Free Memorandum - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona RICHARD I. MESH Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 02716 Telephone (602) 514-7500 E-Mail: [email protected]

UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Sentencing Recommendation. The government recommends that the defendant be sentenced to a nine-month term of incarceration incident to his plea of guilty to Possession of Stolen Mail, Class D felony. This period of incarceration represents the mid-point in the range of incarceration recommended by the United States Sentencing Commission, U.S.S.G., Sentencing Table, for a person whose total offense level is calculated to be level 4 and who possess a criminal history category VI, representing 13 or more criminal history points. The government further recommends that this period of incarceration be followed by a term of three years supervised release. The government The United States of America, through its undersigned attorneys, hereby submits the following sentencing recommendation in the above numbered case and disposition recommendations incident to the revocation of the defendant's supervise release in the two above listed related cases. v. Anthony Lee Koester, Defendant. United States of America, CR-06-1160-PHX-MHM Plaintiff, GOVERNMENT'S SENTENCING RECOMMENDATION RELATED CASES CR-02-230-PHX-MHM CR-02-1216-PHX-MHM

Case 2:02-cr-00230-MHM

Document 62

Filed 06/29/2007

Page 1 of 4

1 urges the Court to impose this sentence to be served consecutive to the sentence imposed in the 2 two pending revocation of supervised release cases. 3 4 B. Disposition Recommendations. 5 The government recommends a 24-month term of imprisonment to be imposed for each This recommendation represents the maximum term of

6 violation of supervised release.

7 incarceration permitted upon the revocation of the defendant's supervised release. 18 U.S.C. 8 §3583(e)(3). 9 concurrently. 10 11 C. Reasons for Recommendations 12 The probation report, in the section entitled "Justification" (page 22), provides a well The two 24-month terms of imprisonment should be ordered to be served

13 reasoned and a well-written exposition in support of the probation department recommendation 14 of 12-months imprisonment. The government, in its effort to affect a plea agreement, stipulated 15 with the defendant, that the maximum sentence would not exceed 33-months. That agreement 16 was premised upon the government's expectation that it would be recommending 24-months 17 incarceration for the violation of the defendant's supervised releases, to be followed by a mid 18 range sentence, for his most recent new offense conviction. 19 The midrange of incarceration is 9-months under the Sentencing Guidelines for the

20 defendant's new offense, given the defendant's substantial history of criminal conduct. While 21 the defendant's adjustment to supervision was a near-perfect zero, the Grade "C" violations 22 under the guidelines for technical violations would have subjected the defendant to a range of 23 only 7 to 13 months imprisonment. U.S.S.G. § 7B1.4. Therefore, his commission of this new 24 class "D" felony offense while on supervised release subjects the defendant to a Grade B 25 violation with a range of punishments between 18 and 24 months. Clearly, the defendant has 26 been the architect of his own downfall by placing himself in a range of punishment nearly double 27 that of which awaited him for his noncompliance with the technical terms of his probation. 28 2 Case 2:02-cr-00230-MHM Document 62 Filed 06/29/2007 Page 2 of 4

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The defendant, as part of his plea agreement, waived his right to appeal his conviction and

2 sentence and relinquished his constitutional rights to a trial. In the government's view, a three3 month reduction from the likely to be imposed maximum sentence was a small accommodation 4 to the defendant, all of which was done in the interest of justice and judicial economy. 5 The defendant has spent the last 20 years of his life largely incarcerated because of his

6 engaging in small time criminal conduct. Irrespective of the causes of the defendant's criminal 7 behavior, most of those instances involved the victimization of other citizens. The defendant's 8 inability to abide by ordinary civilized rules of society, leaves the Court at this juncture no other 9 alternative that to neutralize the defendant from victimizing additional individuals by 10 incarcerating him for the longest period of time consistent with the rules of proportionality and 11 fairness. 12 The recommended maximum sentences for the violation of the defendant's supervised

13 release will effectively terminate those cases from Court supervision. However, the defendant's 14 most recent violation will provide the Court with an additional tool by which it will be in a 15 position to monitor the defendant's behavior upon his release from prison. The presence of a 16 term of 3 years supervised release for the new theft of mail conviction will subject the defendant 17 to the possibility of an additional 24-months of incarceration if the defendant is still unable to 18 abide by the terms of his release. Whatever small benefit the defendant derives from a plea 19 agreement with a cap of 33-months total incarceration for all three cases, will be offset by the 20 specter of additional incarceration in the event of a future violation of his new supervised release 21 conditions. 22 While the defendant saliently identified his lack of life skills and employment abilities as

23 the cause to some extent of his antisocial behavior, only he can rectify those deficiencies. Books 24 have been written about people like the defendant who have used a period of incarceration to 25 improve themselves so is to have at least a chance at continued freedom once they are released 26 from prison. The defendant's past patterns of relatively petty criminal behavior has already 27 28 3 Case 2:02-cr-00230-MHM Document 62 Filed 06/29/2007 Page 3 of 4

1 deprived his life of any true meaning. The decision to serve life in prison on the installment plan 2 will always be in the hands of the defendant. 3 4 D. Conclusion 5 On the basis of all the foregoing, the government respectfully urges this Court to impose

6 two concurrent 24-month terms of imprisonment for violations of the defendant's supervised 7 releases violations to be followed by some consecutive nine-months of incarceration as a sentence 8 for the defendant's most recent criminal offense. 9 10 11 12 13 14 15 16
Certificate of Service :

Respectfully submitted this 29 th day of June, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona S/Richard I. Mesh Richard I. Mesh Assistant U.S. Attorney

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I hereby certify that on June 29 th , 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 registrants: Milagros A. Cisneros Ass't Fed. Public Defender 850 W . Adams St., Ste. 201 Phoenix, Az 85007 Attorney for Defendant Koester Shawn T. Shear Federal Probation Officer 401 W . W ashington St., Phoenix, AZ 85003. Presentence Investigator S/Richard I. Mesh