Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona FREDERICK A. BATTISTA Assistant U.S. Attorney Maryland State Bar Member [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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United States of America, CR-03-1123-PHX-NVW Plaintiff, v. Maria Del Refugio Rodriguez-Ramirez, Defendant. RESPONSE TO DEFENDANT'S OBJECTIONS TO PRESENTENCE REPORT

The United States of America, by and through undersigned counsel, hereby responds to defendant's Objections to Presentence Report through the attached memorandum of points and authorities. Respectfully submitted this 28th day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/ Frederick A. Battista FREDERICK A. BATTISTA Assistant U.S. Attorney

Case 2:03-cr-01123-NVW

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MEMORANDUM The government's responses to the defendant's objections to the Presentence Investigation Report (PSR) will be presented in the order the objections were raised by the defendant. I. Acceptance of Responsibility Defendant has not accepted responsibility in this case. Moreover, in light of the jury verdict, defendant sought to obstruct justice through her false testimony. Defendant testified in detail as to why she believed she was a United States citizen yet her testimony was rejected by the jury as evidenced by their verdict. At trial, defendant testified that she learned as a young girl that she was born in the United States yet she also admitted on the stand that she had gone through a great deal of effort trying to become a naturalized citizen. This extensive effort would not have been necessary had she truly believed she had been born in the United States, e.g., hiring an immigration lawyer and completing the naturalization application. Beyond defendant's suspect testimony, there is no evidence of remorse in this case. While this Court has the authority to grant acceptance of responsibility, without any evidence of remorse defendant is entitled to no such consideration. See United States v. Gallant, 136 F. 3d 1246, 1248 (9th Cir. 1998)(implicit in acceptance of responsibility is an admission of moral wrong doing through an expression of contrition and remorse; no adjustment where the defendant who went to trial regretted getting caught and stated he felt he had to shoot a guard); United v. Nielsen, 371 F. 3d at 582-83 (district court properly found a defendant who went to trial, did not assist authorities and did not express any remorse or contrition had not accepted responsibility for his conduct.) Accordingly, this Court should deny defendant acceptance of responsibility. II. Offense Level Computations ­ PSR ¶ 11, Aggravated Felony Convictions The government concurs with defendant's objection to the use of defendant's assault conviction as an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(A)(iii) due to the fact that
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the conviction occurred under A.R.S. §§ 13-1203(A)(3) and 13-1204(A)(5). The key aspect of the conviction is Section 13-1203(A)(3) which applies where a person knowingly touches another with the intent to injure, insult or provoke the victim. In this case, the government is not aware of sufficient evidence in the form of a judgement, plea agreement, transcript of the change of plea, etc., that would identify defendant's specific conduct that caused the assault. Therefore, since touching with the intent to insult would not generally rise to the level of a crime of violence, a generic conviction under this statute would not satisfy the categorical approach required by Taylor v. United States, 495 U.S. 575 (1990). The defendant's other listed conviction, however, clearly is an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(A)(iv). "Aggravated felony", as defined in the context of illegal reentry after deportation subsequent to a conviction for the commission of an aggravated felony in violation of 8 U.S.C. § 1326(a) and (b)(2), includes "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in Section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). The definition of aggravated felony also includes "an attempt or conspiracy to commit" a drug trafficking crime, and applies to an offense "whether in violation of Federal or State law . . . ." 8 U.S.C. § 1101(a)(43). A drug trafficking crime is defined as "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et. seq.) . . . ." 18 U.S.C. § 924(c) (emphasis added). It is evident that defendant's prior conviction for Possession of Marijuana for Sale, PSR ¶ 23, under A.R.S. § 13-3405(A)(2) clearly falls within the definition of a drug trafficking crime. Defendant contends that the conviction does not apply because the statute does not expressly require "intent" to distribute. This argument is a weak play on words since the government is not aware of anyway a person can be held criminally liable for knowingly doing something this type of offense, e.g., knowingly possessing marijuana for sale, without simultaneously intending to commit the same criminal act. In a sense, defendant is contending that there is proof that she knowingly possessed marijuana for sale but no judicially recognizable proof that she possessed the same marijuana, at the
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same time, with the "intent" to distribute it. It is the position of the government that defendant is seeking to split a hair too fine in this case. Clearly, possession of marijuana for sale is the same of possession of marijuana with intent to distribute and, therefore, an aggravated felony for purposes of Section 2L1.2(b)(1)(A)(iv). See United States v. Hernandez-Valdovinos, 352 F.3d 1243, 1247 (9th Cir. 2003) (attempted sale of a narcotic drug in violation of Section 13-3405(A)(2) is a drug trafficking aggravated felony for purposes of Section 2L1.2(b)(1)(A)).1 III. Cultural Assimilation The government acknowledges that defendant has many years in the United States and has ties to this country. However, defendant's longstanding and ongoing criminal history dating back to 1985, as evidenced by her seven (7) prior felony convictions in multiple states documented in the PSR for offenses such as assault, drug trafficking, forgery, are proof that defendant has significantly abused the privilege of being present in the United States and has generally not been a productive member of society while present within its borders. Under these circumstances, defendant does not merit a reduction in her advisory Sentencing Guideline range for cultural assimilation.
IV.

Conclusion For the forgoing reasons, the PSR should be amended or not amended in

accordance with the responses set forth above.

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Defendant's conviction detailed in PSR ¶ 21 for attempted importation of marijuana in violation of A.R.S. § 13-3405(A)(4) is also a drug trafficking aggravated felony under the same analysis. 4

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Respectfully submitted this 28th day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona

S/ Frederick A. Battista
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FREDERICK A. BATTISTA Assistant U.S. Attorney

CERTIFICATE OF SERVICE I hereby certify that on October 28, 2005, I caused the attached document to be electronically transmitted to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Michael B. Bernays

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Probation Officer Jeannie Moreno U.S. Probation Office S/Frederick A. Battista

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FREDERICK A. BATTISTA Assistant U.S. Attorney

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