Free Sentencing Memorandum - District Court of Arizona - Arizona

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G EORGE F. K LINK
45 West Jefferson Luhrs Tower - Suite #810 Phoenix, AZ 85003-2328 (602) 253-3889 State Bar #004057 Attorney for Defendant IN THE UNITED STATES DISTRICT COURT

6 DISTRICT OF ARIZONA 7 ____________________________________ 8 9 10 11 12 13 Defendant, through counsel, submits the attached Memorandum to aid the Court in its sentencing 14 decision. 15 16 17 18 19 20 By: 21 22 23 24 25 26 27 28 /s/ George F. Klink Attorney for Defendant Respectfully submitted this 24th day of July, 2006. ) ) ) Plaintiff, ) ) ) Joseph Cayer, ) ) Defendant. ) ____________________________________) United States of America, No. CR03-01164-010-PHX-PGR SENTENCING MEMORANDUM

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 By: /s/ Susan L. West 17 18 19 20 21 22 23 24 25 26 27 28 Beth Stewart United States Probation Officer 401 West Washington Street Suite 160, Space 7 Phoenix, AZ 85003 facsimile (602) 322-7409 CERTIFICATE OF SERVICE I hereby certify that on July 24, 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: Hon. Paul G. Rosenblatt United States District Court 401 West Washington Street Phoenix, AZ 85003 [email protected] Timothy T. Duax, Esq. [email protected] Assistant United States Attorney Copy of the foregoing faxed/mailed this 24th day of July, 2006 to:

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM 1. As this Court is aware, under recent rules of the Supreme Court, the Court is required to fashion a sentence "sufficient, but not greater than necessary" to achieve the statutory purposes set forth in 18 U.S.C. §3553(a). United States v. Booker, 125 S.Ct. 738 (2005). Booker has restored this Court to fashion a sentence tailored to the individual circumstances of the case and the Defendant. 2. Moreover, pursuant to the holding in U.S. v. Zavala, __ F.3d __, (9th Cir., April 11, 2006), No. 05-30120. the guideline range of sentence is only one factor among all the others which the Court should consider in determining a just sentence. Regrettably, the presentence writers in this district uniformly find, as set forth in paragraph 61 of the presentence report, that there is no information concerning the offense or the offender which would warrant a variance from the sentencing guidelines. The presentence writers in this district, in uniformly doing so, ignore the case law which requires consideration of all factors. 3. Among the factors this Court should consider is that the Defendant, at the beginning of his participation in this conspiracy, was an unknowing participant. It is true that he later became aware of the conspiracy and continued to participate in it. Nevertheless, it is clear to this writer that this Defendant would never have become involved had he known at the very beginning that he was participating in the transportation of marijuana. The Defendant neither uses marijuana nor approves of its use, nor does he use any other drugs. In counsel's view, the leaders in this conspiracy utilized naive individuals to do their bidding. 4. It is anticipated that the United States government will make a sentencing recommendation which is another factor that the Court should consider in determining a sentence. 5. Defendant's present State probation has proceeded without any violations. He expects that probation to terminate shortly with a misdemeanor designation. 6. The Defendant has substantial and significant family ties which are supportive of him and which will play a significant role in his future goal to be a law-abiding citizen. Under these circumstances, the undersigned urges this Court to impose probation for this Defendant . It is clear from his past performance that he will be able to live up to the terms of his

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probation and given his minor participation in this matter, a probationary term is appropriate under the present sentencing standards set forth by the Appellate courts.

Dated: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

July 24, 2006

/s/ George F. Klink Attorney for Defendant

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