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

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LAW OFFICE OF GREGORY T. PARZYCH Gregory T. Parzych, Bar ID. 014588 1811 South Alma School Road, Suite 230 Mesa, Arizona 85210 Telephone (480) 831-0200 Attorney for the Defendant

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA Plaintiff, vs. KEITH D. PRIEST Defendant. ) ) ) ) ) ) ) ) ) ) CR-03-344-PHX-MHM DEFENDANT PRIEST'S OBJECTIONS TO PRESENTENCE REPORT

COMES NOW the defendant Keith D. Priest, by and through undersigned counsel, and respectfully objects to paragraphs 5 through 28, 35, 36, 43, 44, 45, 51, 87, 91, 93, 99 and 100 of the presentence report. Paragraphs 5 through 28 Mr. Priest objects to these paragraphs in that they all refer to conduct of which Mr. Priest was found not guilty. Count 1, as charged, alleged a violation of Conspiracy to Defraud the United States Government. Mr. Priest was found not guilty of that charge after a jury trial. Mr. Priest objects to any and all consideration of acquitted conduct in increasing his sentence. Furthermore, paragraph 25 alleges that Priest solicited an undercover agent by falsely representing the company's trust packages. There was no evidence presented during the jury trial that this ever occurred. Paragraph 35 Paragraph 35 asserts a tax loss of 23,804.05 as the amount of loss due to his convictions for Wilful Failure to File an Income Tax Return for the years 2000 and 2001. There is no indication as to how these numbers were calculated or what formula was used in arriving at these numbers. These numbers were never submitted to nor found by
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a jury. Mr. Priest objects to any calculation absent a jury finding. Blakely v. Washington, 125 S.Ct. 2531 (2004). If this Court believes that United States v. Booker, 125 S.Ct. 728 (2005), allows the Court to make these findings, Mr. Priest requests that an evidentiary hearing be held where the government is required to show the loss using a clear and convincing evidence standard. When a sentencing factor has an extremely disproportionate effect on the sentence relative to the conviction, the government must prove such a factor by clear and convincing evidence. United States v. Lynch, 437 F.3d 902 (2005). Since this factor has the effect of potentially raising the base offense level of the advisory sentencing guidelines from a base level of 6 to a level of 12 or higher, the clear and convincing standard should be applied. Paragraph 36 Once again, this paragraph involves acquitted conduct and therefore Mr. Priest objects to any consideration of this paragraph consistent with his objections to paragraphs 5 through 28. Paragraph 43 Consistent with Mr. Priest's objection to paragraph 35, Mr. Priest objects to a base offense level of 12 and asserts his base offense level is 6 pursuant to §2T1.1(a)(2). Paragraph 44 Mr. Priest objects to the two level adjustment for failing to report or identify the source of income exceeding $10,000 in any year from criminal activity. Nothing is provided in this paragraph indicating what criminal activity was considered, nor how the amount was calculated. Mr. Priest objects to any consideration of facts not found by the jury and to any consideration of conduct for which he was found not guilty. Paragraph 45 Mr. Priest objects to the two level adjustment for sophisticated means. Mr. Priest was convicted of Wilful Failure to File an Income Tax Return for the years 2000 and 2001. There was nothing sophisticated about his failure to file returns. To the extent additional factors are considered, Mr. Priest objects to any consideration of facts not
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found by the jury and to any consideration of conduct for which he was found not guilty. Paragraph 51 Mr. Priest objects to the Total Offense Level calculation of 16. Based upon Mr. Priests objections, his Total Offense Level should be 6. Paragraph 87 Based upon a calculated Total Offense Level of 6, Mr. Priest's advisory guideline range is 0 to 6 months. Paragraph 91 Based upon a Total Offense Level of 6, Mr. Priest is in Zone A of the advisory guideline sentencing table and imprisonment is not required. Paragraph 93 Based upon a Total Offense Level of 6, the advisory fine range is $500 to $5,000. Paragraphs 99 and 100 Mr. Priest objects to the assertion that there are no circumstances that warrant a departure from the advisory guidelines. Mr. Priest intends to provide to the Court at sentencing information for the Court to consider in imposing a sentence consistent with the factors listed in 18 U.S.C. §3553(a). Respectfully submitted this 3 day of April, 2006.

By /S/ Gregory T. Parzych Gregory T. Parzych

Original of the foregoing Pleading mailed/hand-delivered this 3 day of April, 2006, to: Clerk of Court Sandra Day O'Connor U.S. Courthouse Suite 130
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401 West Washington Street - SPC 1 85003-2118 Mark Odulio and Larry Wszalck Department of Justice Tax Division Assistant United States Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Rena P. Glitsos 45 West Jefferson, Luhrs Tower - Suite 512 Phoenix, AZ 85003-2317 Stephen Kunkle 111 West Monroe, Suite 1212 Phoenix, Arizona 85003 Richard Juarez 850 West Adams Street Phoenix, Arizona 85003 Alex Gonzalez 1811 South Alma School Road, Suite 230 Mesa, Arizona 85210 Craig W. Haraga 401 West Washington Street, SPC 7 Suite 160 Phoenix, Arizona 85003-2119

Case 2:03-cr-00344-MHM

Document 781

Filed 04/03/2006

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