Case 4:12-cr-00967-BPV Document 85 Filed 02/13/13 Page 1 of 6 1 2 3 4 JEFFREY D. BARTOLINO LAW OFFICES OF JEFFREY D. BARTOLINO 1800 Bank of America Building 33 North Stone Avenue, Suite 1800 Tucson, Arizona 85701 (520) 884-8877 State Bar No: 003532 PCC3072 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 UNITED STATE OF AMERICA, Plaintiff, 10 11 12 13 vs. DAVID ROBESON, Defendant ) ) ) Case No.: CR -12-0967-RCC (BPV) ) ) OBJECTIONS TO PRE-SENTENCE ) REPORT ) ) ) ) 14 The accused, through his attorney, objects to the pre-sentence reports as follows. 15 16 1. Overrepresentation of Criminal History 17 18 Mr. Robeson is categorized as a class two offender because of a criminal conviction occurring in 1994, some 18 years prior to the present offense. He was 18 years old. The 19 offense involved all teenage children. This conviction counts only because of time spent in 20 custody for probation or parole violations. No other criminal conduct was responsible for 21 these violations. Mr. Robeson has not committed any other criminal offense, other than a 22 non-countable misdemeanor, since 1994. 23 The use of the 1994 conviction over represents his criminal history. The guidelines 24 provide for a fifteen-year window to accuse conviction points. The fact that he served a 25 small amount of prison time within that 15 year period over represents his record. He was -1- Case 4:12-cr-00967-BPV Document 85 Filed 02/13/13 Page 2 of 6 1 18 at the time of the offense. He was involved in abusive family relationships. The turmoil 2 occurring in his life contributed to his violations. 3 4 5 6 Based upon the above, the court should determine Mr. Robeson to be a criminal history one. 2. Role in the Offense Mr. Robeson's role in the offense, compared to the other individuals running the show was minimal. He had nothing to do with the planning or operation of the marijuana 7 scheme. He was originally recruited to bring food and water to illegal aliens. He was to 8 be paid only $300 for his assistance. He was out of work, and even this small amount 9 of money was enough for him to act in such a stupid manner. 10 In United States v. Webster, 996 F.2d 209 (9th Cir. 1993), the court held that an 11 accused is eligible for departure based upon minimal or minor participation in an event, 12 even though that person is the only one charged. The court indicated this eligibility 13 occurs under the following condition: 14 15 16 17 "Evidence...must show...(the offense) involved more than one participant...and that the defendant's culpability for such conduct was relatively minor compared to that of the other participants." 996 F.2d at 212 See also; United States v. Petti, 978 F.2d 1441, 1447 (9 th Cir., 1992); United States v. 18 Lui, 941 F.2d 9844 (9th Cir. 1999) (Assuming heroin courier at LAX may be eligible for 19 downward departure.) 20 21 While some of the evidence of minimal participation was provided by Mr. 22 Robeson, this does not preclude the court from accepting the defendant's statement in 23 determining whether his role was minimal. United States v. Rodriguez, 342 F.3d 296 24 (3rd Cir., 2003). In Davis v. Williams 36 F.3d 1424 (9th Cir, 1993), the court held that a 25 mere courier may be entitled to downward departure. In United States v. Rojas-Millan, -2- Case 4:12-cr-00967-BPV Document 85 Filed 02/13/13 Page 3 of 6 234 F.2d 464 (9th Cir., 2002), the court held that the trial court must determine 1 2 3 4 culpability of all participants in a criminal enterprise, not just the charged defendants, in determining the minimal or minor role. In United States v. Green, 152 F.3d 1202 (9th Cir., 1998), the court found the 5 reduction for role in offense was proper even though the defendant helped in the 6 cultivation of the marijuana and expected to receive some of the profits. See also; 7 United States v. Hunte, 196 F.3d 687 (7th Cir., 1999) (Reduction for role was 8 appropriate for girlfriend who road down with boyfriend to Mexico for drugs.) 9 10 11 Mr. Robeson was recruited for a one-time incident. He was to be paid little, and knew nothing about the overall scheme. The court should reduce his offense level by four points as a minimal participant. 12 3. Dysfunctional Family Unit 13 Mr. Robeson's early upbringing was bizarre, and characterized by abuse and 14 abandonment. Early in his youth, he turned to gang affiliation to fill the void of a real 15 family. This dysfunctional family unit contributed greatly to his present predicament. 16 When two or three years old, his parents divorced and his father literally held him 17 and his brother captive. The father threatened to kill his mother if she attempted contact 18 with Dave and his brother. He lived with his grandparents until five years old. When he 19 moved in with his alcoholic father, he was physically abused. 20 At thirteen, because of his father's abuse, Child Protective Services removed Dave 21 and his brother from his father's residence and placed him with foster parents. He was 22 subsequently reunited with his mother, whom was also an alcoholic, but caring. 23 The disruptive family lifestyle led to his joining the East Side Torrance gang as a 24 substitute for a family. At 18 he walked away from the gang because membership was 25 causing him too much trouble. -3- Case 4:12-cr-00967-BPV Document 85 Filed 02/13/13 Page 4 of 6 1 Without a positive role model, Mr. Robeson was more susceptible to criminal 2 conduct. See; United States v. Ruiz, 2009 WL 636, 543 (S.D.N.Y., March 11, 2009) 3 (The court imposed a substantially mitigated sentence based upon defendant's difficult 4 childhood, an abusive mother, and largely inept father who was an incarcerated heroin 5 addict, and the absence of any prior substance abuse assistance.); United States v. 6 Patzer, 548 F. Supp. 612 (N.D., III., 2008) (Court imposed substantially reduced 7 sentence based upon defendant's difficult childhood and the fact that he had not been 8 properly treated for ADD.) 9 Mr. Robeson's background is not an excuse for his present criminal conduct. It, 10 however, is a factor the court must consider in reaching a just decision. The "gang life" 11 undoubtedly led to the car theft incident when 18. He grew up without parental 12 guidance. At 18, he was able to turn away from "gang life" as a substitute for a family. 13 The lingering affect of his dysfunctional youth contributed to his "stupid" decision in 14 this case. The small amount of money he was to receive would never justify the risk of 15 incarceration properly. Unfortunately, Dave's reasoning in this instance was not 16 functioning. This was, in part, caused by lack of proper guidance while young. 17 4. Sentences of Co-Defendants 18 Under 18 U.S.C. ? 3553 (a)(6), the court must consider sentences of similarly 19 20 21 22 situated co-defendants when fashioning a just and reasonable sentence. The co-defendants in this case were offered, and accepted a plea to misdemeanor possession. They were sentenced to a term of six months. It is not unreasonable to equate Mr. Robeson's culpability on the same level as the 23 co-defendants. Each was being paid by the dope smugglers to aid the enterprise. 24 Each co-defendant knew only as much about the organization as the leaders wanted 25 them to know. Each was to be paid a small amount for their efforts. -4- Case 4:12-cr-00967-BPV Document 85 Filed 02/13/13 Page 5 of 6 1 The discrepancy between the plea offers and sentences given to the co-defendants 2 and Mr. Robeson is overwhelming. The other co-defendants do not suffer loss of their 3 rights. Each received the most minimal of sentences, and each will not have to 4 participate on supervised release. 5 Mr. Robeson is saddled with a felony conviction, loss of rights, and the possibility of 6 a lengthy incarceration. This discrepancy is so vast that the only sentence justifiable 7 under ?3553 (a)(6) would be probation. 8 5. Drug Addiction and Rehabilitation 9 It is obvious that Mr. Robeson's involvement in the instant offense is also partially 10 attributed to his long-standing drug abuse. He turned to alcohol and drugs at 13, during 11 his disruptive childhood. His habit continued to the present. His lack of judgment was 12 influenced by his addiction. 13 Even after arrest, he found it hard to quit. He attended substance abuse classes 14 and worked at Eurofresh while on supervised release. When he relapsed, he resided at 15 Vida Serena. He completed this rehabilitation recently. 16 His efforts to rid himself of his addiction is continuing. While he has "stumbled" at 17 times he continues to be successful. This persistence is worthy of consideration by the 18 court when determining a just sentence. 19 20 DATED this 13th day of February 2013. 21 22 /s/ Jeffrey D. Bartolino 23 24 25 Copy of the foregoing Delivered/Mailed this 13th Day of February 2013 to: -5- Case 4:12-cr-00967-BPV Document 85 Filed 02/13/13 Page 6 of 6 1 2 United States Attorney's Office 405 W. Congress Street, Suite 4800 Tucson, Arizona 85701 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -6-