Free Reply - District Court of Arizona - Arizona

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JON M. SANDS Federal Public Defender DEIRDRE MARIAN MOKOS Assistant Federal Public Defender Arizona State Bar No. 016268 407 West Congress Street, Suite 501 Tucson, Arizona 85701-1355 Telephone: (520) 879-7500 [email protected] Attorney for Defendant IN THE UNITED STATES DISTRICT COURT

7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 Defendant, through counsel, filed objections to the Presentence report on October 14, 15 2005 for the sentencing set for December 6, 2005. Probation faxed a response on November 16 30, 2005. Given the limited amount of time prior to the December 6, 2005 sentencing, 17 Defendant continued the sentencing which is now set for February 9, 2005 in order to respond 18 and further clarify the issues prior to sentencing. 19 RESPECTFULLY SUBMITTED: December 28, 2005. 20 21 22 23 24 Copy provided this date to: 25 26 27 28 DON OVERALL, AUSA By Electronic Filing Elizabeth Gonshak-Peters, USPO - Phx By Case 2:03-cr-00441-DCB-JJM Document 44 Hard Copy Filed 12/28/2005 Page 1 of 5 THE HONORABLE DAVID C. BURY United States District Court By E-Mail and Hard Copy JON M. SANDS Federal Public Defender s/ DEIRDRE MARIAN MOKOS DEIRDRE MARIAN MOKOS Assistant Federal Public Defender ) ) Plaintiff, ) ) v. ) ) Miguel Alessio Serrano-Castro, ) ) Defendant. ) ) _________________________________) United States of America, NOS: CR-05-1298-TUC-DCB(JCG) CR-03-0441-TUC-DCB(JCG) OBJECTIONS TO RESPONSE BY UNITED STATES PROBATION Sentencing and Disposition: February 9, 2006 @ 9:30 a.m.

1 2 3 4 5 6 Objection 1 - Defendant's Response to Probation's Response. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Such an interpretation would place any offense within the guideline merely by using 2L1.2 n. 5 23 as a catchall. However, aiding and abetting, conspiracy and attempt are separate and distinct 24 25 conspiring to purchase for sale, or attempting to purchase for sale. However, the question is 26 not whether the conviction is for aiding and abetting, conspiring or attempting to purchase, but 27 28 People v. Reed, 29 Cal.Rptr.3d 215, 216 (Cal. Ct. App. 2005)("An attempt to commit a crime is neither a completed crime nor a conspiracy to commit a crime. An attempt is an offense "separate" and "distinct" from the completed crime."). Case 2:03-cr-00441-DCB-JJM Document 44 -2Filed 12/28/2005 Page 2 of 5
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MEMORANDUM OF POINTS AND AUTHORITIES

Defendant's State Convictions under California Health & Safety Code §11351.5 Are Not Categorically "Drug Trafficking Offenses" as Defined in U.S.S.G. §2L1.2 Because §11351.5 Includes a Prohibition on the Purchase of Drugs ­ Which is Broader than the Federal Definition, and Additionally, Does Not Necessarily Require the Possession of Drugs. Under the categorical approach, the district court considers only the fact of the prior conviction under California Health & Safety Code §11351.5 and looks only to its statutory definition. Taylor v. United States, 495 U.S. 575, 602 (1990). Without citing to any legal authority, probation claims purchase for sale falls under "aiding and abetting, conspiracies and attempts." That is, they imply no legal distinction is to be made between aiding and abetting, conspiracy and attempt versus purchase for purposes of sale of a controlled substance. Probation's proposed interpretation of §11351.5 would require the court to follow this statutory interpretation:

aid and abet, conspiracy and attempt = purchase.

offenses.1 It is possible someone could be convicted of aiding and abetting purchase for sale,

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whether the conviction is for possession or purchase. Likewise,

possession or purchase



possession

Substituting words or adding words to the word "purchase" would render meaningless the way the statute is worded and the presence of the word, "purchase", in §11351.5 in the California statute. "It is an accepted canon of statutory interpretation that we must interpret the statutory phrase as a whole, giving effect to each word and not interpreting the provision so as to make other provisions meaningless or superfluous." 2 The state statute uses two different words and prohibits two types of conduct. The fact that the California legislature separated "possession" and "purchase" by an "or" signifies the words were intended to have two different meanings.3 The California state statute at issue here punishes the purchase of narcotics for the purpose of sale and "purchase" does not necessarily require possession. The scope of §11351.5 in this regard appears to be an open issue. In Armstrong v. People 4 , a California court of appeals made clear, in deciding that the facts of "constructive possession" were lacking in that particular case, that the facts might still qualify as prohibited conduct if the charge had been "purchase for purposes of sale" under § 11351.5.5 This implies that a person might be convicted for "purchase" without being in possession or even constructive possession of the drugs. This is clearly broader than the federal definition. Additionally, it implies that possession or constructive possession are not needed under § 11351.5. At the very least, the California Court of Appeals made clear that a different statutory analysis under the "purchase" portion of the statute would have to be undertaken in any future case. Purchase is not the equivalent of possession.

United States v. 144,774 pounds of Blue King Crab, 410 F.3d 1131, 1134-35 (9 th Cir.2005)(citing Boise Cascade Corp. v. United States EPA, 942 F.2d 1427, 1432 (9th Cir.1991); see also United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955)). 3 See Prince v. Jacoby, 303 F.3d 1074, 1080 (9th Cir.2002). 4 Armstrong v. People, 217 Cal.App.3d 535, 540 n.2 (Cal. Ct. App. 1990). 5 Id. at. 539-540. Case 2:03-cr-00441-DCB-JJM Document 44 -3Filed 12/28/2005 Page 3 of 5

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Drug trafficking offense is defined by the Guidelines as: [A]n offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.6

7 There is no allegation that defendant was convicted of sale. At most the conviction is for either 8 possession for sale or purchase for purposes of sale, the conduct covered by § 11351.5. 9 Therefore the state did not have to establish an actual `sale' took place, but only that there was 10 either possession for sale or purchase for purposes of sale. Assuming arguendo that sale and 11 distribution are the same, absent proof of a `sale' there is no information that `distribution' 12 occurred. A conviction for § 11351.5 clearly falls out of the first half of the federal drug 13 trafficking definition. That leaves the second half of the definition. That half of the definition 14 requires possession which is entirely different from purchase as discussed above. 15 The California state statute can be violated by a person purchasing cocaine base for the

16 purpose of sale, and this greater scope of potential liability is not found in the federal drug 17 trafficking definition. The Court proceeds to a modified categorical analysis using judicially 18 noticeable documents only. 19 Finally, as probation notes, the record does not contain all of the judicially noticeable

20 documents needed to conduct the modified categorical analysis. Therefore, the Court should 21 follow the agreed-upon ranges in the plea agreement for a level 12 offense, and sentence 22 Defendant to a term of 12-18 months imprisonment to be followed by supervised release. 23 24 Objection 2. In order to simplify matters, Mr. Serrano appeared in court on December 1, 2005 in

25 CR03-441-PHX-DCB and entered an admission to a Grade C violation in an orally amended 26 petition. Pursuant to the plea agreement he requests the Court to sentence him within the range 27 of 5 to 8 months at the time of the disposition now set for February 9, 2005. 28
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U.S.S.G. §2L1.2, comment n. 1(B)(iv). Document 44 -4Filed 12/28/2005 Page 4 of 5

Case 2:03-cr-00441-DCB-JJM

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SUBMITTED: December 28, 2005. JON M. SANDS Federal Public Defender s/ Deirdre M. Mokos Deirdre Marian Mokos Assistant Federal Public Defender

Case 2:03-cr-00441-DCB-JJM

Document 44 -5-

Filed 12/28/2005

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