1 PAUL 14. cuaiuron mm FILED ..-.. LODGEDS
United States,./Attorney RECEIVED COW
2 DISIYICI of ATIZOHR T" ""'
3 015863 JAN 3 11 111111
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T§»8
$¤1t·=1200 01*.. . .. · ·
5 Phoenix, Arizona 85004 - ?-
Telephone (602) 514-7500
[email protected]
6
7 UNITED STATES DISTRICT COURT
8 DISTRICT OF ARIZONA
9 United States of America,
CR-04-00675-006-PHX-IAT
10 Plaintiff,
v. RESPONSE BY THE UNITED
11 STATES TO DEFENDANT’S
Jason Andrew Wahl, OBJECTION S TO FIRST DRAFT
12 PRESENTENCE REPORT
Defendant.
13 (Filed Under Seal pursuant to
order dated 11 16/2004)
14 _
15 The United States of America, by and through undersigned counsel, hereby responds to
16 defendant Jason Andrew Wahl’s Objections to First Draft Presentence Report. The defense
I 17 objects to (1) the Presentence Report ("PSR") writer’s description ofthe offense conduct, (2) the
18 extent of the mitigating role adjustment, and (3) the failure to address the defendant’ post-
19 offense, pre—sentence rehabilitative efforts. The United States will address these issues as they
i 20 were raised by the defense.
21
22 orrnnsr. conoucr
23 The defendant objects to the inclusion of the description of an undercover purchase of
. 24 drugs in which the defendant participated because it is outside the time-frame ofthe conspiracy
· 25 to which he plead guilty. The prior incident was part of the investigation that lead to the
26 discovery of the conspiracy to which the defendant plead guilty. The defendant was not held
27 responsible for the amounts of the prior transaction in paragraph 19 of the PSR. The conduct
28 is properly included in this paragraph as it describes the investigation of this matter.
Case 2:04-cr-00675-JAT Document 276 Filed O1/30/2007 Page 1 of 4
1 _ .
1 ADJUSTMENT FOR ROLE IN THE OFFENSE
2 The parties stipulated that the defendant had a minor role in the offense. The PSR writer
3 concurred and recommended a two level departure. There is not restriction on the defendant’s
4 options to argue for further departure in the plea agreement. The defendant helped Joseph Javier
5 Castillo a.k.a. Matthew Lira because of Castillo’s handicap. Castillo had to rely on others to
6 assist him in the distribution of narcotics. Castillo negotiated the purchases and sales of drugs.
7 The defendant and others then either conducted or helped conduct the transactions. The
8 defendant would help package, load and transport the drugs as directed by Castillo. The
9 defendant understood the need to assist Mr. Castillo, understood the nature of his actions and
10 voluntarily. participated in the drug trafficking activities. The defendant’s involvement with
11 Castillo was not a one-time act with little or no planning. lt also extended over a period of
12 months. While the defendant is less culpable than Castillo and others, Castillo would not have
13 been able to conduct his illegal activity without the assistance of people like the defendant.
14 U.S.S.G. § 3Bl.2 states that based on the defendant’s role in the offense, decreases are
15 appropriate as follows:
16 (a) If the defendant was a minimal participant in any criminal activity,
17 decrease by 4 levels.
18 (b) lf the defendant was a minor participant in any criminal activity, decrease
19 by 2 levels.
20 In cases falling between (a) and (b), decrease by 3 levels. (See U.S.S.G. § 3Bl.2).
21 Application note 3 in the Commentary of this section addresses the applicability of an
22 adjustment. Paragraph 5 (Minor Participant) states that it would apply to the defendant who is
23 less culpable than most other participants, but whose role could not be described as minimal.
_ 24 Under Application Note 4 to U.S.S.G. § 3Bl.2, the minimal role adjustment is reserved
25 for those who are "plainly among the least culpable of those involved in the conduct of a group."
26 Application Note 2 to the U.S.S.G. § 3B 1 .2 states, "it is intended that the downward adjustment
27 for a minimal participant is to be used infrequentl`y." See United States v. Pinkney, 15 F.3d 825,
28 828 (9‘“ Cir. 1994). A defendant has the burden of establishing by a preponderance of the
2
Case 2:04-cr-00675-JAT Document 276 Filed O1/30/2007 Page 2 of 4
I evidence that he is entitled to a downward role adjustment. United States v. Davis, 36 F.3d
2 1424, 1436 (9"‘ Cir. 1994); United States v. Torres-Rodriguez, 930 F.2d 1375, 1389 (9** Cir.
3 1991). The United States position is that the defendant’s role is not minimal and that the
4 evidence and argument proffered by the defense do not support such a finding by the Court.
5 I .
6 POST ARREST/PRE-SENTENCE REHABILITATION
7 The United States has no additional evidence ofthe defendant’s rehabilitation than that
8 proffered by the defendant in this case. The United States agrees that pre-sentence rehabilitation
9 has been held to be a permissible grounds for departure. However, the defendant must show and
10 extraordinary level of rehabilitation to qualify for this departure. The defendant has failed to
11 meet his burden by removing himself from the conspiracy and avoiding the use of
12 methamphetamine.
13 -
14 CONCLUSION
15 The govermnent opposes the defendant’s objections for the reasons set forth above.
16
17 Respectfully submitted this 30*]* day of January, 2007.
18
19 PAUL K. CHARLTON
20 HlEf§€$?E§%’2‘L%m€’
21 @1 /wMd__\ .
22 BRIAN G. L I SON
23 p Assistant United States Attorney
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Case 2:04-cr—OO675-JAT Document 276 3 Filed O1/30/2007 Page 3 of 4
1 A co y of the foregoin mai1ed this
30* <1)ay of January, 2007, to:
2 Thomas M Hoidal
3 Hoidal & Hannah, PLC
111 W. Monroe St, Ste. 1210
4 Phoenix, AZ 85003-1732
5 Mark W. Nebgen
Senior U.S. Probation Officer
6 401 W. Washington St., SPC 7, Suite 160
7 Phoenix, Arizona 85003-2119
8 By:Lea1 R. Lucy
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