Free Other Notice - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona KEITH VERCAUTEREN Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 013439 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America Plaintiff, v. Manuel Cabrera, Defendant. RESPONSE TO DEFENDANT'S REQUEST FOR DOWNWARD DEPARTURE CR-03-1294-004-PHX-ROS

The United States of America, by and through undersigned counsel, hereby responds to

16 defendant MANUEL CABRERA's Request for Downward Departure. The United States 17 respectfully requests that this Court deny the defendant's Request for Downward Departure as 18 to minimal participant as further explained in the attached Memorandum of Points and 19 Authorities. 20 21 22 23 24 25 26 27 28 Respectfully submitted this 27th day of February, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney

Case 2:03-cr-01294-ROS

Document 119

Filed 02/27/2006

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1 2 I. FACTS 3

MEMORANDUM OF POINTS AND AUTHORITIES

On October 21, 2003 at 12:56 p.m., co-defendant Jeremy Staffeldt asked co-defendant

4 Robert Lobo if Lobo was ready to complete a marijuana transaction. Robert Lobo asked Jeremy 5 Staffeldt to deliver 120 pounds of marijuana to his (Lobo's) house, and he would pay Jeremy 6 Staffeldt for the 40 pounds of marijuana that he (Robert Lobo) was keeping. Robert Lobo stated 7 that he would then sell the remaining 80 pounds to his customer and then pay Jeremy Staffeldt 8 back. Agents conducted surveillance at Robert Lobo's residence at 2952 East Grove Circle, 9 Mesa, Arizona. On October 21, 2003 at 5:40 p.m., an agent observed Jeremy Staffeldt drive his 10 vehicle into Lobo's garage and the garage door shut. At 5:52 p.m., surveillance agents observed 11 Jeremy Staffeldt depart Robert Lobo's residence. At 5:55 p.m., surveillance units observed 12 Robert Lobo pull his Ford Expedition into the garage. At 5:59 p.m., surveillance units then 13 observed MANUEL CABRERA driving the Expedition and Robert Lobo in the passenger seat, 14 as they exited the garage and departed the area. The Expedition was followed by agents until 15 6:23 p.m. when a traffic stop was conducted of Robert Lobo's vehicle. The officer smelled a 16 strong odor of marijuana coming from the Expedition, and obtained consent to search the 17 vehicle. The officer searched the Expedition and seized four large blocks of marijuana. The four 18 blocks were sent to the laboratory for analysis. The laboratory tested and confirmed the 19 substance was marijuana, and the four blocks weighed 32.6 kilograms. Defendant MANUEL 20 CABRERA knew the marijuana was in the vehicle and he intended to help distribute the 21 marijuana. 22 On December 6, 2005, defendant CABRERA pled guilty in this case with the above facts

23 contained in his factual basis of his plea agreement. In determining the sentence in this case, 24 pursuant to Fed. R. Crim. P. 11(c)(1)(B), the United States stated that it will recommend that the 25 defendant was a "minor participant" for his role in this criminal activity pursuant to Sentencing 26 Guidelines §§ 3B1.2 and 2D1.1(a)(3). This recommendation allows the defendant to receive a 27 two level departure in the sentencing guidelines. Defendant requests that this Court grant him 28 an additional two level departure claiming that he was a "minimal participant" in this case. 2
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1 II. LEGAL ANALYSIS 2 The commentary to § 6A1.3 of the Sentencing Guidelines instructs that, "in determining the

3 relevant facts, sentencing judges are not restricted to information that would be admissible at 4 trial. Any information can be considered, so long as it has `sufficient indicia of reliability to 5 support its probable accuracy.'" U.S.S.G. § 6A1.3, comment. Using reliability as the threshold 6 for consideration, materially inaccurate information should not be considered in the formulation 7 of a sentence. See United States v. Safirstein, 827 F.2d 1380, 1385 (9th Cir. 1987). The district 8 court's factual findings and interpretation and application of the Sentencing Guidelines are 9 upheld on appeal unless clearly erroneous. United States v. Reyes-Oseguera, 106 F.3d 1481, 10 1483 (9th Cir. 1997). 11 Defendant CABRERA, in essence, objects to the Presentence Report and requests a

12 downward departure for a four-level adjustment, claiming he was a "minimal participant." The 13 United States does not agree with the defendant's objection on this ground. Defendant 14 CABRERA's sentence should not be reduced four levels as a minimal participant. Defendant 15 CABRERA knew he was driving a vehicle with drugs in it, and made a conscious decision to 16 take that chance to help a friend or make some money. The reduction for "minimal participant" 17 should be used infrequently and should not be given to defendant CABRERA in this case. 18 The commentary to § 3B1.2 of the Sentencing Guidelines, note 4, instructs that the

19 downward adjustment for a "minimal participant" should be used infrequently. Note 4 specifies 20 that "it is intended to cover defendants who are plainly among the least culpable of those 21 involved in the conduct of a group. Under this provision, the defendant's lack of knowledge or 22 understanding of the scope and structure of the enterprise and of the activities of others is 23 indicative of a role as minimal participant." The United States does not believe that defendant 24 CABRERA's sentence should be reduced four levels. Defendant CABRERA was at co25 defendant Lobo's house when co-defendant Staffeldt arrived with the bundles of marijuana. The 26 marijuana was unloaded from Staffeldt's truck and then he left. Lobo then pulled his truck ionto 27 the garage and it was loaded with over seventy (70) pounds of marijuana. Defendant 28 CABRERA then agreed to drive this vehicle knowing it was loaded with marijuana. Defendant 3
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1 CABRERA was present at Lobo's house when the supplier delivered the drugs, so he had 2 knowledge and understanding as to some of the scope and structure of the enterprise and was 3 present during the activities of other co-defendants. The reduction for "minimal participant" 4 should be used infrequently and should not be given to defendant CABRERA in this case. 5 III. CONCLUSION 6 The United States submits that the Presentence Investigation Report makes appropriate The United States will recommend, consistent with the Presentence

7 findings of fact.

8 Investigation Report, that this Court should grant defendant CABRERA a two-level downward 9 adjustment as a minor participant. However, the United States requests that this Court find 10 defendant CABRERA was not a "minimal participant" for his role of driving a truck loaded with 11 over seventy (70) pounds of marijuana. Therefore, the United States respectfully requests that 12 this Court deny the defendant's Request for Downward Departure. 13 14 15 16 17 18 19 20 21 I hereby certify that on February 27, 2006, I electronically transmitted the attached 22 document to the Clerk's Office using the CM/ECF system for filing and 23 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 24 [email protected] 25 26 27 s/ Keith E. Vercauteren 28 KEITH E. VERCAUTEREN 4
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Respectfully submitted this 27th day of February, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney