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

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DANIEL G. KNAUSS United States Attorney District of Arizona KEITH E. VERCAUTEREN Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Arizona State Bar No. 013439 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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United States of America, CR-03-0421-009-PHX-SMM Plaintiff, v. Cameron Ray Braxton, Defendant. The United States of America, by and through undersigned counsel, hereby responds to defendant CAMERON RAY BRAXTON's Objection to the Presentence Report. The United States agrees with defendant's objection that the defendant should be given a three level reduction for acceptance of responsibility in this case. The commentary to § 6A1.3 of the Sentencing Guidelines instructs that, "in determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. Any information can be considered, so long as it has `sufficient indicia of reliability to support its probable accuracy.'" U.S.S.G. § 6A1.3, comment. Using reliability as the threshold for consideration, materially inaccurate information should not be considered in the formulation of a sentence. See United States v. Safirstein, 827 F.2d 1380, 1385 (9th Cir. 1987). The district court's factual findings and interpretation and application of the Sentencing Guidelines are upheld on appeal unless clearly erroneous. United States v. Reyes-Oseguera, 106 F.3d 1481, 1483 (9th Cir. 1997). RESPONSE BY THE UNITED STATES TO DEFENDANT'S OBJECTION TO THE PRESENTENCE REPORT

Case 2:03-cr-00421-SMM

Document 607

Filed 07/10/2007

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Defendant BRAXTON was on pretrial release for a little over one year on this case before he absconded. The defendant was captured two years later and brought back before the Court Defendant has now been in custody for approximately nine months. The United States agrees with the Presentence Report writer that defendant BRAXTON should have two points added to his adjusted offense level for Obstruction of Justice pursuant to U.S.S.G. § 3C1.1. However, the United States will recommend that the defendant should receive a three level reduction for Acceptance of Responsibility pursuant to U.S.S.G. § 3E1.1. Application Notes four and five in the Commentary to U.S.S.G. § 3E1.1 make clear that it is discretionary with the Court whether a defendant should receive a reduction for Acceptance of Responsibility even though he has an enhancement for Obstruction of Justice. 4. Conduct resulting in an enhancement under §3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§3C1.1 and 3E1.1 may apply. 5. The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review. After the defendant was arrested the second time in this case, he has fully accepted responsibility for his criminal conduct. Furthermore, the defendant pled guilty before the United States had to prepare a trial against him. Therefore, the United States will recommend that the Court grant a three level reduction for Acceptance of Responsibility for this defendant. If the Court does give three levels off, the defendant would be at a total offense level 17, with a criminal history category II, and the applicable guideline range is 27 to 33 months. Respectfully submitted this 10th day of July, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona

s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney
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CERTIFICATE OF SERVICE I hereby certify that on July 10, 2007, 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 registrant: Baltazar J. Iniguez Attorney for the defendant Angela M. Armijo U.S. Probation Officer

s/Keith Vercauteren Keith E. Vercauteren Assistant United States Attorney

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