Free Response - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8

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

UNITED STATES DISTRICT COURT
9

DISTRICT OF ARIZONA
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

United States of America, CR-03-463-PHX-DGC Plaintiff, v. Bruce Foy Lowry, Defendant. RESPONSE TO DEFENDANT'S OBJECTIONS AND SUPPLEMENTAL OBJECTIONS TO THE PRESENTENCE REPORT

The United States of America, by and through its attorneys undersigned, respectfully responds to defendant Bruce Foy's Objections and Supplemental Objections to the Presentence Report through the attached Memorandum. Respectfully submitted this 24th day of September, 2006. PAUL K. CHARLTON United States Attorney District of Arizona S/Frederick A. Battista FREDERICK A. BATTISTA Assistant U.S. Attorney

Case 2:03-cr-00463-DGC

Document 100

Filed 09/24/2006

Page 1 of 4

1 2 3 4 5 6 7 8 9

Memorandum I. Objections to the Presentence Investigation Report (PSR) A. PSR ­ Identifying Data ­ Detainers

The government does not object the to an amendment to page 1 of the PSR in order to note that the State of Arizona has a detainer pending against defendant in State of Arizona v. Bruce Foy Lowry, Superior Court of Arizona, Maricopa County, Case No. CR-200205499. B. PSR ­ Criminal History ­ Adult Convictions ­ PSR ¶ 32 ­ Case Pending Appeal

Defendant objects to the awarding of three criminal history points for the convictions
10

alleged in paragraph 32 of the PSR due to the fact that the convictions and sentences (some
11

up to life) are presently pending appeal. Pursuant to U.S.S.G. § 4A1.2(l), the fact that the
12

convictions are presently pending appeal does not preclude the awarding of three criminal
13

history points under U.S.S.G. § 4A1.1(a). Moreover, the fact that defendant had not been
14

sentenced in the subject State case at the time of his original sentence in this case should not
15

foreclose this Court's consideration of the convictions at the resentencing. A "prior
16

sentence" for purposes of Section 4A1.1(a) is defined in Application Note 1 to Section
17

4A1.2 in pertinent part as follows, "Prior sentence" means a sentence imposed prior to
18

sentencing on the instant offense, other than a sentence for conduct that is part of the instant
19

offense."
20

C.
21 22 23 24 25 26

PSR ­ Education and Vocational Skills ­ PSR ¶ 56 ­ Program Participation While Incarcerated

The government does not object the to an amendment to paragraph 56 of the PSR to note defendant's participation in various drug and alcohol treatment programs while in custody in the past as evidenced by the certificates of participation included as exhibits in defendant's objections.

2

Case 2:03-cr-00463-DGC

Document 100

Filed 09/24/2006

Page 2 of 4

1 2

D.

PSR ­ Education and Vocational Skills ­ PSR ¶ 58 ­ Veterans Related Activities While Incarcerated

The government does not object the to an amendment to paragraph 58 of the PSR to
3

note defendant's participation in various veterans related activities while in custody in the
4

past as evidenced by the certificates of participation included as exhibits in defendant's
5

objections.
6 7 8

E.

PSR ­ Education and Vocational Skills ­ Page 15 ­ Additional Education While Incarcerated

The government does not object the to an amendment to the Education and Vocational
9

Skills section of the PSR, page 15, to note defendant's additional course work while in
10

custody in the past as evidenced by the certificates of participation included as exhibits in
11

defendant's objections.
12

II.
13 14

Conclusion For the foregoing reasons, the PSR should be either amended or not amended in

accordance with the above noted responses.
15 16 17 18 19

Respectfully submitted this 24th day of September, 2006. PAUL K. CHARLTON United States Attorney District of Arizona S/Frederick A. Battista

20 21 22 23 24 25 26 3

FREDERICK A. BATTISTA Assistant U.S. Attorney

Case 2:03-cr-00463-DGC

Document 100

Filed 09/24/2006

Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

CERTIFICATE OF SERVICE I hereby certify that on September 24, 2006, I electronically transmitted the attached document to the Clerk's Office using the ECF system for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Jeanette E. Alvarado Assistant Federal Public Defender Probation Officer Mike Acosta U.S. Probation Office S/Frederick A. Battista FREDERICK A. BATTISTA Assistant U.S. Attorney

4

Case 2:03-cr-00463-DGC

Document 100

Filed 09/24/2006

Page 4 of 4