Free Objection to Presentence Investigation Report - District Court of Arizona - Arizona

JON M. SANDS Federal Public Defender 2 District of Arizona 850 West Adams, Suite 201 3 Phoenix, Arizona 85007 Telephone: (602) 382-2731
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ROBERT J. McWHIRTER, Bar Assoc. #012283 Asst. Federal Public Defender Attorney for Defendant 6 [email protected]
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IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, -vsFrancisco Luna-Lara, Defendant. Francisco Luna-Lara, through counsel, objects to the presentence report's placing of Mr. Luna-Lara in criminal history category II. case. Respectfully submitted: December 5, 2005. JON M. SANDS Federal Public Defender s/Robert J. McWhirter ROBERT J. McWHIRTER Asst. Federal Public Defender Also, the presentence report does not accurately reflect the impact of the plea agreement in this No. CR-03-1097-PHX-ROS OBJECTIONS TO THE PRESENTENCE REPORT

Case 2:03-cr-01097-ROS

Document 131

Filed 12/05/2005

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MEMORANDUM OF POINTS AND AUTHORITIES Mr. Luna-Lara Should Not Be Placed in Criminal History Category II. The presentence report at ¶33 assesses him three points in criminal history for sexual assault occurring on October 16, 2003. This sexual assault, however, was at the same time of the current offense, and indeed, forms the basis of his high sentence calculation under the guidelines. Thus, Mr. Luna-Lara is doubly punished by putting him in category II of criminal history. Impact of the Plea Agreement The plea agreement here provides that Mr. Luna-Lara's sentence will run concurrent with the sentence he received in Superior Court of Arizona, Maricopa County in CR-2004-6538. The plea also provides that the defendant shall serve his sentence in a federal prison. Also, that he will be given credit for the time he has served since his incarceration in October 2003 because the government agreed that the charges in state court are related to his federal charges. Conclusion Finally, Mr. Luna-Lara would ask that this Court consider the fact that he already got 11 years in the state system, which can be deemed as a socially sanctioned punishment for the underlying crime of sexual assault. The presentence report demonstrates that Mr. Luna-Lara was at the most a mid-level person in this alien smuggling/hostage-taking conspiracy. This is Mr. Luna-Lara's first offense. As stated, even though he has the prior conviction for sexual assault, it was the same incident. With this in mind, Mr. Luna-Lara requests that this Court not follow the recommendation of the presentence report of 25 years, but instead impose a sentence on him closer to the 20 years that the government has agreed to as an appropriate range. Not to minimize Mr. Luna-Lara's conduct, especially the conduct of the

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sexual assault, but his sentence should recognize that 20 years is a very high sentence for conduct that at least in some part was driven by Mr. Luna-Lara's own economic necessity and circumstances. Respectfully submitted: December 5, 2005. JON M. SANDS Federal Public Defender s/Robert J. McWhirter ROBERT J. McWHIRTER Asst. Federal Public Defender Copy of the foregoing MOTION electronically transmitted by CM/ECF system this5th day of December, 2005, to:

Lisa Settel Assistant U.S. Attorney Two Renaissance Square, Suite 1200 13 40 North Central Avenue Phoenix, AZ 85004
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s/Robert J. McWhirter
ROBERT J. McWHIRTER i:\luna-lara\obj to psr

Case 2:03-cr-01097-ROS

Document 131

Filed 12/05/2005

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