Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona GARY M. RESTAINO Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 017450 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-585-PHX-FJM Plaintiff, v. Larry James Rady, Defendant. The United States, through counsel undersigned, responds to defendant's objections to the PSR concerning defendant's pending armed robbery charge. Defendant contends that the pending state armed robbery charge should not adjust his offense level upward by four levels under U.S.S.G. § 2K2.1(b)(5) (use of any firearm in connection with another felony offense). The government agrees, because none of the firearms identified in the instant indictment were alleged to have been used in the armed robbery. The Guideline sentence, as defendant concedes, remains the same, and this Court should accept the plea agreement, adopt the Probation Officer's recommendation of offense level 31, criminal history category VI, and then determine a reasonable sentence. The government recommends a sentence of 180 months, at the mandatory minimum, as a reasonable sentence in this case. Defendant also contends that paragraphs 6-8 of the PSR, which recount the armed robbery allegations, and defendant's alleged role in that separate offense based on his implication by a co-defendant, should be stricken. The contents of the PSR are set by Rule. Fed. R. Crim. P. 32(d)(3) does not specifically exclude pending charges from the contents of the PSR, and
GOVERNMENT'S RESPONSE TO DEFENDANT'S OBJECTIONS TO THE PSR

Case 2:04-cr-00585-FJM

Document 91

Filed 09/18/2006

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1 pending charges appear to form part of defendant's "history and characteristics" which must be 2 included in the PSR pursuant to Fed. R. Crim. P. 32(d)(2)(A); as such, some or all of 3 paragraphs 6-8 may, in the alternative, be appropriate for inclusion in paragraph 63, which 4 briefly describes the pending charge. In order to provide the Court more complete information 5 on the armed robbery offense, the government notes that witnesses described the suspects as 6 young men in their late twenties or early thirties, while defendant is fifty-one. With this 7 additional information, the government defers to the Court as to whether or not the armed 8 robbery allegations should remain in the PSR. 9 10 11 12 13 14 15 CERTIFICATE OF SERVICE 16 I hereby certify that on this date, I electronically transmitted the attached document to the 17 Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: David Fuller. 18 19 20 21 22 23 24 25 26 27 28 2 PAUL K. CHARLTON United States Attorney District of Arizona s/ Gary Restaino GARY M. RESTAINO Assistant U.S. Attorney Respectfully submitted this 18th day of September, 2006.

Case 2:04-cr-00585-FJM

Document 91

Filed 09/18/2006

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