Free Sentencing Memorandum - District Court of Arizona - Arizona

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Kent & Ryan, P.L.C.
LUHRS Tower 45 West Jefferson, Suite 206 Phoenix, Arizona 85003 (602) 277-8888 (Office) (602) 253-3105 (Fax) [email protected] (E-Mail) Candace H. Kent, #013285

Attorneys for Defendant UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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) ) Plaintiff, ) ) vs. ) ) Manuel Cabrera, ) ) Defendant. ) __________________________________)

United States of America,

Case No. CR 2003-01294-004-PHX-ROS SENTENCING MEMORANDUM AND REQUEST FOR DOWNWARD DEPARTURE AND NOTICE OF FILING OF LETTERS

Excludable delay under 18 U.S.C. section 3161 (h) may result from this Request. Defendant, Mr. Manuel Cabrera, by and through undersigned counsel, respectfully requests a downward departure from the advisory Federal Sentencing Guidelines. Mr. Cabrera currently faces a range of imprisonment of 15 to 21 months based upon a Total Offense Level of 13 and a Criminal History Category II as calculated in the Presentence Investigation Report prepared in this case after three levels are subtracted for Acceptance of Responsibility as stipulated in the plea agreement and a further two level reduction for minor participant as recommended by the government and found to be supported by the available case information. Mr. Cabrera asks that this court grant his Request for a Downward Departure and reduce his offense level an additional two levels as a minimal participant pursuant to Section 3B1.2. As set forth below, there is substantial reason to do so.

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I. Background. Mr. Cabrera's involvement in the charged criminal activity was situational, extremely short lived, motivated by familial pressure followed by contrition, and a substantial period of detention. Mr. Cabrera asks this Court to take into consideration the following factors: 1. Mr. Cabrera had no felony convictions prior to this incident. 2. Mr. Cabrera is the father of three young children. Mr. Cabrera also notes for this court that despite the wording used in paragraph 43 of the Presentence report, he was paying his court ordered child support at the time of this arrest. His child support obligations were in arrears due to the fact that when the family court ordered the support to be paid the total included an estimate of monies owed prior to the court order. Mr. Cabrera wishes this court to know that he takes his children and their financial well-being seriously. 3. Mr. Cabrera was employed at Big Bell Road Kia at the time of his arrest and believes that he can return to car sales following his release from custody. 4. Mr. Cabrera acknowledges his substance abuse issues and has attended Narcotics Anonymous while incarcerated. 5. Mr. Cabrera has strong family support as evidence by the attached letters. 7. Mr. Cabrera has already served 519 days in federal custody on this matter as of February 27, 2006. 8. Mr. Cabrera's minimal involvement in this case consists of one isolated act of driving a vehicle owned by co-defendant Robert Lobo while that vehicle contained 32 kilograms of marijuana. Defendant Manuel Cabrera was indicted on one Count of Possession With Intent to Distribute Marijuana in an amount of less than 50 kilograms. This is Count 2 of the indictment. Mr. Cabrera is the only co-defendant in this case indicted solely with Count 2. Mr. Cabrera has admitted to his guilt and has accepted

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responsibility for the incident that gives rise to Count 2. The remaining five codefendants are all charged with Count 1, Conspiracy to Possess with the Intent to Distribute Marijuana in an amount exceeding 100 kilograms while of those, three are also charged with both Counts 1 and 2. The charge against Mr. Cabrera arises from an incident on October 21, 2003 in which a vehicle in which Mr. Cabrera and another codefendant were driving was pulled over under the pre-text of a driving stop following surveillance of the co-defendant. Marijuana was located in the vehicle by law enforcement. The surveillance of the co-defendants including telephone intercepts in which the they negotiated marijuana transactions in amounts over 100 pounds. None of these numerous telephone conversations intercepted by law enforcement nor the physical surveillance used to monitor the co-defendants revealed any involvement of Mr. Cabrera with the exception of his driving on October 21, 2003. Simply, there is no evidence that Mr. Cabrera arranged for the pick-up of any marijuana, participated in the weighing or packing of any marijuana or negotiated any marijuana transaction. Mr. Cabrera's very minimal participation in this incident consists solely of driving a vehicle owned by Mr. Lobo on one single occasion.

II. Basis for Downward Departure Generally, the United States Guidelines provide the Court with the discretion to depart downward when the case falls outside the "heartland" of cases. 18 U.S.C. 3553(b)(2001);U.S.S.G.section 5K2.0;United States v. Koon, 518 U.S.81,92-93 (1996) (The "relevant question is....whether a particular factor is within the heartland given all the facts of the case."). Excepting those factors categorically excluded by the Sentencing Commission, "(t)he guidelines place no limit on the number of potential factors that may warrant a departure." Id. at 104 (quoting Burns v. United States, 501 U.S. 129, 136-137). As this court is aware, the Sentencing Guidelines are now only advisory to this

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court in the aftermath of the recent United States Supreme Court decision in United States v. Booker, 125 S. Ct. 738 (2005). Mr. Cabrera submits there are very strong reasons to depart downward from the applicable guideline range established in the Presentence Report. Given the entire circumstance of Mr. Cabrera's life and role in this offense no further incarceration is necessary or warranted at this time. 1.Section 3B1.2 Mitigating Role A departure under this Section is warranted due to Mr. Cabrera's minimal role in the criminal activity. Mr. Cabrera was not a formal member of the drug smuggling organization, but rather a familial acquaintance to a single co-defendant. As such, he agreed on one sole occasion to drive Mr. Lobo's car while knowing there were drugs in the vehicle. While Mr. Cabrera recognizes the seriousness of his actions on that single occasion, the defense notes for this court that there in no indication in Mr. Cabrera's criminal history that he has any previous involvement in the sale or transfer of drugs. To receive an adjustment pursuant to Section 3B1.2, the defendant must establish that he is clearly among the least culpable in the criminal group. The defendant's culpability is to be measured against his co-participants, not a hypothetical "average participant." See United States v. Petti, 973 F.2d 1441, 1447 (9th Cir. 1992). Further, a downward adjustment under Section 3B1.2 (a) is appropriate only if the defendant was at least "substantially" less culpable than his co-participants. See United States v. Benitez, 34 F.2d 1489, 1498 (9th Cir. 1994). See also United States v. Rodriquez-Cruz, 255 F.3rd 1054 (9th Cir. 2001). (Court upholding district court's denial of adjustment under Section 3B1.2 where the district court had found defendant was a necessary participant in a smuggling operation by stating "he wasn't so dispensable that anyone else could do it.") In the situation involving Mr. Cabrera, the drug smuggling enterprise existed long before any of Mr. Cabrera's involvement and clearly could have continued to do so without his assistance on that single occasion. Mr. Cabrera is clearly less culpable than

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any other co-participant. This was a well-established operation that was not significantly affected or enhanced by Mr. Cabrera's involvement. If Mr. Cabrera had not driven Mr. Lobo's vehicle it is certain that Mr. Lobo or someone else would have done so in order to deliver the marijuana. This fact is illustrated by the fact that Mr. Cabrera did not participate as a driver prior to this single occasion. Further, other transactions and deliveries were made by co-defendants after Mr. Cabrera's arrest. As such, his participation can only be seen as minimal. Accordingly, Mr. Cabrera asks this court for a 4 level downward departure pursuant to Section 3B1.2 (a). IV. Conclusion: For all the foregoing reasons, Mr. Cabrera requests a downward departure of a total of 4 levels in recognition of his minimal participation in this crime. RESPECTFULLY SUBMITTED this 22nd day of February, 2006. KENT & RYAN, P.L.C. By: s/Candace H. Kent Candace H. Kent 45 West Jefferson, Suite 206 Phoenix, Arizona 85003

ELECTRONICALLY FILED on February 22nd, 2006. ONE COPY of the forgoing delivered on the 22nd Day of February, 2006 to: The Honorable Roslyn O. Silver Clerk of the United States District Court 401 West Washington Street Phoenix, Arizona 85003 Copy of the forgoing mailed this 22nd Day of February, 2006 to: Michael A. Lipscomb United States Probation Office 401 W. Washington Street, Suite 160 Phoenix, Arizona 85003 By: s/Candace H. Kent Candace H. Kent
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