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

LAW OFFICES OF THOMAS JACOBS 271 North Stone Avenue Tucson, Arizona 85701 PHN : (520) 628-1622 FAX : (520) 628-4534 Thomas Jacobs, Esq. State Bar No. 013275 P.C.C. No. 64489 Attorney for: JUAN FELIX. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, v. JUAN FELIX, Defendant. ) ) ) ) ) ) ) ) ) )

No. CR04-403-02-PHX-ROS

DEFENDANT'S OBJECTIONS TO PRESENTENCE REPORT AND FINAL RECOMMENDATION

Defendant, by and through his attorney, THOMAS JACOBS, hereby submits his objections to the Final Presentence Report prepared in this matter. Defendant submits that the Final Presentence Report improperly fails to consider the possibility of departure from the Guideline range based upon USSG 3B1.2 (minor/minimal role in the offense). SPECIFIC OBJECTIONS: PARAGRAPHS 19,21 & 23:: Defendant objects to Paragraphs 19, 21 and 23 of the Presentence Report, which include no reduction of the offense level for role in the offense. Defendant is entitled to a role reduction consideration for his role as a courier. ...

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I.

DEFENDANT IS ENTITLED TO DEPARTURE FOR MINOR ROLE IN THE OFFENSE. Application Note to §3B1.2, U.S.S.G., provides that a person may be deemed to

have had a minimal role in an offense if that person had limited understanding of the larger scheme or plan of the offense, and filled the role of a courier for a single, small transaction involving a small amount of drugs. See e.g. U.S. v. Christman, 894 F.2d 339 (9th Cir. 1990). Minimal role in an offense entitles a defendant to consideration for a 4 level

departure. §3B1.2. The November, 2002 amendments to the Guidelines significantly changed the posture of the instant case. Based on the amount of drugs involved herein, defendant's base level offense is 36 PSI ¶16, p.5. Under the new amendment, with consideration for minor role, the base level should be 30 and defendant's adjusted level should be 28. In November, 2002, U.S.S.G. § 2D1.1(a)(3) was amended to place a level 30 cap on drug offenders who have a mitigating role in the offense. Furthermore, application note 3 to the commentary under USSG § 3B1.2 was amended to allow for a minor role reduction in cases such as the instant one. That note then held, at subparagraph (A): A defendant who is accountable under §1B1.3(relevant Conduct) only for the conduct in which the defendant personally was involved and who performs a limited function in concerted criminal activity is not precluded from consideration for an adjustment under this guideline. For example, a defendant who is convicted of a drug trafficking offense whose role in that offense was limited to transporting or storing drugs and who is accountable under §1B1.3 only for the quantity of drugs the defendant personally transported or stored is not precluded from consideration for an adjustment under this guideline. (Emphasis supplied).1

Subsequent amendment provided that offenses of level 36 or higher would be reduced to a base offense level of 34.

1

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In the instant case, Defendant's role was only to accompany the owner of the drugs to a location where a deal would be negotiated and a sample provided. His role in the offense, as outlined in the presentence report, was considerably less involved than co-defendant Felix-Yanez. Although the PSR, at ¶7 & 8, attributes participation in negotiation to both Felix-Yanez, and the Defendant, it was Felix-Yanez who did all of the negotiation. Defendant was simply there to accompany Felix-Yanez. He didn't even realize the type of drugs or the amount he was involved with. The Presentence Report omits any recommendation for a role adjustment (See ¶17. The Report further states, at ¶58 and 59, p.10, that there are no other bases for departure. No one, including the Government, is alleging that the Defendant was

anything other than a limited player in a much larger conspiracy. In fact, when these courier cases go to trial, where the defendant claims he had no knowledge of the drugs in the vehicle, the government regularly presents expert witnesses to testify that couriers are never unwitting and to explain the absence of their fingerprints from the drug packages. See e.g. United States v. Murillo, 255 F.3d 1169 (9th Cir. 2001);
th United States v. Cordova, 104 F.3d 225 (9 Cir. 1997).

In these trials, the government expert testifies that the lack of fingerprints is due to the fact that the defendant played a minor, limited role in the conspiracy, and that others were employed to handle the drugs and load them into the vehicle. In fact, the government experts often testify that the couriers have no knowledge of the type or quantity of the drugs they are transporting and occupy the lowest rung on the organization's latter. Application Note 2 to U.S.S.G. § 3B1.2 does not prohibit applying a minor role

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adjustment in these cases. In fact, that note states, in pertinent part, "[A]n adjustment under this guideline may not apply to a defendant who is the only defendant convicted of an offense unless that offense involved other participants in addition to the defendant and the defendant otherwise qualifies for such an adjustment." (emphasis supplied). In this case, although the Defendant was the only person convicted of the offense, he was clearly not the only participant, and otherwise qualifies for a role adjustment. The Ninth Circuit has recognized that single defendants may receive the benefit of a role reduction under § 3B1.2. United States v. Demers, 13 F.3d 1381 (9th Cir. 1994), citing United States v. Webster, 996 F.2d 209 (9th Cir. 1993). In Webster, the Court held that the Guidelines now allowed for role adjustments in single defendant courier cases: We agree with the Court of Appeals for the District of Columbia Circuit that for a defendant to be eligible for a minor participant adjustment where he was the sole participant in the offense of conviction, the evidence available to the court at sentencing must, at a minimum, show (i) that the "relevant conduct" for which the defendant would, within the meaning of section 1B1.3(a)(1), be otherwise accountable involved more than one participant (as defined in section 3B1.1, comment. (n.1)) and (ii) that the defendant's culpability for such conduct was relatively minor compared to that of the other participant(s). United States v. Caballero, 290 U.S. App. D.C. 235, 936 F.2d 1292, 1299 (D.C. Cir., 1991). Id at 212. See also, United States v. Yager, 328 F.3d 1008 (8th Cir. 2003) (acknowledging that minor participant roles may be awarded in single defendant cases). Under Webster, in order to qualify for a minor or minimal role adjustment, Defendant need only show that his role was relatively minor compared to that of the other participants. In fact, the definition of a minimal participant is one whose "lack of knowledge or understanding of the scope and structure of the enterprise and of the

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activities of others" indicates he is among the least culpable of those involved in the group. U.S.S.G. § 3B1.2, note 1. Minor participants are those "less culpable than most other participants, but whose role could not be described as minimal." Id., note 3. Either definition describes appellant herein. In the case of United States v. Valdez-Gonzalez, 957 F.2d 643 (9th Cir. 1992), the Ninth Circuit recognized that a downward departure is proper for persons smuggling drugs across the Mexican/American border in cars when that person's role was limited to being a courier. Defendant in the instant case played a very limited role in a much larger scheme involving the manufacture of methamphetamine, the transporting and smuggling of the drug from the lab where it was manufactured to the city where it was placed in the car Defendant was riding in, the packaging of the drug, and the anticipated functions of bringing the drugs to Arizona and then to a distribution city such as Los Angeles, the breaking down of the load into smaller amounts, the coordination and sale of the drugs all the way down to the ultimate purchaser on the street, and the subsequent laundering of the cash receipts. Defendant had nothing to do with any of this, yet he is taking the responsibility for all involved. A role adjustment is warranted. See United States v. Diaz-Cardenas, 351 F.3d 404 (9th Cir. 2003) (defendant courier arrested at the border who went to trial with a "no knowledge" defense properly denied safety valve and acceptance of responsibility, but he received a minor role adjustment). Finally, the fact that Defendant was unaware of the quantity he was involved with is grounds for applying a minor or minimal role. If the high guideline levels based solely on quantity and type of drug are related to criminality, it is based upon the fact that the larger the quantity of certain drugs, the more culpable the individual is who possesses

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them.

If, however, the Defendant did not know what quantity of drug he was

transporting, and had no control over that, then a departure is appropriate. Recognizing this very problem, the Sentencing Commission amended the Guidelines to allow for a cap of the base level of the offense at level 30 in cases just like appellant's herein. Given that this situation is virtually identical to that outlined in the current version of Application Note 3(A), commentary under USSG § 3B1.2, defendant should have been given a role reduction as a minimal or minor participant in the offense, and his base level should, therefore, have been capped at 30. In this case, the Defendant acted in the role of a ride-along, presumably to give the buyer the appearance that the seller (Felix-Yanez) had security and protection, in order to avoid a strong-arm seizure of the drugs by the buyer. He had no vested interest in the outcome of the transaction. He was ignorant as to the details of any such scheme beyond his role accompanying Mr. Felix-Yanez . He engaged in a single transaction involving a single quantity of drugs. Christman, supra. A departure is appropriate. CONCLUSION: Based upon the foregoing, Defendant submits that it is appropriate for the court to consider a departure for role is the offense and for savings to the Government in this matter. A minor role reduction would reduce the base offense to 30, with a 2 level further departure for role in the offense. A departure of 3 levels for acceptance of responsibility, 2 levels for safety valve would produce an adjusted offense level of 23 (46 - 57 months in Criminal History Category I). The statutory minimum is 120 months, assuming Defendant does not qualify for "safety valve." However, this would be over thirty months less than the calculated Guideline range without consideration for role in

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the offense. RESPECTFULLY SUBMITTED this 20th day of April, 2006. LAW OFFICES OF THOMAS JACOBS

By_____________________________ Thomas Jacobs, Esq. Copy of the foregoing mailed/delivered this 20th day of April, 2006, to: Hon. Roslyn O. Silver United States District Judge Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, AZ 85003 Glenn McCormick, Esq. U.S. ATTORNEYS OFFICE Two Renaissance Square 40 North Central Avenue, Suite 660 Phoenix, Arizona 85004-4408 Justine Kozac U.S. Probation Offices 401 West Washington Space 7, Suite 160 Phoenix, AZ 85003-2119 Juan Felix, #82106-008 CCA P.O. Box 6300 Florence, AA 85232

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