Free Objection to Presentence Investigation Report - District Court of Arizona - Arizona

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Brian F. Russo (018594) 111 West Monroe Street Suite 1212 Phoenix, Arizona 85003 (602) 340-1133 telephone (602) 258-9179 facsimile e-mail: [email protected] Attorney for Defendant Robert Johnston Jr. IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, vs. ROBERT J. JOHNSTON, JR. (1), Defendant. ) ) ) ) ) ) ) ) ) ) Case No. CR 03-1167 PHX-DGC DEFENDANT'S OBJECTIONS TO PRESENTENCE INVESTIGATION REPORT

COMES NOW the defendant by and through counsel, Brian F. Russo, and hereby submits his objection to provisions contained within the Presentence Investigation Report (hereinafter "PSIR"). Generally, defendant objects to any and all reference to Racketeering, RICO, Hells Angels and Enterprise/Organization with regard to his sentencing because the indictment concerning these issues was dismissed and the defendant plead to a complaint entirely unrelated to the Hells Angels as a RICO enterprise. In fact, all charges related to RICO were dismissed.

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Objection #1, ¶ 1, 4, 5, and 6 The defendant objects to paragraphs 1, 4, 5 and 6 for the reason that they contain reference to the Hells Angels and offense conduct related to the RICO indictment that has been dismissed. The defendant plead to a complaint charging Misprision of a Felony, totally unrelated to the Hells Angels as a RICO enterprise. Accordingly, paragraphs 1, 4, 5 and 6 should be stricken. Objection #2, ¶ 8 The defendant objects to paragraph 8, which relates to offense conduct specifically claiming that the "Hells Angels Motorcycle Club is an international organization whose members engage in acts of violence . . ." This is not relevant to the offense to which Mr. Johnston pled. This information relates to the Hells Angels and the allegations that were dismissed and are thus, prejudical to the sentencing in this case. Accordingly, this paragraph should be stricken. Objection #3, ¶ 10-12 The defendant objects to paragraphs 10-12 for the reason that they contain info4rmation not related to MR. Johnson and discuss the government's theory about members of the Hellas Angels Motorcycle Club. Accordingly, these paragraphs are not relevant and should be stricken. Objection #4, ¶ 13 Similarly, the defendant objects to paragraph 13 because it discusses an unproved theory that members of the HAMC distributed methamphetamine as an organization. Accordingly, this paragraph should be stricken. Objection #5, ¶ 14 The defendant objects to this paragraph because it has nothing to do with Mr. Johnston. Accordingly, it should be stricken.

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Objection #6, ¶ 15 This paragraph suggests that the Court should consider the Laughlin incident as relevant offense conduct. The defendant objects to this paragraph because it is unrelated to his plea and has nothing to with offense conduct relating to him or the offense to which he plead. Accordingly, this paragraph should be stricken. Objection #7, ¶ 16-18 The defendant objects to these paragraphs because they again discuss other members of the HAMC and conduct unrelated to Mr. Johnston or the offense to which he plead guilty. Accordingly, these paragraphs should be stricken. Objection #8, ¶ 19 This paragraph discusses the Hells Angels as an organization and is unrelated to Mr. Johnston's offense and plea agreement. Accordingly, this paragraph should be stricken. Objection #9, ¶ 20-21 These paragraphs discuss conduct on behalf of others who were charged in the RICO indictment that was dismissed. These paragraphs discuss conduct by these individuals in relation to the government's theory of an enterprise concerning members of the Hells Angels Motorcycle Club. Although, the presentence writer does not attribute any role adjustment, the paragraphs are not relevant to Mr. Johnston's offense conduct and accordingly should be stricken. Objection #10, ¶ 34 The defendant objects to this paragraph because the plea agreement specifically states that the government and the defendant agree to a 3 point reduction based on acceptance and responsibility. The presentence writer only provides 2 points based on §3E1.1 (a) of the United States Sentencing Guidelines.

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However, as the Court is aware, the Guidelines are simply advisory and the Court is free to consider them only as part of the overall sentencing determination. Put another way, the Court is not prevented from attributing an additional point simply because the advisory guidelines suggest that an additional level can only be decreased if the offense level is greater than 16. If the Court finds, based on the underlying principles of §3E1.1(b), that defendant should receive an additional level decrease, great deference is given to that decision. Objection #11, ¶ 41 The defendant objects to the criminal history calculation contained in this paragraph. The Application Notes to §4A1.1(a) state in pertinent part that "A sentence imposed more than fifteen years prior to the defendant's commencement of the instant offense is not counted unless the defendant's incarceration extended into this fifteen year period." USSG Application Notes §4A1.1(a). Section 4A1.2(b) defines "sentence of imprisonment." Subsection (1) states that sentence of imprisonment refers to the maximum sentence imposed. Subsection (2) states that "[I]f part of sentence of imprisonment was suspended, "sentence of imprisonment" refers only to the portion that was not suspended." Mr. Johnston's incarceration ended more than 15 years prior to the commencement of the instant offense and therefore should not be counted as criminal history points. The defendant was sentenced March 25, 1986 to prison. On October 21, 1987 he was released from prison to a hotel/half way house in Phoenix. He also was allowed to work while staying at the hotel/half way house. A community confinement center or a halfway house is not a "secure jail facility" and thus excluded from the definition of incarceration and imprisonment. United States v.

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Latimer, 991 F.2d 1509 (9th Cir. 1993); United States v. Pielago, 135 F.3d 703 (11th Cir. 1998). Thus, his release from incarceration occurred more than 15 years prior to the offense conduct alleged in the Superceding Complaint, which alleges that the conduct occurred on or before February 19, 2003. Accordingly, 3 points should be removed from the criminal history calculation. WHEREFORE, the Defendant respectfully requests that this Court sustain his objections as set forth above.

RESPECTFULLY SUBMITTED this 6th day of December, 2006. /s/ Brian F. Russo Brian F. Russo Attorney for Defendant

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CERTIFICATE OF SERVICE

I hereby certify that on December 6, 2006, I electronically transmitted the attached document to the Clerk's Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Honorable David G. Campbell, US District Court Judge Timothy Duax, AUSA

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Keith Vercauteren, AUSA Shawn Shear, US Probation All Co-Counsel

/s/

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