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

Filing 493

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M o t i o n Picture Association of America v. CrystalTech Web Hosting Inc. D o c . 493 1 2 3 4 5 6 J O N M. SANDS Federal Public Defender D E I R D R E MARIAN MOKOS A s s is ta n t Federal Public Defender A riz o n a State Bar No. 016268 4 0 7 West Congress Street, Suite 501 T u c so n , Arizona 85701-1355 T e le p h o n e : (520)879-7500 d e i r d r e _ m o k o s @ f d .o r g A tto rn e y for Defendant I N THE UNITED STATES DISTRICT COURT 7 F O R THE DISTRICT OF ARIZONA 8 U n ite d States of America, 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cc: 26 Cindy Alvarado E C F Copy to: Raquel Arellano, AUSA Glenn Parks, USPO JON M. SANDS Federal Public Defender R E S P E C T F U L L Y SUBMITTED: October 2, 2009. ) ) P l a i n t i f f, ) ) vs. ) ) C in d y Alice Alvarado, ) ) D e fe n d a n t . ) _________________________________) C R 0 8 -6 0 1 -T U C -F R Z-J C G S E N T E N C IN G MEMORANDUM (S e n t e n c in g : October 9, 2009) D e f e n d a n t, Cindy Alice Alvarado, through counsel, files the attached Memorandum o f Points and Authorities for consideration of a sentence of either probation, or time served w ith a term of supervised release, at the time of sentencing. /s/ Deirdre M. Mokos DEIRDRE M. MOKOS Assistant Federal Public Defender 1 2 3 4 5 6 7 8 9 10 11 12 M E M O R A N D U M OF POINTS AND AUTHORITIES W h e n imposing a sentence the Court must consider the following factors: T h e court shall impose a sentence sufficient, but not greater than necessary, to c o m p ly with the purposes set forth in paragraph (2) of this subsection. The court, in d e te rm in in g the particular sentence to be imposed, shall consider­ (1) the nature and circumstances of the offense and the history and c h a ra c ter istics of the defendant; (2 ) the need for the sentence imposed ­ (A ) to reflect the seriousness of the offense, to promote respect for the la w , and to provide just punishment for the offense; (B ) to afford adequate deterrence to criminal conduct; (C ) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational tr a in i n g , medical care, or other correctional treatment in the most ef fe ctiv e manner; (3 ) the kinds of sentences available; (4 ) the kinds of sentence and the sentencing range established for ­ (A ) the applicable category of offense committed by the applicable c a te g o ry of defendant as set for in the guidelines ­ . . .1 O n e cannot simply separate Cindy Alvarado from her family. Cindy and her husband 13 a re dedicated to their family. They split their work schedules so that they can care for their 14 c h ild re n (this also saves child care costs). And it seems to be paying off. By all measures 15 16 b e e n rewarded by being chosen for "MESA" at Amphitheater Middle School which stands 17 f o r Mathematics, Engineering and Science Achievement. She has also achieved excellent 18 g rad es in her Advanced Orchestra class and dreams of becoming a professional orchestra 19 p la ye r. But her dreams may be foreclosed if one or both of her parents are sent to prison. 20 F .A .'s grandmother has responded as most loving grandparents would respond: at age 21 s ix ty-tw o , long after she finished raising her children, she is willing to jump back into the 22 w o rld of small children to care for her four grandchildren. But in reality the children will 23 24 25 26 1 a n d according to her teachers, F.A. is an outstanding student.2 Due to her hard work she has 1 8 U.S.C. § 3553, U.S. v. Booker, 543 U.S. 220 (2005). D o c u m e n ta tio n has been submitted separately. 2 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 s till suffer. F.A., for example will no longer be able to participate in MESA in which she re c eiv e d the third place engineering award. F.A.'s grandmother presently lives in Eloy and w o u ld likely have to relocate to Tucson which will force her into maintaining two homes. E ith e r that or the children would have to move to Eloy which will have a severe impact on F .A .'s life. F.A.'s grandmother currently works from 3:00 p.m. to midnight. She will have to change her schedule to be there for the children when they get out of school or she will h a v e to incur childcare costs which will substantially reduce whatever she usually counts on to support herself in just one house. And she will have to make arrangements for childcare f o r the youngest children who are not in school. This will be an immense financial burden. O n the other hand, Cindy can and does provide a better, stable environment for them - free f ro m the chaos they will face if she is incarcerated. By doing so, she can prevent them from h a v in g problems in the future. Also important is the fact that Cindy has done well on pre-trial release for about one a n d one-half years, since April 14, 2008. There have been no incidents. Even her offense w a s a short-lived departure from an otherwise law-abiding life. Instead of getting in trouble, C in d y has stayed focused despite the stress of her present situation and finished her degree. F u r th e r, Cindy and her family have modified their lifestyle. They no longer live in a f o u r bedroom house. They now live in a two bedroom apartment. Their 1997 vehicle is paid o f f . Their other vehicle is on loan from Cindy's mother. For entertainment, the family is s tic k in g with low or no cost activities. For example, they can go bowling as a family and w ith o u t cost due to Mr. Alvarado's employment at a bowling alley. And they make more use o f the local parks. A d d itio n a lly, Cindy will be paying restitution. She needs to work in order to earn the m o n e y to pay the restitution. And she is presently employed with an employer who knows h e r circumstances and will continue to employ her. But if Cindy were to be incarcerated, that 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 j o b will have to be filled by someone else and there may not be another job with such an u n d e rs ta n d in g employer, especially in this economy and for a person with a felony c o n v ic tio n . F in a lly, probation, or time served with a term of supervised release is punishment, e sp e c ially in this case. Cindy has not had to report to a pre-trial services officer, but she will h a v e to report to a Probation Officer. She will be subject to searches. Her purchases and her life will be scrutinized. If she is on supervision, she can take classes. Due to the 0-6 month g u id e lin e s in this case and the designation delay it is unlikely that she would get any real e d u c atio n and/or vocational training that she can use from BOP if she were to be in c a rc e ra t e d . Also, if she violates, the Court can always send her to prison in the future. R ig h t now she is very concerned about the possibility of going to prison. This will loom la rg e over her and serve as motivation for her to do well on probation or supervised release. C o n c lu s io n C in d y Alvarado has no prior criminal history. She knows that she was wrong and she i s remorseful for what she did. She accepted responsibility, pled guilty, and will pay re stitu tio n . She has never wavered in her acceptance of responsibility. She has been steadily e m p l o ye d , found an employer who will keep her despite her conviction, and has even g ra d u a te d from college despite the stressful situation she has faced. The fact that she has re m a in e d employed, sought employment that she can keep and graduated from college d e m o n s tra te that she is responsible and motivated. And, most importantly, she has continued c a rin g for her children and continued to maintain her close knit family. If she were to be sent to prison, her family would be irreparably harmed. But p r o b a tio n , or time served and a period of supervised release, are available for her offense. S en ten c in g Cindy to either probation, or to the time she has already served along with a term o f supervised release, will provide the best opportunity for Cindy to remain on track, to 4 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 c o n tin u e working and to continue caring for her children. In c a rc e ra tio n is not necessary to prevent another offense. Cindy has been released on h e r own recognizance for about one and one-half years, since April 14, 2008, and there have b e e n no further incidents. F o r all of the above reasons, Cindy respectfully requests this Court to sentence her to e ith e r probation, or to time served and a term of supervised release, a sentence that is s u f f ic ie n t, but not greater than necessary to comply with the purposes set forth in 18 U.S.C. § 3553. See also, U.S. v. Booker, 543 U.S. 220 (2005). 5

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