Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona ANDREW C. PACHECO Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Ste. 1200 Phoenix, AZ 85004-4408 Telephone: (602) 514-7500 Arizona Bar Number 018105 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-02-0147-002-PHX-ROS Plaintiff, v. Mario Aguilar Defendant. Comes now the United States of America by Paul K. Charlton, United States Attorney and GOVERNMENT'S RESPONSE TO DEFENDANT'S OBJECTION TO PRESENTENCE REPORT

14 Andrew C. Pacheco, Assistant United States Attorney for the District of Arizona and responds 15 to the defendant's Objection to Presentence Report. The United States does not object to 16 defendant's position regarding sentencing and believes that a reasonable sentence pursuant to 17 18 U.S.C. 3553 can be obtained even if defendant's objections are sustained. The government's 18 position is more fully described in the attached Memorandum of Points and Authorities. 19 Respectfully submitted this 24th day of April, 2006. 20 21 22 23 24 25 26 27 28 PAUL K. CHARLTON United States Attorney District of Arizona "s/Andrew C. Pacheco" ANDREW C. PACHECO Assistant U.S. Attorney

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1 2 I. Facts 3

MEMORANDUM OF POINTS AND AUTHORITIES

The defendant was indicted on August 29, 2002, along with his brother, Carlos Aguilar, in

4 a superseding indictment charging one count of possession with intent to distribute 5 methamphetamine. The defendant then pled guilty on February 1, 2006. 6 II. Standard of Review 7 A district court's interpretation of the Sentencing Guidelines are reviewed de novo, and the

8 district court's application of the Sentencing Guidelines to the facts of a case are reviewed for 9 abuse of discretion. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005). 10 III. Analysis 11 The defendant's objection to the pre-sentence report concerns the relevant conduct that he

12 is held accountable for. In essence, the defendant argues that he should be held accountable only 13 for the amount of methamphetamine he actually sold to the confidential informant involved in 14 this investigation. This position mirrors the factual basis that is included in the plea agreement. 15 The United States would not object if the Court were to sustain the defendant's objection. 16 The investigation in this matter originally centered on the defendant's brother, Carlos

17 Aguilar. As the investigation continued, it became clear that Mario Aguilar was also involved 18 in criminal activity. However, the DEA case agent determined that Mario Aguilar had a role 19 subservient to that of his brother. Nonetheless a superseding indictment was sought that 20 included Mario Aguilar. 21 The events for which the defendant was indicted and ultimately pled guilty to surrounded

22 a drug transaction involving a confidential informant (CI). The CI originally met with both 23 defendants and negotiated a drug transaction. The defendants then left the meeting location and 24 were surveilled going to Carlos Aguilar's home. The defendant then returned and transferred 25 approximately 138 grams of methamphetamine to the CI. Law enforcement agents then served 26 a search warrant at Carlos Aguilar's home and recovered an additional 1.93 kilograms of 27 methamphetamine. 28
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Although there was surveillance that followed Carlos and Mario Aguilar from the meeting

2 location with the CI to Carlos Aguilar's home, there was no law enforcement surveillance that 3 can determine with specificity where within the home they moved. At the time of the search 4 warrant, Carlos Aguilar notified investigating officers that there were illegal drugs in the dresser 5 in his bedroom. That is where the additional methamphetamine was found. Mario Aguilar has 6 consistently denied knowledge of that methamphetamine. 7 The plea agreeement in Mario Aguilar's case was to a lesser included offense. This was

8 negotiated by the parties after recognizing that Mario Aguilar agreed to transferring the 138 9 grams of methamphetamine to the CI, but not to possessing the additional 1.93 kilograms of 10 methamphetamine. The factual basis also tracks the facts as admitted by Mario Aguilar. While 11 the United States believes that the Court can legally hold the defendant accountable for all of the 12 methamphetamine seized, the United States would not object if the defendant were held 13 accountable for only the behavior he admitted to. The plea agreement was negotiated after the 14 defendant rightly pointed out that the government did not have surveillance within the home 15 where the drugs were stored. Rather than supersede a second time with a charge of conspiracy 16 for a defendant that the United States viewed relatively less involved, the United States 17 negotiated the current agreement. 18 IV. Conclusion 19 If the Court were to sentence the defendant as contemplated in the pre-sentence report, the

20 sentencing range would be 70 to 87 months. If the Court were to sentence the defendant 21 pursuant to his request, his sentencing range would be 46 to 57 months. The government 22 recommends, pursuant to the plea agreement, that the Court sentence the defendant at the low 23 end of whatever guideline range the Court concludes is applicable. 24 Lastly, the co-defendant, Carlos Aguilar, was sentenced by this court on March 11, 2003 to

25 97 months in the Bureau of Prisons, to be followed by five years of supervised release. Carlos 26 Aguilar was held accountable for the entire amount of methamphetamine seized. 27 28
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Respectfully submitted this

24th day of April, 2006. PAUL K. CHARLTON United States Attorney District of Arizona "s/Andrew C. Pacheco" ANDREW C. PACHECO Assistant U.S. Attorney

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Jerry Hernandez

CERTIFICATE OF SERVICE
I hereby certify that on April 24, 2006, 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:

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S/Raquel Lopez

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