Free Memorandum - District Court of Arizona - Arizona

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Anders Rosenquist Jr., Bar No. 002724 Florence M. Bruemmer, Bar No. 019691 ROSENQUIST & ASSOCIATES ATTORNEYS AT LAW 80 East Columbus Phoenix, AZ 85012 TELEPHONE: (480) 488-0102 Attorney for Defendant-Appellant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANDREW TAYLOR, Defendant-Appellant. Defendant, Andrew Taylor (hereinafter "Taylor"), through undersigned counsel, hereby submits his Memorandum of Law regarding the scope of the Ninth Circuit's remand for resentencing, and what issues and evidence this Court can consider for the purposes of resentencing Taylor. Pursuant to this Court's order at the sentencing hearing of September 11, 2007, Taylor was directed to file this Memorandum on or before September 17, 2007. MEMORANDUM OF POINTS & AUTHORITIES Although the Ninth Circuit's remand is to be construed as a general remand pursuant to the relevant case law, and therefore this Court is free to consider any matters relevant to sentencing, the Government may not present new or additional evidence specifically regarding
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Case No. CR-04-00809-PHX-NVW

9th Cir. No. 05-10822
DEFENDANT'S MEMORANDUM OF LAW RE: SCOPE OF REMAND

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the Snohomish County conviction, nor be allowed to asses guideline points for any of Taylor's other convictions referenced in the presentence report, and Taylor must be resentenced at a Criminal History category of III. A. THE DISTRICT COURT MAY NOT CONSIDER NEW EVIDENCE ON REMAND REGARDING THE SENTENCING ENHANCEMENT FOR THE SNOHOMISH COUNTY CONVICTION, AND TAYLOR MUST BE SENTENCED UNDER A CRIMINAL HISTORY CATEGORY OF III. Taylor acknowledges the general rule in this circuit is to remand for resentencing on an open record; that is, without limitation on the evidence that the district court may consider. United States v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995). The language in Taylor's mandate is consistent with language in other cases in which the Ninth Circuit determined the mandate was open, and therefore it appears that the mandate in this case is of the same nature. Id. (open remand found based on the following language in the mandate: "Martinez compels us to vacate the sentences, because the district court erred in departing from the guidelines based on the quantity of drugs involved. Defendants' sentences should be recalculated accordingly. AFFIRMED, except that the SENTENCES are VACATED AND REMANDED" ­ court determined such language does not amount to clear evidence of limited remand); See also United States v. Caterino, 29 F.3d 1390, 1394-1395 (9th Cir. 1994)(relevant portion of mandate provided as follows: "The district court erred by adding multiple vulnerable victim adjustments to Appellant['s] offense level under the Guidelines. We therefore VACATE . . . Caterino['s] sentence and REMAND for resentencing" ­ court determined language did not place express or implied limitations on issues to be considered at resentencing).

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However, one specific circumstance in which it is appropriate to limit the evidence that can be presented on remand is if "the government engaged in deceptive, obstructive, or otherwise inappropriate conduct." United States v. Matthews, 278 F.3d 880, 889 (9th Cir. 2002). Therefore, Taylor requests this Court prohibit the government from presenting any new evidence on the specific issue of the Snohomish County conviction. At trial and at the time of the original sentencing in this matter, John Lopez and John Tuchi represented the government. More importantly, John Lopez authored and filed the

sentencing memorandum in which he addressed the specific issue of whether the Snohomish County conviction was a qualifying conviction and that Taylor was incarcerated on that conviction sometime after the cut-off date of May 25, 1984. (See United States' Reply to Defendant's Response Re: Supplemental Sentencing Memorandum, Doc. #110). In that

sentencing memorandum and at sentencing itself, the government argued that based upon the evidence and facts "as described in paragraph 3[8] of the PSR," the Government had met its burden of proof and there was sufficient evidence to establish that Taylor's Snohomish County conviction fell "well within the applicable fifteen year window." However, as reflected in the 9th Circuit's Memorandum Opinion, and as this Court acknowledged at the September 11, 2007 sentencing hearing, during oral argument in the Ninth Circuit, "The government concede[d] it cannot prove that at any point during Taylor's incarceration he began serving the Snohomish County sentence rather than the Island County sentence." Specifically, John R. Lopez appeared and argued on behalf of the government in the

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Ninth Circuit, and during the oral argument, he stated that the information provided by Washington was too confusing. This issue is not a "legally" intensive issue, all parties agreed at the time of sentencing that the guidelines provided for a 3-point sentencing enhancement if the facts demonstrated that Taylor was incarcerated on the Snohomish County conviction sometime after the cut-off date of May 25, 1984. This issue has always required a strict factual analysis ­ was there proof that Taylor was incarcerated on the conviction after May 25, 1984? Therefore, the government cannot argue that it had a "legally sufficient" basis for its position at the time of sentencing. The government's position at the first sentencing was based solely on the facts set forth in the PSR when representing to this Court that it was clear the Snohomish County conviction was within the fifteen-year window. It was from those exact same facts that the government, and more importantly the same attorney, later admitted to the Ninth Circuit it could not prove that the conviction fell within the required time period. The Court should also not consider the information that has been recently provided to the Court to affirm Taylor's criminal history as a "IV". First, the chart that has been supplied by Washington State states that the conviction in question expired on February 20, 1984 (which is outside the 15 year time frame). Also, the government and probation office offers no

explanation why this information was not obtained during the first sentencing. During the appeal, representations were made that the government could not obtain any clearer information. Now on the eve of sentencing, the government is able to obtain computer printouts and charts

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from the State of Washington. There has been no explanation as to why these materials were not available in 2005 (or any other date prior to the September 2007 resentencing). The government affirmatively misrepresented the evidence at the time of the first sentencing, and violated its duty of candor to this Court. At a minimum, the government acted in a deceptive manner. Therefore, this Court must prohibit the government from presenting any new evidence on the specific issue of Taylor's Snohomish County conviction because the government engaged in deceptive, obstructive, or otherwise inappropriate conduct. As a result, Taylor's criminal history category for the purposes of resentencing is III. II. THIS COURT HAS THE DISCRETION TO CONSIDER TAYLOR'S POSTSENTENCING CONDUCT IN DETERMINING WHETHER TO APPLY A DOWNWARD DEPARTURE. Guideline 5K2.19 directly addresses consideration of post-sentencing conduct at resentencing and states: "Post-sentencing rehabilitative efforts, even if exceptional, undertaken by a defendant after imposition of a term of imprisonment for the instant offense are not an appropriate basis for a downward departure when resentencing the defendant for that offense." However, since the Federal Sentencing Guidelines were determined to be discretionary in United States v. Booker, 543 US 220 (2005), the Ninth Circuit has touched on the possibility that postsentencing conduct may be a permissible factor to support a downward departure. See United States v. Menyweather, 447 F.3d 625, 629 (9th Cir. 2006)(referencing opinion in Menyweather II in which Ninth Circuit vacated district court's sentence and remanding because court erred in relying on post-conviction rehabilitation for downward departure without giving notice to government). Furthermore, in the wake of Booker, federal sentencing is now governed by 18
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U.S.C. § 3553(a), which states that the district courts "shall consider" the "history and characteristics of the defendant." Id. In the wake of Booker, it is relevant to look to cases on this issue that were decided prior to imposition of the mandatory sentencing scheme for guidance. In United States v. Green, the rule expressed by the Ninth Circuit was that a district court cannot be precluded categorically from considering any factor at sentencing so long as that factor is not one of the "forbidden" factors outlined in the guidelines. United States v. Green, 152 F.3d 1202, 1207-1208 (9th Cir. 1998), superceded by statute as stated in United States v. Normand, 58 Fed. Appx. 679, 2003 U.S. App. LEXIS 802 (9th Cir. 2003)(Normand stood for the proposition that at that time, Guideline § 5K2.19 (2000) precluded departures based on post-sentencing rehabilitation because the Guidelines were mandatory). The Court concluded, consistent with the three other circuits that had analyzed the issue, that post-sentencing rehabilitative efforts may be a basis for a downward departure. Id. The Ninth Circuit affirmed the district court's downward departure for post-sentencing rehabilitation based upon the fact that at the time of resentencing, the defendant presented considerable detail regarding his post-sentencing rehabilitation, which included his statement to the court at resentencing. Id. The defendant had worked in assisting needy and deprived youths, made himself available for daily tutoring, weekend special events, out patient therapy program, and was instrumental in starting Saturday computer training programs. Id. The defendant also submitted a summary of his experiences and made a statement to the court at sentencing that likewise reflected his devotion to his community service and the benefits he has reaped. Id. The government insisted that the defendant merely followed the requirements of his
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probation. Id. While true, the court determined the departure was appropriate because not everyone who follows the terms of his sentence achieves rehabilitation, and while the defendant was required to do community service, there was no requirement that he actively engage himself in that experience, learn from that experience, achieve the results he did at Rancho San Antonio, or go above and beyond in his work there. Id. Taylor's case is very similar to that of Green. As Taylor testified to in detail at the sentencing hearing on September 11, 2007, he has actively engaged himself in several volunteer opportunities, described how he has learned from his experiences, and has gone above and beyond the requirements of the sentence imposed on him (including selling his house and moving his family in with his wife's mother in order to make early payment, in full, of the restitution ordered). In essence, Taylor has achieved rehabilitation. Furthermore, notice is not in issue in this case because at the sentencing hearing on September 11, 2007, not only was the government given the opportunity to be heard on the issue, the government conceded and offered to stipulate that Taylor has exemplary post-sentencing conduct. Therefore, Taylor respectfully requests this Court impose a downward departure based upon his post-sentencing conduct. C. THE COURT SHOULD CONSIDER THE FACT THAT THE 9TH CIRCUIT VACATED COUNTS 4, 5 AND 9 WHEN IT ISSUED ITS MANDATE. The 9th Circuit Court of Appeals issued its mandate and vacated counts 4, 5 and 9. At the sentencing hearing, the District Court stated that even without those counts, the District Court would have sentenced Taylor to 33 months. However, the sentencing record did not reflect that reasoning, the District Court only discussed Count 4 in sentencing Taylor originally. Accordingly, Taylor understood that if other counts were vacated, that would be beneficial to his
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sentencing. The same counts that were vacated by the 9th Circuit were vacated based on actual innocence because the 9th Circuit concluded that Taylor had committed no illegal conduct. The record reflects that the District Court stated that Taylor's sentence would have been the same had only count 4 been dismissed. This statement put Taylor on notice that all other counts were considered in the sentencing, and in fact, Taylor was sentenced at the very high range of the Sentencing Guidelines (27-33 months). Further, at the initial rescheduled sentencing hearing, the District Court expressed great concern over the effectiveness of Taylor's trial counsel. During the trial proceedings, Taylor questioned the effectiveness of his counsel via written correspondence and asked that he be removed. Taylor has been greatly prejudiced by his trial counsel's failure to effectively argue for the dismissal of invalid counts. During sentencing, Taylor was sentenced on the counts that were later vacated, and Taylor respectfully requests that the Court consider the dismissed counts during the resentencing. D. CONCLUSION If Taylor receives a 21-month or lower sentence, that sentence would already effectively be served based on his current time served plus good time credit. If Taylor is sentenced to any more time than 21 months, he respectfully requests he be allowed to serve the remainder of the sentence (maximum 33 months) to be served on home confinement. Taylor would also request that if he is sentenced to home confinement that the order reflect that Taylor report to probation services to begin serving his sentence rather than probation services be order to establish the

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home confinement (since a delay would occur and Taylor could possibly be transported to Florence or Taft prior to the establishment of the home confinement). RESPECTFULLY SUBMITTED this 17th day of September 2007.

ROSENQUIST & ASSOCIATES

By:

/s/ Anders Rosenquist Anders V. Rosenquist Attorney for Defendant

ORIGINAL filed this 17th day of September 2007 with: Office of the Clerk Arizona District Court ECF System COPY delivered this 17th day of September 2007 to: John Robert Lopez, IV John Joseph Tuchi US Attorney's Office Two Renaissance Square 40 N. Central Avenue Suite 1200 Phoenix, AZ 85004-4408 By: /s/ Florence M. Bruemmer

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