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

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FULLER LAW OFFICE, P.L.C. 7551 South Willow Drive Suite 102 Tempe, Arizona 85283 Telephone: (480) 345-1315 Facsimile: (866) 332-4288 DAVID R. FULLER State Bar No. 013007 Attorney for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, ) ) Plaintiff, ) ) vs. ) ) LARRY JAMES RADY, ) ) Defendant. ) ______________________________)

Case No. CR-04-00585-001-PHX-FJM DEFENDANT'S OBJECTIONS TO PRE-SENTENCE REPORT

Defendant, LARRY JAMES RADY, herein files his objections to the presentence report as follows: With two exceptions, defendant takes no position as to the information contained in pages 1-3 which is essentially correct. First, it is respectfully requested that the number of presentence incarceration days be changed from 719 days to 844 to reflect the current amount of presentence incarceration. Second, the defendant's correct age is now 51. Defendant's objections are as follows: OBJECTIONS: ¶s 6 thru 8: The bulk of the statements contained in paragraphs 6 thru 8 appear to be statements obtained from police reports surrounding an entirely different and unrelated alleged

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offense. The evidence in that alleged incident came directly from statements from a defendant that was trying to deflect culpability onto another person. There was no indication that there was any independent, unbiased witnesses or physical evidence linking Mr. Rady to that alleged offense. That alleged offense is an unadjudicated matter for which defendant is presumed to be innocent. It is respectfully requested that this Honorable Court disregard the material in paragraphs 6 thru 8 and not use it in any manner to determine an appropriate sentence. When Mr. Rady changed his plea to guilty, he agreed to the elements and factual basis as outlined on pages 7 and 8 of his plea agreement. Consequently, it is respectfully requested that this Honorable Court only consider those facts specifically acknowledged and agreed to by Mr. Rady in assessing the proper sentence in this matter. See e.g., Blakely v. Washington, 124 S. Ct. 2531; 159 L. Ed. 2d 403 (2004). ¶ 21: Mr. Rady objects to the court finding that he is to be "held accountable

for the firearm possessed during the March 22, 2004 robbery", for the reasons stated above in objection to ¶s 6 thru 8. However, since USSG 2K2.1(b)(1)(A) allows for a 2 level enhancement for possession of 3-7 firearms it is agreed that a two level enhancement is appropriately considered in this instance. ¶ 23: Mr. Rady objects to the proffered enhancement pursuant to 2K2.1(b)(5)

for the reasons stated above in objection to ¶s 6 thru 8. See e.g., Blakely v. Washington, 124 S. Ct. 2531; 159 L. Ed. 2d 403 (2004). ¶27: If the court accepts Mr. Rady's objections outlined above, the adjusted

offense level would be calculated as follows: Base Offense Level [See, USSG 2K2.1(a)(4)(B)(i)]: 2 level increase for 4 firearms [See, USSG 2K2.1(b)(1)(A)] 2 level increase per ¶ 22 [See, USSG 2K2.1(b)(4)] 20 +2 +2

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Adjusted Offense Level (Subtotal) ¶ 28: Chapter 4 Enhancement (Armed Career Criminal) [See, 4B1.4(b)(3)] ¶ 29: ¶ 30: Acceptance of Responsibility [See, 3E1.1(a)&(b)] Total Offense Level:

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¶s 39 thru 55: Although Mr. Rady objects to many of the factual conclusions and commentary included in these paragraphs, the fact remains that the records do appear to accurately reflect the dispositions associated with Mr. Rady's criminal history. Consequently, this general objection is not one that should effect the court's determination of the accurate criminal history category. It appears that pursuant to USSG 4B1.4 (c)(2), Mr. Rady's criminal history category should be VI. ¶s 60 thru 74: Mr. Rady objects to any consideration being given to these unadjudicated matters, for which he is presumed to be innocent. See e.g., Blakely v. Washington, 124 S. Ct. 2531; 159 L. Ed. 2d 403 (2004). CONCLUSION: The statutory minimum sentence Mr. Rady is eligible to receive is fifteen (15) years. The presentence report and recommedation suggests that the appropriate advisory guideline range is between 188-235 months. The parties have stipulated, pursuant to Fed. R. Crim. P. 11 (c)1)(C), that the defendant's sentence shall not exceed the bottom of the advisory guideline range, unless the advisory guideline range is lower than the mandatory minimum sentence. The government has moved for a downward departure requesting the statutory minimum, as has the defendant. It is respectfully suggested that if this Honorable Court is going to accept the plea agreement that the allowable range of sentences is between 180-188 months. It is further respectfully requested that this Honorable Court sentence Mr. Rady to the statutory minimum term of 180 months.

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RESPECTFULLY SUBMITTED this September 13th, 2006.

FULLER LAW OFFICE, P.L.C.

/s David R. Fuller Attorney for Defendant

ORIGINAL filed via CM/ECF and courtesy copy of the foregoing emailed on September 13th, 2006 to: Honorable Frederick J. Martone United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington St., SPC 62 Phoenix, Arizona 85003-2158 [email protected] *Hard copy also mailed to the court Larry James Rady *Hard copy only mailed to client Gary M. Restaino Assistant United States Attorney [email protected] Jeannie Moreno U.S. Probation Office [email protected]

/s David R. Fuller Attorney for the Defendant

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