Free Memorandum - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona LISA JENNIS SETTEL Assistant U.S. Attorney Two Renaissance Square 40 North Central, Suite 1200 Phoenix, Arizona 85004-4408 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-03-1097-PHX-ROS Plaintiff, v. Francis Luna-Lara, Defendant. Plaintiff, United States of America, by and through its attorneys, PAUL K. JOINT SENTENCING MEMORANDUM

15 CHARLTON, United States Attorney for the District of Arizona, and Lisa Jennis Settel, 16 Assistant United States Attorney and Defendant, Francis Luna-Lara, through his attorney, 17 Robert McWhirter, respectfully submit this Joint Sentencing Memorandum, requesting that 18 this court accept the plea agreement in this matter. 19 This defendant was charged in a four count Indictment. The Indictment charges 20 hostage taking, conspiracy to take hostages, both counts pursuant to 18 U.S.C. Section 21 1203(a), and harboring illegal aliens and conspiracy to harbor illegal aliens, both counts 22 pursuant to 8 U.S.C. Section 1324(a). While the government takes the position that it can 23 prove all charges in the indictment against the defendant, both the government and the 24 defendant agree that his conduct in this case was more akin to 18 U.S.C. Section 924(c), 25 brandishing a firearm during a crime of violence with that crime of violence being hostage 26 taking, therefore, the defendant is pleading to 18 U.S.C. Section 924(c)(1)(A)(ii). Both 27 Section 924(c) and Section 1203(a) carry the same statutory maximum sentence (life) but 28 only the former carries a mandatory minimum sentence of seven years.

Case 2:03-cr-01097-ROS

Document 133

Filed 12/16/2005

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While the Guidelines indicate that the court should consider relevant conduct under

2 U.S.S.G. Section 1B1.3 when sentencing this defendant, it is not necessary to consider the 3 guideline sentence for any possible violation that may be charged based on relevant conduct. 4 It is merely the conduct that the court should consider not a potential charge or the potential 5 sentence for that charge. The defendant has not pled guilty to any hostage taking charges and 6 all remaining charges will be dismissed by the government at sentencing. Therefore, the plea 7 agreement, which stipulates a range of twenty to twenty-five years, is within the guideline 8 sentence and there is no need for a downward departure by the court in order to sentence the 9 defendant pursuant to the plea agreement. 10 11 12 13 14 15 16 17 I hereby certify that on the 16th day of December, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF 18 System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Robert McWhirter 19 20 21 22 23 24 25 26 27 28 2 s/ Robert McWhirter _________________________ ROBERT MCWHIRTER Attorney for Francis Luna-Lara s/ Lisa Jennis Settel ______________________________ LISA JENNIS SETTEL Assistant U.S. Attorney PAUL K. CHARLTON United States Attorney District of Arizona Respectfully submitted this 16th day of December, 2005.

Case 2:03-cr-01097-ROS

Document 133

Filed 12/16/2005

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