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-03-1167-001-PHX-DGC Plaintiff, v. Robert J. Johnston, Jr., Defendant. The United States of America, by and through undersigned counsel, hereby responds to GOVERNMENT'S RESPONSE TO DEFENDANT'S OBJECTIONS TO THE PRESENTENCE INVESTIGATION REPORT

17 defendant ROBERT J. JOHNSTON, JR.'s Objections to the Presentence Investigation Report. 18 Defendant JOHNSTON has filed several objections to the Presentence Report. The United States 19 provides the applicable facts in this case to respond to the defendant's objections. 20 I. 21

FACTS Defendant ROBERT J. JOHNSTON, JR. was charged in the Second Superseding

22 Indictment with count one, Racketeer Influenced and Corrupt Organization - RICO, and count 23 two, RICO Conspiracy. 24

On February 16, 2006, defendant JOHNSTON pled guilty to an Information, Misprision

25 of a Felony, to wit: Possession with the Intent to Distribute less than 5 grams of actual 26 Methamphetamine. The United States agreed to dismiss counts 1 and 2 as part of the plea 27 agreement at the time of sentencing. The defendant agreed to forfeit his interest in all of the items 28 contained in the list of property in Attachment A to the plea agreement. Also, as part of the plea

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1 agreement, defendant JOHNSTON admitted to the following factual basis: On February 19, 2 2003, in the District of Arizona, a member of the Hells Angels Motorcycle Club (HAMC) Mesa 3 chapter sold approximately 1/16 of an ounce of methamphetamine to an undercover agent for 4 $110. This transaction occurred inside the clubhouse for the Hells Angels Motorcycle Club 5 (HAMC) Mesa chapter in Mesa, Arizona. Defendant ROBERT J. JOHNSTON, JR. was the 6 president of the HAMC Mesa chapter on this date, and as such, had the power to either permit 7 or preclude the HAMC Mesa chapter member's sale of methamphetamine. DEA laboratories 8 tested the above substance and confirmed that it was a total of 1.7 net grams of methamphetamine 9 and 1.2 actual grams of pure methamphetamine. Defendant JOHNSTON had knowledge of the 10 commission of this Possession with the Intent to Distribute less than 5 grams of actual 11 methamphetamine, and did conceal the same, and did not as soon as possible make it known to 12 some judge or other person in civil or military authority under the United States. 13 II. 14

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

15 determining the relevant facts, sentencing judges are not restricted to information that would be 16 admissible at trial. Any information can be considered, so long as it has `sufficient indicia of 17 reliability to support its probable accuracy.'" U.S.S.G. § 6A1.3, Comment (citing to 18 U.S.C. 18 §3661 and case law). Using reliability as the threshold for consideration, materially inaccurate 19 information should not be considered in the formulation of a sentence. See United States v. 20 Safirstein, 827 F.2d 1380, 1385 (9th Cir. 1987). The district court's factual findings and 21 interpretation and application of the Sentencing Guidelines are upheld on appeal unless clearly 22 erroneous. United States v. Reyes-Oseguera, 106 F.3d 1481, 1483 (9th Cir. 1997). The standard 23 of proof that is required is a preponderance of evidence standard pursuant to United States v. 24 Booker, 125 S.Ct. 738 (2005). 25

The defense objects to a majority of the paragraphs of the "Charges and Convictions"

26 section (page 3, paragraphs 1, 4 and 5; and, page 5, paragraph 6), the "Offense Conduct" section 27 (page 5, paragraph 8; and, page 6, paragraphs 10-18), and the "Culpability Assessment" section 28 (pages 6-10, paragraphs 19-21) of the Presentence Report regarding information not specifically

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1 related to the charge the defendant pled guilty. The United States agrees with the Presentence 2 Report writer that this information is provided to the court, or a reviewing court in the future, to 3 provide an overall view of the case. The United States dismissed the RICO counts 1 and 2 4 against this defendant, and the issue was never decided by a jury. The United States submits that 5 this information does not impact the defendant's sentencing guidelines. The charges against co6 defendants along with the results of those cases are relevant for this court to decide the 7 appropriate punishment for defendant JOHNSTON. 8

The defense also objected to page 6, paragraph 13, and claimed it "discusses an unproved

9 theory that members of the HAMC distributed methamphetamine as an organization." However, 10 the defendant admitted in his plea that a member of the Hells Angels Motorcycle Club (HAMC) 11 Mesa chapter sold methamphetamine to an undercover agent. The defendant further admitted that 12 this transaction occurred inside the clubhouse for the Hells Angels Motorcycle Club (HAMC) 13 Mesa chapter. Defendant JOHNSTON also admitted that he was the president of the HAMC 14 Mesa chapter on this date, and as such, had the power to either permit or preclude the HAMC 15 Mesa chapter member's sale of methamphetamine. 16

The defense objects to page 11, paragraph 34 of the Presentence Report regarding the two

17 level reduction for acceptance of responsibility. The United States agreed to recommend a 3 level 18 reduction pursuant to section 3E1.1 of the sentencing guidelines. As this Court is aware, section 19 3E1.1 of the sentencing guidelines does not provide for a three level reduction in this case, as 20 defendant's offense level must be a level 16 or greater. The United States should have been more 21 attentive to the likelihood that the defendant's offense level could be below 16, and as a result, 22 should not have agreed to recommend a third level of reduction. In any event, the United States 23 intends to comply with what it believes is its obligation under the plea agreement, and 24 recommend the additional one level reduction set forth in paragraph 2(b) of the plea agreement. 25 In doing this, the United States realizes that such a recommendation is contrary to the application 26 of the advisory sentencing guidelines. 27

Lastly, the defense objects to page 13, paragraph 41 of the Presentence Report regarding

28 one of the defendant's prior felony convictions in Arizona. Undersigned counsel investigated the 3 Case 2:03-cr-01167-DGC Document 1416 Filed 12/14/2006 Page 3 of 4

1 underlying facts of the conviction with the Presentence Report writer, considered the application 2 of section 4A1.1(a) of the advbisory sentencing guidelines, and believes the calculations are 3 accurate. The defendant should receive three criminal history points for this conviction. 4 III. 5

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

6 Report. This Court is fully aware of the allegations in the indictment, and many of the facts in 7 this case from numerous motions and hearings that were held. The United States further agrees 8 with the calculation by the Presentence Report writer that the total offense level is seven, with 9 a criminal history category III, is therefore within Zone B, with an advisory guideline range of 10 4-10 months. The United States requests that this Court follow the plea agreement and the 11 recommendation of the Presentence Report, and sentence this defendant to three (3) years 12 probation, a four (4) month period of home confinement, and the other special conditions as 13 detailed in the Presentence Report. 14 15 16 17 18 19 20 21 CERTIFICATE OF SERVICE 22 I hereby certify that on December 14, 2006, I electronically transmitted the attached document

Respectfully submitted this 14th 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 Brian F. Russo, Attorney for Defendant 25 26 I hereby certify that on December 14, 2006, I served the attached document by interoffice mail,

on the following, who are not registered participants of the CM/ECF System: Shawn T. Shear

27

28 Senior U.S. Probation Officer

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