Free Memorandum - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14

PAUL K. CHARLTON United States Attorney District of Arizona Glenn B. McCormick Assistant U.S. Attorney Arizona State Bar No. 013328 [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-272-PHX-NVW Plaintiff, v. Victoria Cleto, Defendant. The United States opposes Defendant's request for a downward departure on her GOVERNMENT'S RESPONSE TO DEFENDANT'S OBJECTIONS TO THE PRESENTENCE REPORT AND MEMORANDUM OF DEPARTURES

15 sentence for her conviction on three drug counts. Defendant's involvement with the New 16 Mexican Mafia is not sufficiently coercive to justify a downward departure. 17 To support her request for a downward departure, Defendant relies on U.S.S.G. § 5K2.12 18 That section only allows downward departure if the offense was committed because of "serious 19 coercion, blackmail or duress . . . . Ordinarily coercion will be sufficiently serious to warrant 20 departure only when it involves a threat of physical injury, substantial damage to property, or 21 similar injury resulting from the unlawful action of a third party." (emphasis added). Duress 22 is not a favored type of departure. United States v. Cotto, 347 F.3d 441, 445 (2d Cir. 2003). 23 Therefore, duress must be exceptional to justify a downward departure. Id. quoting Koon v. 24 United States, 518 U.S. 81, 93-96 (1996). Duress that is solely a result of a defendant's 25 knowledge of a third party's violent tendencies is insufficient to justify downward departure. 26 Cotto, 347 F.3d at 446-47; cf. United States v. Sachdev, 279 F.3d 25, 29 (1st Cir. 2002) (holding 27 that a defendant subjective belief about the dangerousness of the third party is not enough by 28 itself to justify downward departure).

Case 2:04-cr-00272-NVW

Document 69

Filed 10/21/2005

Page 1 of 3

1

In Cotto, the defendant pleaded guilty to obstruction of justice in relation to a conspiracy

2 to cover up a murder for a third party. Id. at 443. The defendant knew the third party and was 3 present when the murder took place. Id. at 444. At sentencing, the defendant argued for a 4 downward departure on the grounds that she participated in the conspiracy because she feared 5 that the third party would harm her or her family if she refused to help him. The third party had 6 not made any explicit or implicit threats to the defendant but the defendant claimed to have 7 knowledge of the third party's criminal tendencies. Id. at 444. The district court granted the 8 downward departure and the government appealed. Id. The Second Circuit vacated and 9 remanded the case for resentencing. The court reasoned that a downward departure for coercion 10 was an exceptional sentencing tool, and therefore, required something more specific than a 11 general knowledge of an individual's criminal activities. Id. at 445-48. 12 Like the defendant in Cotto, Defendant does not allege that the New Mexican Mafia made

13 any explicit or implicit threats that would have motivated her to commit these drug offenses. 14 Like the defendant in Cotto, Defendant relies on a general knowledge of the New Mexican 15 Mafia's criminal activities to support her claim of coercion. This type of coercion is not 16 sufficient to justify a downward departure. 17 Further, the claim of coercion or duress has not been specifically made by the defendant.

18 This claim is presented by defense counsel without any specific assertion by the defendant. 19 Although the defendant's decision to reject a favorable plea offer and an opportunity to 20 cooperate even after conviction may be difficult to comprehend, it does not establish that these 21 choices are the result of threats, perceived or actual. In any event, if associations with gangs 22 /// 23 /// 24 /// 25 26 27 28
2

Case 2:04-cr-00272-NVW

Document 69

Filed 10/21/2005

Page 2 of 3

1

were coercive enough to justify downward departure, every gang member would be entitled to

2 a lesser sentence. This result cannot be the intent of the sentencing guidelines. Therefore, the 3 government respectfully requests that the Court deny Defendant's request. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3
I hereby certify that on October 21, 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: Mr. Phillip Seplow

Respectfully submitted this 21st day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /S/ Glenn B. McCormick Assistant U.S. Attorney

S/ GLENN B. McCORMICK

Case 2:04-cr-00272-NVW

Document 69

Filed 10/21/2005

Page 3 of 3