Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Filing 1688

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Motion Picture Association of America v. CrystalTech Web Hosting Inc. Doc. 1688 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 Sarah L Hartnettt Special Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Texas State Bar No. 24026929 Telephone: (602) 514-7500 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Arturo Alarcon-Garcia, Defendant. CR 06-00903-001-PHX-ROS GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR DOWNWARD DEPARTURE The United States of America, by and through undersigned counsel, hereby responds to defendant's motion for downward departure based on his alleged cultural assimilation in the United States. The government asks that the Court deny defendant's motion, for the reasons set forth in the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES Defendant asks this Court for a downward departure based on his alleged cultural assimilation in the United States. The defendant submits that this Court should grant a downward departure based on his claim of cultural assimilation, which purportedly sets his case outside the heartland of cases. The government submits that his background and circumstances are not so extraordinary as to warrant a downward departure. In United States v. Booker, 125 S.Ct. 738 (2005), the Supreme Court held that the federal sentencing guidelines violated the Sixth Amendment. As a remedy, the Court excised that part of the Sentencing Reform Act that made the guidelines mandatory, but district courts should still consider the guidelines as advisory. Prior to Booker, the Ninth Circuit Court of Appeals held 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 that district courts could consider evidence of cultural assimilation for sentencing purposes, pursuant to U.S.S.G. 5K2.0 and 1B1.4 to. See United States v. Lipman, 133 F.3d 726 (9th Cir. 1997). Under U.S.S.G. 5K2.0, a departure is appropriate when "there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. 3553(b). In determining whether a departure is warranted under 5K2.0, a sentencing court "may consider, without limitation, any information concerning the background, character, and conduct of the defendant, unless otherwise prohibited by law." U.S.S.G 1B1.4. The defendant, however, bears the burden to prove by a preponderance of the evidence that the circumstances of his or her case warrant a downward departure. Lipman, 133 F.3d at 730. Before departing from the Guidelines, the sentencing court must decide whether the considered factor, given the facts and circumstances of the case, "is sufficient to take the case out of the [relevant] Guideline's heartland. The court must bear in mind the Commission's expectation that departures based on grounds not mentioned in the Guidelines will be `highly infrequent.'" Lipman, 133 F.3d at 730. The factor of cultural assimilation is akin to the factor of "family and community ties" reflected in U.S.S.G. 5H1.6. Therefore, "to the extent that cultural assimilation denotes family and community ties," a district court has authority to depart on that basis only in extraordinary circumstances. Lipman, 133 F.3d at 730. Whether a defendant's family and community ties are sufficiently "unusual" or "extraordinary" to warrant departure in a particular case is a factual determination that lies within the discretion of the district court. Lipman, 133 F.3d at 730. Cultural assimilation may be relevant to sentencing if a district court finds that a defendant's unusual cultural ties to the United States--rather than ordinary economic incentives--provided the motivation for the defendant's illegal return or continued presence in the United States. It may also be relevant to the character of a defendant in so far as his culpability might be lessened if his motives were familial or cultural rather than economic. Lipman, 133 F.3d at 731. 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 A comparison to the facts in Lipman is instructive. Lipman lost his permanent residence status and was deported to Jamaica because he had been convicted of numerous felonies, including possession of a weapon, attempted possession of marijuana, unlawful imprisonment, two counts of sexual abuse, and attempted robbery. Lipman, 133 F.3d at 728. Lipman reentered the United States approximately two years later through Miami, Florida. Id. Ten days after his reentry, Lipman was arrested in Los Angeles, California, for possession and transportation for sale of approximately 39 pounds of marijuana. Id. Lipman was subsequently charged and convicted for illegal reentry into the United States. At his sentencing, Lipman urged the court for a downward departure based on cultural assimilation. Lipman, 133 F.3d at 728. Lipman had been brought to the United States by his mother at the age of 12 and, until his deportation, had legally resided here for an uninterrupted period of 23 years. Lipman, 133 F.3d at 729. Lipman attended New York public schools through high school. Id. He married a U.S. citizen, with whom he raised five U.S. citizen children. Id. Lipman also fathered two other American-born children. Id. In short, Lipman's entire family, including his mother, three siblings, five children and wife, resided in the United States as American citizens. Id. Despite Lipman's familial ties to the United States, the district court concluded that Lipman's circumstances did not justify a downward departure. Id. at 731 ("Lipman's family ties were not so unusual as to justify a downward departure in light of the nature and number of offenses that caused Lipman to lose his residency status in the first place.") The Court of Appeals affirmed. Id. at 729. Compared to the defendant in Lipman, this defendant has a much weaker claim that he has culturally assimilated into the United States. Defendant claims to have been brought here at the age of 7. However, at the age of 16, defendant was arrested and convicted of aggravated assault. He was sentenced to 3.5 years' imprisonment. He was deported to Mexico on March 24, 2005. He subsequently returned to the United States; however, he was rearrested on August 11, 2005 for a new criminal offense and has been incarcerated since that time. Accordingly, a majority of the defendant's time in the United States has been while incarcerated. Defendant only lived in the United States as a free person for approximately 9 years during his youth. He 3 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 has been in prison, deported to Mexico, or living within the United States under an order of deportation since he was 16 years old. Further, the defendant does not claim he has had any legal status to live in the United States, he did not attend high school in the United States, and he does not have a wife or children in the United States. While the defendant states that the reason he came back was to support his mom and siblings, the defendant was almost immediately rearrested and incarcerated upon his illegal re-entry to the United States for more criminal activity. Given all of the circumstances in this case, the United States does not believe that defendant's ties are so unusual as to justify a downward departure on the basis of cultural assimilation and it asks that the Court deny defendant's motion. Further, the government requests the high end of the guideline range. Defendant has a previous conviction, whereby he was given a significant sentence, and he was previously removed from the Untied States. However, he did not learn from that conviction, sentence, or removal. Instead, he returned to the United States less than a year after his removal, and less than a year after his release from incarceration, he committed another violent offense. Respectfully submitted this 22nd day of August 2007. DANIEL G. KNAUSS United States Attorney District of Arizona s/ Sarah L Hartnett SARAH L HARTNETT Special Assistant U.S. Attorney Certificate of Service I hereby certify that on August 22, 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: Anthony B. Bingham 4

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