Free Sentencing Memorandum - District Court of Arizona - Arizona

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Neal C. Taylor BURNS, NICKERSON & TAYLOR, PLC 111 W. Monroe, Suite 1500 Phoenix, AZ 85003 (602) 254-0004 Bar #7515 Attorney for Defendant

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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United States of America,
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Plaintiff, vs. Salvador Johnson, Defendant

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CR 04-0882-PHX-EHC

DEFENDANT'S RESPONSE TO GOVERNMENT'S SENTENCING MEMORANDUM

THE COURT'S QUESTION July 31, 2006 this Court continued Defendant Salvador Johnson's sentencing to October 23, 2006 at 4 pm. The minute entry reads: "[A] discussion is held with respect to the possible sentence of probation for a period of five years. The Court requests that the Government and probation office file a memorandum ten days prior to the date of sentencing as to whether that could be lawfully done or not under all of these circumstances." Under this Court's order, the Government was to file its

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Memorandum by Tuesday, October 10, 2006. See, Rule 45, Federal Rules of

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Criminal Procedure. On October 17, 2006 counsel for Defendant received the Government's sentencing memorandum. (The Defendant's sentencing memorandum was filed on July 7, 2005.) The Government's sentencing memorandum is eleven pages. The question asked by the Court, i.e., as to whether the sentence of probation could be lawfully

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granted, was never answered by the Government. The Government's answer was that a probationary sentence "is not reasonable." Id., page 11.

HISTORY OF CASE. January 5, 2005 Defendant Salvador Johnson (Salvador) made his initial appearance in this matter. Salvador was in custody at the time. On February 9, 2005 Salvador was released from custody and placed at Recovery Homes, Inc. Salvador was immediately required to get a job and begin

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participating in programs that were held by Recovery Homes. Salvador was also required to attend other outside counseling and participate in various support groups. On April 26, 2005 Salvador entered a guilty plea in this matter. Salvador remained out of custody, as he remained a resident in good standing at Recovery Homes and was being supervised by Pretrial Services. Salvador had earlier obtained a job and continued to participate in AA programs and Narcotic Anonymous (NA) programs. He also continued to submit clean urine samples at the direction of Pretrial Services.

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On July 11, 2005 this Court continued Salvador's sentencing to January 9, 2006. As noted in the interim Pretrial Services report, Salvador remained in full compliance with all his release conditions. Salvador also continued to comply with all the stringent conditions of Recovery Homes. In January 9, 2006 Salvador's sentencing was continued to July 31, 2006.

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Salvador remained in full compliance with all his release conditions and remained a resident in good standing with Recovery Homes. On July 31, 2006 Salvador's sentencing was continued to October 23, 2006. Salvador remains in full compliance with all his conditions set by Pretrial Services and remains a resident in good standing with Recovery Homes. Salvador has been promoted at Recovery Homes to a "Three Quarter House" located at 334 S. Hobson in Mesa. Salvador's current job position is assembling manufactured homes for

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Champion located at 6420 W. Allison in Chandler, Arizona. Salvador's salary is $11.50 per hour. Since this Court released Salvador from custody, (more than 20 months ago on February 9, 2005) Salvador has had no positive urinalysis, no contact with police authorities, remained gainfully employed and has remained in full compliance of all conditions of his release. / / /

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PERSONAL FAMILY BACKGROUND. Salvador has had a most unusual and sad childhood. He was raised by two drug addicts who used him to steal to support their drug addictions. He was rejected by his birth father and scorned by his stepfather. His lack of parental guidance set him on a path to criminal behavior. Because parental guidance was often lacking, he was

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periodically removed from the home and placed with Child Protective Services. As a child, his peer group, as well as his family, consisted of person who embraced a criminal life style. His juvenile history reflects this childhood background. Since Salvador's release from custody, he has discovered a new life. Outwardly, he complied with all the strict requirements of Recovery Homes, Inc. He also participated in the many recovery and support programs that were offered to him. Yet, more importantly, he gradually began to internalize the guidance and lessons he was being offered. As noted by one of his sponsors (Vanessa Lawson), the

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internalizing process started as a trickle, but soon became a flood. By embracing the NA and AA programs Salvador found a new will and determination live a clean and lawful life. In addition, Salvador replaced the mores of his birth family with the moral code of Recovery Homes, his support group and his support group members. This new code speaks to personal responsibility and sobriety. One unfortunate byproduct of this new life is a quasi-estrangement with his family and his old peer group. Salvador realizes that this near separation with his

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family has been necessary to maintain a clean and sober life style. He has now found a new support group that is both clean and lawful. Since the court released Salvador on February 9, 2005, he has had almost twenty-one months of perfect sobriety. Shooting Investigation. The Government unfairly attempted to negatively

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influence this court by arguing that Salvador "has been unwilling to cooperate with federal and local authorities in order to solve a homicide, fully aware that he has the ability to provide the decisive connection between the murder weapon with the murderer." Government's Sentencing Memorandum, page 11. This statement is false. Salvador was willing to speak with investigators, so long as the government could protect his family. To undersigned counsel, Salvador expressed a desire to cooperate with investigators. However, he did have serious concerns that the gang members would learn of his cooperation.

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Salvador expressed great fear for his little brother (age 14) and his young sisters (ages 6, 9, 11, 13). Because Salvador now lives away from the reservation and far from this element, he did not have any great personal fear. However, this lawless group generally congregate less than ¼ mile from where Salvador's young sisters and brother live. Undersigned counsel told Salvador that his name and statement would be published in the agent's report. Through counsel, Salvador offered to cooperate if he could remain confidential. Confidentiality was requested from the government. The government refused to give him confidentiality. As a result, Salvador declined.

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Salvador feels that, without confidentiality, it is virtually certain that his little sisters or his little brother would suffer death, serious physical injury or both.

LEGAL DISCUSSION The vast bulk of the Government's sentencing memorandum (pages 3-10) is a

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doctrinaire argument that attempts to eviscerate the holding of United States v. Booker, 540 U.S. 220; 125 S. Ct. 738 (2005). The Government cites an Eleventh Circuit case with approval, " . . . the factors the Sentencing Commission was required to use in developing the Guidelines are a virtual mirror image of the factors sentencing courts are required to consider under Booker and § 3553(a)". Government's Sentencing Memorandum, page 4. However, there are several problems with this rationale. First this is not accurate according to the Commission's own reports, the guidelines manual and the reliable historical sources including Justice

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Breyer. Second, the only difference between the system it would create and the system struck down in Booker is that there could be no rationale for ever varying from the guideline range. More importantly, the Ninth Circuit has declined to adopt such a position. United States v. Carty, 453 F.3d 1214 (9th Cir. 2006); United States v. Zavala, 443 F.3d 1165 (9th Cir. 2006). The Government's sentencing memorandum also gingerly infers that the guidelines are of greater importance than the other § 3553(a) factors. It argues that

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"courts may therefore properly give the Guidelines `substantial weight' when selecting the appropriate sentence." Government's Sentencing Memorandum, page 6 (citations omitted.) The Government then subtly suggests that the Guidelines create

a presumptive sentence that a defendant must overcome. "[T]he parties bear primary responsibility for identifying any circumstance that supports a sentence outside the

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Guidelines." Id. However, the Ninth Circuit has explicitly repudiated that the Guidelines create a presumption that the defendant must overcome. United States v. Zavala, 443 F.3d 1165 (9th Cir. 2006). The language from Zavala is instructive. The sentencing transcript leaves us with the unsettling feeling that the district court viewed the Guideline calculation not as one of several factors to be considered equally, but as a locus from which to deviate. The court repeatedly referred to a More

process of "departing" from the Guideline range.

troubling still, the court placed the onus on Zavala to provide reasons for deviating downward from the Guideline range, opining, "I think the burden is upon, I think, the Defense to at least explain to me what those justifications are and what those factors are that will justify the Court in imposing a sentence short of life imprisonment." In essence, it appears the district court treated the Guideline calculation as a presumptive sentence from which it had discretion to depart, if the defendant provided satisfactory reasons.

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The Court of Appeals remanded the case. The Court held that "District courts neither should, nor can . . . plac[e] undue weight on the Guideline portion of the sentencing chemistry. They must properly use the Guideline calculation as advisory and start there, but they must not accord it greater weight than they accord the other § 3553(a) factors." Id., 1171

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Another recent Ninth Circuit case further highlights that the Guidelines are only one of the factors to be considered in applying 18 U.S.C. § 3553(a). United States v. Diaz-Argueta, 447 F.3d 1167, 1171 (9th Cir. 2006). There it was stated: In this case, the district court started out properly by calculating on the record the applicable Guideline range. The district court then stated that it had "carefully considered the Presentence Report and the comments of counsel, and the memorandum filed on behalf of the defendant." The district

court, however, did not explicitly address any of the factors listed in § 3553(a), other than the Guidelines. In fact, other

than using the Guidelines, the court did not give any reason for its sentence. Section 3553(a) is mandatory. See Booker, 543 U.S. at 261,

125 S.Ct. 738 ("Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing."). Its terms are not met by reciting a number taken from a table of the Sentencing Guidelines that are now merely advisory. There is no presumption that such a number has taken into account all of the relevant circumstances that the statute states that the court "shall consider." See United States v. Zavala, 443 F.3d

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1165, 1171 (9th Cir.2006) ("If a district court ... makes the Guideline calculation the presumptive sentence, it will commit legal error by misapplying § 3553(a), which now makes the Guideline a, but only a, factor to be considered.").

The Sentencing Reform Act directs that the imposed sentence should be
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"sufficient but not greater than necessary" to achieve the purposes of sentencing. 18 U.S.C. § 3553(a). (Emphasis added) 18 U.S.C. § 3553(a)(2), sets forth the factors for the court to consider: (1) The nature and circumstances of the offense and the history and Characteristics of the Defendant [§3553(a)(1)]; The need for the sentence imposed-- [§3553(a)(2)]; The kinds of sentences available [§3553(a)(3)]; The guidelines and policy statements issued by the Sentencing Commission, including the (now non-mandatory) guideline range [§3553(a)(4) & (a)(5)]; The need to avoid unwarranted sentencing disparity among Defendants with similar records that have been found guilty of similar conduct [§3553(a)(6)]; and The need to provide restitution to any victim of the offense [§3553(a)(7)]. He has He has

(2) (3) (4)

(5)

(6)
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In the past 21 months, Salvador Johnson has come a long way. remained law-abiding, drug free and maintained steady employment.

overcome a background that deprived him of the moral compass that many of us take for granted. He continues to grow. He aspires to someday become an interstate truck

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driver and own his own truck. He has found new strength in his sobriety. And, he has seen a latent artistic ability bloom. Salvador's battle to remain on his new path has not been easy. He has faced many temptations to go back to his old life and drug use. He has faced each and every challenge with courage and hope for the future. Salvador acknowledges that this

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Court graciously gave him an opportunity to prove himself. He is grateful for the opportunity. The Court's Question. Can this Court lawfully grant the Defendant a period of probation? Undersigned counsel could discover no legal impediment to a grant of probation. Recommended Sentence. The instant offense occurred in March of 2004.

Salvador was then 18 years of age. Salvador is now 20 years old. He is still young, yet he is also much more mature. This Court gave Salvador a once in a lifetime

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opportunity to prove himself. It was also a test. A test that the codefendant failed. However, this was a test and opportunity that allowed Salvador to excel. In light of Salvador's first 18 years of life, the turnaround has been phenomenal. It is submitted that the "history and Characteristics of the Defendant" (18 U.S.C §3553(a)(1)) would point to the sentence considered by this Court. It is requested that this Court place the Defendant, Salvador Johnson, on probation for a term of five years.

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RESPECTFULLY SUBMITTED this 20th day of October 2006.

s/ Neal C. Taylor Neal C. Taylor BURNS, NICKERSON & TAYLOR, PLC Copies of the foregoing mailed/ ECF/ e-mailed this 20th day of October 2006, to: The Honorable Earl H. Carroll United States District Court 401 West Washington Phoenix, AZ 85003 Michael Lee Assistant U.S. Attorney 40 North Central Ave., Ste. 1200 Phoenix, AZ. 85004 Christina Ralls U.S. Probation Officer 401 West Washington Phoenix, AZ 85003

Julie Roth BURNS, NICKERSON & TAYLOR, PLC

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