Free Other Notice - 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 Attorney for Defendant Maldonado-Perez

IN THE 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 LAW OFFICE OF NEIL C. LABARGE S/Neil C. LaBarge ________________________________ NEIL C. LABARGE Defendant. Comes now defendant, through attorney Neil C. LaBarge, pursuant to the courts March 3, 2006 order, and respectfully submits the attached brief regarding the re-sentencing process. The court ordered that said brief was to be submitted twelve (12) calendar days before sentencing. Sentencing is currently set for June 5, 2006, therefore this memo was due yesterday, May 24, 2006. Defense counsel has been sick and out of the office for most of this week. Therefore, undersigned counsel requests that the court accept this memo as timely. Respectfully submitted this date: May 25, 2006. v. BESY A. MALDONADO-PEREZ, U.S.A., Plaintiff, DEFENDANT'S BRIEF ON RESENTENCING PROCESS No. CR03-1064-1-PHX-SMM

Case 2:03-cr-01064-SMM

Document 117

Filed 05/25/2006

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MEMORANDUM The defense submits that the court should follow the following process at re-sentencing: 1) As a "starting point", the court should calculate the USSG range pursuant to U.S. v. Zavala, 443 F.3d 1165 (9 cir. 2006). 2) In calculating the staring point under the U.S. Sentencing Guidelines, the court should consider what standard of proof applies to the addition of any levels beyond the base offense level under the USSGs. Defendant requests that the court apply a Beyond a Reasonable Doubt Standard in this process under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). At a minimum, the court should apply the seven factor totality analysis articulated in U.S. v. Dare, 425 F.3d 634, 642 (9 cir. 2005), in considering whether a Clear and Convincing standard should apply. 3) The court should treat the resulting USSG starting point as merely one factor amongst the several in 18 USC 3553, giving it no greater weight, nor treating it as a presumption. 4) The court should then impose a "reasonable" sentence, considering all of the factors under 18 USC 3553. In imposing such sentence, the court is free to consider any and all factors which it previously felt unable to under the pre-Booker mandatory guidelines. Respectfully submitted this date: May 25, 2006. LAW OFFICE OF NEIL C. LABARGE

S/Neil C. LaBarge ________________________________ NEIL C. LABARGE

Case 2:03-cr-01064-SMM

Document 117

-2Filed 05/25/2006

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1 2 3 4 5 Copies e-mailed to the following on this date: May 25, 2006. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3Filed 05/25/2006 Copies mailed to the following on this date: May 25, 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] Original filed with the following via ECF this date: May 25, 2006. Clerk of the Court 401 W. Washington St. Phoenix, AZ 85003

Case 2:03-cr-01064-SMM

Document 117

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