friends. Langford agreed, not 16 knowing the circumstances, but knowing that he owed this man a special debt of 17 gratitude. No details were discussed, other than general details of meeting in the 18 morning and travel to pick up the friends. Time and circumstances progressed to the 19 point where Jose had taken him to a Chevrolet Caprice in Bisbee, Arizona, for 20 Langford to drive and Langford followed Jose out onto a desert road. He stopped 21 behind Jose's car, people at the side of the road asked for a ride, and they entered the 22 car Langford was driving. Langford experienced nervousness and adrenaline as he 23 realized more and more what the circumstances, or likely circumstances, were at that 24 point. He drove until he was pulled over by the Border patrol near Casa Grande. 25 27 28 4
So, just two days after Langford was able to get his electricity turned back on,

26 Langford was in jail in Casa Grande, while his 13-year-old daughter was waiting for

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1 him in Tucson and expecting him home around noon, without any knowledge of 2 Langford's venture or apprehension. 3 4
d. Life After the Arrest About one month later, in September, Langford's daughter, I***** left him. In

5 October, his grandmother died, and she was the one relative Langford believed truly 6 cared about him. As his life spiraled downward during the holidays without a family, 7 his personal drug usage was the only thing that seemed to matter to him. 8 III. Factual Objections 9
Page 4, ¶ 6. The presentence report describes that there were three individuals in

10 the front seat of the vehicle and "five others were observed lying down on the floor 11 board of the rear passengers' area." The defense disagrees with this allegation. 12 Langford agrees that there were five aliens in the back seat, but they were sitting, 13 slouched down with their knees pushing against the back of the front seat. At no time 14 were the aliens lying on the floorboard. Evidence of this may be found in the video 15 depositions. For example, material witness Audencio Gomez-Merlin testified that there 16 were four in the back and one was "crosswise on the legs," and the ones in the back 17 were bent over the whole time they were riding in the car. Material witness Giovanni 18 Valencia-Salgado testified that he was seated in the back and that he was sitting up, 19 sometimes bent over. 20
¶ 7 ­ The presentence report says "While being questioned, the defendant stated

21 he had been hired to drive the undocumented aliens to Phoenix in payment for a $150 22 debt." Langford denies making that statement as it is described, and recognizes that the 23 Border patrol report makes the same incorrect declaration. Langford told the agent that 24 he drove the car because "he owed the guy a favor who loaned him $150." He did not 25 consider that he was hired or that his debt would be canceled. The agent may have 26 interpreted his statement that way, but was not what Langford said. 27 28 5

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1

Furthermore, Langford would like to correct the statement that he was picked

2 up by the two Hispanic males at his home. The two men picked him up about one 3 block from his home at a convenience store. 4
¶ 10 ­ The report states "Someone he knew lent him $150 and, in exchange, the

5 person asked him to drive a friend from Bisbee, Arizona to Phoenix[]" and that "He 6 and the friend went and obtained another vehicle . . . ." The sentences should read, in 7 pertinent part, "Someone he just met through a mutual acquaintance loaned him $150 8 and a short time later asked him to go get a car of the acquaintance's and give his 9 friends a ride to Phoenix. He and that man went to Bisbee, Arizona and obtained 10 another vehicle . . . [.]" 11 13
Langford also asks that the presentence report's reference to "a .45 caliber gun

12 on his waist" reflect that it was "a .45 caliber gun in a holster on his waist."
Page 6, ¶ 24­ Langford admits that he faced a charge for a verbal assault. He

14 denies pulling his ex-girl friend's hair. Furthermore, he understands that the judgment 15 was "set aside" and had later been dismissed. He recalls this understanding because the 16 charge was the subject of question and investigation when he later worked in the field 17 of corrections in Georgia, in which he was required to possess and be able to use a 18 firearm. 19
¶ 26 ­ Langford knows that there was a DUI charge, but also knows the

20 disposition. The presentence report states that the disposition is unknown. The matter 21 proceeded to a jury trial and he was found "Not Guilty." 22
Page 8, ¶ 31 ­ The first sentence says that the father's employment in the "oil

23 business" caused the family to move frequently. It was his father's "military career" 24 that caused the family to move frequently. 25 27 28 6
¶ 33 ­ The fires set by Langford's ex-wife are out of chronological order in the

26 report. As described above, his ex-wife first set the house on fire, later burned his

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1 Cadillac, and subsequently tried to break into the house when Langford heard her at 2 T******'s window and called police. The police caught her about 1 ½ blocks away 3 with a Molotov cocktail. 4
Also, the last sentence of ¶ 33 refers to the custody of the child eventually being

5 awarded to "the maternal grandparents." The custody of the child was eventually 6 awarded to the mother (Langford's ex-wife), who lives with her parents (the maternal 7 grandparents). 8 10
Page 9, ¶ 42 ­ Langford believes he was hired by Washington Inventory

9 Services in January 2004 rather than December 2003.
Page 10, ¶ 43 ­ Langford would like to update the financial information to show

11 that he has graduated from the Narconon program after four months and is two months 12 into a six-month intern program with a job serving as Examiner and Director of 13 Validity. As such, he receives $100 per week gross pay. If the court permits, he hopes 14 to soon be signing a two-year contract doing the same work and staying with the 15 Narconon program in California. 16 IV. Objections to Calculations 17 18
a. Noncriminal Presence of a Pistol Does Not Justify an Increase ¶ 15 ­ The presentence report adds a 3-level enhancement for possession of a

19 firearm during the commission of an offense pursuant to U.S.S.G. §2L1.1(b)(4)(C). 20 That Guideline provides: "If a dangerous weapon (including a firearm) was possessed, 21 increase by 2 levels, but if the resulting offense level is less than level 18, increase to 22 level 18." 23
Langford was carrying a pistol in a holster on his left hip. Passengers were not

24 even aware it was present. However, it was not a concealed weapon or an unlawful 25 weapon. See, A.R.S. § 13-3102(F)(holstered weapon in a means of transportation not a 26 violation). Langford was not an unlawful possessor of the pistol. The weapon was not 27 28 7

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1 present for the purpose of facilitating a crime. 2
Langford's background and family lead to a strong belief in the constitutional

3 right to bear arms. Langford was raised in a military family. His father was a military 4 career man, and his brother was a graduate of West Point Academy. He was raised 5 around, and possessed respectfully, firearms. 6
Langford regularly possessed a pistol in his own vehicle when traveling long

7 before he met Jose. Presence of the pistol in his own vehicle was unrelated to any 8 criminal conduct. It was the habit or routine of Langford to carry a pistol while driving. 9 The guidelines suggest an increase in the offense for the presence of the firearm during 10 the commission of an offense, but the application of an increase in this case is 11 inappropriate because the pistol's presence was merely the extension of his 12 longstanding noncriminal travel practice and not to further or facilitate any offense. 13
Unlike other guidelines sections, §2L1.1 has no explanatory note with reference

14 to the enhancement for "possession" of a firearm or explanation of its application in 15 this particular guideline context. Mere presence or innocent reasons for a firearm 16 possessed independently or simultaneously with the commission of a crime have been 17 factors considered in other sections that suggest enhancements for "possessing" 18 firearms. See increases: §2A2.3 Minor Assault­ [base offense 3 levels higher] requires 19 possession "and its use was threatened"; §2A2.4 Obstructing or Impeding Officers­ 3 20 levels for "possessed and its use was threatened"; §2B1.1(12) Theft offenses­ 2 levels 21 for possession "in connection with the offense"; §2B2.1 Burglary­ 2 levels, but 22 possession does not apply to a firearm stolen during the crime (n.3); §2B5.1 23 Counterfeiting­ 2 levels for possession "in connection with the offense"; §2D1.1(n.3) 24 Drug Trafficking­ 2 levels for possession "unless it is clearly improbable that the 25 weapon was connected with the offense"(emphasis added); §2D1.11(n.1) ­ 26 Distribution of Listed Chemicals­ 2 level adjustment should be applied "if the weapon 27 28 8

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1 was present, unless it is improbable that the weapon was connected with the 2 offense"(emphasis added). 3
A few sections enhance for possession of a firearm without any apparent

4 exemption or rebuttable presumption, such as Robbery §2B3.1 (5 levels), Extortion by 5 Force or Threat of Injury or Serious Damage §2B3.2 (5 levels), and §2E2.1 Making or 6 Collecting Extortionate Extension of Credit (3 levels). Those sections do not require 7 proving the connection with the crime to enhance or disallowing for improbability that 8 a firearm was connected to the offense. But those sections apply to convictions for 9 crimes which are by their very nature, explicitly or implicitly, crimes of violence and 10 threats of violence.1 11
The defense submits that transporting illegal aliens could involve threats of

12 violence in some cases, but driving a car while carrying a pistol and stopping at the 13 side of the road to pick up persons, knowing or in reckless disregard of their unlawful 14 alien status, is not the same as robbery or extortion and the Guidelines should not be 15 read or interpreted to be comparable. If the guidelines did not consider circumstances 16 in which a firearm could be possessed without its presence intended or used in 17 connection with an offense of transporting on lawful aliens, then it is a basis for 18 downward departure under §5K2.0. As such, Langford asks the court to consider his 19 history of innocent carrying of a pistol when traveling at all times, strongly influenced 20 by his family's military history and his beliefs in the United States Constitutional right 21 to carry a firearm. He is not seeking a soapbox to argue the issue of such rights at this 22 point. He is simply trying to explain that the presence of the firearm was innocent and 23 as he came to know that he had fallen into criminal circumstances, the alternative of 24 25
1

26 implicit threat of use, of violence or other criminal means to cause harm to the person, 27 reputation, or property of any other person." 18 §891(7). 28 9

"An extortionate means is any means which involves the use, or an express or

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1 throwing the pistol, registered to his brother, out the car window was an unreasonable 2 alternative. He asks this Court to conclude that the 3-level enhancement for possession 3 of the firearm should not apply in this case. Alternatively, his circumstances should 4 justify a departure as a possession of a firearm that was not connected to the offense, 5 and under § 2L1.1 was not considered by the Guidelines. 6 7 8
b. Langford Did Not Create a Substantial Risk of Death or Serious Bodily Injury ¶ 16 ­ The presentence report increases the offense level by 2 levels, suggesting

9 that the offense "created a substantial risk of bodily injury; in that five subjects were 10 lying on top of each other in the rear floor board of the 1984 Chevrolet Caprice." As 11 noted above, Langford denies the allegation. The defense submits that there was no 12 creation of a substantial risk of bodily injury and that the enhancement is inapplicable. 13 The government did not allege a sentence enhancement in the indictment for a 14 substantial risk of death or serious bodily injury, although it did allege the presence of 15 the firearm. 16
An increase in sentence, or enhancement in guideline calculation, and the

17 burden of proof to sustain such an increase or enhancement, has been the subject of 18 Supreme Court and Ninth Circuit analysis and review within approximately the last 19 year. Langford submits that the burden of proof for a sentence enhancement remains 20 with the government beyond a reasonable doubt under Supreme Court authority of 21 Blakely and subsequent authority.2 22 23 24 25 26 27 28
On June 24, 2004, the United States Supreme Court decided Blakely v. Washington, ___ U.S. ___ , 124 S.Ct. 2531 (2004), holding that for purposes of Apprendi v. New Jersey, 530 U.S. 466 (2000), the statutory maximum is the sentence encompassed in the verdict without additional findings of fact. The Court also held that any enhancements must be presented to the grand and petit juries for an ultimate finding beyond a reasonable doubt. On July 21, 2004, the Ninth Circuit decided United States v. Ameline, 376 F.3d 967 (9th Cir. 2004), and held that Blakely applied to the federal sentencing guidelines. On January 12,
2

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1

Sentencing Guidelines section 2 L1.1(b)(5) provides for an increase of 2 levels

2 "[i]f the offense involved intentionally or recklessly creating a substantial risk of death 3 or serious bodily injury to another person...." There is no precise formula for the 4 determination of what constitutes a substantial risk. The district court must look at the 5 facts in context and assess the degree of risk created by the totality of the defendant's 6 conduct. United States v. Carreno, 363 F.3d 883, 890 (9 th Cir. 2004). In Carreno, the 7 transportation involved 18 aliens, including juveniles, in a van with only 15 seatbelts 8 traveling from Texas to California. The District Court observed that it was a long trip 9 from Texas to California made in only three days without substantial breaks, with 10 drivers trading off to make the trip faster and traveling on highways in an "expeditious 11 . . . fashion." After a highway patrol officer attempted to get Carreno's attention but 12 failed, the officer pulled him over and issued a citation because Carreno's high beams 13 were on. Carreno conceded "that there were safety concerns." Carreno, 363 F.3d at 14 890. On appeal, the Ninth Circuit cautiously held that "although `[r]easonable minds 15 could differ as to . . . the resulting degree of risk,' the district court did not abuse its 16 discretion by imposing the sentence enhancement in this case." Carreno, 363 F.3d at 17 891 (emphasis added). 18
Here, as the court may recall from the suppression hearing, the defendant was

19 driving a large Chevrolet passenger car. The Caprice model was perhaps the largest 20 passenger car that year. The conditions of the passengers were not as understood by the 21 probation officer writing the report, that is, the passengers were not traveling as five 22 people lying down on the floorboard of the back seat area. They were more humane 23 24
2005, the United States Supreme Court decided United States v. Booker, ___ U.S. ____, 125 Blakely applied to the United States Sentencing Guidelines; but (2) as a remedial measure, the

25 S. Ct. 738 (Jan. 12, 2005). In a double-majority opinion, the Booker Court held: (1) that 26 Court excised those portions of the sentencing guidelines that made them mandatory and held 27 them to be advisory only. See Booker, 125 S.Ct. at 743-744. 28 11

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1 and not creating a substantial risk of serious bodily injury. An increase would be 2 inappropriate. 3 4 V. This Court Has Authority and Bases to Grant Leniency in this Case. 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Instead of being bound by the Sentencing Guidelines, the Sentencing Reform

6 Act as revised by Booker,
requires a sentencing court to consider Guidelines ranges, see 18 U.S.C.A. § 3553(a)(4) (Supp.2004), but it permits the court to tailor the sentence in light of other statutory concerns as well, see § 3553(a) (Supp.2004). Booker, 2005 WL 50108 at *16. Thus, under Booker, sentencing courts must treat the guidelines as just one of a number of sentencing factors set forth in 18 U.S.C. § 3553(a). The primary directive in Section 3553(a) is for sentencing courts to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph 2." Section 3553(a)(2) states that such purposes are: (A) (B) (C) (D) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. (Emphasis added.)

Section 3553(a) further directs sentencing courts to consider (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (3) the kinds of sentences available; (4) the guidelines' categories; (5) the guidelines' policy statements; (6) the need to avoid unwanted sentencing disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. Given the Supreme Court's recent emphasis on the statutory considerations for sentencing and the guidelines role as advisory, Langford asks this Court to consider the

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1 nature and circumstances of the offense and his history, both his relatively minimal 2 criminal history and the history of extreme problems he has faced, as well as his need, 3 the family's need, and community's need for him to get continued counseling and 4 treatment. Those factors may be considered individually as bases for departures or 5 cumulatively as a basis for a departure from the guideline range, but of course, the 6 important issue is that this Court goes beyond the advisory guidelines and impose an 7 appropriate sentence consistent with 18 U.S.C. § 3553. 8
Langford is very grateful to this Court for the opportunity already given to him

9 to enter the Narconon program and asks this Court to impose a sentence that will allow 10 him to continue with progress and success. 11 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
\s Timothy C. Holtzen Timothy C. Holtzen Attorney for Defendant Conclusion Based on the foregoing, Langford asks this Court to impose a fair and lenient

13 sentence and requests that the sentence be one of probation.
RESPECTFULLY SUBMITTED August 19, 2005.

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