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

Thomas E. Haney, P.C. 101 North First Ave. Suite 2460 Phoenxi, AZ 85003 Tele: 602-254-5866 Fax: 602-254-5906 State Bar: 2704

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) vs. ) ) ) CHARLES R. STEELE, ) Defendant. ) ) ) ) )

No. CR-03-864-PHX-ROS

OBJECTIONS TO PRESENTENCE REPORT AND SENTENCING MEMORANDUM (Set for May 31 @ 2:30 p.m.)

STATEMENTS OF THE CASE.

This matter involved five defendants in a

marijuana distribution conspiracy. This defendant pled guilty to one count and was released pending sentence. A presentence report was initially prepared March 31, 2005. A revised report was issued November 29, 2005, and an updated version May 23, 2006, received via fax the next day. This memorandum recites objections to the revised report.

Case 2:03-cr-00864-ROS

Document 222

Filed 05/31/2006

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OBJECTIONS TO PSR GUIDELINE DETERMINATIONS. One of the changes in the updated version is that no downward departures are provided for acceptance of responsibility, apparently on the basis of the defendant's failure to appear for sentencing as previously scheduled. Nevertheless, the defendant did accept responsibility by entering a plea and was interviewed by the probation officer. The initial report included a downward departure for acceptance of responsibility. Application note four to 3E 1.1 indicates that an enhancement for obstruction and a reduction for acceptance are not mutually exclusive. The circumstances as they developed in this instance merit the award of a downward departure in that the defendants failure to appear is largely related to his addiction to alcohol, as recited in Para 8 of the PSR. LEGAL PRECEDENT. This case is subject rulings of U.S. v.

Booker/Fanfan, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Of particular note are progenies of this case, such as U.S. v. Zavala, ____F.3d _____, WL914528, (9th Cir. April 11, 2006, No. 05-30120) and U.S. v . Diaz-Argueta, _____F. 3d___ (9th Cir. No. 05-10224, May, 2006). In Zavala, supra, the Court held that the guidelines, 18 U.S.C 3553 (b), are to be considered a starting point and have no greater weight than other sentencing factors, such as those set forth in 18 U.S.C. § 3553 (a). As stated in the conclusion to Zavala, supra., "...a Guideline calculation is simply one factor to be considered when selecting the most appropriate sentence for a particular defendant (emphasis in original). Hence, § 3553 (a) factors and § 3553 (b), the guidelines, are to be given equal weight.

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In Diaz-Argueta, supra, the District Court of Nevada sentence was vacated because the district court did not address any of the sentencing factors listed in 18 U.S.C. § 3553 (a) and the Court did not give any reason for the sentence other than referencing the guidelines. CONCLUSION. The guidelines being advisory, the defendant having

accepted responsibility for his conduct, and good cause having been demonstrated, the defendant should be sentenced more closely to any sentence imposed on other defendants and near the minimum mandatory five years. DATED This 31st day of May, 2006.

s/Thomas E. Haney Attorney for Defendant

I hereby certify that on May 31, 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:

s/Raychel Verdugo

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Case 2:03-cr-00864-ROS

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Filed 05/31/2006

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