Free Objection to Presentence Investigation Report - 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 Attorney for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) 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 PRESENTENCE REPORT Sentencing and Disposition: December 6, 2005 @ 9 a.m.

Defendant, through counsel, files the following objections to the Presentence 15 Report. 16 RESPECTFULLY SUBMITTED: October 14, 2005. 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:03-cr-00441-DCB-JJM Document 35 Filed 10/14/2005 Page 1 of 7 Elizabeth Gonshak-Peters, USPO - Phx By Hard Copy Copy provided this date to: THE HONORABLE DAVID C. BURY United States District Court By E-Mail and Hard Copy DON OVERALL, AUSA By Electronic Filing JON M. SANDS Federal Public Defender /s/ DEIRDRE MARIAN MOKOS DEIRDRE MARIAN MOKOS Assistant Federal Public Defender

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MEMORANDUM OF POINTS AND AUTHORITIES I. Objection to 12-Level Sentencing Enhancement in CR-05-1298-TUC-DCB(JCG). Defendant's prior listed at ¶23, p.7, does not warrant a 12-level sentencing enhancement because the pre-sentence report [hereafter, "PSR"] does not establish, by clear and convincing evidence, that his prior conviction under California Health & Safety Code §11351.5 is a drug trafficking offense as required by the Guideline.1 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.2 Categorical Review This Court's initial review of §11351.5 is categorical.3 California Health & Safety Code §11351.5 is overbroad.4 As in Navidad-Marcos5 where the Court held that California Health & Safety Code §11379(a) does not facially qualify as a drug trafficking offense because it criminalizes transportation of marijuana for personal use; offers to transport, sell, furnish, administer or give away marijuana, §11351.5 also does not facially qualify as a drug trafficking offense because it, too, is too broad as it criminalizes conduct that is not an aggravated felony or a drug trafficking offense.6 Specifically, California

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U.S.S.G. §2L1.2(b)(1)(A). U.S.S.G. §2L1.2, comment n. 1(B)(iv). Taylor v. United States, 495 U.S. 575, 600-602 (1990). There are no reported cases, but only unpublished decisions regarding California

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Health & Safety Code §11351.5. 25
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Navidad-Marcos, 367 F.3d 903, 907 (9th Cir.2004). Id. See also, United States v. Rivera-Sanchez, 247 F.3d 905, 909 (9 th Cir.2001(en

27 28 banc).

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Health & Safety Code §11351.5 criminalizes "purchases for purposes of sale" in addition to "possesses for sale." 7 Section 2L1.2 reaches distribution and possession with intent to distribute, but does not punish purchase for purposes of sale.8 Inclusion of the two terms ­ possession and purchase ­ indicates there are two types of prohibited conduct; and commission of one does not entail commission of the other. Although a person could be convicted under §11351.5 for purchasing cocaine for purposes of sale without actually possessing any, such conduct is not listed as an offense under the definition of "drug trafficking offense" in 2L1.2. Therefore, California Health & Safety Code §11351.5 does not facially qualify as an aggravated felony or drug trafficking offense within the meaning of U.S.S.G. §2L1.2(b)(1)(A). While the Ninth Circuit has not analyzed §11351.5 in any reported cases, California Health and Safety Code §11360 was parsed by the Ninth Circuit in a case involving the aggravated felony definition under 8 U.S.C. § 1101(a)(43)(B).9 That statute criminalized not only certain drug-related acts, but also an offer to perform any of those drug-related acts: [E]very person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport [a controlled substance]...10 (italics added).

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California Health & Safety Code §11351.5 provides:

Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale cocaine base which is specified in paragraph (1) of subdivision (f) of Section 11054, shall be punished by imprisonment in the state prison for a period of three, four, or five years.

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U.S.S.G. §2L1.2, comment n. 1(B)(iv). United States v. Rivera-Sanchez, 247 F.3d 905, 906 (9 th Cir.2001)(en banc). California Health and Safety Code § 11360 Document 35 Filed 10/14/2005 Page 3 of 7Page 3 of 7

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The Ninth Circuit found that § 11360(a) punishes solicitation ­ an offense that is not an aggravated felony. The full range of conduct encompassed by the state statute did not fit the federal definition, and therefore, the conviction did not categorically qualify as an aggravated felony.11 Recently, the Ninth Circuit took another look at § 11360(a) in a case involving the Career Offender guideline, which defines its predicate controlled substances offenses to include the import of a controlled substance.12 At issue was whether § 11360(a) ­ which prohibits both transportation and importation ­ necessarily involved importation. Significantly, this Court found that the inclusion of both words ­ transport and import ­ in the statute was an indication that "the California legislature understood that the two concepts are distinct," and thus held that "[a]ccordingly, `transports' in the context of the California statute must have a different meaning than `imports.'" 13 For the same reason, the inclusion of both possession for sale and purchase for sale in §11351.5 means that the two terms are distinct. In its analysis of § 11360(a) the Court also relied on the plain meaning of the language, noting that "transport" does not connote travel across a border and thus means something different from "import."14 That principle applies here as well, because there is a clear distinction between the dictionary definitions of purchase and possess: purchase, n. 1. The act or an instance of buying. 2. The acquisition of real property by one's own or another's act (as by will or gift) rather than by descent or inheritance.

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Rivera-Sanchez, 247 F.3d at 909. United States v. Martinez, 232 F.3d 728, 734 (9 th Cir. 2000) (applying U.S.S.G. §

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Id. Id. Document 35 Filed 10/14/2005 Page 4 of 7Page 4 of 7

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possess, vb. To have in one's actual control; to have possession of.15 The terms purchase and possess simply mean two different things, and only the prohibited

3 conduct involving possession is a drug trafficking offense as defined by U.S.S.G. 4 § 2L1.2. 5 6 7 The Court next looks to judicially noticeable documents (and not to police reports 8 9 This Court as a later court is "limited to examining the statutory definition, charging 10 document, written plea agreement, transcripts of plea colloquy, and any explicit factual 11 12 provided defense counsel a copy of a: 13 1. 14 2. 15 3. 16 4. 17 5. 18 6. 19 7. 20 8. 21 Most of the above documents cannot be used by the Court in determining the 22 23 24
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Modified Categorical Approach 16

or PSRs) to determine whether Defendant was convicted of a drug trafficking offense.17

findings by the trial judge to which the defendant assented." 18 The probation office has

Complaint, Notice of Narcotic Offender Registration, State of California, Order to Show Cause, Affidavit for Order to Show Cause, Preliminary Hearing Minutes, Violation Minutes, Order Revoking Probation and Order for Issuance of a Bench Warrant, and Probation Officer's Report Violation of Probation and Informational Report

Black's Law Dictionary (Bryan A. Garner ed., 7th ed., West 1999). Ye v. INS, 214 F.3d 1128, 1133 (9 th Cir. 2000) United States v. Corona-Sanchez, 291 F.3d 1201, 1211-12 (9 th Cir.2002)(en

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United States v. Shepard, 125 S.Ct. 1254, 1257 (2005). Document 35 Filed 10/14/2005 Page 5 of 7Page 5 of 7

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sentencing enhancement, but at most the documents indicate Mr. Serrano plead to Count 2 of something - it is not clear if there was an indictment or an information or if Mr. Serrano plead to the Complaint provided. Regardless, Count 2 of the Complaint includes the "purchase for purposes of sale" so the 12-level enhancement has not been established. As discussed in Navidad-Marcos, the government has the burden to establish "clearly and unequivocally the conviction was based on all of the elements of a qualifying predicate offense." The government has provided documents similar to those provided by probation, but the judicially noticeable documents provided are not sufficient to carry the government's burden. That is, they are insufficient to show, by clear and convincing evidence, that Defendant pleaded guilty to a drug trafficking offense because it evidences that defendant plead guilty to "Count 2" or to "11351.5," which is the entire overbroad statute, without specifying whether he plead to "possesses for sale" or "purchases for purpose of sale." Therefore the government has not met its burden and Mr. Serrano cannot be given the 12-level enhancement. However, the plea agreement also has agreed upon ranges of sentence for Level 12 offenses, the 4 Level Enhancement. Mr. Serrano can be sentenced as a level 12 (0-21 months) because the prior offense is a felony. Therefore, in accordance with the terms of the plea agreement, this Court applies the agreed-upon ranges for a Level 12 offense, Criminal History Category V, 12-18 months.

II. Conclusion (CR-05-1298-TUC-DCB(JCG)) Because the government has not established, by clear and convincing evidence, that Defendant's prior conviction in ¶23 is an aggravated felony and drug trafficking offense, he should receive no more than an 4-level enhancement under the guidelines. The Court should follow the agreed-upon ranges in the plea agreement for a level 12 offense, and sentence Defendant to a term of 12-18 months imprisonment to be followed by an appropriate term of supervised release.

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Final Computations Base Level Offense less Acceptance less Savings Final level

12 -2 -3 7 12 to 18 months

4 Criminal History Category V 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
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III. Objection to the Grade B violation in CR-03-0441-TUC-DCB(JCG) On the advice of counsel, defendant admitted the Grade B violation. Subsequently Ortuño-Higareda 19 was decided. Ortuño-Higareda involved a supervised release violation in the District of Arizona. While Ortuño-Higareda was advised of Special Condition One 20 , he was not advised of Standard Condition One.21 Since the government did not prove Ortuño-Higareda received notice, he was not subject to Standard Condition One and his supervised release could not be revoked based on Standard Condition One.22 The government and defense counsel have discussed Mr. Serrano's situation in light of Ortuño-Higareda. In keeping with like situations in the District, counsel are prepared to go forward with the "C" violation (amending the admission to the "B" violation). Counsel seek guidance as to how the Court wishes to proceed (eg. Can this be handled at the time of sentencing/disposition? Or should we amend the record before the magistrate?).

United States v. Ortuño-Higareda, 421 F.3d 917 (9 th 2005). If deported, you shall not re-enter the United States without legal authorization. You shall not commit another federal, state, or local crime during the term of

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supervision.
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United States v. Ortuño-Higareda, 421 F.3d 917 (9 th 2005). Document 35 Filed 10/14/2005 Page 7 of 7Page 7 of 7

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