Free Sentencing Memorandum - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 850 W. Adams, Ste 201 Phoenix, Arizona 85007 3 Telephone: 602-382-2700 4 ROBERT J. McWHIRTER State Bar # 012283 5 Asst. Federal Public Defender Attorney for Defendant 6 [email protected] 7 8 9 10 11 12 13 14 15 16 Mr. Francisco Luna-Lara, through counsel, has already filed a motion for 17 this Court to reconsider the plea agreement, which this Court acceded to on May 18, 18 2006. Several of the arguments advance in that motion are mitigation arguments 19 when this Court considers whether to impose on Mr. Luna-Lara a sentence of 20 to 20 25 years. At this point, Mr. Luna-Lara requests that this Court consider 21 proportionality when considering that his conduct here was aberrant within the 22 context of an otherwise law-abiding life. 23 PROPORTIONALITY: Mr. Francisco Luna-Lara committed the crime of hostage taking with a 24 25 sexual assault. He already received a sentence of 12 years in the Arizona State court. 26 The current plea agreement provides for a sentence of 20 to 25 years, which more 27 than accounts for his crime. 28 vs. Francisco Luna-Lara, Defendant. United States of America, Plaintiff, No. CR-03-1097-PHX-ROS DEFENDANT'S SENTENCING MEMORANDUM IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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1

Comparing this sentence to the Criminal Sexual Abuse guideline at

2 §2A3.1 demonstrates that he would have received a criminal offense level of thirty3 three yielding a sentence of 135 to 168 months (base offense level = 30, + 2 for care 4 custody supervisory control, + 4 for abducting the victim, - 3 for accepting 5 responsibility). Such a sentence of 135 to 168 months (11.25 - 14 years) is 6 substantially less than the punishment of 20 to 25 years even accounting for guideline 7 §2A3.1, two points for the victim being in the defendant's care, custody and control 8 and four points for abducting the victim, punishing conduct similar to hostage taking. 9 Thus, the 20 to 25 years that the plea agreement stipulates is already well over the 10 comparable guideline at §2A3.1 for criminal sexual abuse. This is an important factor 11 for this Court's consideration under 18 U.S.C. § 3553 regarding the "seriousness of 12 the offense." 13 On this point, Mr. Francisco Luna-Lara requests that this Court consider 14 that the crime of second degree murder under guideline §2A1.2 provides a base 15 offense level of 38 with an offense level of 35 after acceptance of responsibility 16 yielding a sentence of 168 to 210 months (14 to 17.5 years). Mr. Luna-Lara's crime 17 as well as the manner in which he committed it was both serious and offensive. It 18 was not, however, as serious as second degree murder or even manslaughter. The fact 19 remains, that no one was killed. Mr. Luna-Lara's range of 20 to 25 years is already 20 far beyond what he would receive at even the 17.5 year top of the second degree 21 murder guideline. With this in mind, he asks this Court to consider that his conduct 22 is already fully punished by a sentence of 20 years. 23 Mr. Luna-Lara's conduct was aberrant from what is otherwise been a 24 law-abiding life. Under the aberrant behavior downward departure guideline at 25 §5K2.20, with the exception of using "a firearm," Mr. Francisco Luna-Lara would 26 have been eligible for a downward departure. Given that the question here is the 27 28 2

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1 application of the stipulated guideline range of 20 to 25 years this Court should 2 consider that his behavior was aberrant from an otherwise law abiding life when 3 crafting a sentence under 18 U.S.C. §3553. 4 As the pre-sentence report reflects, Mr. Luna-Lara was himself a "pollo." 5 He is a man who has gone through life with little or no power who was given a role 6 in this conspiracy. The criminal organization benefitted, not Mr. Luna-Lara. At the 7 very least, he will spend twenty years in prison contemplating his transgression. 8 Given the comparison with other criminal punishments, Mr. Luna-Lara would request 9 that this Court consider 20 years for his crime sufficient. This in no way diminishes 10 the offensive conduct in which he engaged or the pain that he caused but merely 11 recognizes that imposing a sentence under 18 U.S.C. §3553 requires this Court to 12 consider proportionality and that 20 years more than fulfills the goal of sentencing. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Respectfully submitted: May 31, 2006. JON M. SANDS Federal Public Defender s/Robert J. McWhirter ROBERT J. McWHIRTER Assistant Federal Public Defender

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1 Copy of the foregoing transmitted by CM/ECF for filing this 31st day 2 of May, 2006, to: 3 CLERK'S OFFICE United States District Court 4 Sandra Day O'Connor Courthouse 401 W. Washington 5 Phoenix, Arizona 85003 6 Lisa Settle Assistant U.S. Attorney 7 United States Attorney's Office Two Renaissance Square 8 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 9 Copy mailed to: 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Francis Luna-Lara 12 Defendant s/Robert J. McWhirter

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