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

Filing 9

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M o t i o n Picture Association of America v. CrystalTech Web Hosting Inc. Doc. 9 1 2 3 4 5 6 1LERMA & ASSOCIATES, P.C. Jose M. Lerma, Esq. 33 N. Tucson Blvd. Tucson, Arizona 85716 Phone: (520) 624-2179 Fax: (520) 624-3332 Computer No. 65449 State Bar No. 003020 Attorney for Defendant Isac Alcaraz-Torres I N THE UNITED STATES DISTRICT COURT 7 F O R THE DISTRICT OF ARIZONA 8 9 10 11 12 I sa c Alcaraz-Torres, 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. U n d e rs ig n e d Counsel apologizes to the Court, Mr. Logalbo and the Probation Office if these objections be deemed untimely, but there was a death in Counsel's family, w h ic h took much of his time over the last two weeks and the objectionable sections o f the Presentence Report, as hereinafter alleged, did not come to his attention until S ep tem b er 11, 2008 when Counsel reviewed the Presentence Report with Mr. A lc a r a z -T o r re s . IS A C ALCARAZ-TORRES, Defendant in the above matter, through Counsel undersigned, o b je c ts to the following paragraphs and sections of the Presentence Report heretofore filed herein, a n d alleges and moves the Court as follows: It is expected that excludable delay under Title 18, United States Code, Section 3161 (h )(1 )(8 )(B )(I) and (iv) will occur as a result of this motion or an order based thereon. vs. United States of America, C a s e No. CR-08-00453 FRZ-JJM Plaintiff, O B J E C T IO N S TO PRESENTENCE REPORT 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 2. P a ra g ra p h 21 of the Presentence Report imputes to Defendant one (1) Criminal H is to ry Point for simultaneous misdemeanor convictions dating to July 20, 1995 ( T h re a te n in g and Intimidating and Failure to Appear). The authority cited by the P ro b atio n Officer for this Criminal Point computation is U.S.S.G. Sec. 4A1.1 (c). 3. P a ra g ra p h 23 of the PSR includes the aforesaid one (1) Criminal Point in reaching a s u b - to t a l of four (4) Criminal History Points. 4. Paragraph 25 imputes to the Defendant an additional two (2) points for committing th e instant offense while under a Criminal Justice sentence (supervised release) and o n e (1) more point for committing the instant offense less then two (2) years f o llo w in g release from imprisonment. 5. P ara g rap h 27 of the PSR then totals Defendant's Criminal History points at seven (7), p la c in g the Defendant in Criminal History Category IV (7, 8, 9 points) under the G u i d e lin e s . 6. It is, however, Defendant's position that the one(1) Criminal History Point imputed to him in Paragraph 21 of the PSR should not be counted because this point c o rre sp o n d s to a conviction dating from July 20, 1995, which is more than ten (10) ye a rs from the date of the commission of the instant offense, and the sentence im p o s e d was one of six (6) months summary probation and SEVEN HUNDRED ( $ 7 0 0 .0 0 ) DOLLARS in fines and surcharges. 7. U .S .S .G . Sec. 4 A1.2(e)(2), in discussing applicable time periods for counting s e n te n c es which were less than one (1) year and one (l) month states specifically that Page 2 of 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 27 28 10. 9. 8. " ...a n y other prior sentence that was imposed within ten years of the commencement (s ic ) of the instant offense is counted" (emphasis added). Obviously, the July 20, 1995 o ff en se described in Paragraph 21 of the PSR in the instant matter was imposed more th a n ten (10) years (almost 13) after the "commission" of the instant offense, March 1 1 , 2008, and should not be counted. If the aforesaid one (1) Criminal Point may not be counted against the Defendant in h is Criminal History computations for the reasons stated, then his total Criminal H is to ry points would be six (6), placing him in Criminal history Category III instead o f Criminal History Category IV as set forth in the PSR. U n d er Defendant's plea agreement, the corresponding sentencing range for a C a teg o ry III Criminal History III is 37-51 months and not the 46-63 months set forth in the PSR which would correspond to a Criminal History IV. A c c o rd in g ly, the recommendation of the Probation Officer of a sentence of 55 months is inappropriate because it is based on erroneous information. It is, therefore, respectfully requested that the Court order appropriate changes and m o d if ic a tio n s be made to the Presentence Report so as to reflect Defendant's accurate Criminal H is to ry, the appropriate corresponding plea agreement range of sentence, and a recommendation c o n s is te n t with this set of circumstances. D A T E D this 12th day of September, 2008. Page 3 of 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 27 28 R eg in a ld Gaddis, A.P.O. F e d e ra l Probation Office C o p y mailed this 12 t h of September, 2008 to: Is a c Alcaraz-Torres I hereby certify that on September 12, 2008, I electronically transmitted the attached d o cu m e n t to the Clerk's Office using the C M /E C F system for filing. B y : s/Jose M. Lerma E C F Copy and Fax to: Michael D. Logalbo. AUSA U . S. Attorney's Office s / Josť M. Lerma Josť M. Lerma A tto rn e y for Defendant Alcaraz-Torres Page 4 of 4

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