Free Sentencing Memorandum - District Court of Arizona - Arizona

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JERRY HERNANDEZ ATTORNEY AT LAW BAR #13021 115 W. HU-ESTA DR. TEMPE, AZ 85282 (480) 231-3053 [email protected] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, Plaintiff, vs.
MARIO AGUILAR,

Defendant.

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No. CR-02-00147-002-PHX-ROS (Assigned to the Honorable Roslyn Silver)

DEFENDANT'S PRE-SENTENCE MEMORANDUM

Comes now the Defendant, Mario Aguilar, and respectfully submits for the courts perusal the following pre-sentence memorandum.

MEMORANDUM OF POINTS AND AUTHORITIES The defendant does not agree with the pre-sentence report assertion that he was actively involved in the drug trade. His personal history and lack of criminal record do not support that conclusion.

The defendant has three children and a wife. He has been married for nine years.

Case 2:02-cr-00147-ROS

Document 70

Filed 04/18/2006

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He has supported his family through verifiable and legitimate means. He has purchased a home and paid taxes. He has no criminal history.

The pre-sentence report notes that Mr. Aguilar "minimized" his involvement by asserting that he was only involved in one drug transaction. Pre-sentence report, page 12. The pre-sentence report bases this conclusion on statements made by a confidential informant who the defendant never had the opportunity to question.

The pre-sentence report states with respect to defendant's "minimization" that "The facts clearly suggest otherwise".

What facts are those? Where is there any evidence Mario Aguilar knew that 1.98 kilograms of methamphetamine were kept in his brother's chested drawers?

The defendant asks this court to dismiss the innuendo within the pre-sentence report and to sentence him to a reasonable sentence pursuant to 18 U.S.C. §3553(a).

Sentencing courts must now consider all of the goals and factors set forth in 18 U.S.C. §3553(a), not just the guidelines and policy statements in the guidelines manual. U.S. v. Booker, 125 S.CT. 738, 757, 764, 766, 767, 768.

Case 2:02-cr-00147-ROS

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In the wake of Booker, federal sentencing is governed by 18 U.S.C. §3553(a). U.S. v. Meryweather, 431 F.3d 692 (9th Cir. 2005).

The federal sentencing guidelines do not operate as presumptive authority and are not coterminous with the "reasonable" sentence to be imposed. U.S. v. Zavala, 2006 WL 914 528 (9th Cir, April 11, 2006).

District courts may consider a defendant's history and characteristics including family responsibilities, more expansively than the pre-Booker guidelines allowed. Meryweather at 700. Ultimately, any sentence imposed by the court must be reasonable, guidelines or no guidelines. Booker at 765-66.

§3553(a)(1) directs the court to consider the nature and circumstances of the offense and the history and characteristics of the defendant. These considerations have been alluded to in this sentencing memorandum.

Mr. Aguilar considers a sentence of 70 months extremely unreasonable given these considerations. The defendant asks this court to consider his family obligations when considering whether his prolonged guideline figure of 46 months is considered.

Case 2:02-cr-00147-ROS

Document 70

Filed 04/18/2006

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Case 2:02-cr-00147-ROS Document 70 Filed 04/18/2006 Page 4 of 4

Respectfully submitted: April 19, 2006 s/ JERRY HERNANDEZ JERRY HERNANDEZ 115 W. Hu-Esta Dr. Tempe, Arizona 85282 BAR #13021

I hereby certify that on April 19, 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/ECT registrants: Andrew Pacheco Assistant United States Attorney Copy Mailed to: Mario Aguilar Defendant