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U.S. v. NAVARRETE

United States District Court, S.D. California


September 7, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
JORGE NAVARRETE, Defendant.

The opinion of the court was delivered by: THOMAS WHELAN, District Judge

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR DOWNWARD DEPARTURE
STATEMENT OF THE CASE
On July 5, 2005, Jorge Navarrete pled guilty to a one-count Information in which he was charged with importation of 68.62 kilograms of marijuana in violation of Title 21 U.S.C. sections 952 and 960. The relevant terms of the Plea Agreement follow:

 

Base Offense Level (section 2D 1.1) 22 Minor Role (section 3B1.2(b)) -2 Acceptance of Responsibility (section 3E1.1) -3 "Fast Track" (section 5K3.1) -2 Adjusted Offense Level 15
  Furthermore, the parties agreed counsel for Mr. Navarrete reserved the right to request additional downward adjustments and departures which the government would oppose. There was no agreement as to Mr. Navarrete's Criminal History Category. The government agreed to recommend a sentence at the low end of the guideline range found by the Court unless this Court adopts an offense level, downward adjustment or downward departure below the government's recommendations in which case the government will recommend a sentence as near as possible to what the sentence would have been had the government's recommendation been followed.

 

CRIMINAL HISTORY CATEGORY III SIGNIFICANTLY OVERREPRESENTS JORGE NAVARRETE'S CRIMINAL HISTORY
  Jorge Navarrete has one prior criminal conviction; a 2004 conviction for importation of marijuana. This conviction itself resulted in 3 criminal history points, but an additional 3 points were added because of sections 4A1.1(d) and 4A1.1(e) for a total of 6 criminal history points and a resulting Criminal History Category III. It should be noted that Mr. Navarrete admitted the violation in Case No. 04CR2058 and the Honorable Napoleon James sentenced Mr. Navarrete to 16 months on the revocation of his supervised release.

  Criminal History Category Iii seriously overrepresents Jorge Navarrete's criminal history and counsel asks this Court to depart downward to Category II which more accurately represents his criminal history.

  Pursuant to section 5K2.0, the court may impose a sentence outside the range established by the guidelines if the court finds that 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 that should result in a sentence different from that described. A court may rely on "any . . . policy statement [] or commentary in the guidelines that might warrant consideration in imposing sentence." (United States v. Lawrence, 916 F.2d 553, 554-555 (9th Cir. 1990); see also, United States v. Bowser, 941 F.2d 1019, 1023 (10th Cir. 1991); United States v. Reyes, 8 F.3d 1379 (9th Cir. 1993); United States v. Pinckney, 938 F.2d 519, 521 (4th Cir. 1991); United States v. Brown, 903 F.2d 540, 545 (8th Cir. 1990).) In Lawrence, the Court held that a sentencing court could depart downward from the applicable range if the criminal history category significantly overrepresents the seriousness of an individual's criminal history.

  While Mr. Navarrete does not attempt to minimize the seriousness of the offense to which he entered a plea of guilty, a criminal history calculation resulting in a category III is a significant overrepresentation of his criminal history and he requests that this court depart downward based on the rationale in Lawrence and that he be sentenced according to criminal history category II which more accurately reflects his criminal history.

20050907

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