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

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Plaintiff, ) ) vs. ) ) Victoria Cleto, ) ) Defendant. ) __________________________ ) Case No. CR 04-272-PHX-NVW

8 United States of America, 9 10 11 12 13 14

OBJECTIONS TO THE PRESENTENCE REPORT AND MEMORANDUM OF DEPARTURES

COMES NOW the Defendant, Victoria Cleto, by and through

15 undersigned counsel, and files the following Objections to the 16 Presentence Report and Memorandum of Departures: 17 18

OBJECTIONS TO THE PRESENTENCE REPORT As the Court is well aware, Victoria Cleto chose to go

19 to trial and a jury, duly empaneled, convicted her of Count 1, 20 conspiracy to possess with the intent to distribute 21 methamphetamine and marijuana; Count 2, possession with intent to 22 distribute methamphetamine; and Count 3, possession with intent to 23 distribute marijuana, said verdicts occurring on the 8th day of 24 June, 2005.

Defendant still takes issue with the general

25 description of the offense conduct found in paragraphs 4, 5 and 6 26 (page 4) and paragraphs 7, 8, 9 and 10 (page 5).

Unfortunately,

27 because of that stance, Defendant will not be able to argue for 28 acceptance of responsibility and does not take issue with

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1 paragraph 13 on page 5 of the presentence report. 2 3

MEMORANDUM OF DEPARTURES The guideline range for imprisonment for a person in

4 criminal history category I and who holds a total offense level of 5 28 is 78-97 months. 6

To appreciate Ms. Cleto's request for departure

7 (promulgated by undersigned counsel) the Court is directed to 8 U.S.S.G. § 5K2.12 (coercion and duress). 9 10 11 12 13 14 15 16 17 18 19 20 21

It reads as follows:

If the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense, the court may depart downward. The extent of the decrease ordinarily should depend on the reasonableness of the defendant's actions, on the proportionality of the defendant's actions to the seriousness of coercion, blackmail or duress involved, and on the extent to which the conduct would have been less harmful under the circumstances as the defendant believed them to be. Ordinarily coercion will be sufficiently serious to warrant departure only when it involves a threat of physical injury, substantial damage to property or similar injury resulting from the unlawful action of a third party or from a natural emergency. Notwithstanding this policy statement, personal financial difficulties and economic pressures upon a trade or business do not warrant a downward departure. It is belief of the person who is writing this

22 Memorandum (undersigned counsel) that the coercion and duress 23 policy statement should dovetail, in this particular case, with 24 U.S.S.G. § 5K2.13 (diminished capacity), which states as follows: 25 26 27 28

A downward departure may be warranted if (1) the defendant committed the offense while suffering from a significantly reduced mental capacity; and (2) the significantly reduced mental capacity contributed substantially to the commission of the offense. Similarly, if departure is warranted under this policy 2

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statement, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense. For the sake of this sentencing memorandum, the

5 assumption is made that what the government presented to the jury 6 and which the jury found to be true, is true. 7 8 Mafia.

During the trial, mention was made of the New Mexican Indeed, one of the witnesses for the government was a man

9 who had admitted to committing a murder, and the other 10 participants of this crime (although not witnesses nor charged 11 defendants in the case) fell and fall within the grasp of the New 12 Mexican Mafia.

It also became quite apparent during the trial

13 that Victoria Cleto was somehow reeled in by the New Mexican 14 Mafia.

There is obviously some type of coercion or duress being

15 directed toward her, and her mind had become so entangled that she 16 has become an unwitting tool for that notorious gang. 17

As described by FBI Special Agent Keith Kelly in his

18 March 17, 2004, grand jury testimony, the New Mexican Mafia is a 19 security threat group.

(RT 3/17/04, p. 28, ll. 19-20) Further,

20 Agent Kelly stated: "New Mexican Mafia is a violent prison gang 21 that controls the Arizona state prison system, they do it through 22 murdering, intimidation, extortion, running narcotics in and out 23 of the prison system.

And they control street gangs that Chicano (Id., p. 25, ll. 3-8)

24 street gangs here in the valley (sic)."

25 Obviously, if the New Mexican Mafia can control the Arizona state 26 prison system, they could certainly control one small, frightened 27 girl, Victoria Cleto. 28

Further, Special Agent Kelly stated: 3

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By controlling the prison system, all gang members know that they will eventually be sent through Arizona prison system and that they will be ultimately answering to the New Mexican Mafia. So to get in good standing with the New Mexican Mafia, the various Mexican/American gangs provide what is called back up on the streets for the Carnal who are brothers of the New Mexican Mafia. (Id., p. 25, ll. 13-20) Special Agent Kelly went on to state that Manuel Medrano is a documented member of the New Mexican Mafia. 21-22) Part of the trial concerned how Victoria Cleto ran communications for the New Mexican Mafia. testimony, Agent Kelly stated: In his grand jury (Id., p. 25, ll.

"It's a (sic) essentially the only

way Mexican Mafia members can get out their instructions and communicate because they're incarcerated is either through telephone calls, correspondence or visitation." 3-7) Obviously, Pecina, the then boyfriend of Victoria Cleto, was connected with the New Mexican Mafia. Although plea negotiations are improper to discuss prior to trial, the Court should know that the prosecution had offered Victoria Cleto very lenient resolutions of her case, which included the likelihood of probation. Indeed, the Assistant (Id., p. 28, ll.

United States Attorney was kind enough (perhaps because he saw the spell that the New Mexican Mafia had over Victoria Cleto) to offer leniency even at sentencing if Ms. Cleto would admit to certain allegations which the government made (and which the jury found to be true). Ms. Cleto did not and has not taken advantage of these

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1 offers.1 2

As a result of these irrational actions and behaviors by

3 Ms. Cleto2, and the malevolent, coercive underpinnings upon which 4 said actions and behaviors are based, the Court should consider a 5 significant downward departure.

Undersigned counsel suggests 24

6 months prison would be more than adequate to satisfy the stated 7 reasons for sentencing pursuant to 18 U.S.C. § 3553.

Certainly,

8 two years in federal prison would be a deterrent to Ms. Cleto to 9 engage in any of this type of activity in the future.

The

10 sentence would also show that there is respect for the law, as a 11 two year sentence for a young woman who aided the New Mexican 12 Mafia but never received any monetary rewards for same could not 13 be considered soft. 14

Finally, it is Defendant's position that this Court has

15 the ability to mete out a sentence which is fair, as long as the 16 guidelines are consulted.

In other words, since the guidelines

17 are no longer mandatory, the Court technically has the ability to 18 place Ms. Cleto on probation. 19 738 (2005). 20 21 22 23 24 25 26 27 28

(United States v. Booker, 125 S.Ct.

Before trial began, the U.S. Attorney's Office, via the Assistant United States Attorney, was kind enough to allow Victoria Cleto, undersigned counsel, and counsel's investigator to come to the offices of the United States Attorney where the Assistant U.S. Attorney took a significant amount of time explaining exactly how the government would convict Victoria Cleto. She was able to actually observe what a prima facie case was before ever going to trial. Again, this argument is made with the understanding that a jury found her guilty beyond a reasonable doubt based upon the evidence that was presented by the government. 5

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Ms. Cleto has spent a significant amount of time in If this Court felt that a prison sentence of 139

2 custody already.

3 days is appropriate, the Court could issue a prison sentence of 4 time-served and place the Defendant on supervised release. 5

Pursuant to 18 U.S.C. § 3553, the court shall impose a

6 sentence sufficient, but not greater than necessary, to reflect 7 the seriousness of the offense, to promote respect for the law, to 8 provide just punishment for the offense and to protect the public 9 from further crimes of the defendant.

The section also allows the

10 Court to observe the nature and circumstances of the offense and 11 the history and characteristics of the defendant (emphasis added). 12

For these reasons, a sentence in accordance with

13 undersigned counsel's above suggestions would be appropriate under 14 the peculiar circumstances of Victoria Cleto's case. 15 16 17 18 19 20 21 22 23 24 25 26 27 28

RESPECTFULLY SUBMITTED this 14th day of October, 2005. PHILIP A. SEPLOW, ESQ.

By: s/Philip A. Seplow Philip A. Seplow, Esq. Attorney for Defendant

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CERTIFICATE OF SERVICE

X I hereby certify that on October 14, 2005, I electronically transmitted the attached document to the Clerk's Office using the 3 CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 4 Glenn B. McCormick, Esq. 5 ASSISTANT UNITED STATES ATTORNEY
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X I hereby certify that on October 14, 2005, I served the attached document by First Class Mail on the following, who are not 8 registered participants of the CM/ECF System:
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Craig Harraga U.S. PROBATION OFFICER Sandra Day O'Connor U.S. Courthouse - SPC 7 401 West Washington - Suite 160 Phoenix, AZ 85003 S/ Philip A. Seplow

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