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

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Peter B. Keller, Esq. Attorney at Law 115 W est W ashington Street Tucson, Arizona 85701 Telephone:(520) 622-3909 Facsimile: (520) 628-8010 e-mail: [email protected] State Bar No: 003948

UNITED STATES DISTRICT COURT 7 8 9 10 11 vs. 12 JOSE ANTONIO ARMENTA-CARRILLO 13 Defendant. 14 15 16 17 18 I. 19 The Defendant Jose Antonio Armenta-Carrillo objects to Paragraphs 16, 23, and 52 of the 20 Draft Pre-Sentence Report, insofar as those calculations are based on a conclusion that Mr. Armenta21 Carrillo was responsible for 276 kilograms of marijuana. It is the position of the Defendant that the 22 Court should recognize this as a case to be treated pursuant to Application Notes 12 and 14 to 23 Section 2 D1.1 of the Federal Sentencing Guidelines, which provides a special perspective for 24 "reverse stings." 25 26 II. 27 In general, the Base Offense Level in a drug case is set by reference to a table which assigns 28 a level based on the quantity of drugs involved. Section 2 D1.1 Federal Sentencing Guidelines. In SECTION 2 D1.1 AND APPLICATION NOTES 12 AND 14 INTRODUCTION It is expected that excludable delay under Title 18, United States Code, Section §3161(h)(1)(F) will occur as a result of this motion or an order based thereon. UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) CR-04-570-PHX-NVW OBJECTIONS TO DRAFT PRE-SENTENCE REPORT DISTRICT OF ARIZONA

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some cases, however, the drugs are provided by law enforcement officers who are pretending to be sellers in order to discover and arrest would-be buyers; for such cases, there is a danger that the amount of drugs can be artificially increased if the officers set a price lower than the standard price. In other cases, there are negotiations but no transaction is completed; in those cases, there is the danger that a defendant will be sentenced for what he talked about but was unable to perform. In recognition of those dangers in "reverse sting" cases, the United States Sentencing Commission has added Application Notes 12 and 14 to Section 2 D1.1 of the Guidelines. Application Note 14 addresses the problem of the artificially low price by providing that in such a situation "a downward departure may be warranted." Application Note 12 addresses the problem of the unconsummated transaction by providing that if a defendant establishes that he "was not reasonably capable of providing or purchasing the agreed upon quantity" the sentencing court should exclude the amount the defendant was incapable of providing or purchasing.

III.

RELEVANCE OF APPLICATION NOTES

Both of the cited Application Notes should be considered in this case. The events of this case can be summarized as follows: an informant told DEA agents that Mr. Armenta-Carrillo knew people who could purchase large amounts of marijuana, then introduced the agents to Mr. ArmentaCarrillo as would-be-sellers. Negotiations ensued during which Mr. Armenta-Carrillo made various representations about potential buyers. The agents wanted Mr. Armenta-Carrillo to introduce them to the buyers or at least show the agents the money these buyers had for buying marijuana, but Mr. Armenta-Carrillo was unable to do so. It is conceded that Mr. Armenta-Carrillo knew such people and that he was truly trying to put a transaction together, but the fact remains that he was not able to produce either money or people for the agents. Eventually the agents simply provided 276 kilograms of marijuana for Mr. Armenta-Carrillo to take to the buyers and arrested him soon after he took possession, without ever meeting any buyers or seeing any money. It is submitted that Application Note 12 is involved because of the lack of evidence that Mr. Armenta-Carrillo was "reasonably capable" of buying 608 pounds of marijuana; the fact that the 2

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agents gave him that much marijuana does not establish reasonable capability to buy it. Similarly, Application Note 14 is involved because in effect the price to Mr. Armenta-Carrillo was reduced to nothing.

IV.

CONCLUSION

The Court is requested to consider Application Notes 12 and 14 to Section 2 D1.1 and impose a sentence substantially lower than the range calculated in the Draft Pre-Sentence Report. Such a sentence would be consistent not only with the Guidelines but also with the sentencing goals set forth in 18 U.S.C. § 3553(a).

RESPECTFULLY SUBMITTED this 16th day of February

2006.

s/ Peter B. Keller Peter B. Keller, Esq. Attorney for Defendant Armenta-Carrillo

I, Monica Acuña hereby certify that a Copy hereof was delivered electronically or by other means on this 16th day of February , 2006, to: Tim Andrews, Esq. Assistant United States Attorney Yuma, Arizona 85364 Jon Evanko United States Probation Officer 405 W. Congress, Suite 2400 Tucson, Arizona 85701-5022 s/ Monica Acuña Monica Acuña 3

Case 2:04-cr-00570-NVW

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