Case 8:07-cr-00236-CJC Document 48 Filed 01/31/13 Page 1 of 6 Page ID #:114 18685 Main Street, Suite 101 Huntington Beach, California 92648 Tel: 949-274-1166 Fax: 714-969-9220 Email: Lawoffps@aol.com Attorney for Mark McQuitty UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) Case Number: SA-CR-07-236-CJC ) Plaintiff, ) DEFENDANT S POSITION REGARDING ) SENTENCING AND RESPONSE TO V. ) PRESENTENCE REPORT ) MARK MCQUITTY, ) ) Defendant, by and through his attorney of record, Peter Scalisi, having received and reviewed the Presentence Report for defendant Mark McQuitty, hereby submits the Defendant s position regarding sentencing and response to the Presentence Report. Dated: January 31, 2013 Respectfully submitted, Peter Scalisi /S/ Peter Scalisi Counsel for Defendant Mark McQuitty i.
Case 8:07-cr-00236-CJC Document 48 Filed 01/31/13 Page 2 of 6 Page ID #:115 e Report And Filing By The Government I Role In The Offense The Defendant does agree with the Government that the proper enhancement for Role In the Offense should be a two-level enhancement per U.S.S.G. 3B1.1(c) and not a three-level enhancement as recommended in the Presentence Report. Therefore, the offense level should be Level-24 and not Level-25 as recommended in the Presentence Report. II Criminal History Category The problem for the Defendant is the Criminal History Category. The Defendant is at a Category III in the Criminal History Category with a total of 6 Criminal History points. The Category III raises the level of incarceration to which the Defendant is exposed in this matter. The Defendant accepts that the Criminal History Category calculation in the Presentence Report is accurate. However, the Defendant is hereby asking the Court to take into consideration the following: The Defendant s Category III in Criminal History is due entirely to his drinking problem. That is not to minimize that he broke the law with regard to drinking and driving. Indeed, he has always accepted his responsibility and he has plead guilty in each and every case. Item 44 on Page 9 of the Presentence Report lists a conviction for 14601.1(a) of the California Vehicle Code a misdemeanor, for Driving On A Suspended License. The conviction is directly related to his California driver s license having been suspended due to his DUI cases. 1.
Case 8:07-cr-00236-CJC Document 48 Filed 01/31/13 Page 3 of 6 Page ID #:116 ntence Report is the Defendant s arrest for DUI on April 7, 2006. The arresting officers were officers of the Santa Ana Police Department. Counsel for the Defendant has been informed that the officers were following the Defendant and made the stop of the Defendant s car at the request of the federal agents who were investigating this case, and who visited the Defendant in the Santa Ana jail after the arrest for the DUI. The Defendant s blood alcohol readings were.20 and.21 which are fairly high levels and reasonably indicate someone who is a regular and heavy user of alcohol. The point to this discussion about the Defendant s DUI s and related arrests is that he either had, or continues to have, a drinking problem. The Defendant s entire Criminal History Category is directly related to alcohol. The Defendant has plead guilty to a violation of 18 U.S.C. 1343, Wire Fraud, an offense that involves fraud, and obtaining property and money by fraudulent pretenses, and thus is an offense that goes to moral turpitude. Yes, the Defendant is a Category III in Criminal History. The Defendant is asking the Court to consider that his Criminal History does not involve moral turpitude, and that his Criminal History is different and distinct from the offense to which he has plead guilty. The Defendant is asking the Court to exercise discretion and to not consider his Criminal History given the fact that his Criminal History is all alcohol-related. Or, perhaps, to exercise discretion and to reduce the Defendant to a Category II in Criminal History given all of the facts and circumstances in this case. 2.
Case 8:07-cr-00236-CJC Document 48 Filed 01/31/13 Page 4 of 6 Page ID #:117 III yment Of A Fine The Defendant is asking the Court to not impose a fine in this case. The Presentence Report states that the Defendant appears to have the ability to make an immediate payment toward a fine based upon $24,500 in a joint savings account that the Defendant has with his wife. Item 88, Page 15 in the Presentence Report. The Defendant does not have any money with which to pay a fine. The Presentence Report was written over two years ago. The Defendant is broke, and the money in the account has been used for day-to-day living expenses for the Defendant, his wife, and their four kids. As noted in the Presentence Report, the Defendant has been forced to borrow money from credit cards and equity lines in order to pay his monthly expenses. Item 78, Page 14 of the Presentence Report. IV Sentencing Recommendation The Defendant is respectfully asking the Court to recommend that he be incarcerated in the Southern California area given that his wife, and his four kids live in Southern California in the event that the Court does sentence the Defendant to incarceration. The Defendant is respectfully asking the Court to recommend that the Defendant be given the 500-Hour Substance Abuse Program given his history of alcohol abuse and related arrests. The Defendant is respectfully asking the Court to not impose a fine based upon the Defendant s lack of money to pay a fine. 3.
Case 8:07-cr-00236-CJC Document 48 Filed 01/31/13 Page 5 of 6 Page ID #:118 king the Court to Depart Downward to a Level-12 based upon all of the facts and circumstances in this case, including the information in the Defendant s Sentencing Position herein, the Government s Sentencing Position, and any oral arguments as may be presented at the Sentencing Hearing. Dated: January 31, 2013 Respectfully submitted, Peter Scalisi_/S/ Peter Scalisi Counsel for Defendant Mark McQuitty 4.
Case 8:07-cr-00236-CJC Document 48 Filed 01/31/13 Page 6 of 6 Page ID #:119