Free Sentencing Memorandum - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona Richard I. Mesh Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 02716 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States of America, Plaintiff, v. Gene Lee Miller and Grace Marie Miller, Defendants. The United States of America, through its undersigned attorneys, hereby files the following Amended Sentencing Recommendation to take the place of the original Sentencing Recommendation filed on November 30, 2005. This amended filing is to insure that the Government's recommendation is in accordance with paragraph 3 the plea agreements in this matter which called for restitution "specifically" to the eight victims named in the indictment and therefore, could be read as limitation as to any other restitution order. Amended Sentencing Recommendation. On the basis of the government's previously filed objections to the presentence report, it is respectfully requested that the court calculate a total offense level of 14 in this matter and impose sentences accordingly. Further, the government respectfully recommends that the court impose the mid range sentence of 18 months as to each defendant as it is clear they were equally involved in the misrepresentations that brought about the victims' losses and equally profited from their illegal activity. The method of their deceit with the victims calls for a sentence of more than the lower end of sentencing range of 15 to 21 months. GOVERNMENT'S AMENDED SENTENCING RECOMMENDATION CR-04-0811-PHX-EHC

Case 2:04-cr-00811-EHC

Document 58

Filed 12/15/2005

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The court should order restitution as to each victim based upon the total value of their coins on the day of the coins' conversion. Title 18, U.S.C. §3664(f)(1)(A). The determination of the "full amount of the victims losses" in this case under the sentencing guidelines establishes a "loss" as "the value of the property taken," which is ordinarily "the fair market value of the particular property," but may also be the "reasonable replacement cost to the victim." U.S.S.G. §2B1.1, Application Note 2. Here, the victims' losses, irrespective of who stole their coins, was the fair market value of those coins on the day of the conversion. While the theft deprived the victims from executing their buy back guarantee which would have brought about a higher than market price, the failure to honor that guarantee would have been a breach of contract subject only to civil enforcement remedies. Given the bankrupt condition of the defendants, it is highly speculative that the victims would have been able to collect the original purchase price of their coins under their buy back contract. These recommendations take into account the seriousness of the offense, the absence of a prior criminal record as to either defendant, and the comments of the victims on the issue of the sentence. Respectfully submitted this 15 th day of December, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/Richard I. Mesh

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CERTIFICATE OF SERVICE I hereby certify that on the 15 th of December, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following

Richard I. Mesh Assistant U.S. Attorney

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Case 2:04-cr-00811-EHC

Document 58

Filed 12/15/2005

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CM/ECF registrants: Joe Keilp 1440 E. W ashington Suite 100 Phoenix, AZ 85034 Attorney for Grace Miller S/Richard I. Mesh I hereby certify that on the 15 th day of December 2005, I served the attached document by fax on the following, who are not registered participants of the CM/ECF system: Susan E. Otero Supervisory U.S. Probation Officer 401 W . W ashington St., Ste. 160 Phoenix, AZ 85003 S/Richard I. Mesh Greg Clark 45 W . Jefferson St., 12 th Floor Phoenix, AZ 85003-2330 Attorney for Gene Miller

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Case 2:04-cr-00811-EHC

Document 58

Filed 12/15/2005

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