Free Memorandum - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 District of Arizona 850 W. Adams, Ste. 201 3 Phoenix, Arizona 85007 4 Telephone: (602) 382-2727 5 MILAGROS A. CISNEROS State Bar No. 020410 6 [email protected] Asst. Federal Public Defender 7 Attorney for Defendant 8 9 10 11 12 13 14 15 16 17 Defendant, Anthony Lee Koester, by and through undersigned counsel, 18 for the reasons stated herein, respectfully submits the instant sentencing 19 memorandum, pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 20 220, 125 S. Ct. 738 (2005). Mr. Koester further respectfully submits his sentencing 21 and disposition memorandum with his request for the following: 22 23 24 25 26 27 1. that this Court consider the entire court record for purposes of -vsAnthony Lee Koester, Defendant. United States of America, Plaintiff, IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CR 06-1160-PHX-MHM No. CR 02-230-PHX-MHM No. CR 02-1216-PHX-MHM SENTENCING AND DISPOSITION MEMORANDUM (Oral Argument Requested)

deciding Ms. Koester's appropriate sentence; 2. that this Court sentence Mr. Koester to 21 months of total

incarceration, as permitted by his plea agreement; 3. that this Court recommend that Mr. Koester serve his incarceration

28 time in the District of Arizona; and ...

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4.

that this Court waive imposition of any fine, in light of Mr.

2 Koester's indigency; and 3 This Motion is supported by the attached Memorandum of Points and 4 Authorities as well as the Court's file in this case. 5 Respectfully submitted: July 25, 2007. 6 JON M. SANDS Federal Public Defender 7 8 9 10 11 12 13 I. 14 MEMORANDUM OF POINTS AND AUTHORITIES Introduction On December 7, 2006, Anthony Koester was arrested on federal charges s/Milagros A. Cisneros MILAGROS A. CISNEROS Asst. Federal Public Defender

15 of Possession of Stolen Mail. The offense in this case is in violation of Title 18, 16 United States Code, section 1708. Mr. Koester was also charged, based upon the 17 same underlying offense, with violations of his supervised release in two companion 18 cases­CR 02-230-PHX-MHM and CR 02-1216-PHX-MHM. On March 1, 2007, Mr. 19 Koester pled guilty to the single count of the Indictment and admitted the violations 20 of his supervised release. 21 The probation department prepared a presentence report, which was 22 reviewed by Mr. Koester with the assistance of counsel and he has separately filed a 23 set of objections. 24 II. Legal Analysis 25 In United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the 26 27 United States Supreme Court held that its previous decision in Blakely v. Washington, 28 542 U.S. 296 , 124 S. Ct. 2531 (2005) applied to the federal sentencing guidelines 2

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1 and, thus, that the Sixth Amendment's jury trial guarantee prevents judges from 2 finding facts that would increase a defendant's prison time. Booker, 125 S. Ct. at 746 3 (opinion by Stevens, J.). A different majority of the Booker court held that the proper 4 remedy to resolve the constitutional questions posed by Blakely was to excise the 5 portions of the Sentencing Reform Act that made the federal sentencing guidelines 6 mandatory (codified at 18 U.S.C. §§ 3553(b)(1)). Booker, 125 S. Ct. at 756-57 7 (opinion by Breyer, J.). Accordingly, although a sentencing court must still consider 8 the guideline range, before settling on a sentence, the court must also look at each of 9 the factors set forth in 18 U.S.C. § 3553(a)­the statute governing the imposition of 10 11 a sentence. Upon such consideration, the sentencing court may impose any sentence, 12 so long as it is "reasonable." Booker, 125 S. Ct. at 765-66 (excising 18 U.S.C. § 13 3742(e) and establishing standard of review for "unreasonableness"). 14 Pursuant to section 3553(a), the Court "shall impose a sentence 15 sufficient, but not greater than necessary, to comply with the purposes set forth in 16 paragraph (2) of this subsection." 18 U.S.C. § 3353(a). Paragraph 2 states that such 17 purposes are: 18 (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the 19 offense; 20 (B) to afford adequate deterrence to criminal conduct; 21 (C) to protect the public from further crimes of the defendant; 22 23 24 (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

25 18 U.S.C. § 3353(a)(2). Section 3553 also mandates that sentencing courts consider 26 the nature and circumstances of the offense and the history and characteristics of the 27 28 3 defendant; the kinds of sentences available; the need to avoid unwarranted sentencing

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1 disparities among defendants with similar records who have been found guilty of 2 similar conduct; and the need to provide restitution to any victims of the offense. 18 3 U.S.C. §§ 3553(a)(1), (3), (6) & (7). 4 5 6 7 8 9 10 The mandatory guidelines scheme generally forbade the sentencing court to consider factors in the defendant's history and characteristics that were either positive or that would otherwise call for leniency. For instance, under the guidelines, sentencing courts could not consider, or were discouraged from considering a defendant's mental and emotional conditions, U.S.S.G. § 5H1.3, or his lack of guidance as a youth, U.S.S.G. § 5H1.12. Booker directs sentencing courts to consider

11 all the § 3553(a) factors before imposing sentence. Accordingly, the guidelines' 12 mandatory prohibitions pertaining to the defendant's "history and characteristics" no 13 longer apply. 14 15 A. The Nature and Circumstances of the Offense On December 7, 2006, Mr. Koester was found in possession of stolen

16 mail. The circumstances that found him in this situation were a spiral downward in 17 his treatment at TASC and a subsequent failure to report to his probation officer. Mr. 18 Koester had been released from incarceration on March 1, 2006 and, during a period 19 of several months, he attended counseling at TASC and was leading a clean lifestyle. 20 B. Mr. Koester's "History and Characteristics" 21 Ms. Koester was born to Mark Joseph Koester and Renate Chamberlain, 22 on October 16, 1966. He has several half-siblings from his parents' other 23 relationships. Perhaps the most salient aspect of Mr. Koester's childhood, however, 24 was his parents' divorce when he was 5 years old, and his mother's subsequent 25 26 marriage to Mr. Koester's grandfather. This situation created a great deal of 27 confusion and instability for Mr. Koester. Indeed, his childhood friend, Kimberly 28 Pool, remembers Mr. Koester's parents being verbally and physically abusive toward 4

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1 him. PSR at ¶ 60. As Mr. Koester told the presentence writer, he feels that he was 2 never taught any "life skills" by his parents, that he is "traumatized easily" and can 3 become "overwhelmed." PSR at ¶¶ 58 & 64. Although they do not excuse his 4 behavior, these factors help to explain why Mr. Koester has so frequently found 5 himself in legal trouble. 6 C. The Need for the Sentence Imposed 7 The need for the sentence imposed is determined by the seriousness of 8 the offense, promotion of respect for the law, the need for a just punishment, general 9 and individual deterrence, and the needs of the defendant. 18 U.S.C. §3553(a)(2). 10 11 If this Court must impose a sentence of incarceration it should be "sufficient, but not 12 greater than necessary." 18 U.S.C. § 3553(a). Mr. Koester is requesting a total incarceration time of 21 months, 13 14 including the new charge, for which the guideline range for imprisonment is 6 to 12 15 months. He requests to be sentenced as follows: 9 months in CR 06-1160-PHX16 MHM and 12 months each in CR 02-230-PHX-MHM and CR 02-1216-PHX-MHM, 17 the latter two sentences to run concurrently with each other. 18 The reason for this request is that Mr. Koester would like to apply to be 19 admitted into the U.S. Army. He believes that the Army can provide the kind of 20 structured environment he needs to finally learn basically life skills and to eventually 21 live independently. In 2006, the Army increased the maximum age of recruits to 42 22 years of age. Mr. Koester will turn 42 in October, 2009, but he would have to begin 23 boot camp by July, 2009. Should this Court impose a total sentence of 21 months, 24 Mr. Koester could be released from custody by July, 2008. Assuming he performs 25 26 well on supervised release (and assuming this Court places him on supervised release 27 for a period of over 12 months on one or on all three cases), Mr. Koester could then 28 . . . 5

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1 apply to this Court for early termination of his supervised release (in July, 2009), 2 which would be required for participation in Army boot camp. 3 It is important to note that Mr. Koester is well aware that there are many 4 contingencies involved in this plan, not the least of which is that the Army would 5 have to accept him in the first place . Moreover, he would also have to satisfactorily 6 demonstrate to this Court a successful track record on supervised release for a 7 sustained period of time. He recognizes that these hurdles will be extremely 8 challenging for him. However, he would like the opportunity to try. 9 D. The Kinds of Sentences Available and the Guideline Range, Restitution1, 10 and Unwarranted Disparities. 11 Given the advisory nature of the Sentencing Guidelines, there are several 12 sentencing options available to the Court in imposing Mr. Koester's sentence and he 13 requests that sentence be imposed in the manner set forth in section C, supra. 14 In addition, Mr. Koester is aware that both the presentence report writer 15 and his supervising probation officer are requesting that a special condition be 16 imposed to forbid his self-employment while on supervised release. Mr. Koester 17 respectfully requests that this Court not impose such a condition, as this will limit his 18 19 employment prospects. Mr. Koester did well financially for several months selling 20 meat as an independent contractor. He would like to be able to carry out that type of 21 work again, upon release from custody, and a special condition such as the one 22 proposed would severely hinder his ability to do work that he enjoys and that he is 23 good at. It is respectfully suggested that a special condition forbidding self24 employment could be added later, if his supervising probation officer considers that 25 Mr. Koester's employment is too difficult to monitor. 26 27 28
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Restitution does not apply in this case. 6

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1 III. 2

Conclusion: The Appropriate Sentence Mr. Koester respectfully requests that the Court take into consideration

3 all of the factors set forth in 18 U.S.C. § 3553(a), including Mr. Koester's lack of 4 guidance as a youth. He respectfully requests to be sentenced in the manner set forth 5 above. Mr. Koester also requests that the Court waive imposition of any fine, in light 6 of his indigency, and that the Court recommend that he be incarcerated in the District 7 of Arizona. 8 Respectfully submitted: July 25, 2007. 9 JON M. SANDS 10 Federal Public Defender 11 12 13 14 s/Milagros A. Cisneros MILAGROS A. CISNEROS Asst. Federal Public Defender

I hereby certify that on July 25, 2007, I electronically transmitted the attached 15 document to the Clerk's Office using the ECF System for filing and transmittal to the following ECF registrants: 16 CLERK'S OFFICE 17 Sandra Day O'Connor Courthouse 401 W. Washington, Suite 160 18 Phoenix, Arizona 85003 19 20 RICHARD I. MESH Assistant United States Attorney 21 Two Renaissance Square 40 North Central Avenue 22 Suite 1200 Phoenix, Arizona 85004-4408 23 24 25 26 27 28 7

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1 Copy mailed to: 2 SHAWN SHEAR U.S. Probation 3 401 W. Washington 4 Phoenix, Arizona 85003 5 ANTHONY KOESTER Defendant 6 7 s/Milagros A. Cisneros MILAGROS A. CISNEROS 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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