Free Response - District Court of Arizona - Arizona

1 2 3 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

DANIEL G. KNAUSS United States Attorney District of Arizona KEITH E. VERCAUTEREN Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone (602) 514-7500 Arizona State Bar No. 013439 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-0028-005-PHX-SRB Plaintiff, v. Omar Alejandro Urias Leon, Defendant. The United States of America, by and through undersigned counsel, hereby responds to defendant OMAR ALEJANDRO URIAS LEON's Sentencing Memorandum. The defendant requests that this Court follow the plea agreement because it is fair and reasonable given the defendant's participation in this conspiracy. The United States believes that 96 months in the Bureau of Prisons is appropriate given all of the facts in this case. The commentary to § 6A1.3 of the Sentencing Guidelines instructs that, "in determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. Any information can be considered, so long as it has `sufficient indicia of reliability to support its probable accuracy.'" U.S.S.G. § 6A1.3, comment. Using reliability as the threshold for consideration, materially inaccurate information should not be considered in the formulation of a sentence. See United States v. Safirstein, 827 F.2d 1380, 1385 (9th Cir. 1987). The district court's factual findings and interpretation and application of the Sentencing Guidelines are upheld on appeal unless clearly erroneous. United States v. Reyes-Oseguera, 106 F.3d 1481, 1483 (9th Cir. 1997). In April of 2002, law enforcement began an investigation of members and associates of the Hells Angels Motorcycle Club in the distribution of methamphetamine. Two initial targets RESPONSE BY THE UNITED STATES TO DEFENDANT'S SENTENCING MEMORANDUM

Case 2:04-cr-00028-SRB

Document 201

Filed 06/07/2007

Page 1 of 4

1 2 3 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

of the investigation were co-defendants Robert Pancrazi and Joanne Perez-Arreola. Law enforcement conducted wire taps of telephones belonging to Pancrazi and Perez-Arreola during July and August of 2003. During the investigation, law enforcement learned that Patricia Acosta Castro was a source of supply of methamphetamine to Perez-Arreola. Law enforcement surveillance officers observed Patricia Acosta Castro and her brother, Alejo Acosta Castro, deliver methamphetamine to Perez-Arreola on a couple occasions. During one delivery, Patricia Acosta Castro told Perez-Arreola that she was going to Mexico for a week and that her brother, Alejo Acosta Castro, would deliver methamphetamine to Perez-Arreola. On a separate methamphetamine delivery, surveillance officers observed Patricia Acosta Castro enter PerezArreola's house while Alejo Acosta Castro waited outside in the car. On August 6, 2003, law enforcement officers were conducting surveillance prior to executing four search warrants. One of the locations being watched was 6937 West Melvin in Phoenix. Law enforcement had conducted surveillance on this house numerous times in the past and had observed Patricia Acosta Castro many times at this house. However, agents saw OMAR ALEJANDRO URIAS LEON for the first time on August 6, 2003. Agents observed OMAR ALEJANDRO URIAS LEON, Patricia Acosta Castro and another female with a baby leave the residence at 6937 West Melvin and get into a Ford Expedition. OMAR ALEJANDRO URIAS LEON was seen driving the Ford Expedition. OMAR ALEJANDRO URIAS LEON was observed committing several traffic infractions before he was stopped by the Arizona Department of Public Safety on Cotton Lane, just north of McDowell Road in the District of Arizona. Paragraph 11 of the Presentence Report is not correct when it states that the suspect vehicle eluded agents by engaging in a variety of traffic violations. Undercover agents were following the vehicle, radioed for DPS to assist, and DPS officers observed the traffic violations before pulling the Expedition over. There were no traffic violations or attempts to elude the police upon the initiation of the traffic stop. OMAR ALEJANDRO URIAS LEON has admitted in his plea agreement that he possessed two baggies of methamphetamine and a gun that were found in the vehicle. The gun, a Colt .380 pistol, was in a cup holder between the front driver and passenger side seats. The
2 Case 2:04-cr-00028-SRB Document 201 Filed 06/07/2007 Page 2 of 4

1 2 3 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

gun was loaded with six rounds of ammunition, however, the chamber was empty. One of the baggies of methamphetamine was under the front edge of the driver's seat, and the other baggie of methamphetamine was inside a diaper bag on the front passenger floorboard. DEA laboratories tested the above substances and confirmed that it was a total of 2.08 grams of actual methamphetamine. The defendant admitted that he possessed this methamphetamine with the intent to distribute it, and he possessed this gun in furtherance of his drug trafficking. Additionally, the defendant had concealed $7,080 in the front driver's side door, which was proceeds of his drug trafficking activities. Law enforcement continued to conduct surveillance at 6937 West Melvin, while other agents followed the Expedition and talked to defendant URIAS LEON and Patricia Acosta Castro. At the direction of another person, co-defendant Alejo Acosta Castro drove to the house at 6937 West Melvin and carried several packages of drugs out of the house and placed them into the car he had driven to the house. Agents arrested Alejo Acosta Castro in the driveway of 6937 West Melvin and seized the drugs he had carried out of the house Those drugs were tested at the DEA laboratory and found to be 2318.03 grams of actual methamphetamine. The Presentence Report finds that defendant URIAS LEON is responsible for the methamphetamine found in front of the house on Melvin based on his admissions to the presentence report writer that he was involved in selling drugs with his girlfriend, Patricia Acosta Castro. The United States understands the rationale of the presentence report writer that this defendant is an admitted drug dealer who should be held accountable for his behavior. However, if this Court rejects the plea agreement, the United States will not be able to use these statements by the defendant to the presentence report writer in its case-in-chief. The United States agrees with the defendant that he should not be given any enhancement for the drugs that were found in the house. The United States requests that this Court accept the plea agreement and sentence the defendant to 96 months in the Bureau of Prisons. The United States believes this is a "reasonable" sentence after examining Title 18, U.S.C. § 3553, as well as all of the facts in this case. Law enforcement agents had conducted surveillance at the house on Melvin on numerous
3 Case 2:04-cr-00028-SRB Document 201 Filed 06/07/2007 Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

occasions and had never seen defendant URIAS LEON before the date of the search warrants. Law enforcement also listened to wire taps in this case and never heard any conversations involving defendant URIAS LEON. Lastly, law enforcement observed a couple drug

transactions in this case, but never saw the defendant or heard his name mentioned. In fact, when Patricia Acosta Castro was going to be going to Mexico, she arranged with her customer to have her brother make the drug deliveries. Respectfully submitted this 7th day of June, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona

s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney

CERTIFICATE OF SERVICE I hereby certify that on June 7, 2007, 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 registrant: Tyrone Mitchell Attorney for defendant Justine L. Kozak Senior U.S. Probation Officer

s/Keith Vercauteren Keith E. Vercauteren 28 Assistant United States Attorney
27 4 Case 2:04-cr-00028-SRB Document 201 Filed 06/07/2007 Page 4 of 4