Case 1:00-cr-00118 Document 193

Filed in TXSD on 08/17/09 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION UNITED STATES OF AMERICA VS. JUAN CARLOS DE LA CRUZ-REYNA

B-00-CR-118-11

OBJECTIONS TO PRE-SENTENCE REPORT THE HONORABLE JUDGE OF SAID COURT: Defendant JUAN CARLOS DE LA CRUZ-REYNA files this Objections to the PreSentence Report and in support would respectfully show: OBJECTION 1: The Pre Sentence Report improperly assesses a three [3] point increase in paragraph 60, because the assault in the present case was not motivated by the official status of the victims.

The 1998 Sentencing guidelines apply in this case, and the relevant sentencing guideline is as follows: 3A1.2. Official Victim If -(a) the victim was a government officer or employee; a former government officer or employee; or a member of the immediate family of any of the above, and the offense of conviction was motivated by such status; or (b) during the course of the offense or immediate flight therefrom, the defendant or a person for whose conduct the defendant is otherwise accountable, knowing or having reasonable cause to believe that a person was a law enforcement or corrections officer, assaulted such officer in a manner creating a substantial risk of serious bodily injury, then increase by 3 levels. In the present case the Defendant has maintained that he did not know the victims were law enforcement officials at the time of the assault. See paragraph 47 of the Pre-Sentence Report. In fact,

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the entire pre-sentence report is replete with references to the fact that the Defendants were unaware that the victims were law enforcement personnel. When the Defendants realized that the victims were working for the United States government, they immediately terminated their assault and permitted the victims to leave. See Paragraph 42 of the Pre Sentence Report. The Defendant would respectfully show unto this Court, if given an opportunity to do so, that on the date of the assault in question he was working as a security guard for Oziel Cardenas and others. A call came over the radio from another member of the security team (who was stationed at a lookout position in area where the Defendants were) indicating that a suspicious car was circling the neighborhood. The Defendant was ordered to investigate and he and the other defendants stopped the vehicle containing the victims in the middle of the road. At that point nobody knew who the victims were or what they were doing at the location. From that point on the fact contained in the Pre Sentence Report are substantially true. The only exception being that the Defendants recollection is that once the victims were identified as American law enforcement personnel, they were allowed to leave without incident. The victims state that further threats were made after they had identified themselves. Wherefore, premises considered, Defendant would argue to this Honorable Court that the three [3] level enhancement assessed in paragraph 60 of the Pre Sentence Report should not apply. Defendants total offense level should be seventeen [17] and a criminal history category of one [1] for a total recommended punishment range of range of 24 to 30 months. OBJECTION 2: The release status paragraph of the PSI fails to list the date on which the Defendant was served with his PROVISIONAL ARREST WARRANT (PAW) as a result the Defendant is at risk of losing valuable credit for time served.

It is the understanding of the Defendant that the United States Bureau of Prisons will give

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him credit for the time he has been in custody from the date he was served with the PAW in Mexico. The Pre Sentence Report fails to give a date when the PAW was served on the defendant and therefore inadequately describes his release status on the first page of his Pre Sentence Report. Wherefore, premises considered the Defendant requests that this objection be granted and the Pre-Sentence Report be amended to reflect the date when the Defendant was served with the PAW in this case. OBJECTION 3: Defendant objects to the Pre-Sentence Report because it fails to assess him a minor role in the offense.

A review of the factual summary of the offense contained in the Pre Sentence Report, reveals that the Defendant was nothing more than a limited player in the offense. Defendant did not order the assault, instigate it or in any way lead the group of defendants. In fact the Defendant was only following orders. He did not speak to the victims and therefore did not communicate any threats to them. He did not take part in the planning of the offense, and was little more than a tag-along. Wherefore, premise considered the Defendant would respectfully request a downward variance of two [2] levels for being a minor participant in the offense. By: /s/ Reynaldo G. Garza, III REYNALDO G. GARZA, III Attorney At Law State Bar No. 24008806 Fed Bar No. 23747 1004 E 7TH Street, Ste A Brownsville, TX 78520 (956)544-5077 (956)542-4016

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CERTIFICATE OF CONFERENCE At the time the foregoing motion was filed with the Court, a conference regarding the merits of the motion had been held between Counsel for the Defendant and Counsel for the Government, Toni Trevio and she is opposed.

/s/ Reynaldo G. Garza, III REYNALDO G. GARZA, III CERTIFICATE OF SERVICE I hereby certify that on the 17th day of August, 2009, a copy of the Defendants Unopposed Objection to the Pre-Sentence Report and was delivered electronically to Toni Trevio, Assistant Untied States Attorney.

/s/ Reynaldo G. Garza, III REYNALDO G. GARZA, III