Case 2:08-cr-00125-DAK Document 469 Filed 05/04/11 Page 1 of 5

STEVEN B. KILLPACK, Federal Defender (#1808)

ROBERT STEELE, Assistant Federal Defender (#5546)
PARKER DOUGLAS, Assistant Federal Defender (#8924)
WENDY M. LEWIS, Assistant Federal Defender (#5993)
AUDREY K. JAMES, Attorney at Law (#9804)
UTAH FEDERAL DEFENDER OFFICE
Attorney for Defendant
46 West Broadway, Suite 110
Salt Lake City, Utah 84101
Telephone: (801) 524-4010
Facsimile: (801) 524-4060
Counsel for Mr. Mitchell

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

UNITED STATES OF AMERICA,

DEFENDANT’S OBJECTIONS TO
Plaintiff, THE PRESENTENCE REPORT

v. Case No. 2:08 CR 125 DAK

BRIAN DAVID MITCHELL,

Defendant.

The Defendant, Brian David Mitchell, by and through his attorneys of record, Robert Steele,

Parker Douglas, Audrey James, and Wendy Lewis, pursuant to Rule 32.1(b) of the Criminal Rules

of Practice for the United States District Court for the District of Utah, and after reviewing the

Presentence Report prepared by the United States Probation Office, hereby submits the following

with respect to the Presentence Report (“PSR”):

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OBJECTIONS

1. Paragraph 18, on page 5: Counsel agrees that the conduct described in paragraph

18 is not the kind of conduct that is covered under any interpretation of U.S.S.G. § 3C1.1, the

Chapter Three adjustment for Obstructing or Impeding the Administration of Justice. The general

comments made in the Application Notes to § 3C1.1 and specific examples mentioned therein

describe conduct much different than Mr. Mitchell’s behavior in court. Should the government argue

otherwise, counsel will deal with the issue in a reply pleading.

2. Paragraphs 29 & 37, on page 7: Counsel asserts that the conduct described in the

presentence report and the facts adduced at trial do not support the application of an enhancement

for Mr. Mitchell as the organizer, leader, manager, or supervisor of the criminal activity under

U.S.S.G. § 3B1.1(c). Rather, the facts amply demonstrate that the co-defendants in this case acted

equally in harmony and in concert, particularly at first as the criminal activity unfolded. Moreover,

as this enhancement is designed generally to address cases involving criminal enterprises and/or

conspiracy in which an organizer, leader or manager is logically present or necessary, it would be

inappropriate to apply the enhancement to this case. Counsel asks that these two paragraphs be

removed and the guidelines be recalculated. Should the government argue otherwise, counsel will

deal with this issue more particularly in a reply pleading.

3. Paragraph 62, on page 12: This paragraph is inappropriate and should be removed

completely, as it is not at all relevant to any sentencing issue in this matter . Ms. Mitchell is not a

victim of the offenses for which Mr. Mitchell has been convicted. Her wishes for Mr. Mitchell or

her opinions have no place in the presentence report in that they do not provide the Court with useful

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information for sentencing nor do they provide the Bureau of Prisons with information helpful in

managing Mr. Mitchell, while he is incarcerated. Cf. United States v. Hunter, 548 F.3d 1308, 1310

(10th Cir. 2008), in which the District Court Judge denied the right of victims of another related

crime to submit a victim impact statement, when “[u]nder the CVRA, a ‘crime victim’ is one who

is ‘directly and proximately harmed as a result of the commission of a Federal offense.’ [18 U.S.C.]

§ 3771 (e).”

4. Paragraph 93, on page 18: Counsel does not agree that U.S.S.G. § 5K2.3, Extreme

Psychological Injury [to the victim], is applicable to this case, since it’s application is directly

contradicted by the testimony of Ms. Smart and argument by the government, who vigorously argued

that Ms. Smart is a “survivor” who has not been psychologically injured more than other victims of

the offenses at issue. Should the government argue otherwise and offer comparative evidence upon

which the Court could base such a finding, counsel will deal with this issue in a reply pleading.

5. Paragraph 94, on page 18: Counsel does not agree that U.S.S.G. § 5K2.8, Extreme

Conduct [of the defendant], is applicable unless and until the government has offered comparative

evidence upon which the Court could base such a finding. Should the government do so, counsel

will deal with this issue in a reply pleading.

Counsel will address issues of departures and variances under 18 U.S.C. 3553(a) based

on his mental and physical health in a separate sentencing memorandum to be filed a week

prior to the date of sentencing.

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RESPECTFULLY SUBMITTED this 4th day of May, 2011.

/ s / Robert L. Steele
ROBERT L. STEELE
Assistant Federal Defender

/ s /Parker Douglas
PARKER DOUGLAS
Assistant Federal Defender

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CERTIFICATE OF DELIVERY

I hereby certify that a true and correct copy of the foregoing DEFENDANT’S
OBJECTIONS TO THE PRESENTENCE REPORT was filed electronically and caused to be
served by electronic notice to all parties named below on this 4th day of May, 2011.

Felice John Viti

Dave Backman
Diana Hagen
Alicia Cook
United States Attorney’s Office
185 South State Street, Suite 400
Salt Lake City, Utah 84111

Michael P. O’Brien
Ryan M. Harris
Shane J. Shumway
Jones Waldo Holbrook & McDonough

Wendy White
United States Probation Officer
350 South Main Street, Room 160
Salt Lake City, UT 84101

/s / K. Harris
Utah Federal Defender Office