Free Motion for Reconsideration - 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 Defendant, Francis Luna-Lara, through undersigned counsel, requests 17 that this Court reconsider the 23 January 2006 rejection of the plea agreement. The 18 parties have already filed joint motions as to why the Court should have accepted the 19 plea agreement responding to this Court's 19 December 2005 inquiry. In addition, 20 the parties request that this Court reconsider its rejection of the plea agreement under 21 18 U.S.C. § 3553. 22 23 Under 18 U.S.C. § 3553 the Plea Agreement Was Appropriate. The plea agreement provided Mr. Francisco Luna-Lara a sentence of 24 25 between 20 and 25 years to run concurrently with his 12 year sentence from Arizona 26 State court for the Sexual Assault related to the instant crime. The sentencing statute 27 at 18 U.S.C. § 3553(a) provides that "the court shall impose a sentence sufficient, but 28 not greater than necessary" to effect the purposes of sentencing. The proposed 20-25 vs. Francis Luna-Lara, Defendant. United States of America, Plaintiff, No. CR-03-1097-PHX-ROS MOTION TO RECONSIDER PLEA AGREEMENT (Oral Argument Requested) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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1 year sentence is more than enough to meet 18 U.S.C. § 3553(a)(2)'s sentencing goals 2 as it certainly would "reflect the seriousness of the offense, ... promote the respect for 3 law, and ... provide just punishment for the offense." 18 U.S.C. § 3553(a)(2)(A). 4 6 7 8 9 · · · Moreover, it would meet 18 U.S.C. § 3553(a)(2)(A)'s following to provide adequate deterrence, to protect the public from further crimes of the defendant, to provide the defendant needed education or vocation training. 5 requirements:

Mr. Luna-Lara is in Criminal History Category I with no criminal conduct on his

10 record. Moreover, he was not a "ringleader" or main conspirator. His conduct here 11 was out of character from what otherwise appears to have been a law abiding life. 12 Indeed, Mr. Luna-Lara originally started as a "pollo" himself and was then given 13 power over other people and reacted badly. For this, the plea agreement gives him 14 20-25 years. Such a sentence more than meets 18 U.S.C. § 3553(a)(2)'s requirements 15 as any other sentence would be far "greater than necessary." 16 Here, the Presentence Report (PSR) did not include all information 17 relevant to 18 U.S.C. § 3553(a)'s purposes and factors. Under this statute, the 18 Guidelines are only one of seven equally important factors to decide a sentence 19 "sufficient, but not greater than necessary" to comply with 18 U.S.C. § 3553(a)(2). 20 As the Ninth Circuit has recently stated, "the reasonableness of a sentence is informed 21 by all of the § 3553(a) factors, including the Guidelines range." United States v. 22 Plouffe, ___ F.3d ___, 2006 WL 1044228 (C.A. 9 (Mont.)) citing Booker, 543 U.S. 23 at 245-46, 264-65. Mr. Luna-Lara respectfully requests that the Court use these 24 factors and reconsider accepting the plea agreement. 25 26 27 28 2

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1 The Preponderance Standard Over-Emphasizes the Guidelines 2 This Court's reasons for not accepting this plea agreement were based 3 on the PSR's calculation that Mr. Luna-Lara's Offense Level would have been 46, 4 yielding a sentence of life imprisonment without parole. Although sentencing courts 5 after Booker are suppose to give "substantial weight" to the Guidelines, they are not 6 binding. Thus, when this Court stated that it was persuaded "by a preponderance of 7 the evidence" that there were sufficient facts to support the Level 46 calculation, 8 (Record of Transcript, January 23, 2006 at 4-5), it violated Booker. Under Booker 9 sentencing facts must be proved beyond a reasonable doubt or admitted to by the 10 defendant. This Court's use of the preponderance standard in this context puts too 11 much weight on the advisory guidelines at the expense of 18 U.S.C. § 3553's other 12 factors. Rather than the preponderance standard, Mr. Luna-Lara respectfully submits 13 that this Court should have used the reasonable-doubt standard or at the very least the 14 clear-and-convincing standard when deciding whether to accept this plea. 15 16 Sentencing Proportionality Supports the Plea Hear 17 This Court's rejection of the plea agreement raises serious questions 18 regarding the proportionality of a later sentence. If Mr. Luna-Lara would have 19 committed second degree murder his Offense Level would have been 35 after 20 accepting responsibility. Here, however, his calculation is Level 46 or even higher. 21 Second degree murder is categorically a far worse crime than hostage taking even 22 under the facts of this case. Such a sentence within the Guideline calculation would 23 nevertheless be "unreasonable" under § 3553. As the Ninth Circuit has ruled, "[a] 24 sentence that is within the Guidelines range therefore may be unreasonable and thus 25 imposed in violation of law pursuant to § 3742(a)(1)." Plouffe, ___ F.3d ___, 2006 26 WL 1044228. 27 28 3

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1

Even accounting for the seriousness of Mr. Luna-Lara's crime including

2 the sexual assault, to allow a sentence of life in prison without parole is 3 disproportionate given the offense conduct and violates § 3553. The plea agreement 4 avoided this problem. This Court's reasoning for rejecting the plea, however, 5 precludes any reasonable resolution of the case. At this point, there is no way the 6 parties can negotiate any possible resolution that would avoid the life imprisonment 7 without the possibility of parole. 8 Given the serious issues of proportionality when compared to more 9 serious crimes committed in society, Mr. Luna-Lara would request that this Court 10 reconsider its position in light of § 3553. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Respectfully submitted: April 24, 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 ECF for filing this 24th day 2 of April, 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 MICHAEL REEVES 10 1212 E. Osborn Road Phoenix, AZ 85014 11 counsel for Samaniego-Cachon 12 Copy mailed to: 13 FRANCIS LUNA-LARA Defendant 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
s/T.Gutierrez

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