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United States of America v. Pete andre Flores

March 14, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
PETE ANDRE FLORES,
DEFENDANT.



The opinion of the court was delivered by: Judge: Hon. Morrison C. England, Jr

DANIEL J. BRODERICK, Bar #89424 Federal Defender JEFFREY L. STANIELS, Bar #91413 Assistant Federal Defender 801 I Street, 3rd Floor Sacramento, California 95814 Telephone: (916) 498-5700 Attorney for Defendant PETE ANDRE FLORES

RESPONSE TO GOVERNMENT SENTENCING MEMORANDUM; REQUEST FOR ORDER SHORTENING TIME; ORDER Date: March 15, 2012 Time: 9:00 a.m.

A. Request to File One Day Out of Time

The court is requested to permit this response to be filed one day late and consider it in connection with the sentencing of Mr. Flores. The tardy filing was caused by my failure to double check the deadline before scheduling a sentencing related meeting with my investigator for this morning instead of late afternoon yesterday.

B. Introduction

The government supports its request for a 97 month sentence, CR 50 by arguing in support of the sentencing guidelines, by misconstruing the PSR recommendation as a "departure" rather than as a variance from the guidelines based on (overriding) statutory sentencing factors, and by an unsubstantiated invocation of the specter of the claimed correlation between pornography and hands-on abuse.

The court should reject the guidelines argument in favor of the presentence investigator's careful application of "3553" factors as supported in part by a national consensus that the guidelines are often unduly harsh, and also by information gathered by a federal defender's investigator's more in depth access to certain facts about Mr. Flores' history and characteristics set out below.

The court should reject the abstract argument that hands-on abuse is sufficiently correlated to possession of child pornography that it should make an individualized difference in the sentencing of Mr. Flores.

The court should impose a sentence not to exceed that recommended in the Presentence Report. This request concedes that the recommendation of 60 months is "reasonable" in the sense that "reasonable" states the appellate standard of reviewing criminal sentences after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005).

With respect to the statutory command directed to sentencing courts, the court is requested to consider whether, in light of Mr. Flores history and characteristics, a somewhat lower sentence of 48 months is also "sufficient" as well as "not greater than necessary" to carry out the purposes of sentencing.

B. There is a national consensus that the sentencing guidelines for child pornography cases are generally overly harsh.

The Ninth Circuit Court of Appeals, the United States Sentencing Commission, a survey of federal judges, and recent sentencing data across the nation all support the conclusion that the child pornography guidelines are unnecessarily harsh in most cases considered under those guidelines.

In United States v. Henderson, 649 F.3d 955 (9th Cir. 2011) the Court of Appeals noted that the child pornography guidelines almost totally reflects the imposition of Congressional mandates rather than the Sentencing Commission's "'exercise of its characteristic institutional role,' which requires that it base[] its determination on 'empirical data and national experience. . . .'" 649 F.3d at 926-63.

The Henderson court noted that it joined "several of our sister circuits" that have held likewise, that the Sentencing Commission itself has expressed concern with this guideline's history, and that sentencing courts have increasingly sentenced below the guidelines in a "comment on the perceived severity of the child ...


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