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

DANA CARPENTER Attorney at Law 2 3106 N. 16th Street Phoenix, AZ 85016 3 [email protected] (602) 266-5770 4 State Bar No. 007320
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Attorney for Defendant IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA United States of America, Plaintiff, vs. Derrick McCreary, et. al., Defendant. No. CR04-0313-PHX-FJM DEFENDANT OBJECTIONS TO THE PRESENTENCE REPORT

Defendant, Derrick McCreary, by and through undersigned counsel, hereby submits the following Objections to the Presentence Investigation Report pursuant to Rule 32 (c)(3), Federal Rules of Criminal Procedure; 18 U.S.C. §3552; the defendant's right of allocution pursuant to the Fifth and Sixth Amendments to the United States Constitution; the due process clause of the 5th Amendment; the separation of powers doctrine of Article I; the non-delegation doctrine of Article I; and the cruel and unusual punishment prohibition of the 8th Amendment. RESPECTFULLY SUBMITTED this 14th day of November, 2005.

s/Dana Carpenter Dana Carpenter Attorney for Defendant

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DEFENDANT'S OBJECTIONS TO PRESENTENCE REPORT A. FACTUAL OBJECTIONS. 1. Charges and Convictions, p.3 paragraph 3. The Presentence Report indicates that the superceding indictment was filed on May 16, 2005. Defense counsel checked PACER and it appears the seven count superceding indictment was filed on February 16, 2005. 2. Offense Conduct, p.8 paragraph 29. The Presentence Report indicates that the defendant was interviewed by the police and stated that he knew all three males who were wearing dark clothing and came to his house around 8:00 or 9:00 a.m.; and made no mention of the bank robbery. The Presentence Report further states that the defendant indicated during the interview that he had known the suspects for approximately ten years and the suspects were from Los Angeles. Actually, a close review of the police report indicates that defendant McCreary stated to the officers that he knew one of the three males for approximately ten years from the Los Angeles area and that his name was "Jay." Defendant requests that the Presentence Report be amended to reflect what the defendant actually said to police officers during the interview. B. LEGAL OBJECTIONS. 1. Separation of Powers. The sentencing scheme of 18 USC § 924(c)(1)(A) violates the separation of powers doctrine under Article 1 of the Constitution in so far as the Sentencing Guidelines are advisory and no longer mandatory, and therefore, any discretion with respect to the sentence is vested in the Executive rather than the Judicial Branch. Once a prosecutor charges violations of 924(c)(1)(A), and a jury convicts, the judicial officer has no discretion but to impose the mandatory sentence (in this case seven years on count three and twenty-five years on count five). This statutory scheme impermissibly infringes on the ability of the District Court to impose a sentence of less than thirty-two years for counts three and five. Defense counsel recognizes that
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the Supreme Court has rejected a similar argument in relation to 18 USC § 851. See, United States v. LaBonte, 250 U.S. 751 (1997). 2. Violation of the Non-Delegation Doctrine. Similar to the separation of powers argument above, application of section 18 USC § 924(c)(1)(A) violates the non-delegation doctrine because it delegates to the Executive Branch the legislative authority to sentence defendant's under the sentencing provisions of 18 USC 924(c)(1)(A). The non-delegation doctrine is rooted in the principal of separation of powers that underlies the tripartite system of government in the United States. Article 1 of the United States Constitution vests all legislative powers in the Congress of the United States. The Supreme Court has noted that "the integrity and maintenance of the system of government ordained by the Constitution mandate the Congress generally cannot delegate its legislative power to another branch". Mistretta v. United States, 488 U.S. 361 (1989). With respect to 18 USC § 924(c)(1)(A), Congress has not provided "intelligible principles" so as to render the delegation of power to the executive branch constitutional. The Attorney General by and through his United States Attorney's Offices and Assistant United States Attorney's have complete discretion in whether to file a sentencing enhancement pursuant to 18 USC § 924(c)(1)(A). They are free to indict such counts or not indict such counts. The statute is completely void of any "intelligible principle" to guide the executive branches discretion. As a result, the non-delegation doctrine is violated because there are no "intelligible principles" to direct the discretion of the Attorney General and the United States Attorney's Offices in applying the sentencing enhancements pursuant to 18 USC § 924(c)(1)(A). Defense counsel recognizes in a similar case that the Sixth and Eleventh Circuits have held that a similar statute is not unconstitutional. See, United States v. Crayton, 357 F.3d 560, 571-72 (6th Circuit 2004) (holding that 21 USC § 851 does not violate the non-delegation doctrine); United States v. Cespedes, 151 F.3d 1329, 1333 n. 1 (11th Circuit 1998) (holding that § 851 does not unconstitutionally delegate the legislative
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power in concluding that even if the sentence enhancement provisions of § 851 were characterized as a delegation of legislative power, we would find that Congress had provided all together intelligible principles to render the delegation constitutional"). 3. Violation of 5th Amendment. The sentencing scheme of 18 USC § 924(c)(1)(A) violates the defendant's due process rights under the 5th Amendment because it vests all discretion in the Attorney General and the United States Attorney offices and no discretion in the sentencing judge. A United States District Court judge has no authority to impose a sentence below the mandatory minimum of 924(c)(1)(A) in the absence of a Rule 35 substantial assistance motion or a statutory substantial assistance motion. Due process pursuant to the 5th Amendment of the United States Constitution requires "individualized sentencing." Such a process simply cannot take place in this case where the defendant (as stated by the co-defendant-informant who testified at trial) purposely did not allow the weapons used in the two armed robberies to be loaded with ammunition; thereby significantly reducing the chance of anyone getting hurt. The sentencing judge in this case will not be allowed to consider that factor in regard to count three and count five, the sentencing enhancement counts charging violation of of 18 USC § 924(c)(1)(A). This depravation of judicial discretion violates the Due Process Clause of the 5th Amendment to the United States Constitution. Defense counsel recognizes a similar argument was rejected by the 9th Circuit in United States v. Jensen, 425 F.3d 698, 708-09 (9th Cir. 2005). 4. Violation of the 8th Amendment. Finally, the sentencing scheme imposed pursuant to 18 USC § 924(c)(1)(A) will impose a sentence that is not "proportional" to the crime in this case. The defendant will thereby be subjected to cruel and unusual punishment in violation of the 8th Amendment of the United States Constitution. In order to violate the 8th Amendment a sentence must be so grossly out of proportion to the severity of the crime as to "shock our sense of justice.". United States v. Cupa-Guillen, 34 F.3d
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860,864 (9th Circuit 1994). The sentence in this case is grossly out of proportion to the severity of the crime not only as to the length of time involved (count three, seven years consecutive to the armed robbery counts and count five, twenty-five years consecutive to the armed robbery counts and the first seven year 924(c)(1)(A) violation). The defendant has only one prior felony conviction. Given the defendants age, this is for all practical purposes a life sentence. It also shocks the sense of justice because the defendant took steps to eliminate the likelihood of any civilian and law enforcement officer being injured by not allowing the weapons in the two robberies to have any ammunition in them. As a result, the length of the sentence and the fact that a significant sentencing factor cannot be considered by the District Court in relation to counts three and five, creates an extreme sentence that is "grossly disproportional" to the crimes for which the defendant was convicted. In relation to all four of the above arguments, the District Court will not be free to consider Derrick McCreary's individual circumstances pursuant to 18 USC § 3553(b), and the District Court will be forced to disregard his actions which significantly reduced the likelihood of anyone being seriously injured in this matter by not allowing the weapons involved to contain any ammunition. Defense counsel recognizes that a similar argument was rejected in United States v. Estrada-Plata, 57 F.3d 757, 762 (9th Circuit 1995) (the sentence in this case was mandated by § 924(c). Fuentes presents no argument for why we should depart from the general rule and hold that a congressionally imposed sentence violated the 8th Amendment). Wherefore, defendant requests the court hold the statutory sentencing scheme of 18 USC § 924(c)(1)(A) unconstitutional; and unconstitutional as applied to defendant Derrick McCreary's sentence. Assuming the court grants the defendants request to declare 18 USC § 924(c)(1)(A) unconstitutional, defendant further requests the court sentence the defendant within the guideline range.

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RESPECTFULLY SUBMITTED this 14th day of November, 2005.

s/Dana Carpenter Dana Carpenter Attorney for Defendant

I hereby certify that on November 14th, 2005, I caused the attached document to be 9 electronically transmitted to the Clerk's Office using the CM/ECF system for filing and 10 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
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Honorable Frederick J. Martone United States District Court 401 W. Washington 13 Phoenix, Az 85003 Charles Hyder Assistant United States Attorney 15 Two Renaissance Square 40 N. Central Ave., Suite 1200 16 Phoenix, Az 85004-4408
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*Benjamin N. Sternberg Law Offices of Benjamin N. Sternberg 18 433 North Camden Dr., Suite 970 Beverly Hills, CA 90210 19 Attorney for John Freeman Hunter
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By: s/Enereida Carranza

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