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

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PAUL K. CHARLTON United States Attorney District of Arizona Richard I. Mesh Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 02716 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Suzanne Lisa Prather, Defendant. The United States of America by and through its undersigned attorneys, hereby files GOVERNMENT'S OBJECTIONS TO PRESENTENCE REPORT CR-04-0276-02-PHX-SMM

14 pursuant to Title 18 U.S.C. Section 3552(d) and Local Rule 32.1.1, the following corrections 15 and objections to the presentence report in this matter. 16 1. Correction of paragraph 3. 17 a.) Paragraph 3 incorrectly recites that the defendant "was required to cooperate with the 18 government." The defendant pled guilty without a cooperation agreement as was the case with 19 several other co-defendants. 20 b.) Paragraph 3 omitted that the level of the offense "shall be based upon the loss incurred 21 from the fraudulent student loan applications personally prepared by the defendant..." 22 (Underlining supplied) The face amount of all the fraudulent student loans prepared by the 23 defendant was known to be in excess of $1 million, but the face amount of the defaulted loans 24 was $552,583.81 and as such the latter amount was stipulated to as the maximum amount of 25 loss. 26 It was known by the government that the face value of the 191 fraudulent loans prepared 27 by the defendant amounted to $1,279,168.19. At the time of the defendant's guilty plea, in 28

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excess of four years had elapsed and 57 percent of the loans were performing in accordance with their contract. Therefore, the government elected to use the "actual loss to the victim" as the standard for calculation of offense level pursuant to U.S.S.G. Section 2F1.1(b), Application Note 8(b), "in fraudulent loan application cases and contract procurement cases, the loss is the actual loss to the victim (or if the loss has not yet come about, the expected loss)." c.) Paragraph 3 also omitted that the defendant as well as the government, will waive its right to appeal the sentence imposed by the court. 2. Objection to PSR, paragraph 24. Paragraph 24 computes the loss arising from the conspiracy as in excess of $2.5 million, hence, 13 additional levels are added to the sentencing calculation under the defendant's plea agreement. The government stipulated that the loss level "shall be based upon the loss incurred from fraudulent student loan applications personally prepared by the defendant....," then known to be $552,583.81. If that figure was applied to the sentencing calculation, it would bring about an increase of 10 levels rather than 13 hence, a reduction in the total offense level to 15 rather than 18. See paragraph 31, PSR. 3. Correction to PSR, paragraph 69. a.) Paragraph 69 also mistakenly recites "the plea agreement requires that the defendant to cooperate with the government." As has been previously noted, the plea agreement did not so require, but in fact the defendant did cooperate of her own volition with the government. This cooperation was not through the compulsion of her plea agreement. b.) The government's stipulation to the maximum loss level of $552,538.81 did impact on

22 the sentencing under the guidelines which is not reflected in paragraph 69. This limitation as 23 stipulated to by the government was done so pursuant to the guidance provided in U.S.S.G. 24 Section 1B1.3(a)(1)(B). This section deals with relevant conduct factors that determine the 25 guideline range as to "jointly undertaken criminal activity." Application Note 2(ii) states that "the 26 scope of the criminal activity jointly undertaken by the defendant (the `jointly undertaken criminal 27 activity') is not necessarily the same as the scope of the entire conspiracy, and hence relevant 28 2

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1 conduct is not necessarily the same for every participant. In order to determine the defendant's 2 accountability for the conduct of others under subsection (a)(1)(B), the court must first determine 3 the scope of the criminal activity the particular defendant agreed to jointly undertake . . . " (Italics 4 supplied.) 5 In arriving at the above stipulation, the government took into account that the defendant did

6 not join the conspiracy until October 1999, at which point it had been an operation for an excess 7 of 6 months. Therefore, the losses occasioned by the earlier criminal acts of other co-conspirators 8 were not properly chargeable against this defendant for the calculation of the scope of her jointly 9 undertaken criminal activity. See United States v. Chavez-Gutierrez, 961 F. 2d 1476 (9 th Cir. 10 1992) holding that a defendant cannot be responsible for criminal conduct which occurred before 11 he joined the conspiracy as it is not within the "scope of the agreement" and "not reasonably 12 foreseeable." 13 On the basis of all of the forgoing, the government respectfully requests this court to adjust

14 the level of offense for sentencing purposes from a level 18 as indicated in the presentence report 15 to a level 15 as indicated in this pleading. The government further respectfully requests the court 16 to direct a correction as to the other matters incorrectly published in the presentence report. 17 18 19 20 21 22 23 24 25 26 27 28 3 PAUL K. CHARLTON United States Attorney District of Arizona S/Richard I. Mesh Richard I. Mesh Assistant U.S. Attorney Respectfully submitted this 2nd day of November 2005.

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CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of November, 2005, I electronically 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: George F. Klink, Esq. 45 W est Jefferson Suite 220 Phoenix, AZ 85003 Attorney for Defendant Prather Dana Carpenter, Esq. 3106 N. 16th Street Phoenix, AZ 85016 Attorney for Defendant Evans Greg Clark, Esq. 45 W est Jefferson 11th Floor Phoenix, AZ 85003 Attorney for Defendant Honderd Booker T. Evans, Esq. 2375 E. Camelback Rd., Ste. 700 Phoenix, AZ 85016 Attorney for Defendant Hazlett S/Richard I. Mesh I hereby certify that on 2 nd day of November, 2005, I served the attached document by fax on the following, who are not registered participants of the CM/ECF system: Shawn T. Shear Senior U.S. Probation Officer 401 W . W ashington St., Ste. 160 Phoenix, AZ 85003 S/Richard I. Mesh

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