Court filing
Presentence-Related Sentencing Filing — United States v. Daniel Joseph Tisone
No. 2:22-cr-00039-SPC-NPM · Doc. 70 · Docket on CourtListener
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Case 2:22-cr-00039-SPC-NPM Document 70 Filed 01/09/23 Page 1 of 2 PageID 459
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
UNITED STATES OF AMERICA CASE NO.: 2:22-CR-39-SPC-NPM
vs.
DANIEL JOSEPH TISONE
/
DEFENDANT’S MOTION FOR DOWNWARD DEPARTURE FROM
CRIMINAL HISTORY CATEGORY III
The defendant, Daniel Joseph Tisone, by and through undersigned counsel,
files this Motion for Downward Departure from Criminal History Category III and
avers the following:
1. This matter is currently set for sentencing on January 30, 2023 at 9:30
am.
2. The Presentence Investigation Report (PSI) asserts that Mr. Tisone’s
criminal history category is a level III.
3. Undersigned maintains that Mr. Tisone’s criminal history category
overstates his propensity to commit crimes and significantly over-
represents the seriousness of defendant’s criminal history.
4. In the PSI, the first criminal history point assessed is for the charge of
possession of a controlled substance committed in 2005 when Mr.
Tisone was merely 18 years old. He is currently 35 years old. While he
pled guilty to the charge in 2006, he wasn’t adjudicated of the offense
until 2012 because of his incarceration on an unrelated case.
5. In 2006, he was convicted of attempted robbery and assault charges
when he was just 19 years old. He served six years in prison and five
years of probation. As a result of those convictions, he received three
points towards his criminal history level.
6. Had Mr. Tisone’s adjudication for the 2005 possession of a controlled
substance offense not been delayed until 2012, seven years after the
Case 2:22-cr-00039-SPC-NPM Document 70 Filed 01/09/23 Page 2 of 2 PageID 460
offense was committed, his three level increase for the 2006 attempted
robbery/assault charges would not have been scored under the
guidelines. Instead, he would be in category I.
7. As the PSI correctly reveals, other than the instant case, since 2006, Mr.
Tisone has not committed any new law violations.
8. Undersigned respectfully requests that this Court grant this instant
motion for a downward departure, finding that Mr. Tisone’s criminal
history overstates his propensity to commit crimes. Additionally, Mr.
Tisone’s criminal history category significantly over-represents the
seriousness of his criminal history. See:
U.S. v. Brown, 985 F.2d 478, 482 (9th Cir. 1993); U.S. v. Cuevas-
Gomez, 61 F.3d 749 (9th Cir. 1995); U.S. v. Fletcher, 15 F.3d 553, 557
(6th Cir. 1994); U.S. v. Shoupe, 988 F.2d 440, 447 (3d Cir. 1993).
9. Undersigned is requesting that the Court consider Mr. Tisone in criminal
history category I. Alternatively, undersigned is requesting that the Court reduce his
level to category II.
WHEREFORE, based upon the above and foregoing, the Defendant
respectfully requests this Court to grant the instant motion.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was
furnished via CM/ECF to: United States Attorney’s Office, AUSA Trenton
Reichling and Probation Officer Nick Stevens, this 9th day of January, 2023.
Respectfully submitted,
LAW OFFICES OF MARK EIGLARSH
3107 Stirling Road
Suite 207
Fort Lauderdale, Florida 33312
Telephone: (954) 500-0003
Facsimile: (305) 674-0102
Email: Mark@EiglarshLaw.com
BY: _/S/_MARK EIGLARSH______________
MARK EIGLARSH
Florida Bar No.: 956414
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