Free Objection to Presentence Investigation Report - 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.

) ) No. CR-02-00147-002-PHX-ROS ) (Assigned to the Honorable ) Roslyn Silver) ) ) ) DEFENDANT'S OBJECTION TO PRE) SENTENCE REPORT ) )

Comes now the Defendant, Mario Aguilar, and respectfully objects to the presentence report. This objection is supported by the following Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES On February 1, 2006, the defendant pleaded guilty to the sale of methamphetamine. The defendant pleaded guilty to the sale of 138 grams of which there was 62 actual grams of methamphetamine.

Case 2:02-cr-00147-ROS

Document 69

Filed 04/12/2006

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The defendant pleaded to possession with intent to distribute, not conspiracy to distribute. During the change of plea the defendant admitted his brother supplied him with 138 grams to deliver. The defendant did not and does not admit to being connected with any methamphetamine beyond the 138 gram quantity he pleaded guilty to distributing for his brother.

The defendant specifically objects to paragraph 17 of the draft pre-sentence report: his offense did not involve 208 kilograms of actual methamphetamine.

The pre-sentence report justifies attributing the amount of drugs the defendant delivered and the amount the co-defendant possessed on U.S.S.G. §1B.1.3. Draft presentence report, page 5, paragraph 11.

§1B.1.3 provides that in jointly undertaken criminal activity, a defendant is held responsible for all reasonably foreseeable acts of others in furtherance of the criminal activity. Plainly stated, the pre-sentence report assumes the scope of Mario Aguilar's criminal liability should exceed the 138 grams (62 actual) he acknowledged in his plea.

There is no evidence that connects Mario Aguilar to the methamphetamine seized from his brother's dresser during the search of his brother's residence. There is no evidence establishing Mario Aguilar knew that this methamphetamine was even there.

Case 2:02-cr-00147-ROS

Document 69

Filed 04/12/2006

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Case 2:02-cr-00147-ROS Document 69 Filed 04/12/2006 Page 3 of 4

The defendant should not be held accountable under the guidelines for the 1.983 kilograms found in the co-defendant's dresser.

The guidelines explicitly support the defendant's position. See U.S.S.G §1B.1.3 commentary, application notes 2(c)(4)(5)(7). See also U.S. v. Mellen, 393 f.3d 175 (D.C. Cir. 2005); U.S. v. Ortiz, 362 f.3d 1274.

The defendant sold 138 grams of methamphetamine. The corresponding guideline level is 26 for that amount. However, the actual methamphetamine involved was 62 grams. 62 grams actual methamphetamine corresponds to a base guideline level of 32.

The guidelines direct the court to apply the higher guideline level when dealing with mixtures of methamphetamine. §2D.1.1, comment. n. (B) to drug quantity table. See also U.S. v. Huston, 338 f.3d 876 (8th Cir. 2003).

The defendant should start at a level 32. That level should be decreased by two levels pursuant to U.S.S.G. §2D11 (a)(3) (minimum role).

Defendant also receives a two level adjustment pursuant to §5C1.2 (safety valve). Two more points are deducted pursuant to §3B1.2 (minimum role).

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Case 2:02-cr-00147-ROS Document 69 Filed 04/12/2006 Page 4 of 4

Three points are also deducted pursuant to §3E1.1 (a) and (b) (acceptance of responsibility).

The defendant's true guideline range is a level 23. Pursuant to his plea, and in the absence of other applicable guidelines and Booker, his sentence should be 46 months.

Respectfully submitted: April 13, 2006 s/ JERRY HERNANDEZ JERRY HERNANDEZ 115 W. Hu-Esta Dr. Tempe, Arizona 85282 BAR #13021

I hereby certify that on April 13, 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