MDY Industries, LLC v. Blizzard Entertainment, Inc. et al

Filing 208

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MDY Industries, LLC v. Blizzard Entertainment, Inc. et al Doc. 208 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DANIEL G. KNAUSS United States Attorney District of Arizona MARY BETH PFISTER Assistant U.S. Attorney Arizona State Bar No. 015103 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. CR-06-1165-PHX-JAT GOVERNMENT'S SENTENCING MEMORANDUM Diego Leon-Molina, Defendant. (Sentencing scheduled for September 17, 2007) The United States of America, by and through undersigned counsel, hereby submits the attached memorandum in anticipation of defendant's upcoming sentencing. For the reasons set forth below, the government asks that defendant be sentenced to the low end of the advisory sentencing guideline range, 135 months in prison. MEMORANDUM OF POINTS AND AUTHORITIES I. RELEVANT FACTS Defendant was arrested on December 18, 2006 when Phoenix Police stopped the car defendant was driving and discovered a gun in his waistband and approximately 21 kilograms of cocaine in a secret compartment in the car. (PSR 10.) Defendant had just come from a stash house of an organization under investigation by the Drug Enforcement Administration (DEA), where he had picked up the drugs from the local head of that organization, Juan Tapia-Quintero. (PSR 4-10.) Telephone intercepts that day between Tapia-Quintero's phone and one used by defendant reveal that Tapia-Quintero called defendant after a load vehicle carrying drugs from 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mexico arrived at the stash house and told defendant he could come over and pick up drugs. (PSR 9-10.) Others involved in Tapia-Quintero's drug trafficking organization told DEA that defendant had picked up drugs from Tapia-Quintero on at least three occasions, that defendant often provided Tapia-Quintero with large amounts of money, and that on one occasion defendant gave Tapia-Quintero approximately $300,000. (PSR 11.) Defendant was known to both Tapia-Quintero and to Tapia-Quintero's associates in Mexico as "Guero." (PSR 9-10.) A federal grand jury indicted defendant December 20, 2006 on one count of possession with intent to distribute cocaine, being an alien in possession of a firearm and carrying a firearm in furtherance of a drug-trafficking offense. (PSR 1.) On June 26, 2007, defendant pled guilty to the drug charge. As part of the plea agreement, the parties stipulated that the amount of drugs involved in the offense conduct was between 15 and 50 kilograms of cocaine. The government also agreed to dismiss the gun charges against defendant. (PSR 2.) II. SENTENCING RECOMMENDATION The guideline range calculated in the PSR is 135-168 months. (PSR 41.) The government believes that a sentence at the low end of this range, 135 months, is an appropriate sentence for defendant. Although 135 months is a long time, and defendant has no identifiable criminal history, his offense on December 18, 2006 was certainly not his first criminal activity. He was a trusted member of the drug trafficking organization, known to high-ranking members of the organization both in Mexico and the United States. He picked up drugs and delivered payments for drugs on multiple occasions before he was caught on December 18th. The large quantity of drugs and large amounts of money with which he was entrusted show that he had the confidence of the organization, as does the fact that he was trusted to know the location of the stash house and to interact directly with Juan Tapia-Quintero. As part of the parties' plea agreement, defendant is not being convicted of the gun charges in the indictment. Had he been convicted of all the charges, he would have been facing not only a 10-year mandatory minimum sentence for the drug charge but also a 5-year mandatory minimum consecutive sentence for the gun. Defendant thus already has received the benefit of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 having a minimum 15-year sentence be reduced to a minimum 10-year sentence. His possession of the gun on the date of his arrest, however, is undisputed. He had it in his waistband at the time he was pulled over. (PSR 10.) The fact that defendant was armed, combined with the circumstances showing he had the trust of a large-scale drug trafficking organization, shows the seriousness of his offense conduct. The PSR writer compares defendant's conduct to that of a defendant sentenced in a related case to 84 months and argues that justifies a variance below the advisory guideline range in this case to 120 months. This comparison is not appropriate because that defendant, Eligio Gaxiola, is not similarly situated to defendant Leon-Molina. Gaxiola was a passenger in a vehicle stopped and found to contain drugs. There was no evidence in that case that Gaxiola drove the car, that he made the arrangements for picking up the drugs, that he was known to high-ranking drug trafficking organization members in Mexico, that he also delivered large quantities of cash for the organization on a regular basis, or that he possessed a gun. In all of these ways, Gaxiola's situation is distinguishable from defendant Leon-Molina's. Leon-Molina was no bystander or mere passenger in the drug trafficking offense here. Moreover, Gaxiola received an adjustment for having played a minor role in the drug offense of which he was convicted (over the government's objection), which reduced his advisory guideline range considerably. Defendant Leon-Molina is not entitled to such an adjustment, and his advisory guideline range thus is higher. Defendant Leon-Molina's advisory guideline range already takes into account the few applicable mitigating factors, such as his lack of criminal history The government, therefore, asks that the Court accept its sentencing recommendation and sentence defendant to the low end of his advisory guideline range, 135 months in prison. This sentence takes into account the nature and circumstances of the offense; the history of the defendant; the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide just punishment for it, provide adequate deterrence and protect the public. This sentence also appropriately considers the advisory sentencing guidelines and the need to avoid unwarranted sentence disparities among defendants with similar records who 3 1 2 3 4 5 6 7 8 9 10 11 have been found guilty of similar conduct. For these reasons, the government believes its recommended sentence is an appropriate one in light of the factors set forth in 18 U.S.C. 3553. Respectfully submitted this 31st day of August, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona S/Mary Beth Pfister MARY BETH PFISTER Assistant U.S. Attorney I hereby certify that on August 31, 2007, I electronically transmitted the attached 13 document to the Clerk's Office using the CM/ECF System for filing and transmittal 14 of a Notice of Electronic Filing to the following CM/ECF registrants: 12 15 16 17 Geoffrey Morrison Attorney for Defendant Leon-Molina and faxed the foregoing to: Beth Stewart 18 U.S. Probation Officer 19 20 21 22 23 24 25 26 27 28 4 By: s/ Raquel Lopez

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