Free Response - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona ANDREA ANGULO GUTIÉRREZ Special Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 020477 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 The United States of America, by and through its undersigned attorney, hereby responds to Defendant's Request for a Downward Departure. The Court may depart downward if it finds the case unusual enough and that it falls outside of the heartland of cases in the Guideline. 18 U.S.C. § 3553(b), U.S.S.G., § 2K2.0, cmt. (2001). A departure for aberrant behavior may apply in an extraordinary case that consists of a single criminal occurrence or transaction, committed without significant planning, of limited duration and representing a marked deviation by the defendant from an otherwise law-abiding life. U.S.S.G., § 2K2.20, application note 1. (2001). Family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. U.S.S.G., § 5H1.6, (2001). Before a sentencing court can apply the three prong test for aberrant behavior, it must first determine that the facts of the case are extraordinary. United States v. Guerrero, 333 F.3d 1078, 1081-1082 (9 th Cir. 2002). In the case at bar, defendant purchased seventeen firearms over five separate occasions for other people over a period of two months. Detectives from Coconino County, who were United States of America, Plaintiff, v. Michael Dewayne Smith, Defendant. RESPONSE TO DEFENDANT'S REQUEST FOR DOWNWARD DEPARTURE CR-04-0677-PHX-FJM

Case 2:04-cr-00677-FJM

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investigating a homicide, seized a firearm from the suspect that was traced to defendant as the original purchaser. Detectives, along with Agents from ATF, interviewed defendant about his purchases. According to the audio tape of that interview which was disclosed to defense, defendant was initially evasive. Once the agents informed defendant they were investigating a homicide, defendant told them he had purchased the firearm for a person named "Pete." He could not provide Pete's last name because he did not know it. He did admit his actions and said he did it for the money to take care of his family. He also stated that he did not know the firearms would be used to commit a murder. Defendant also admitted his involvement in all the purchases. Defendant has no prior felony convictions and has been out of custody on pre-trial release with conditions since his initial appearance. Pursuant to the plea agreement, the United States will recommend a sentence at the low end of the applicable advisory guidelines as we believe this recommendation is reasonable. We leave the determination of whether a downward departure applies in this case to the Court's discretion. Respectfully submitted this 15th day of February, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona s/Andrea Angulo Gutiérrez ANDREA ANGULO GUTIÉRREZ Special Assistant U.S. Attorney Certificate of Service I hereby certify that on February 15, 2007, 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 CM/ECF registrants: Candace H. Kent. S/ Andrea Angulo Gutiérrez

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Copy of the foregoing mailed this 15 th day of February, 2007 to: Carlos Valentin U.S. Probation Officer 401 W. Washington St. Phoenix, AZ 85003

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