IN THE UNITED STATES DISTRICT COURT

Defendant.                                                                           )

DEFENDANT’S OBJECTIONS TO PRESENTENCE REPORT

COMES NOW Defendant, by counsel, pursuant to Rule 32 (b)(6)(B) Fed. R. Crim. Proc., and submits the following objections to the Presentence Investigation report regarding the above Defendant.

The Presentence Report received by Defendant and defense counsel includes reference to an "Attempted Unlawful Use of a Weapon," Court Docket No. This reference alleges Defendant pled guilty to said cause number in the Circuit Court of St. Louis County, State of Missouri. Neither Defendant nor defense counsel has been able to secure reliable information verifying this charge.

In resolving any reasonable dispute concerning a factor important to the sentencing determination, the Court may consider relevant information without regard to its immiscibility under the rules of evidence applicable at trial, provided that the information has sufficient indica of reliability to support its probable accuracy.

U.S.S.G. §6A1.3(a), p.s. (emphasis added)

 Defendant is unaware of any reliable information sufficient to support a finding that Defendant pled guilty to this charge (). To date, defense counsel has reviewed documents in an attempt to seek administrative resolution of this issue, none of which satisfy the requirement of reliability. The government must introduce evidence sufficient to convince the Court by a preponderance of the evidence that the fact in question exists. U.S. v. Cammisano, 917 F.2d. 1057 (8th Cir. 1990). While heresay testimony and/or documents are not per se excluded from sentencing consideration, the Court may not rely on a factor contained within the presentence report which is itself unreliable. Id.; U.S. v. Randolph,101 F.3d. 607 (8th Cir. 1996). Defense counsel has reviewed the Court records regarding this disputed cause and contends these records do not provide a sufficient indicia of reliability so as to comply with the Sentencing Guidelines or the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. The documents regarding this specific cause at issue are unsigned by any particular Defendant. The documents regarding this specific cause appear to be faxed copies received from the Missouri Department of Corrections. They are neither certified Court records nor are they prepared contemporaneously with the alleged guilty plea. Counsel has seen no identifying documentation (i.e., charging document, executed arrest warrant, etc. …) which details the date and time of this offense, pedigree information regarding the defendant charged and/or the nature of the offense itself. The documents regarding are heresay upon heresay upon hearsay. They contain no reliable information connecting Defendant to this case. Defendant contends these documents alone are not enough to satisfy the governments burden of proving this alleged element of Defendant’s criminal history by a preponderance of the evidence. Cammisano - Id.; Randolph - Id.; U.S. v. Simmons 964 F 2d. 763 (8th Cir. 1992); U.S. v. Mahler, 984 F 2d. 899 (8th Cir. 1993).

Even if the Court believes there is sufficient reliability to assign this cause to Defendant’s criminal history assessment, Defendant contends this cause should be considered a prior sentence imposed in a related case so as to be treated as one sentence (in conjunction with Cause No. ) under U.S.S.G. §4A1.2(a)(2). While seeking administrative resolution of this issue, defense counsel brought this to the attention of opposing counsel and the U.S. probation officer. In response, the probation officer indicated would not be considered related to Cause No. because they were separated by an intervening arrest. To date, defense counsel has seen no documentation, other than the presentence report itself, containing the date of arrest regarding . A presentence report is not evidence and is not a legally sufficient basis for making findings on contested issues of material fact. Mahler at 905; U.S. v. Wise, 976 F 2d. 393 (8th Cir. 1992). No documentation has been disseminated to defense counsel indicating this sentence, if attributable to Defendant, should not be considered related under U.S.S.G. §4A1.2(a)(2). Id.; U.S. v. Bishop, 1 F3d. 910 (9th Cir. 1993); U.S. v. Lindholm, 24 F3d. 1078 (9th Cir. 1994).

It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue. We do not understand it to have been the congressional purpose to withdraw all sentencing discretion from the United States District Judge. Discretion is reserved within the Sentencing Guidelines, and reflected by the standard of appellate review we adopt.

Koon v. United States, 116 S.Ct. 2035, 2053 (1996).

Pursuant to 18 U.S.C. §3553(b), this Court has the authority to grant a downward departure from the applicable guideline range. Section 3553(b) provides, in pertinent part:

Application of guidelines in imposing a sentence. - The Court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless 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. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.

18 U.S.C. §3553(b).

The Guidelines further provide that "[c]ircumstances that may warrant departure from the guidelines pursuant to this provision cannot, by their very nature, be comprehensively listed and analyzed in advance. The controlling decision as to whether and to what extent departure is warranted can only be made by the court." U.S.S.G. §5K2.0, p.s.

The Commission provides considerable guidance as to the factors that are apt or not apt to make a case atypical, by listing certain factors as either encouraged or discouraged bases for departure. Encouraged factors are those "the Commission has not been able to take into account fully in formulating the guidelines".

Koon at 2045.

The Court noted the statute does not require each potential departure factor to advance one of the specified statutory goals. Id. at 2051. "So long as the overall sentence is ‘sufficient, but not greater than necessary, to comply’ with the above listed goals, the statute is satisfied." Id. [emphasis added].

Defendant relies on U.S.S.G. §5K2.13, an encouraged factor, which provides for a downward departure based on diminished capacity. This section allows that a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense. U.S.S.G. §5K2.13.

Mr. has borderline intellectual functioning. The Special School District and psychological testing by Dr. document his mental capacity.

The Special School District evaluated Mr. . (Appendix A). The School District classified Mr. as educably mentally retarded. Their determination of disability was based on their own testing using Weschler Intelligent Scale for Children - Revised (WISC-R) and Wide Range Achievement Test-Revised (WRAT-R). Their determination of Mr. Full Scale IQ was 78 in 1972, 70 in 1978 and 77 in 1981.

Dr. has treated Mr. through the Great Rivers Mental Health Services facility of the Missouri Department of Mental Health. The Great Rivers agency does not treat individuals unless they have been diagnosed with an Axis 1 mental disease or defect. Mr. was accepted as he has an Axis 1 diagnosis of major affective disorder with moderate recurrent depression with psychotic features (See Attachment B). Mr. has been treated for this disorder with psychotic features since 199 . In addition to counseling, the Great Rivers facility treated Mr. with Nortriptyline, Visteril and Valium. Mr. also received Elavil for this condition, while incarcerated. As a result of Mr. diminished mental capacity, he is significantly, negatively impaired regarding the quality of his thinking, judgment, ability to plan and to foresee and appreciate the short-term and long-term consequences of his actions (See attachments).

Diminished mental capacity, for the purpose of the Sentencing Guidelines "connotes an impairment of the intellect, a failure to be able quickly or fully to grasp ordinary concepts" and includes "both organic disfunction and behavioral disturbances that impair the formation of reasoned judgments." U.S. v. Cantu, 12 F 3d. 1506, 1512 (9th Cir. 1993). "The inquiry into the Defendant’s mental condition and the circumstances of the offense must be undertaken with a view of lenity, as §5K2.13 implicitly recommends." Id. at 1511; U.S. v. Chapman, 986 F 2d. 1446, 1454 (D.C. Cir. 1993). Defendant contends his mental status is a valid consideration under §5K2.13. As such, Defendant objects to the Presentence Investigation report and asserts that his diminished capacity is a factor that may warrant a downward departure.

Respectfully submitted,

David Angle, #68023
Attorney for Defendant
231 South Bemiston, Suite 1111
Clayton, MO 63105
(314) 725-8000
(314) 726-5837 fax

PROOF OF SERVICE

The undersigned attorney hereby certifies that a true and correct copy of the foregoing has been hand-delivered to Tim Sharr, United States Probation Officer and Gabriel Gore, Assistant United States Attorney for the Eastern District Of Missouri, 1114 Market Street, 2^nd and 4^th Floor, St. Louis, Missouri 63101 this 29th day of April, 1998.

___________________________________
David Angle

Return to the GACDL members only section "home" page.