Free Sentencing Memorandum - District Court of Arizona - Arizona

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LAW OFFICE OF NEIL C. LABARGE
NEIL C. LABARGE State Bar No. 13920 11 W . Jefferson St., #2 Phoenix, AZ 85003 (602) 252-4090 FAX (602) 252-2111 [email protected] Attorney for Defendant Maldonado-Perez

6 7 8 9 U.S.A., 10 Plaintiff, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S/Neil C. LaBarge ________________________________ NEIL C. LABARGE Defendant. Comes now defendant, through attorney Neil C. LaBarge, and respectfully submits the attached Memorandum for the Court's consideration at Sentencing. Defendant mistakenly filed a document entitled Pre-Sentence Memorandum on Friday, June 2, 2006 that contained a memo pertaining to a different case. Counsel apologizes for that error, and hereby files the correct Pre-Sentence Memo in this case. Respectfully submitted this date: June 5, 2006. LAW OFFICE OF NEIL C. LABARGE BESY MALDONADO-PEREZ, (Sentencing - Monday, June 5, 2006 at 4:00 p.m.) v. DEFENDANT'S CORRECTED PRESENTENCE MEMORANDUM No. CR03-1064-PHX-SMM IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

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MEMORANDUM Defendant Besy Maldonado-Perez was charged with 4 counts - Count 1 - Conspiracy to Commit Hostage Taking, Count 2 - Hostage Taking, Count 3 - Conspiracy to Harbor Illegal Aliens, and Count 4 - Harboring Illegal Aliens. On May 27, 2004, after jury trial, Besy was convicted of counts 1, 3 and 4. She was acquitted on count 2 - Hostage Taking. Defendant was sentenced in October 2004 by this court to 121 months in prison. Defendant appealed, and this case was remanded for re-sentencing pursuant to U.S. v. Booker. Defendant submitted objections to the Pre-Sentence Report prior to the original sentencing, including objections based on Blakely v. Washington. Defendant submits that

those objections are still viable as the U.S. Supreme Court has not since overturned or modified that component of Blakely. Therefore, defendant requests that the court apply Blakely's beyond a reasonable doubt standard in calculating the USSG offense level under U.S. v. Zavala. Defendant also submitted a Pre-Sentence Memorandum in connection with the original sentencing. Defendant refers to, and incorporates herein by reference, her original PreSentence Memorandum and exhibits. In addition, defendant offers the following information:

1) It is important to note that the ninth circuit has recently clarified the role and weight of the USSGs in sentencing in U.S. v. Zavala, 05-30120 (9 cir. 4/11/06). It is now clear that the guidelines do not form a presumption. Rather, as the court stated: "In the post-Booker sentencing world, district courts have an obligation to consult the Sentencing Guidelines. But a guideline calculation is simply one factor to be considered when selecting the most appropriate sentence for a particular defendant. Nothing in 18 USC 3553, as it stands after Booker, indicates that the Guidelines are to be given any greater weight than their fellow sentencing factors." Id. (emphasis in original). 2) As the guidelines are now merely advisory under Booker, and carry no greater weight than any other factor under 18 USC 3553, the court can consider any and all information previously barred by the guidelines. In her original Pre-Sentence Memo, defendant urged -2Filed 06/05/2006

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three grounds for possible departures - 1) Abberant Behavior, 5K2.20, 2) Coercion/Duress, 5K2.12 and 3) general combined mitigating information, 5K2.0. At the original sentencing, the court declined to depart downward under the formal strictures of the guidelines on any of these three grounds. The court is free to consider this information anew in imposing a reasonable sentence under 18 USC 3553.

3) Since the original sentencing in October 2004, approximately 21 months ago, Besy Maldonado has been a model inmate. She has had no disciplinary actions against her, and has always worked. She worked in the kitchen for approximately ten (10) months, worked briefly for one week as a plumber repairing leaky faucets, and has since been working on the yard cleaning detail raking leaves. She has also been attending religious classes regularly. Attached are fourteen (14) class certificates, thirteen (13) for religious studies classes and one (1) for a "parenting from a distance"class. These things demonstrate her character and work ethic, and are relevant to the factors the court must consider under 18 USC 3553. This information goes to "the characteristics of the defendant" (3553 (a)(1)), the need for deterrence and protection of the public (3553 (a)(2) (B and C)), and the issue of rehabilitation. Although rehabilitation is not specifically listed in 18 USC 3553, defendant submits that it is a relevant factor that the court can and should consider. Therefore, based on all of the information available, defendant requests that the court impose a sentence that is less than the 121 months imposed originally. Respectfully submitted this date: June 5, 2006.

LAW OFFICE OF NEIL C. LABARGE

S/Neil C. LaBarge ________________________________ NEIL C. LABARGE

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Original filed with the following via ECF this date: June 5, 2006. Clerk of the Court 401 W. Washington St. Phoenix, AZ 85003 Copies e-mailed to the following on this date: June 5, 2006.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4Filed 06/05/2006 Copies mailed/faxed to the following on this date: June 5, 2006. Hon. Stephen M. McNamee 401 W. Washington St. Phoenix, AZ 85003 Gary Restaino, AUSA 40 N. Central Ave., #1200 Phoenix, AZ 85004 Hon. Stephen M. McNamee [email protected]

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