Presentence-Related Sentencing Filing — United States v. Daniel Joseph Tisone

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Defendant Daniel Joseph Tisone's motion for downward departure from criminal history category III in United States of America v. Daniel Joseph Tisone, Case No. 2:22-CR-39-SPC-NPM, in the United States District Court for the Middle District of Florida, Fort Myers Division, filed 01/09/23 as Document 70 in Case 2:22-cr-00039-SPC-NPM. It states that sentencing is set for January 30, 2023 and argues that category III overstates his propensity to commit crimes and the seriousness of his criminal history. The motion states that a 2005 possession offense was not adjudicated until 2012, which caused his 2006 attempted robbery and assault convictions to be scored, and that he has committed no new law violations since 2006 other than the instant case; it asks the court to place him in criminal history category I or, alternatively, category II, and is signed /S/ Mark Eiglarsh.

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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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