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Evans Law Offices, PLLC

Mark E. Evans

177 North Church Ave

Suite 200

Tucson, AZ 85701

Telephone: 520 850 5822

Fax: 520 798 1980

mark@evanslawtucson.com

Arizona State Bar Number 019067

Attorney for Defendant

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Constantino S. Varela,

Defendant.

CR 17-1659-TUC-JAS(EJM)

OBJECTION TO PRESENTENCE 

REPORT

It is expected that excludable delay under Title 18, United States Code, §3161(h)(7) 

will occur as a result of this motion or an order based thereon.

Defendant, through counsel, objects to the presentence report for adding a 4 point 

upward departure and for failing to take into account the defendant’s acceptance of 

responsibility. Additionally, the presentence report writer failed to consider other downward 

departures in this case and cannot dispute bases for this Court to grant a variance. This case 

does not involve a plea agreement, so all possible departures are available to the Court as well 

as any basis for granting a variance.

The objections to the report consist of both a disagreement as well as an omission 

outlined as follows:

ACCEPTANCE OF RESPONSIBILITY

The presentence report writer met again with the defendant at the insistence of 

undersigned counsel. Due to confusion with his prior counsel, the defendant was not able to 

express certain pertinent points related to accepting responsibility. He has now done so. It is 

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undersigned counsel’s understanding the report writer will now recommend a two-level 

reduction pursuant to U.S.S.G. 3E1.1(a). Even despite being told of the change in accepting 

responsibility, the U.S. Attorney assigned to this case will not move for the extra point,

however. This does not surprise counsel undersigned and should be accommodated for by 

applying bases for a variance and applying other departures which will be brought to the 

attention of the Court at the time of sentencing and through this pleading. 

USE OR POSSESSION OF FIREARM OR AMMUNTION IN CONNECTION 

WITH ANOTHER OFFENSE

With respect to the position the government, who did not initiate this provision, this 

Court should not apply an upward departure of four points in accordance with U.S.S.G. 

2K2.1(b)(6). To apply this provision requires an interpretation of a state of mind that cannot 

be proven, and an application of Arizona law related to Aggravated Assault. This upward 

departure, according to the presentence report writer, was not requested by the U.S. Attorney,

nor was she responsible for this issue being raised. This upward departure was raised by the 

supervisory probation officer, Wendy Cotner, who signed off on the presentence report. Ms. 

Cotner’s belief this provision applies is terribly flawed and a reflection of her substantial 

absence of legal training and education. That the more qualified prosecutor supports the 

upward departure is even more concerning, particularly given the fact she didn’t even 

originally request its application.

Arizona requires assault be committed by at the least reckless behavior. Arizona also 

requires that if the assault is to be aggravated, that either serious injury results, a deadly 

weapon or dangerous instrument be used, or that other circumstances not applicable here be 

present. See A.R.S. 13-1203; 13-1204.

In this case, the defendant was negligent, and if the statute under Arizona law allowed

for prosecution if the state of mind included negligence, then this enhancement would apply. 

However, the statute does not include a negligent state of mind. There is no doubt the 

individual harmed, who apparently wants nothing to do with this case, could sue the 

defendant for his injury. However, this is a civil matter. Among the investigators present 

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when this case occurred was the Santa Cruz County Sheriff. No charges were ever presented 

for prosecution for Aggravated Assault to the Santa Cruz County Attorney.

The defendant acted negligently, but his behavior was not criminally reckless. See 

State v. Candler (Ariz. App. 2017). For this reason, the enhancement does not apply because

the mental state of mind of reckless would be required for it to apply. How bad a situation 

could have turned out is not relevant.

AGE AND PHYSICAL CONDITION

The defendant is 64 years old and is need of intense medical attention he cannot get 

while in custody. He has liver related issues and other medical concerns which are 

significant. This Court, in accordance with the U.S.S.G. 5H1.1 and 5H1.4, should consider 

both of these factors are present to an unusual degree and distinguishable from a so-called 

typical case.

ABERRANT BEHAVIOR 

In accordance with U.S.S.G. 5K2.20, this act was not planned, was of limited duration, 

and represents a marked deviation by the defendant from an otherwise law-abiding life. It is 

the position of counsel undersigned that no prohibitions listed in (c)(1-4) to this provision 

apply. As a result, this Court should find the defendant’s conduct was aberrant.

MITIGATING CIRCUMSTANCES

This Court should also consider certain mitigating circumstances. The defendant has 

strong family support and is a lifelong resident of the District. He is also remorseful and 

accepts full responsibility for his actions.

CONCLUSION:

In sum, this Court should apply the requested bases for departure and adjust guidelines 

as such, and this Court should also allow for a variance for the reasons stated. This Court 

should sentence the defendant to time served at the time of sentencing for all of the reasons 

stated.

RESPECTFULLY SUBMITTED: March 10, 2019.

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s/ Mark E. Evans

MARK E. EVANS

Attorney for Defendant

Certificate of Service

I hereby certify that on March 10, 2019, I electronically transmitted the attached document 

to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of 

Electronic filing to the following CM/ECF registrants:

Beverly Anderson, 

Assistant U.S. Attorney

405 West Congress, Suite 4800

Tucson, Arizona 85701-5040 

beverly.anderson@udsoj.gov

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