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

Filing 99

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Law Office of Leslie A. Bowman

360 N. Court Ave. Tucson, Arizona 85701 [phone] By: Leslie A. Bowman, Bar # 014738 [e-mail] Attorney for Defendant UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, ] ] Plaintiff, ] ] ] vs. ] ] EMMANUAL RAMON PEREZ-OZUNA, ] ] Defendant. ] No. CR-09-0237-TUC-CKJ SENTENCING MEMORANDUM AND CONCURRENCE WITH THE PRE-SENTENCE REPORT'S DISCUSSION OF MINOR ROLE

It is expected that excludable delay under 18 U.S.C. §3161(h)(1)(F) will not occur as a result of this motion or of any order based thereon. Pursuant to Rule 32(i), Fed.R.Crim.P. and U.S.S.G. § 6A1.3, Emmanual Perez-Ozuna concurs with the pre-sentence report's analysis of minor role and submits his sentencing memorandum as follows: 1. Mr. Perez-Ozuna's conduct merits a reduction from the advisory sentencing guideline range based on his minor role in the offense, which also results in a base offense level of 30. 2. When considering the factors set forth in 18 U.S.C. § 3553(a) and recent case law instructing the Court to sentence a defendant based on all information that impacts the determination of an appropriate sentence, a sentence based primarily on the weight and type of drug is not supported. 1

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Further support for the sentencing memorandum is contained in the attached Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES 1. Minor Role Emmanuel Perez-Ozuna is a 26 year old young man with no prior criminal history. He pled guilty to the indictment for

driving a car across the United States/Mexico border with packages of cocaine hidden inside the front seats. There is no

evidence to suggest that he owned, packaged, touched or loaded the drugs into the vehicle. When he was interviewed by the agents at the time of his arrest, Emmanuel admitted that he knew there was cocaine in the vehicle but he didn't know how much. He was

hired in Nogales, Sonora by a man named Carlos to drive the vehicle to a Wal-Mart in Tucson, Arizona. Emmanuel was instructed by Carlos to call on a cellular telephone to advise members of the drug smuggling operation when he arrived in Tucson. Someone else would take the vehicle from The vehicle would

him and remove the drugs at a stash house.

later be returned to Emmanuel who was told to drive back to Nogales, Sonora. Upon his return he would be paid $1,000.00,

more than he could make as a cook in Mexico in a month and a half. Prior to the date of his arrest, the organization had registered the car in Emmanuel's name. They permitted him to use

the vehicle occasionally to cross into the United States to shop for items for his mother's food cart business. The agents claim

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that Emmanuel said he crossed cocaine once before and was paid $1,000.00. Emmanuel denies that. He previously crossed the

border in the vehicle, which is typical to create a crossing history. The government never alleged that Emmanuel was anything more than a courier in this case. Chapter 3, part B, section 2 (U.S.S.G. § 3B1.2) states: Based on the defendant's role in the offense, decrease the offense level as follows: (a) If the defendant was a minimal

participant in any criminal activity, decrease by 4 levels. (b) If the defendant was a minor participant

in any criminal activity, decrease by 2 levels. In cases falling between (a) and (b), decrease by 3 levels. Application Note 2 to this section states that the guideline is only applicable where more than one participant was involved in the offense. The term participant is defined, by reference to A participant is a

Application Note 1 to U.S.S.G. § 3B1.1.

person who is criminally responsible for the crime, whether or not that person was convicted. The Ninth Circuit held in United

States v. Webster, 996 F.2d 209, 212 (9th Cir. 1993) that in order for a defendant to be eligible for a reduction for minor participant there must be evidence available at the time of sentencing to demonstrate to the court that, 1) the relevant

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conduct that the defendant would be held accountable for pursuant to U.S.S.G. § 1B1.3(a)(1) involved more than one participant, and 2) that the defendant's culpability for such conduct was relatively minor compared to other participants. According to Application Note 3(C), the determination whether to apply an adjustment pursuant to U.S.S.G. § 3B1.2 depends heavily on the facts of the case. In the case at bar,

the facts are set forth in the pre-sentence report in paragraphs 3, 4, and 7, pages 3 and 4. Aside from the information provided

by Emmanuel at the time of his arrest and during the pre-sentence interview, the workings of drug organizations in this district are common knowledge and common sense. The first prong of Webster is met, and Application note 2 is satisfied in this case because there are more than one participant. They include Carlos, who recruited Emmanuel. The

person who registered the car in his name, the person(s) who packaged the drugs and secreted them in the car, the person he was instructed to call in Tucson, the people who would retrieve the car and unload it, and the caretaker at the stash house. course, the organization starts well before Emmanuel was contacted and well after the drugs land at the stash house. Clearly there was more than one participant in this case. In comparison to the owners, managers, organizers, leaders and distributors, Emmanuel's participation was minor. Application Note 3(A) states that the adjustments apply to defendants who are "substantially less culpable than the average Of

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participant."

Even where a defendant is only held accountable

for the conduct in which he "personally was involved and who performs a limited function in concerted criminal activity", that defendant is not precluded from an adjustment for minor participant. The example given in the note is directly on point The example indicates that

with the facts in the instant case.

even where a defendant is convicted of a drug trafficking offense wherein his role was limited to transportation and where he is only held accountable under U.S.S.G. § 1B1.3 for the quantity of drugs the defendant transported, he may, nevertheless, receive an adjustment under this guideline. Webster requires that the

defendant's conduct be relatively minor as compared to the other participants. In the instant case, assuming the position least favorable to the defendant, his role in the offense was that of a courier. Emmanuel was expected to do nothing more than simply move the drugs across the border. He had no information regarding the He did not know where or to He was the most expendable

value of or payment for the drugs. whom the drugs would be delivered. participant.

The others shielded themselves from danger and from Emmanuel was a minor participant.

being arrested.

Paragraph 12, page 4, of the pre-sentence report provides no adjustment for role in the offense. Paragraph 9 sets the

advisory base offense level at 32 based on the quantity of cocaine. The Justification section on page 10 of the pre-

sentence report discusses a hypothetical offense level of 24,

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should Emmanuel be determined to be a minor participant pursuant to U.S.S.G. § 3B1.2(b). Section 2D1.1(a)(3) of the guidelines

states that if the base offense level is 32 and the defendant receives an adjustment for minor role, the base offense should be reduced by 2 levels to a level 30. According to the pre-sentence

report, the offense level would then be reduced 2 levels for safety-valve and 2 levels for acceptance of responsibility, resulting in a level 24. This is the proper guideline

calculation to begin the statutory sentencing analysis. 2. 18 U.S.C. § 3553(a) Emmanuel Perez-Ozuna was born to Marina Perez-Ozuna, a single mother, 26 years ago. She was working in Guaymas, Sonora

Mexico in the shipyard when she was swept off her feet by Manoliy Raramarduis, a Greek merchant marine. with Emmanuel. Marina became pregnant

Manoliy stayed in Mexico for about 8 months and

helped with his new son but he did not have permission to live there and he eventually returned to Greece. Until Emmanual was

about 4 years old Manoliy send Marina money to help support their son but as time passed he faded from their lives. Marina had other sons and took in a relative's son also, who she is raising as her own. the United States. The family has very strong ties to

Marina's mother was born in Phoenix, Arizona

and lived in the United States for approximately 28 years until she returned to Guaymas and married. Based on that information

it is possible that Marina has derivative United States citizenship, and thus Emmanuel may also be a United States

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citizen.1 Arizona. by birth.

Emmanuel's older brother Jorge lives in Tucson, His youngest brother Michael is a United States citizen Emmanuel has entered the United States with his

passport through the port of entry on many occasions. Emmanuel is a very intelligent young man. He graduated from

12 years of school at the Centro de Estudios Tecnologicos with half of his grades either 9's or 10's, 10 being a perfect score. Unfortunately, because of the desperate economic situation of his family, Emmanuel had to start working when he was only 11 years old. He has assisted his mother and younger siblings financially He also served his country as a member of the

ever since.

Mexican military. Emmanuel met his wife Miriam in 2004. They have two

children, Grecia their 3 year old daughter, and Emmanuel their 1 year old son. The family resides in a 3 room house that belongs Emmanuel, his wife and 2 children sleep in 1

to Miriam's mother. room.

There is a central room that serves as the kitchen and

family room and another bedroom occupied by Miriam's mother and sometimes her step-father. The home has no indoor plumbing.

Water is trucked in but there is not always enough to last until the next delivery, especially when the weather is hot. Recently

Emmanuel saved enough money to put glass windows in the window frames. The stove is connected through a hole in the wall to a

propane cylinder that leans against the outside of the house.

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Counsel is attempting to obtain the information necessary to assist the family in making this determination. 7

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The oven doesn't work. Emmanuel and his family are very uncomfortable living with Miriam's mother and her husband because they do not get along. There is a lot of tension and pressure on Emmanuel to save enough money to move his family to a place of their own. Miriam has

worked in the past but she suffers from debilitating migraine headaches. She used to work in a factory but the loud noise and

bright lights triggered her migraines and eventually should could not continue. Miriam explained that when she is sick Emmanuel He takes care of her and both children. He is

does everything.

a hands-on father and the children are very attached to him. Just before Emmanuel was arrested a couple of things happened that contributed to his desperation. He spoke with his

mother about wanting to continue his education to become a pilot. She explained that she could not assist him financially because she still supports 2 children with his help. Marina suggested

that Emmanuel contact his father in Greece to see if he might help. He hadn't helped since Emmanuel was 4 years old. Marina

gave him a telephone number.

Emmanuel spoke with his father who

insisted that he had no children in Mexico, in spite of all the photographs Marina has of Manoliy holding his son in Guaymas. Emmanuel was heart-broken. Shortly after that Emmanuel spoke with Miriam about spending $20.00 on a pair of shoes that he desperately needed. She told He

him that they only had enough money for milk for the babies. left the house that day and Miriam never saw him again.

She did

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not know what happened to him until she received a call that he had been arrested and was in prison. worst night of her life.2 A correct guideline calculation is only a starting point. Gall v. United States, 128 S.Ct. 586, 596 (2007). The Court must Miriam said that was the

then consider all of the 3553(a) factors to determine if they support the sentence requested by either party. Id. The Court

must consider arguments that the guidelines should not apply in a given case. 2467-68. Rita v. United States, 127 S.Ct. at 2763, 2465,

The judge "may not presume that the Guidelines range is Gall, 128 S.Ct. at 596-97 (2007); see also Rita, The Court must avoid unwarranted sentencing 18

reasonable."

127 S.Ct. at 2465.

disparities as well as unwarranted sentencing similarities. U.S.C. § 3553(a)(6); Gall, 128 S.Ct. at 598-602.

The judge "must make an individualized assessment based on the facts presented," and "must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing." Gall, 128 S.Ct. at 597.

Courts must impose sentences that are sufficient but not greater than necessary to fulfill the statutory purposes of sentencing, must treat the guidelines as just one of several considerations, and must be free to disagree with the guidelines based solely on policy considerations. Kimbrough v. United

States, 128 S.Ct. 558, 564 (2007), 570; Rita, 127 S.Ct. at 2463,

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Supporting evidence will be provided prior to sentencing through letters, certificates and a video of the family and their living conditions. 9

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2465, 2468; Gall, 128 S.Ct. at 602. Generally, the Commission used an empirical approach, "based on data about past practices, including 10,000 presentence investigation reports" to devise the guidelines, but it "did not use this empirical approach in developing the Guidelines sentences for drug-trafficking offenses." at 567. Kimbrough, 128 S.Ct.

When the guideline itself is unsound and the Commission

did not rely on "empirical data and national experience" as a basis for the guideline, it is not an abuse of discretion to determine that the resulting sentence is greater than necessary to achieve the purpose of 18 U.S.C. § 3553, even in a run-of-themill case. Kimbrough, Id. at 575.

Disagreement with a guideline that does "not exemplify the Commission's exercise of its characteristic institutional role" is entitled to as much appellate "respect" as a fact-based departure or variance. See Spears v. United States, 129 S.Ct. See United

840, 843 (2009); Kimbrough, 128 S.Ct. At 574-75.

States v. Thomas, 595 F.Supp.2d 949 (E.D. Wis. 2009)(imposing below-guideline sentence for attempted distribution of powder cocaine because the Sentencing commission "departed from the empirical approach when setting the Guidelines range for drug offenses, and chose instead to key the Guidelines to the statutory mandatory minimum sentences that Congress established for such crimes," and "sentences in drug cases have since increased far above pre-guideline practice"); Unites States v. Urbina, 2009 WL 565485, *3(E.D. Wis. March 5, 2009)(following

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Thomas in conspiracy to distribute powder cocaine case); United States v. Cabrera, 567 F.Supp.2d 271 (D.Mass. 2008)(disagreeing with over-emphasis on drug quantity, under-emphasis on minimal role). In the present case the guidelines relied upon in determining the advisory guideline range are not based on empirical data. The Court is not obliged to impose a within Based on all of the factors set forth in

guidelines sentence.

the statute, the intent will be fulfilled if the Court imposes a sentence substantially below the advisory guideline range set forth in the pre-sentence report. A sentence of 60 months, as

recommended in the pre-sentence report, is far greater than necessary to comply with the statutory sentencing purposes in this case. "Guidelines are not only not mandatory on sentencing Nelson v.

courts; they are also not to be presumed reasonable. United States, 129 S.Ct. 890, 892 (2009) Conclusion

In conclusion, Mr. Perez-Ozuna prays this Court find that his participation was minor and that based on all of the mitigating factors a sentence of 36 months in prison is sufficient. Respectfully submitted May 27, 2009. /S Leslie A. Bowman Leslie A. Bowman Attorney for Defendant

Copy delivered by ECF this date to: Ann L. Demarais, AUSA Lisa S. Hage, USPO 11

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