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THE CARRILLO LAW FIRM, PLLC

Erin M. Carrillo, AZ SB# 024613

23 North Stewart Avenue

Tucson, Arizona 85716

Phone: (520) 398-7369

Facsimile: (520) 844-6611

Email: erin@thecarrillolawfirm.com

Attorney for Robert F. Krebs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Robert Francis Krebs,

Defendant.

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CR 18-0263-TUC-JGZ (JR)

OBJECTION TO PRESENTENCE 

INVESTIGATION REPORT (DRAFT)

Robert Francis Krebs, through undersigned counsel, submits the following 

objection to the PSR for the Court’s consideration.

I. Acceptance of Responsibility

A defendant who asserts her right to trial is not necessarily precluded from receiving 

the benefits for acceptance of responsibility. USSG §3E1.1 comment (n. 2); see United 

States v. McKinney, 15 F.3d 849, 852 (9th Cir. 1994) (holding that a trial court errs when 

if it determines a defendant is not entitled to a reduction merely because he did not plead 

guilty and instead went to trial). In determining whether a defendant qualifies for a twolevel downward adjustment for acceptance of responsibility the Court should consider, 

among other factors, whether the defendant “truthfully admitt[ed] the conduct comprising 

the offense(s) of conviction, and truthfully admitt[ed] or not falsely den[ied] any additional 

relevant conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct). 

Note that a defendant is not required to volunteer, or affirmatively admit, relevant conduct 

beyond the offense of conviction in order to obtain a reduction under subsection (a). A 

defendant may remain silent in respect to relevant conduct beyond the offense of conviction 
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without affecting his ability to obtain a reduction under this subsection.” USSG §3E1.1 

comment (n.1(A)). 

Where an individual asserts her right to trial, a determination of whether he accepted 

responsibility will be based on his or her statements and conduct. 

This adjustment is not intended to apply to a defendant who 

puts the government to its burden of proof at trial by denying 

the essential factual elements of guilt, is convicted, and only 

then admits guilt and expresses remorse. Conviction by trial, 

however, does not automatically preclude a defendant from 

consideration for such a reduction. In rare situations a 

defendant may clearly demonstrate an acceptance of 

responsibility for his criminal conduct even though he 

exercises his constitutional right to a trial. This may occur, for 

example, where a defendant goes to trial to assert and preserve 

issues that do not relate to factual guilt (e.g., to make a 

constitutional challenge to a statute or a challenge to the 

applicability of a statute to his conduct). In each such instance, 

however, a determination that a defendant has accepted 

responsibility will be based primarily upon pre-trial 

statements and conduct.

(emphasis added)

USSG §3E1.1 comment (n. 2). 

An analysis of whether or not a defendant accepted responsibility for an offense, 

and should receive a 2-level downward adjustment, must occur in every case even if a 

defendant goes to trial. See United States v. Cortes, 299 F.3d 1030 (9th Cir. 2002) (A

Court must consider whether a defendant accepted responsibility even when the defendant 

exercised their right to trial.). This analysis did not occur here. (Doc. 178, ¶18.) Instead, 

the PSR states notes “the defendant was found guilty pursuant to a jury trial, and therefore 

an acceptance of responsibility statement was not obtained.” (Doc. 178, ¶18.). This analysis 

appears to operate under the incorrect assumption that a defendant who proceeds to trial 

cannot be eligible for a downward adjustment for acceptance of responsibility. This is 

incorrect, and if the analysis were adopted by the Court, would constitute error.

Mr. Krebs is asking this Court to consider his post-arrest and pretrial statements to 

law enforcement in their investigation of this offense. As the government introduced at 

trial, and as is noted in the PSR, Mr. Krebs gave a detailed and full confession to the FBI 
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after his arrest. (Doc. 178, ¶12.) He did not testify at trial, and the government successfully 

introduced the full confession into evidence against Mr. Krebs during their case in chief. 

His pretrial conduct and statements indicate he accepted responsibility for the offense well 

before he was ever indicted for the offense in question, and well before trial.

If the Court affirms this objection, the offense level will be reduced by two. 

II. Specific Offense Characteristics 

A BB Gun Is a Dangerous Weapon not a Firearm.

Mr. Krebs objects to the five-level enhancement applied at paragraph 22 of the PSR, 

for brandishing a firearm during the commission of this offense as no firearm was 

brandished. (See Doc. 178, ¶22.) A firearm is defined as “(i) any weapon (including a 

starter gun) which will or is designed to or may readily be converted to expel a projectile 

by the action of an explosive . . . A weapon commonly known as a “BB” or pellet gun, that 

uses air or carbon dioxide pressure to expel a projectile is a dangerous weapon but not a 

firearm.” USSG §1B1.1, comment (n.1(H)). 

Instead, a three-level enhancement should apply in this instance as a BB gun is a 

dangerous weapon. USSG §1B1.1, comment (n.1(E)). 

The Florida Conviction Does Not Meet the Definition of Crime of Violence.

Mr. Krebs hereby objects to the career offender enhancement as applied in 

paragraph 27 of the PSR because the Florida robbery conviction does not meet the 

definition of a crime of violence pursuant to USSG §4B1.2. In this case, a career offender 

enhancement applies if three prongs are met: (1) defendant is over eighteen years old, (2) 

the offense of conviction is a crime of violence, and (3) the defendant has at least two prior 

felony convictions which meet the definition of “crime of violence”. USSG §4B1.1(a). A 

crime of violence means “any offense under federal or state law, punishable by 

imprisonment for a term exceeding one year, that (1) has as an element the use, attempted 

use, or threatened use of physical force against the person of another, or (2) . . . robbery . . 

.” USSG §4B1.2(a). 
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In July 1981, Mr. Krebs was arrested and charged in Florida’s state court for 

offenses including burglary, robbery, kidnapping and carrying a concealed firearm. He 

was subsequently convicted of burglary, robbery, false imprisonment, and carrying a 

concealed firearm. 

Robbery, under the generic definition, is the taking of personal property by means 

of force or threat of injury against the person of another. The 1981 Florida robbery statute 

defines robbery as “the taking of money or other property which may be the subject of 

larceny from the person or custody of another by force, violence, assault, or putting in 

fear.” (Emphasis added). Arthur v. State, 391 So. 2d 338, 338 (Fla. Dist. Ct. App. 1980). 

To determine whether a prior conviction is for a generic robbery courts apply the 

categorical approach: They focus solely on whether the elements of the crime of conviction 

sufficiently match the elements of generic burglary, while ignoring the particular facts of 

the case. Mathis v. U.S. 136 S.Ct. 2243, 2248 (2016). Here, the Florida definition of 

robbery includes conduct broader than the generic definition of robbery and therefore the 

Florida conviction is not a predicate felony conviction usable to apply the chapter four 

enhancement (See Doc. 178, ¶27). 

If this court does not apply the career offender enhancement, the adjusted offense 

level would be 27 instead of 34. 

III. Conclusion

Without the career offender enhancement and applying a three level enhancement 

for the brandishing of a bb gun, instead of a five level enhancement for brandishing of a 

firearm, the adjusted offense level subtotal is 25. If the court grants all of Mr. Krebs’

objections laid out herein, his total offense level is 23. Additionally, eliminating the 

application of the career offender enhancement reduces Mr. Krebs’ criminal history 

category from VI to IV. Accordingly, Mr. Krebs hereby submits that his sentencing 

guideline range for an offense level of 23 and criminal history category IV is 70-87 months. 
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RESPECTFULLY SUBMITTED this 14th day of May 2021.

THE CARRILLO LAW FIRM, PLLC

/s/ Erin M. Carrillo

Erin M. Carrillo

Attorney for Robert Francis Krebs

Copy of the foregoing served

by Electronic Case Filing to: 

ALL REGISTERED ECF CASE PARTICIPANTS