Free Sentencing Memorandum - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 District of Arizona 3 850 W. Adams., Ste. 201 Phoenix, Arizona 85007 4 Telephone: (602) 382-2721 5 Jeanette E. Alvarado, #016111 Asst. Federal Public Defender 6 Attorney for Defendant 7 [email protected] 8 9 10 11 12 13 14 15 16 17 vs. Bruce Lowry, Defendant. Defendant, Bruce Lowry, by and through undersigned counsel, United States of America, No. CR-03-463-PHX-DGC Plaintiff, SENTENCING MEMORANDUM IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

18 respectfully requests that the Court consider the attached memorandum when making 19 a determination as to the appropriate sentence. Mr. Lowry asks that the Court 20 sentence him to no more than the statutory minimum for the offense. 21 22 23 24 25 26 27 28 s/Jeanette E. Alvarado JEANETTE E. ALVARADO Asst. Federal Public Defender Respectfully submitted: October 23, 2006. JON M. SANDS Federal Public Defender

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MEMORANDUM Bruce Lowry was sentenced to 235 months of incarceration and a 5 year period of supervised release on December 13, 2004. Having been sentenced prior to the 9th Circuit's decision in U.S. vs. Ameline, 409 F.3d 1073 (9th Cir. 2005), the case was remanded for re-sentencing, as the U.S. Sentencing Guidelines are now advisory. Mr. Lowry's Base Offense Level is stated at Paragraph 15 (Offense Level

8 24) and a nine (9) level sentencing enhancement is applied at Paragraph 23 (up to 9 Offense Level 33) as a result of calculations made under the now advisory U.S. 10 Sentencing Guidelines. 11 Similarly, Mr. Lowry's criminal history category has been increased 12 from Criminal History Category V to Criminal History Category VI ( due - in part to 13 U.S. Sentencing Guideline Section 4B1.4(c)(1) ­ which section is now to be 14 15 considered also only advisory). 16 This court can sentence Mr. Lowry to a reasonable sentence given the 17 circumstances. A sentence above the previous sentence of 235 months would not be 18 reasonable, given the following factors: 19 1. Mr. Lowry's age. He is now 52 years old. 20 21 22 23 24 25 26 27 28 3. 2. Mr. Lowry's sentence from State vs. Lowry, CR2002-05499, where he received sentences of 30 years prison (Count 1); Lifetime prison (Counts 2 & 3), and 12 years prison (Count 5); and Mr. Lowry's federal conviction involved solely the possession of ammunition (that had traveled in interstate commerce) which was in a gun (that had not traveled in interstate commerce). There were no criminal allegations surrounding Mr. Lowry's possessing that gun or any violent acts alleged with that weapon.
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The sentence in this case should be for that conviction and not

2 aggrandized solely to reflect Mr. Lowry's criminal history. As the sentencing 3 guidelines are no longer mandatory, increases in the Offense Level (Paragraph 15 4 and Paragraph 23), as well as increases in Criminal History (Paragraph 38) need not 5 be followed, if unreasonable to the Defendant's circumstance. Here, to rely on the 6 7 sentencing guideline and impose a sentence at or above the previously imposed 8 sentence of 235 months (19.7 years) would be unreasonable. 9 Part of the analysis the Court has to consider is Mr. Lowry's risk to re10 offend. A sentence of 19.7 years ­ almost two decades - would mean Mr. Lowry 11 would be in his 70s upon release from federal custody (without counting the impact 12 13 14 a threat to others in particular, or to society in general. Furthermore, this Court 15 should also consider that Mr. Lowry still has a state sentence to serve once his federal 16 incarceration sentence is over. That sentence is 12 years, 30 years and Lifetime 17 prison. Mr. Lowry could indeed die in an incarceration setting. 18 A sentence at no more than the statutory minimum for the offense more 19 than addresses the deterrent and retributive principles underlying a conviction under 20 18 U.S.C. §§ 922(g) and 924(e). 21 Respectfully submitted: October 23, 2006. 22 JON M. SANDS 23 Federal Public Defender 24 25 26 27 28
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of his state sentence), and at such an advanced age, can hardly be considered to pose

s/Jeanette E. Alvarado JEANETTE E. ALVARADO Asst. Federal Public Defender

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1 I hereby certify that on October 23, 2006, I electronically transmitted the attached 2 document to the Clerk's Office using the ECF System for filing and transmittal to the 3 following ECF registrants: 4 CLERK'S OFFICE United States District Court 5 Sandra Day O'Connor Courthouse 401 W. Washington 6 Phoenix, Arizona 85003 7 FREDERICK BATTISTA 8 Assistant U.S. Attorney United States Attorney's Office 9 Two Renaissance Square 40 N. Central Avenue, Suite 1200 10 Phoenix, Arizona 85004-4408 11 Copy delivered to: 12 United States Probation 13 Sandra Day O'Connor Courthouse 401 W. Washington, Suite 160 14 Phoenix, Arizona 85003 15 Copy mailed to: 16 BRUCE LOWRY 17 Defendant 18 s/Jeanette E. Alvarado 19 \SentencingMemorandum 20 21 22 23 24 25 26 27 28
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