Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOHN R. LOPEZ, IV Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 019182 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. Timothy Wayne Isabell, Defendant. The United States, through undersigned counsel, hereby responds to Defendant's Sentencing Memorandum and Motion for Downward Departure or Variance. I. DOWNWARD DEPARTURE A. Extraordinary Physical Condition (§ 5H1.4) Defendant requests that the Court grant a two-level downward departure based upon his ill health, namely his congestive heart failure. The government does not have any basis to challenge the validity of Defendant's claim of ill health. The government defers to the Court's discretion concerning whether Defendant's medical condition warrants a two-level downward departure pursuant to § 5H1.4. B. Aberrant Conduct (§ 5K2.20) Defendant moves for a downward departure pursuant to Section 5K2.20 on the grounds that his criminal conduct constituted "aberrant behavior." The government requests that the Court deny Defendant's motion for downward departure on this basis because Defendant's criminal conduct did not constitute aberrant behavior. United States of America, CR-03-1082-PHX-MHM Plaintiff, GOVERNMENT'S RESPONSE TO DEFENDANT'S SENTENCING MEMORANDUM AND MOTION FOR DOWNWARD DEPARTURE OR VARIANCE

Case 2:03-cr-01082-MHM

Document 62

Filed 09/18/2006

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"`Aberrant behavior' means a single criminal occurrence or single criminal transaction that (A) was committed without significant planning; (B) was of limited duration; and (C) represents a marked deviation by the defendant from an otherwise law-abiding life." U.S.S.G. § 5K2.20 App. Note 1. In this case, the government concedes that Defendant's criminal conduct appears to represent a marked deviation by the Defendant from an otherwise law-abiding life. However, Defendant's criminal conduct does not constitute "aberrant behavior" because it involved significant planning. (PSR ¶¶ 8, 17) In addition, Defendant's criminal conduct was not of limited duration. Defendant and his co-defendant, Sheila Isabell, withdrew funds from the victim's account on numerous occasions over the course of two months. For these reasons, the government respectfully requests that the Court deny Defendant's motion for downward departure based upon his alleged aberrant behavior. C. Totality of the Circumstances (§ 5K2.0) Defendant urges the Court to grant a motion for downward departure based upon the "totality of the circumstances." Specifically, Defendant requests that the Court grant such a departure based upon his ill health and alleged aberrant behavior. While the government opposes Defendant's assertion that his criminal conduct constitutes aberrant behavior as defined under the Guidelines, the government defers to the Court's discretion concerning whether Defendant is eligible for a downward departure pursuant to § 5K2.0. II. SECTION 3553 Defendant argues that the factors enumerated in 18 U.S.C. § 3553(a) warrant a sentence of probation. The government agrees that the present offense constitutes Defendant's first felony conviction. The government also agrees that Defendant appears unlikely to re-offend and that he does not appear to present a danger to the community. These facts suggest a sentence favorable to Defendant under 18 U.S.C. § 3553(a). 2

Case 2:03-cr-01082-MHM

Document 62

Filed 09/18/2006

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While the government acknowledges that Defendant does not appear to present a continuing threat to the community, it rejects Defendant's claim that this case more closely resembles a breach of contract than a fraud case. Although Defendant may not have intended to embezzle nearly $100,000 from the victim when his co-defendant applied for a grant to construct a community center, Defendant's theft of funds is not attributable merely to mistakes. Defendant deliberately used victim's funds for personal expenditures. These facts suggest that an advisory Guidelines sentence is appropriate under 18 U.S.C. § 3553(a). For these reasons, the government respectfully submits that a split sentence of 5 months incarceration followed by 5 months of home detention is appropriate under 18 U.S.C. § 3553(a). III. CONCLUSION The government respectfully requests that the Court deny Defendant's motion for downward departure based upon "aberrant behavior" under § 5K2.20. The government defers to the Court's discretion concerning Defendant's request for downward departure pursuant to §§ 5H1.4 and 5K2.0. The government respectfully submits that a split sentence is appropriate under 18 U.S.C. § 3553(a).

Respectfully submitted this 18 th day of September, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /S/ John R. Lopez IV JOHN R. LOPEZ, IV Assistant U.S. Attorney

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Case 2:03-cr-01082-MHM

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CERTIFICATE OF SERVICE I hereby certify that on September 18 th , 2006, I electronically transmitted the attached document 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: Jane L. McClellan Asst. Federal Public Defender 850 W. Adams Street, Suite 201 Phoenix, Arizona 85007 Attorney for Defendant / S/ JOHN R. LOPEZ IV

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Case 2:03-cr-01082-MHM

Document 62

Filed 09/18/2006

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