Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOSEPH E. KOEHLER Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 13288 Telephone (602) 514-7500

UNITED STATES DISTRICT COURT 8 DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. Marcial Avila-Anguiano, Defendant. The United States, through undersigned counsel, respectfully requests the Court overrule the defendant's objections to the presentence report. The defendant's objections are not really objections, but rather a request for downward departure, which the government likewise requests the Court deny. The defendant contends he should receive a sentence of 6 to 36 months for counts 1,2, 4, 5 and 6, based on a claim of disparity between the sentence he faces under the Sentencing Guidelines and those received by his co-defendants. The defendant's claim is misplaced in a number of respects. First, the defendant faces a five-year minimum mandatory sentence for his third conviction for bringing illegal aliens to the United States (Count 6). See United States v. Gonzalez-Torres, 309 F.3d 594, 601-02 (9th Cir. 2002). This mandatory minimum, however, pales in comparison to the Sentencing Guideline range of life imprisonment that applies in this case. The Sentencing Guideline range for the hostage taking offenses in this case is life imprisonment. PSR ¶ 54. The defendant does not dispute this calculation, but rather complains that the disparity between this range and the sentences imposed on his co-defendants is unfair
Case 2:04-cr-00594-ROS Document 116 Filed 01/19/2006 Page 1 of 3

United States of America, No. CR 04-594-03 PHX ROS Plaintiff, RESPONSE TO DEFENDANT'S OBJECTIONS TO PRESENTENCE REPORT

1 and serves as an appropriate basis for downward departure or variance from the advisory 2 Sentencing Guidelines. Co-defendant Arturo Chacon-Rocha received a sentence of 36 months 3 of imprisonment, and co-defendant Erick Montiel-Lopez received a sentence of 46 months of 4 imprisonment. The defendant readily acknowledges that his co-defendants entered guilty pleas 5 to different charges. What the defendant does not mention is the difference in circumstances 6 between himself and Arturo Chacon-Rocha, along with the fact that the defendant had the exact 7 same plea offer as that accepted by Erick Montiel-Lopez. 8 The testimony of the material witnesses in this case clearly demonstrated that Arturo

9 Chacon-Rocha, aka Chino, was the cook in the house in which the material witnesses were held. 10 The witnesses testified that Chacon-Rocha did not threaten them or treat them badly. The 11 responsibility for that conduct lied with the defendant and co-defendant Montiel-Lopez, along 12 with an unknown third party. Thus, disparity between the defendant's potential sentence as a 13 hostage-taker with that of a cook in the residence is not a sufficient basis to justify this Court's 14 exercise of discretion to depart or vary from the advisory Sentencing Guideline range. 15 Co-defendant Erick Montiel-Lopez engaged in substantially identical conduct, but entered

16 a guilty plea to a different offense, harboring illegal aliens. This plea was offered at a time when 17 the government's material witnesses had recently moved and could not be located. The 18 government, recognizing the entire case likely would be lost without the testimony of the 19 material witnesses, gave both the defendant and Montiel-Lopez a very generous plea offer in 20 order to salvage the case with a conviction for an offense that would ensure the defendants' 21 removal from the United States. Montiel-Lopez elected to accept the plea offer and received a 22 sentence of 46 months of imprisonment. The defendant elected to gamble that the government 23 would not locate the material witnesses and would have to dismiss the case. Had he accepted 24 the offer, the defendant likely would have been eligible for a sentence of time served (because 25 his criminal history score is lower than that of Montiel-Lopez) and quite possibly would be in 26 Mexico by now. Unfortunately for the defendant, his gamble failed when the agents were able 27 to locate the witnesses approximately one week prior to the re-scheduled trial date. 28 Thus, the disparity between the sentence the defendant faces under the Sentencing Guidelines for the hostage taking offense and the sentences received by his co-defendants is a
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1 disparity of the defendant's own making. The defendant chose to gamble for the prospect of 2 dismissal and lost. This Court should not reward the defendant by equalizing his sentence with 3 those of his co-defendants when the other side of the gamble likewise would have left the 4 defendant in an unequal situation, a free man with no felony record. 5 The range provided in the Sentencing Guidelines for the defendant's convictions is

6 appropriate. One mistake with the AK-47 firearm that the defendant brandished could have led 7 to numerous deaths inside the house. The defendant acted in a cruel manner to the material 8 witnesses in order to compel their nephew to pay a ransom for their release. 9 Recognizing that this Court has discretion to vary from the advisory Sentencing Guideline

10 range in this case, the government respectfully requests the Court decline to grant such a 11 variance due to the gravity of the defendant's conduct and because any disparity in sentencing 12 is one of the defendant's own making. 13 14 15 16 17 18 19 20 21 22
Copy of the foregoing faxed and mailed this date to: Copy of the foregoing served this date via transmittal of Notice of Electronic Filing to CM/ECF registrant(s):: Philip Seplow 2000 North Seventh Street Phoenix, Arizona 85006

Respectfully submitted via CM/ECF this 19 day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /s Joseph E. Koehler Joseph E. Koehler Assistant U.S. Attorney

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Beth R. Stewart United States Probation Officer

Case 2:04-cr-00594-ROS

Document 116

Filed 01/19/2006

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