Free Response - District Court of Arizona - Arizona

1 PAUL K. CHARLTON 2
United States Attorney District of Arizona KEITH E. VERCAUTEREN

3 TIMOTHY T. DUAX
Assistant U.S. Attorney

4 Two Renaissance Square 5 Phoenix, Arizona 85004
40 North Central Avenue, Suite 1200 Arizona State Bar No. 013439, 012694 [email protected]

6 Telephone (602) 514-7500 7 [email protected] 8 9 10 11 12 13 14 15 16

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

United States of America, CR-03-1167-006-PHX-DGC Plaintiff, v. Calvin B. Schaefer, Defendant. The United States of America, by and through undersigned counsel, hereby responds to Defendant GOVERNMENT'S RESPONSE TO OBJECTIONS TO THE PRESENTENCE REPORT

17 defendant CALVIN B. SCHAEFER's Objections to the Presentence Report.

18 SCHAEFER has filed several objections to the Presentence Report. The United States provides 19 the applicable facts in this case to respond to the defendant's objections. 20 I. 21

FACTS Defendant CALVIN B. SCHAEFER was charged in the Second Superseding Indictment

22 with count one, Racketeer Influenced and Corrupt Organization - RICO, count two, RICO 23 Conspiracy, counts 26 and 32, Possession with Intent to Distribute Methamphetamine, counts 27 24 and 33, Possession of a Firearm in Relation to a Drug Trafficking Crime, and count 28, 25 Possession of a Firearm and Ammunition by an Unlawful Drug User. 26

On February 16, 2006, defendant SCHAEFER pled guilty to count 27 of the Second

27 Superseding Indictment. The United States agreed to dismiss counts 1, 2, 26, 28, 32 and 33 as 28 part of the plea agreement at the time of sentencing. The defendant agreed to forfeit his interest

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1 in all of the items contained in the list of property in Attachment A to the plea agreement. Also, 2 as part of the plea agreement, defendant SCHAEFER admitted to the following factual basis: On 3 or about February 12, 2003, in the District of Arizona, defendant CALVIN B. SCHAEFER sold 4 approximately 1/8 of an ounce of methamphetamine to an undercover agent for $150. This 5 transaction occurred at an undercover residence in Phoenix, Arizona. DEA laboratories tested 6 the above substance and confirmed that it was a total of 2.6 net grams of methamphetamine and 7 1.8 actual grams of pure methamphetamine. Additionally, during and in furtherance of this drug 8 sale, defendant CALVIN B. SCHAEFER possessed a firearm, a Ruger 9 mm pistol, serial number 9 313-75183. Defendant possessed the Ruger 9 mm pistol in furtherance of, and during and in 10 relation to, his knowing and intentional possession with intent to distribute the 1.8 actual grams 11 of pure methamphetamine on February 12, 2003. 12 II. 13

LEGAL ANALYSIS The Commentary to §6A1.3 of the advisory Sentencing Guidelines instructs that, "in

14 determining the relevant facts, sentencing judges are not restricted to information that would be 15 admissible at trial. Any information can be considered, so long as it has `sufficient indicia of 16 reliability to support its probable accuracy.'" U.S.S.G. § 6A1.3, Comment (citing to 18 U.S.C. 17 §3661 and case law). Using reliability as the threshold for consideration, materially inaccurate 18 information should not be considered in the formulation of a sentence. See United States v. 19 Safirstein, 827 F.2d 1380, 1385 (9th Cir. 1987). The district court's factual findings and 20 interpretation and application of the Sentencing Guidelines are upheld on appeal unless clearly 21 erroneous. United States v. Reyes-Oseguera, 106 F.3d 1481, 1483 (9th Cir. 1997). The standard 22 of proof that is required is a preponderance of evidence standard pursuant to United States v. 23 Booker, 125 S.Ct. 738 (2005). 24

First, the defense objects to the majority of the paragraphs of the "Charges and

25 Convictions" section (page 4, paragraphs 1 and 4; page 5, paragraphs 5 and 7; and, page 6, 26 paragraphs 9 and 10), the "Offense Conduct" section (page 6, paragraph 13; and, page 7, 27 paragraphs 14-23), and the "Culpability Assessment" section (pages 8-12, paragraphs 24-26) of 28 the Presentence Report regarding information not specifically related to the charge the defendant

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1 pled guilty. The United States agrees with the Presentence Report writer that this information is 2 provided to the court, or a reviewing court in the future, to provide an overall view of the case. 3 The United States dismissed the RICO counts 1 and 2 against this defendant, and the issue was 4 never decided by a jury. The United States submits that this information does not impact the 5 defendant's sentencing guidelines. The charges against co-defendants along with the results of 6 those cases are relevant for this court to decide the appropriate punishment for defendant 7 SCHAEFER. The defense also objected to page 6, paragraph 11, and claimed it was unrelated 8 to the defendant. However, the United States believes this was a mistake because this paragraph 9 contains information on the count the defendant pled guilty with the stipulation to 60 months 10 imprisonment. 11

Second, the defense objects to page 6, paragraph 12 of the Presentence Report regarding

12 the forfeiture of certain items. The United States agrees with the Presentence Report writer that 13 some of the items listed in Attachment A reference HAMC. The United States also agrees with 14 the defense that Attachment A speaks for itself. 15

Third, the defense objects to page 13, paragraph 33 of the Presentence Report regarding

16 the Federal offense in Nevada. The United States agrees with the Presentence Report writer that 17 this information is accurate. Defendant SCHAEFER did plead guilty to a Violent Crime in Aid 18 of Racketeering in Nevada. 19

Fourth, the defense objects to page 21, paragraphs 84 and 85 of the Presentence Report

20 that provides for the impact that the plea agreement has in this case. This part of the Presentence 21 Report discusses the punishment the defendant faced had he been convicted of all counts. This 22 section is appropriate, and is included in all Presentence Reports, as a way for the court to 23 establish whether the plea agreement is fair and in the interests of justice. 24 III. 25

CONCLUSION The United States would agree with the information contained within the Presentence

26 Report. This Court is fully aware of the allegations in the indictment, and many of the facts in 27 this case from numerous motions and hearings that were held. The United States further agrees 28 with the calculation by the Presentence Report writer that the base offense level is required by 3 Case 2:03-cr-01167-DGC Document 1414 Filed 12/11/2006 Page 3 of 4

1 statute, and the defendant has a criminal history category I. The United States requests that this 2 Court follow the plea agreement and the recommendation of the Presentence Report, and sentence 3 this defendant to 60 months in the Bureau of Prisons. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 CERTIFICATE OF SERVICE 22 I hereby certify that on December 11, 2006, I electronically transmitted the attached document

Respectfully submitted this 11th day of December, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney

to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic

23 Filing to the following CM/ECF registrants: 24 David C. Chesnoff, Attorney for Defendant 25 26 I hereby certify that on December 11, 2006, I served the attached document by interoffice mail,

on the following, who are not registered participants of the CM/ECF System: Mark W. Nebgen

27

28 Senior U.S. Probation Officer

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