Free Objection to Presentence Investigation Report - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Plaintiff, ) ) vs. ) ) Marcial Avila-Anguiano, ) ) __________________________ ) Case No. CR 04-594-PHX-ROS OBJECTIONS TO PRESENTENCE REPORT

8 United States of America, 9 10 11 12 13

COMES NOW the Defendant, Marcial Avila-Anguiano, by and

14 through undersigned counsel, and objects to the presentence report 15 as follows: 16

Understanding that Marcial Avila-Anguiano has been

17 convicted by a jury duly empaneled before this Court of Count 1, 18 conspiracy to commit hostage taking; Count 2, hostage taking; 19 Count 3 possessing, using or carrying a firearm during and in 20 relation to a crime of violence; and Counts 4 through 6, bringing 21 illegal aliens to the United States for financial gain, Defendant 22 objects to the sum and substance of the charges found in paragraph 23 1 and the explanation of the offense conduct found in paragraphs 24 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the presentence report. 25

As an aside, undersigned counsel plans to have a pro se

26 notice of appeal signed by Marcial Avila-Anguiano on the day of 27 sentencing so that his appeal procedures may be expedited by the 28 Court allowing undersigned counsel to withdraw after sentencing

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1 with the promise by undersigned counsel that he will file before 2 leaving the courthouse the day of sentencing the pro se notice of 3 appeal that will be signed by the Defendant. 4

As far as the calculations made by United States

5 Probation Officer Beth R. Stewart, undersigned counsel could find 6 no error in same. 7

The Court will be asked to consider 18 U.S.C. § 3553,

8 which not only considers the need to promote respect for the law, 9 to protect the community from future crimes committed by the 10 Defendant, but also to provide just punishment.

This concept

11 dovetails with request for a downward departure pursuant to 12 U.S.S.G. 5K2.0 concerning disparity between sentences of 13 codefendants. 14

Codefendant Eric Montiel-Lopez entered a plea of guilt He was

15 to a one count information on the 16th day of August, 2005.

16 initially charged with substantially the same conduct as defendant 17 Avila-Anguiano.

Marcial Avila-Anguiano has a criminal history

18 category of I, and under information and belief, Eric Montiel19 Lopez's criminal history category is higher.

Eric Montiel-Lopez

20 was sentenced to a term of imprisonment of 46 months in the Bureau 21 of Prisons, again, for allegedly committing the same conduct for 22 which the jury found Mr. Avila-Anguiano guilty. 23

Similarly, codefendant Arturo Chacon-Roca plead guilty

24 to an information charging him with bringing illegal aliens into 25 the United States and he was sentenced on May 16, 2005, to 36 26 months in the custody of the Bureau of Prisons. 27

Undersigned counsel is writing this objection with the

28 advantage of having seen the sentencing recommendation authored by

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1 the presentence report writer.

The recommendation is for 180

2 months of incarceration to be followed by a term of 120 months 3 running consecutively.

It is understood that the recommendations

4 for Counts 1, 2, 4, 5 and 6 could have been greater and could have 5 been requuested to run consecutively.

However, that his

6 codefendants, who participated in the same activity, would be 7 receiving sentences in which they will someday (and comparatively 8 soon) be able to get on with their lives, presumably in the way 9 nature intended, compared to the 25 year sentence (300 months) 10 seems mighty unfair and contravenes the just punishment provision 11 of 18 U.S.C. § 3553. 12

Defendant understands that the Court has no leeway with

13 the statutory 120 month sentence which derives from Count 3 14 (possession, using and carrying a firearm during and in relation 15 to a crime of violence, 18 U.S.C. § 924(c)).

Marcial Avila-

16 Anguiano is asking this Court to downward depart in the sentence 17 on Counts 1, 2, 4, 5, and 6 (concurrently) in an amount 18 significantly less than 180 months.

In addition to a downward

19 departure, Mr. Avila-Anguiano is asking this Court to consider the 20 sentencing guidelines as advisory and sentence the Defendant to a 21 term similar to his codefendants, understanding that the 924(c) 22 ten year consecutive sentence is mandatory. 23

In U.S. v. Caperna, 251 F.3d 827 (9th Cir. 2001), the

24 court stated: 25 26 27 28

Under the federal sentencing guidelines, a district court may depart from the applicable guidelines range if "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree not adequately taken into consideration by the sentencing commission in formulating the 3

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guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b)(2000). Prior to 1996, we consistently held that disparity among codefendants' sentences was never an appropriate factor for departing from an applicable guidelines range. See, e.g., United States v. Mejia, 953 F.2d 461, 467-68 (9th Cir. 1992) (disallowing downward departure for the purpose of avoiding unequal treatment of co-defendants); United States v. Carpenter, 914 F.2d 1131, 1135-36 (9th Cir. 1990) (same); United States v. Enriquez-Munoz, 906 F.2d 1356, 1359-60 (9th Cir. 1990) (disallowing upward departure for the purpose of equalizing sentences among co-defendants). Then, in 1996, the Supreme Court for the first time provided substantial guidance to sentencing courts when determining whether a particular factor is a permissible basis for departure. See Koon, 518 U.S. at 92-96. Some factors, such as race, sex, national origin, creed, religion, socioeconomic status, lack of guidance as a youth, drug or alcohol dependence, and economic hardship, are never proper bases for departure. Id. at 93; see also U.S.S.G. §§§§ 5H1.4, 5H1.10, 5K2.12 (2000). With the exception of these factors, however, sentencing courts have discretion to determine whether a factor warrants departure in a particular case. Koon, 518 U.S. at 93. Three years later, in United States v. Daas, we addressed whether, in light of Koon, a district court has the authority to depart downward on the basis of disparity in sentencing among co-defendants. 198 F.3d 1167, 1180-81 (9th Cir. 1999). Following Koon's instruction, we observed that the guidelines do not specifically prohibit departures on the basis of disparate co-defendant sentences. Id. Accordingly, we held that a "[d]ownward departure to equalize sentencing disparity is a proper ground for departure under the appropriate circumstances." Id. We remanded the case without expressly identifying what circumstances would make a departure appropriate and what circumstances would not. Id. 251 F.3d at 830-831 (Emphasis Added.) The government may argue that a downward departure to 4

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1 equalize the sentencing between Mr. Avila-Anguiano and 2 codefendants Arturo Chacon-Roca and Eric Montiel-Lopez is not 3 appropriate in this case because the codefendants were not 4 convicted of the same offense as the Defendant.

However, it is

5 the prosecution who offers pleas and in Eric Montiel-Lopez's 6 situation, he was offered a one count information of harboring 7 illegal aliens and Arturo Chacon-Roca was offered, by the 8 government, an information charging bringing illegal aliens into 9 the United States, which both codefendants accepted.

The indicted

10 conduct, and the conduct which is the subject paragraphs 1 through 11 11 of the presentence report is the same conduct in which all 12 three defendants were involved. 13

Marcial Avila-Anguiano has always been a hard worker. He

14 With his wife, he sold tamales while residing in California. 15 worked for approximately four years at an aluminum plant as a 16 forklift/heavy equipment operator in California. 17 worked on a ranch. 18

In Mexico he

It is understandable that codfendants like Eric Montiel-

19 Lopez and Arturo Chacon-Roca should be rewarded for admitting 20 their guilt, accepting responsibility, and saving the government 21 the cost of a trial, but on the other hand the discrepancies 22 should not be so high as to exhibit an outrageous disparity in 23 terms of imprisonment just because Marcial Avila-Anguiano asked 24 the United States government to take him to trial.

In this case,

25 the jury found him guilty, but still proportionality must be 26 considered in a meaningful sense.

Undersigned counsel recognizes

27 that the government can argue that the recommendation of 25 years 28 is a substantial departure from what Mr. Marcial Avila-Aguiano

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1 could have received, but at the same time, Mr. Marcial Avila2 Anguiano is a man who is a member of a family as detailed in 3 paragraph 43 on page 8 of the presentence report and who has his 4 own family with his own children, Jose Cruz Avila, four, and 5 Gladys Michelle Avila, two, who are both United States citizens 6 but are now living in Mexico and probably have not seen their 7 father for an extraordinarily long period of time. 8

In light of the above, whether this Court grants a

9 downward departure, acts upon the sentencing guidelines as if they 10 truly are advisory, or both, a sentence for Counts 1, 2, 4, 5 and 11 6 of 36 months would serve all the masters of 18 U.S.C. §3553. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

RESPECTFULLY SUBMITTED this 6th day of January, 2005. PHILIP A. SEPLOW, ESQ.

By: s/Philip A. Seplow Philip A. Seplow, Esq. Attorney for Defendant

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CERTIFICATE OF SERVICE

X I hereby certify that on January 6, 2006, I electronically transmitted the attached document to the Clerk's Office using the 3 CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 4 Joseph Koehler, Esq. ASSISTANT UNITED STATES ATTORNEY 5 X I hereby certify that on January 6, 2006, I served the attached document by First Class Mail on the following, who are not registered 7 participants of the CM/ECF System: 8 Beth R. Stewart U. S. PROBATION OFFICER 9 Sandra Day O'Connor U.S. Courthouse - SPC 7 401 West Washington - Suite 160 10 Phoenix, AZ 85003 11
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S/ Philip A. Seplow

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