Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona FREDERICK A. BATTISTA Assistant U.S. Attorney Maryland State Bar Member [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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United States of America, CR-03-1060-PHX-PGR Plaintiff, v. Derek Mitzel, Defendant. RESPONSE TO DEFENDANT'S SENTENCING MEMORANDUM

The United States of America, by and through undersigned counsel, hereby responds to defendant's Sentencing Memorandum Re Medical Condition, Request for Mitigated Sentence or, in the Alternative, Motion for Downward Departure through the attached Memorandum of Points and Authorities. Respectfully submitted this 9th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/ FREDERICK A. BATTISTA Assistant U.S. Attorney

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MEMORANDUM I. Introduction The defendant is seeking a reduction of his advisory Sentencing Guideline range due to extraordinary physical impairment. The government does not dispute that the defendant presently suffers from a number of physical ailments. However, a review of the Presentence Investigation Report (PSR) discloses a long history of serious criminal conduct and voluntary drug abuse, along with serious criminal conduct during the course of the instant offenses. It is the position of the government that while the Court has the discretion to depart downward in this case, no departure is warranted due to the defendant's longstanding and ongoing history of serious criminal conduct.

II.

Discussion A sentencing court has discretion to depart downward. Neither the Guidelines nor

case law require a sentencing court to make a determination as to whether or not a defendant has an extraordinary physical impairment under U.S.S.G. § 5H1.4. A district court may consider factors and policy concerns related to cost, efficiency and the goals of criminal punishment. Section 5H1.4 states that "Physical condition . . . is not ordinarily relevant in determining whether a departure may be warranted. However, an extraordinary physical impairment may be a reason to depart downward . . ." Section 5H1.4. A sentencing Court's utilization of Section 5H1.4, when considering a downward departure, is completely discretionary. Section 5H1.4 does not require a sentencing court to consider a defendant's medical condition, it simply gives a sentencing court the discretion to consider it. The applicable standard of review is abuse of discretion. Koon v. United States, 116 S. Ct. 2034 (1996). In addition to the federal sentencing guidelines, Ninth Circuit case law does not require a district court to employ Section 5H1.4 to make findings of fact as to the existence
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of a defendant's possible extraordinary physical impairment. United States v. MartinezGuerrero, 987 F.2d 618 (9th Cir. 1993). In Martinez-Guerrero, the Ninth Circuit held that a finding of extraordinary physical impairment under Section 5H1.4 is a factual finding and that a sentencing court's decision would be reversed only if the court of appeals has the "'definite and firm conviction that a mistake has been committed"' in regards to the factual finding. Id. at 620 (quoting United States v. Ramos, 923 F.2d 1346, 1356 (9th Cir. 1991)). The Martinez-Guerrero court did not hold that a sentencing court must make a factual finding under Section 5H1.4. The Martinez-Guerrero court identified a two-part test, established by the Tenth Circuit, that a sentencing court should utilize when the court engages in a Section 5H1.4 analysis. Martinez-Guerrero, 987 F.2d at 620. The first part of the test states that the sentencing court should make a finding of fact as to whether or not an extraordinary physical impairment exists. Id. If the court determines that an extraordinary physical condition exists, it "should 'consider' whether the condition warrants a shorter term of imprisonment . . . " Id. (quoting United States v. Slater, 971 F.2d 626 (10th Cir. 1992)). This language again emphasizes the discretionary aspects of downward departure. Even if a court determines that a defendant has an extraordinary physical impairment, the court, under the second part of the test, need only consider whether the impairment warrants a downward departure. MartinezGuerrero, 987 F.2d at 620. A. Criminal History

One of the primary goals of the current and past sentencing structure is the protection of the community from the criminal element of society. In this case, the defendant has a longstanding and ongoing history of serious criminal conduct. PSR ¶¶ 26-33. The most serious offense is defendant's prior conviction for Voluntary Manslaughter. PSR ¶ 26. In this case, the defendant, who was jealous because the victim had given his ex-girlfriend a ride home, shot the victim in the head and killed him in 1981. PSR ¶ 26. In 1989, the
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defendant broke into the bedroom of an acquaintance, ransacked the room and stole tools and electronics equipment. PSR ¶ 30. While on probation for the the 1989 Burglary, the defendant was arrested for Assault with a Weapon, Failure to Appear, Possession of Stolen Property and False Information to a Police Officer. The defendant's probation was ultimately revoked and defendant was sentenced to two years in prison. PSR ¶ 30. In 1990, the defendant was also convicted of Felon in Possession of a Firearm Capable of Concealment as a result of the above-noted assault with a weapon. In this case, the defendant pointed a gun at two individuals and threatened to kill them. PSR ¶ 31. At the time of the instant case, defendant was involved in the theft of merchandise from Sears, Felon in Possession of Firearms and Witness Tampering. PSR ¶¶ 6-10. With respect to the firearms offense, defendant was again illegally in possession of firearms and, in this case, methamphetamine. With respect to the Witness Tampering offense, defendant sought to have a witness testify that the subject firearms were hers and she had brought them into his residence without his knowledge or consent. During this time period, defendant sought to corruptly persuade the witness by offering her $4,000 in cash and a Cadillac for false testimony and to threaten and intimidate the witness by threatening to inform Child Protective Services that she had used methamphetamine in order to keep her separated from her children if she did not provide the false testimony. B. Substance Abuse

Defendant's substance abuse is documented in PSR ¶¶ 47-52. The PSR notes that defendant has abused numerous controlled substances, including multiple forms of cocaine and methamphetamine at various times, since he was 11 years old and continued to use methamphetamine up until his arrest for the instant firearms offense. Clearly, this

longstanding type of substance would weaken person's body and have a negative impact on their overall health.

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III.

Conclusion As detailed above, defendant has a longstanding history of violence, weapons related

offenses and substance abuse. This combination of factors clearly demonstrates that defendant presents an ongoing and unacceptable danger to the community and the need to protect society, in this case, outweighs the benefits defendant would gain from a downward departure under Section 5H1.4. For the forgoing reasons, this Honorable Court should deny defendant's requests for either a downward departure or mitigated sentence. Respectfully submitted this 9th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona

S/ FREDERICK A. BATTISTA Assistant U.S. Attorney I hereby certify that on August 9, 2005, I caused the attached document to be electronically transmitted 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: Nancy L. Hinchcliffe Attorney at Law 11 West Jefferson, Suite 2 Phoenix, Arizona 85003 and via U.S. Postal Service to: Carlos Valentin U.S. Probation Officer U.S. Probation Office Sandra Day O'Connor U.S. Courthouse, Suite 260 401 West Washington Street, SPC 8 Phoenix, Arizona 85003 /S/ FREDERICK A. BATTISTA Assistant U.S. Attorney
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