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

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Patricia A. Gitre PATRICIA A. GITRE, P.L.C. 331 N. First Avenue, Suite 150 Phoenix, Arizona 85003 State Bar No: 011864 (602) 452 - 2918 fax (602) 532 - 7950 [email protected] Attorney for FULLER

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, Plaintiff, vs. ARBUARY DANIEL FULLER (6) Defendant.

No. CR04-00373-PHX-JAT OBJECTIONS TO PRESENTENCE REPORT AND MOTION FOR DOWNWARD DEPARTURE

Defendant Arbuary Fuller through counsel submits the following objections to the presentence report and motion for downward departure based on mitigating role in the offense and lost opportunity to fully serve his state and federal sentences concurrently. Sentencing is set for December 5, 2005. 1. Objection to paragraph 8 and paragraph 39. Defendant objects to the statement that he along with others "were viewed as significant participants in the offense" (paragraph 8) as well as the presentence writer's unsupported conclusions contained in paragraph 39 which states: Adjustments for Role in the Offense: None. The defendant played a significant role in the conspiracy as he opened two accounts and returned one item to the store for a refund. His actions indicate he was involved in more than one aspect of the conspiracy, although he does not appear to have been an organizer, leader, manager, or supervisor. Hence, it does not appear that a mitigating or aggravated role adjustment should be applied. Fuller agrees that he should not receive an aggravating role as there is ample evidence that certain defendants and unindicted co-conspirators were in fact, the ring leaders. According to their lead witness,
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Desiree Smith who was very involved in this conspiracy since it began in July 2000; the ringleaders of this organization were Kenneth Smith (Monster) Tick AKA Reggie (LNU) and Tone also known as "Montana. The women that assisted these ringleaders were Desiree Smith, Azizi McNeill, Joann Williams (Walters) and Renee Rios. The scheme was "well-planned" as noted by the presentence writer but not by Arbuary Fuller. The presentence reporter also notes in paragraph 28 that there were an "additional 71 defendants involved in the conspiracy who were not charged" but he summarily concludes that "[t]hese individuals were all `runners' who were simply hired to open accounts and purchase items or to return items already purchased."1 If the application of this adjustment is based solely on the balancing of the number of defendants in an aggravating role versus a mitigating role (as the presentence reporter suggests) without factually comparing a defendant's role to others in the offense, no defendant would be found eligible for this downward adjustment under any fact scenario. As this scheme was bigger than just the indicted defendants, Fuller's involvement as one of these "runners" was substantially less then other participants. USSG Section 3B1.2 provides: Based on the defendant's role in the offense, decrease the offense level as follows: (a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels. (b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels. In cases falling between (a) and (b), decrease by 3 levels. The application notes provide: 3. Applicability of Adjustment. (A) Substantially Less Culpable than Average Participant.--This section provides a range of adjustments for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant. A defendant who is accountable under 1.3 (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 1.3 only for the quantity of drugs the
Although it is possible that the FBI did not release all of it evidence to the defense in this case, it is difficult to believe that all 71 unindicted participants served only as "workers" in this elaborate scheme that crossed several states. For example, at least three other unindicted leaders, organizers, or managers --- "Little Monster," Tick and Montana---were identified by Smith and/or Fuller. The hierarchy described by Smith and Fuller clearly establishes that many others are heavily involved in this scheme that are substantially more culpable then the runners or workers, including individuals that supplied the social security numbers for the false identification cards.
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defendant personally transported or stored is not precluded from consideration for an adjustment under this guideline. (C) Fact-Based Determination.--The determination whether to apply subsection (a) or subsection (b), or an intermediate adjustment, involves a determination that is heavily dependent upon the facts of the particular case. As with any other factual issue, the court, in weighing the totality of the circumstances, is not required to find, based solely on the defendant's bare assertion, that such a role adjustment is warranted. 4. Minimal Participant.--Subsection (a) applies to a defendant described in Application Note 3(A) who plays a minimal role in concerted activity. It is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group. Under this provision, the defendant's lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant. It is intended that the downward adjustment for a minimal participant will be used infrequently. 5. Minor Participant.--Subsection (b) applies to a defendant described in Application Note 3(A) who is less culpable than most other participants, but whose role could not be described as minimal. The 9th Circuit has held that "courts must assess the defendant's culpability in relation to the other participants as defined by the Guidelines, see U.S.S.G. § 3B1.2 comment. (n. 1), not to a generic or abstract notion of what may constitute an "active role." See United States v. Benitez, 34 F.3d 1489, 1498 (9th Cir.1994) ("[T]he relevant comparison in determining whether a two-level adjustment in offense level is appropriate is to the conduct of co-participants in the case at hand."). Further, the court must evaluate all the participants not just the defendants charged in this case. In United States v. Rojas-Millan, 234 F.3d 464, 473 (9th Cir. 2000) the Court stated: A question left unanswered in Petti and Benitez is the one that we must answer today: whether the pool of "co-participants" is limited to the particular defendants standing trial in a given case, or whether it includes all actors who participated in a given criminal scheme. Unlike in Petti and Benitez, in which all the relevant participants appeared before the court, in this case prosecutors have not identified or charged every participant in the charged criminal scheme. Confronted with this situation, the district court adopted a narrow view of "co-participants," equating participants with defendants, and refused to consider other possible actors in the alleged criminal conspiracy. This narrow view cannot be squared with the Guidelines' minor participant provision's language or purpose. The Guidelines refer to minor "participants," not to minor "defendants." U.S.S.G. § 3B1.2, comment (n.3). Furthermore, a narrow view produces arbitrary results: by ignoring the actions of other participants, it subjects less culpable defendants to longer sentences simply because their more involved co-conspirators managed to escape arrest or were tried separately. We see no

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reason why the Guidelines would sanction such a regime, and we find confirmation in the language of § 3B1.2 that the intent was not to do so. [FN42] We therefore conclude that prosecutors need not identify, arrest, or try together all "participants" in a scheme (and thus transform them into "defendants") in order for the district court to consider their conduct when evaluating a particular defendant's relative role. To the contrary, we read § 3B1.2 as instructing courts to look beyond the individuals brought before it to the overall criminal scheme when determining whether a particular defendant is a minor participant in the criminal scheme. Whether a defendant is entitled to this adjustment is a fact intensive inquiry. In this case, since many of the participants were not indicted or indicted but not prosecuted (Azizi McNeill), the search for the facts must be based on an objective review of the evidence collected by the FBI and any cooperating defendant statements and the evidence regarding other participants. In September, 2000 (well after the scheme was implemented and in place), Montana called Fuller in California and asked him if he wanted to make some money. The only person that he knew was Montana. Fuller agreed because he needed the money. When he got to Arizona, he initially met included Renee Rios, Desiree Smith, Yaughn Robinson, and Montana. The trip and his living expenses were paid for by either Monster or Montana. Monster would obtain social security numbers from an unknown source and he would change the last number. Desiree Smith was the main driver for the workers because she had a car. Kenneth Smith (Monster) directed and escorted other individuals to do the check scam including Arbuary Fuller. According to Mr. Fuller, he was never told the entire scheme because the ringleaders deliberately kept that information from most of the participants and they had the scheme already planned prior to his arrival in Arizona. Monster and Montana gave them specific instructions for as to the type of merchandise to purchase and the cap on the goods purchased (i.e., Wal-Mart $500.00 or less and Target $1000 or less). All goods and refunds that were obtained as part of the scheme were given directly to Monster or Montana who would instruct others to obtain refunds on those goods. He further stated that after opening a bank account and obtaining any refunds, he was instructed to return all checks, identification cars or anything related to

FN4. We are further persuaded by text of § 3B1.1 (Aggravating Role) defining "participant" as "a person who is criminally responsible for the commission of the offense, but need not have been convicted." U.S.S.G. § 3B1.1, comment (n.1) (emphasis added). Although we recognize that this definition is not of general applicability, there is no equivalent definition included with § 3B1.2, and we see no reason to believe that the Guidelines intended courts to treat the term differently in this context.
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bank accounts to the Smith or Montana. He received approximately $2000 for his participation. According to the FBI, the loss created by Monster and Montana's scheme (that the FBI was able to investigate) is approximately $180,000 from bank accounts opened by Fuller, McNeill, Desiree Smith, Joann Walters (unindicted co-conspirator), Swan, Bagley, Rios (unindicted co-conspirator), Toussaint Walton and Yaughn Robinson (Treymayne Johnson). When the agents searched the storage center rented by Toussaint Walton, the FBI found mailings from institutions, identification cards, and checks in the name of Arbuary Fuller corroborating Fuller's statements that Monster and/or Montana required all documents to be returned to their custody. Therefore, the direction, scope and the roles each person played in this elaborate and well planned scheme was determined by the leaders and organizers, not by the persons they recruited to assist them. Desiree Smith provided the FBI information regarding her own extensive involvement in the scheme.3 She also identified the ringleaders and stated they often spoke of other types of fraudulent scams that they were involved in other states including Washington, Oregon and California. She stated that the ringleaders (Kenneth Smith -Monster, Tick AKA Reggie, and Montana) fronted necessary funds to open accounts, establish accommodations for "workers" and would be driving around in the area while `workers" were opening bank accounts or returning property to merchants for refunds. She identified Arbuary Fuller as one of the individuals that opened fraudulent bank accounts and returned merchandise for refunds. She also corroborated Fuller's statements that the ringleaders also provide instructions as to what type of merchandise should be purchased and where to go to open bank accounts. Other individuals (such as herself) working directly under the ringleader would typically transport works to banks and merchants. Further, Kenneth Smith (Monster) admitted as part of his plea agreement that he directed others to "deposit amounts in bank accounts, issue personal checks on weekends to merchants, "withdraw money from those accounts on Monday mornings" as well directing accomplices to return the goods to the selling merchants. As noted by the presentence reporter, the FBI considered Foster as the ring leader of the group with Walton and Begley providing a great deal of assistance. Montana, Little Monster, and Tick are other named

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For her cooperation and substantial assistance, Ms. Smith received pretrial diversion from the government and others will receive or have received a two level downward departure for their cooperation.

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ringleaders that have not been indicted but are indisputably participants. Notably, Fuller was not classified as ring leader or assistant to the ringleader Foster (Monster). Based on Smith's and Fuller's almost identical description of the hierarchy, Arbuary Fuller's role can only be classified as a `worker" or "runner" which was substantially less than the roles of other participants including but not limited to Foster, Walton, Begley, Robinson, Toussaint, Montana, Rios, McNeil and even Desiree Smith herself. There are no other facts that support a conclusion that his culpability is equal to or more than the defendants or other participants based on the FBI's assessment of the case. Rather, the evidence is that Fuller was simply a runner "hired simply to open account and purchase items or to return items already purchased." That is exactly what he did in this case and that limited conduct renders him substantially less culpable than other participants in this scheme. Since his participation was clearly a link in the chain of the entire scheme, Mr. Fuller does not contend he is entitled to adjustment for minimal role. However, based on his lack of knowledge of the entire scheme which expanded beyond the state of Arizona, his limited role during the life of the scheme, the lack of participation in the creation and implementation of the scheme and his role as a "worker" (as defined by Smith and the FBI), Mr. Fuller requests this court to find that he is entitled to a three or two level downward adjustment for mitigating role. 2. Motion for Downward Departure pursuant to USSG 5G1.3(c) The crime that Mr. Fuller pled to occurred in the year 2000. On July 8, 2005, the United States government applied for a Writ of Habeas Corpus Ad Prosequendum and as a result, Mr. Fuller was transferred to CCA on the instant charges on or about July 27, 2005. He entered his plea agreement on August 2, 2005 and remains in federal custody until his sentencing scheduled for December 5, 2005. Mr. Fuller is currently serving a sentence for involuntary manslaughter (committed on or about April 12, 2004) imposed by the Nevada State Court on May 12, 2005. His sentence was for a minimum of sixteen months and maximum of 48 months. On his state sentence, Mr. Fuller was credited about 13 months pretrial detention leaving a minimum sentence of three months and was scheduled for his first parole hearing on November 17, 2005 which he was unable to attend because he is in the custody of the federal government. Because he is on a writ status, the BOP will not consider any of the time spent in Federal Custody on this

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case as credit towards his final sentence. Mr. Fuller requests that the court depart downward to take into account his lost opportunity to serve most of his federal and state sentence concurrently. The court has the authority to order that the federal sentence be imposed concurrently with an undischarged state sentence. United States v Caldwell, 358 F.3d 138 9 (1st. 2004). USSG 5G1.3(c) provides: (c) (Policy Statement) In any other case involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense. The guidelines direct the court to evaluate a number of factors in making its determination, including factors that are generally considered in imposing a sentence, see 18 U.S.C. § 3553(a), as well as factors more specific to the choice between concurrent and consecutive sentences, see U.S.S.G. § 5G1.3(c), cmt n. 3. The government has no objection to the sentences running concurrently. However, even if the court imposes the federal sentence to run concurrently with the state sentence, it will only start as of the date of sentencing, December 5, 2005. Mr. Fuller requests that the court adjust his sentence to take into account the delays in this case that prevented him from serving both sentences together. In United States v. Sanchez-Rodriguez, 161 F.3d 556, 564 (9th Cir 1998), the court addressed lost opportunity departure: The lost opportunity to serve more of one's state term concurrent with one's federal term is a factor unmentioned by the Guidelines. Departure based on an unmentioned factor is permissible if the factor takes the case out of the heartland of the Guidelines. Koon, 518 U.S. at 94, 116 S.Ct. 2035. We cannot say that it was an abuse of discretion for the district court to conclude that SanchezRodriguez's lost opportunity takes this case out of the heartland of the Guidelines and to grant departure on this basis in this case. The district court noted that the delay in charging and sentencing Sanchez-Rodriguez resulted in a lost opportunity to reduce his total time in custody and was "entirely arbitrary," a circumstance warranting departure. We have held in analogous circumstances that departure is warranted if a harsher sentence is imposed because of the "fortuity of delay." See United States v. Martinez, 77 F.3d 332, 337 (9th Cir.1996) (noting that a harsher sentence imposed because of a fortuitous delay in charging the defendant with offenses that would have been grouped together for sentencing purposes, but for the delay in bringing those charges, is a mitigating circumstance not taken into consideration by the Guidelines); see also United States v. Saldana, 109 F.3d 100, 104 (1st Cir.1997) (noting that it was "possible" that a departure might be granted "where a careless or even an innocent delay produced sentencing consequences so unusual and unfair that a departure" would be warranted). According the district court the deference that it is due and relying on our precedent for departure under analogous circumstances, we
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conclude that the district court did not abuse its discretion in departing downward, in part, for the lost opportunity to serve state and federal time concurrently. The unintentional but lengthy delay in this prosecution or sentencing was not due to any conduct by Mr. Fuller. An indictment was filed in April, 2004 and the superseding indictment in September, 2004 which included Mr. Fuller. Mr. Fuller was not arrested until October, 2004 (even though he was under house arrest in the State of Nevada since April, 2004). After notification, the defense made every effort to get Mr. Fuller here for his arraignment in a timely manner. However, due to financial difficulties for travel to the State of Arizona, Mr. Fuller was unable to be arraigned until December 20, 2004. On that very same day, Mr. Fuller agreed to cooperate with the federal government in this investigation. He participated in free talks and also agreed to a plea well before the time it was entered. Due to the pending State Court case and Defendant's financial inability to pay for travel to/from Arizona, it was thought best to have the Marshal transport defendant after the state case was concluded in order to enter the plea agreement in this case. Although he was scheduled for a plea on July 27, 2005, it was delayed because he had not yet been transported by the Marshal. The plea was entered on August 2, 2005. Sentencing was originally set for October 17, 2005 but delayed because Mr. Foster (Smith) had not yet pled. Sentencing was continued to December 5, 2005. Mr. Fuller requests that this Court take into account the timing issues in this case which Mr. Fuller had no control over to achieve a reasonable punishment for this offense. Mr. Fuller requests that this Court order that his federal sentence be served concurrently with his state sentence and further depart downward two levels or adjust his final guideline sentence by at least five months from (July 8, 2005 to December 5, 2005 representing time in federal custody pursuant to the Writ not credited against his federal sentence) to represent the lost opportunity to serve both sentences concurrently. 3. Restitution and Fine Defendant Fuller concurs with the presentence reporter's assessment relating to restitution. Although it appears that fines were imposed upon co-defendants in lieu of restitution, Mr. Fuller requests that the court impose community service in place of a fine. Defendant has 7 natural children and 1 `stepchild" that he is financially obligated to support. Before he was incarcerated Defendant Fuller was working and he will continue to support his children upon release from prison. He simply cannot afford to pay fine and support his children at the same time. He is willing to do community service as part of his sentence.

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For the above reasons, Defendant respectfully requests that this Court grant his requests for downward departure from an advisory guideline of Level 12 (21-27 months) to Level 8 (10-16 months). Defendant Fuller also requests that the court impose community service in place of a fine based on his financial circumstances. Excludable delay under 18 U.S.C. §3161(h) (1)(I may occur as a result of this motion or an order based thereon. RESPECTFULLY SUBMITTED on November 8, 2005. s/ Patricia A. Gitre Patricia A. Gitre Attorney for Defendant ORIGINAL transmitted by CM/ECF on 11/8/2005 With a courtesy copy on 11/8/05 for the court to:
Clerk's office Richard Mesh @t [email protected] Carlos Valentin at [email protected]

s/ Patricia A. Gitre

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