Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona TIMOTHY F. ANDREW S Assistant United States Attorney Arizona State Bar No. 021658 4035 South Avenue A Yuma, Arizona 85365 Telephone: (928) 344-1087 Email: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-04-570-PHX-NVW Plaintiff, v. Jose Antonio Armenta-Carillo, Defendant. GOVERNMENT'S RESPONSE TO DEFENDANT'S OBJECTION TO PRE-SENTENCE REPORT

The United States of America, by and through undersigned counsel, hereby submits this Response to Defendant's Objection to Pre-sentence Report. For the reasons stated forth in the accompanying Memorandum of Points and Authorities, the Government contends that a downward sentencing adjustment under application notes 12 and 14 to USSG § 2D1.1 is unwarranted and asks that the Court overrule Defendant's objection. Respectfully submitted this 22nd day of February 2006.

PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy F. Andrews TIMOTHY F. ANDREWS Assistant United States Attorney

Case 2:04-cr-00570-NVW

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MEMORANDUM OF POINTS AND AUTHORITIES FACTS AND PROCEDURAL HISTORY Defendant Jose Antonio Armenta-Carrillo was arrested along with Christopher Delcid on April 15, 2004 after an undercover officer with the Drug Enforcement Administration gave Defendant 267 kilograms of marijuana. The Government subsequently prosecuted Defendant for conspiring to distribute 100 kilograms or more of marijuana and for possessing with intent to distribute that marijuana. The defendant later entered into a plea agreement and pleaded guilty. According to the pre-sentence report, the base offense level for the instant offense is 26. On February 16, 2006, Defendant filed an objection to this base offense level arguing that, under application notes 12 and 14 to USSG § 2D1.1, he is entitled to a base offense level that is less than 26 because his arrest resulted from a "reverse sting" operation.

LAW AND APPLICATION A "reverse sting" is the term given to a drug transaction where a government agent poses

as a supplier and delivers a controlled substance to another person. See USSG §2D1.1, comment (n.14). In such circumstances, a downward departure is warranted when the government agent sells or delivers more marijuana than what was bargained for or where the agent facilitated the transaction by setting an artificially low price for the controlled substance. Id. In the instant case, Defendant agreed to purchase marijuana for a price of $600 per kilogram, in an amount up to one ton. PSR ¶7. The wholesale price of marijuana in Yuma ranges between $250 to $500 per pound ($550 to $1,100 per kilogram); and, because the negotiated price of $600 per kilogram falls within this range, there has been no artificial deflation
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. The fact that Defendant did not pay for the marijuana before he took possession

does not impact the analysis.

This value range was obtained from information compiled by the Yuma Resident Office of the Drug Enforcement Administration's quarterly drug report.

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C.

CONCLUSION The reverse sting operation in the instant case did not result in Defendant getting more

marijuana than he bargained for. Therefore, a downward departure from the properly calculated base offense level of 26 is not warranted under the circumstances. The government asks that the Court overrule Defendant's objection

Respectfully submitted this 22 nd day of February 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy F. Andrews TIMOTHY F. ANDREWS Assistant United States Attorney

CERTIFICATE OF SERVICE I hereby certify that, on February 22, 2006, I transmitted the attached document to the clerk's office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Peter Keller Attorney for Defendant 115 W. Washington Street Tucson, AZ 85701 I hereby further certify that, on February 22, 2006, I transmitted the attached document by fax to the following, who are not registered participants of the CM/ECF filing system. Jon Evanko United States Probation Officer Sandra Day O'Connor U.S. Courthouse, Suite 260 401 West Washington Street, SPC 8 Phoenix, AZ. 85003 Fax No. (602) 322-7409

by: s/ Timothy F. Andrews

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Case 2:04-cr-00570-NVW

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Filed 02/22/2006

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