Court filing
Government’s Sentencing Position for Defendant Fontrell Antonio Baines — United States v. Baines (Dkt. 28, C.D. Cal.)
Summary
The government's sentencing position for defendant Fontrell Antonio Baines, also known as Nuke Bizzle, in United States of America v. Fontrell Antonio Baines, No. CR 22-324-MWF, in the U.S. District Court for the Central District of California, filed November 17, 2022 for a December 7, 2022 hearing before Hon. Michael W. Fitzgerald. It is filed by Assistant United States Attorneys Ranee A. Katzenstein and Alexander B. Schwab. Based on a Criminal History Category VI, the government asks the Court to impose 77 months' imprisonment, three years of supervised release and a $100 special assessment, to run concurrently with the sentences in Nos. CR 20-522-MWF and 21-379-MWF.
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Filed November 17, 2022 in Fontrell Antonio Baines; one of 2 filings from this case.
Record facts
| Court | U.S. District Court for the Central District of California |
|---|---|
| Filed | 2022-11-17 |
Cite this document
“Government’s Sentencing Position for Defendant Fontrell Antonio Baines — United States v. Baines (Dkt. 28, C.D. Cal.).”
U.S. District Court for the Central District of California, No. 2:22-cr-00324, Doc. 28, filed 2022-11-17. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/us-v-fontrell-baines/2022-11-17-government-s-sentencing-position-for-defendant-fontrell-anto-dkt-28/
, SHA-256 11035c342361aaba0b7d8eddb74486685e8e5c2cb77bfb95510bdc43e724bba2.Full text
Case 2:22-cr-00324-MWF Document 28 Filed 11/17/22 Page 1 of 10 Page ID #:140
1 E. MARTIN ESTRADA
United States Attorney
2 SCOTT M. GARRINGER
Assistant United States Attorney
3 Chief, Criminal Division
RANEE A. KATZENSTEIN (Cal. Bar No. 187111)
4 Assistant United States Attorney
Chief, Major Frauds Section
5 ALEXANDER B. SCHWAB (Cal. Bar No. 283421)
Assistant United States Attorney
6 Deputy Chief, Major Frauds Section
1100 United States Courthouse
7 312 North Spring Street
Los Angeles, California 90012
8 Telephone: (213) 894-2432/1259
Facsimile: (213) 894-6269
9 E-mail: ranee.katzenstein@usdoj.gov
alexander.schwab@usdoj.gov
10
Attorneys for Plaintiff
11 UNITED STATES OF AMERICA
12 UNITED STATES DISTRICT COURT
13 FOR THE CENTRAL DISTRICT OF CALIFORNIA
14 UNITED STATES OF AMERICA, No. CR 22-324-MWF
15 Plaintiff, GOVERNMENT’S SENTENCING POSITION
FOR DEFENDANT FONTRELL ANTONIO
16 v. BAINES
17 FONTRELL ANTONIO BAINES, Hearing Date: December 7, 2022
aka “Nuke Bizzle,” Hearing Time: 3:00 p.m.
18 Location: Courtroom of the
Defendant. Hon. Michael W.
19 Fitzgerald
20
21 Plaintiff United States of America, by and through its counsel
22 of record, the United States Attorney for the Central District of
23 California and Assistant United States Attorneys Ranee A. Katzenstein
24 and Alexander B. Schwab, hereby files its sentencing position for
25 defendant Fontrell Antonio Baines.
26 This sentencing position is based on the attached memorandum of
27 points and authorities, the Presentence Investigation Report (“PSR”),
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Case 2:22-cr-00324-MWF Document 28 Filed 11/17/22 Page 2 of 10 Page ID #:141
1 the files and records in this case, and such further evidence and
2 argument as the Court may permit.
3 Dated: November 16, 2022 Respectfully submitted,
4 E. MARTIN ESTRADA
United States Attorney
5
SCOTT M. GARRINGER
6 Assistant United States Attorney
Chief, Criminal Division
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8 /s/
RANEE A. KATZENSTEIN
9 ALEXANDER B. SCHWAB
Assistant United States Attorneys
10
Attorneys for Plaintiff
11 UNITED STATES OF AMERICA
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Case 2:22-cr-00324-MWF Document 28 Filed 11/17/22 Page 3 of 10 Page ID #:142
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Defendant Fontrell Antonio Baines is no stranger to the federal
4 criminal justice system. In 2014, he was sentenced to 30 months’
5 imprisonment for unlawful possession of a firearm by a previously
6 convicted felon. (PSR ¶ 123.) In 2020, he was charged with
7 defrauding the Pandemic Unemployment Assistance program and, upon his
8 arrest, was again found unlawfully possessing a firearm. (PSR ¶ 58.)
9 While those cases were pending in this district, defendant was
10 charged in the Western District of Tennessee with drug trafficking in
11 connection with his efforts to smuggle various opioids and controlled
12 substances through the Memphis airport in a checked bag. (PSR ¶¶ 26-
13 32.).
14 Defendant’s crime was serious, and his criminal history is
15 extensive. For these reasons, the government requests that the Court
16 impose a sentence of 77 months’ imprisonment -– the low-end of the
17 applicable guidelines range -- followed by three years of supervised
18 release and a $100 special assessment. As explained below, the
19 government recommends that the Court impose this sentence to run
20 concurrently to the sentences in case Nos. CR 20-522-MWF and 21-379-
21 MWF.
22 II. STATEMENT OF FACTS
23 Defendant admitted to the following facts in connection with his
24 guilty plea to possession with intent to distribute a controlled
25 substance:
26 On January 31, 2020, defendant arrived at the upper
drive of the Memphis International Airport in Memphis,
27 Tennessee, in a gold car with dark tinted windows. Video
surveillance captured defendant getting out of the car and
28
Case 2:22-cr-00324-MWF Document 28 Filed 11/17/22 Page 4 of 10 Page ID #:143
1 pulling a bag. Defendant checked the bag (hereinafter, the
“checked bag”) for a flight on Southwest Airlines.
2
As part of their routine screening, TSA screeners
3 examined the checked bag. They found several large plastic
bags containing marijuana, two one-pint bottles of
4 promethazine with codeine oral solution, and cash. The
checked bag had a Southwest Airlines tag bearing
5 defendant’s name.
6 Defendant was contacted by law enforcement. Although
he had in his possession a baggage claim ticket the SKU of
7 which matched the SKU of the checked bag, defendant denied
ownership of the checked bag.
8
Defendant was detained and transported to a Memphis
9 International Police Department substation. Officers
searched his backpack and found one pint of promethazine
10 with codeine oral solution; a plastic prescription cannabis
bag with marijuana inside; two cigarette rollers; and a
11 prescription bottle with the name “Dwight Smith” containing
45 Acetaminophen and oxycodone hydrochloride pills, 6 whole
12 and 6 half alprazolam pills, and 1 whole and 2 partial
pieces of Amphetamine and Dextromaphetamine.
13
The oral solution weighed a total of 45 ounces. The
14 marijuana in the various bags weighed in total 7 pounds,
6.2 ounces. Defendant stated that he owned a medical
15 marijuana shop in California and explained that the writing
on each bag indicated the flavor of the marijuana in each
16 bag. Defendant again stated that the checked bag did not
belong to him.
17
A further search of the checked bag was conducted and
18 the following additional items were found: 5 plastic
prescription cannabis bags with marijuana inside
19 (approximately 1 ounce in each), and over 60 unused
prescription cannabis bags. Officers also searched
20 defendant and found $7,000 in his pocket, $10,400 in the
sole of his right shoe, $10,200 in the sole of his left
21 shoe and $5,825 in his luggage.
22 (CR 2 (Plea Agreement) ¶ 11).
23 III. RESPONSE TO THE PRESENTENCE REPORT
24 The government agrees with the findings of the PSR (CR 25)
25 except that, as discussed below, the government partially disagrees
26 with the multiple count analysis in paragraphs 104-106 and the
27 related criminal history calculation.
28
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Case 2:22-cr-00324-MWF Document 28 Filed 11/17/22 Page 5 of 10 Page ID #:144
1 IV. GOVERNMENT’S SENTENCING POSITION
2 A. Sentencing Guidelines
3 Consistent with the plea agreement, the government submits that
4 the following sentencing guidelines apply to defendant’s drug crime:
5 Base Offense Level 24 USSG § 2D1.1(a), (c)
6 Acceptance of Responsibility -3 USSG § 3E1.1
7 Total Offense Level: 21
8 The PSR finds that defendant has 11 criminal history points, placing
9 him in Criminal History Category V. (PSR ¶ 125.) This score does not
10 include any points for defendant’s fraud and gun offenses charged in
11 case Nos. CR 20-522-MWF and CR 21-379-MWF. If the Court sentences
12 defendant in those cases before it imposes sentence in the instant
13 case, defendant will have three additional criminal history points
14 (see USSG § 4A1.1(a)), placing him in Criminal History Category VI
15 and resulting in a sentencing guidelines range of 77-96 months’
16 imprisonment. The government’s recommended sentence of 77 months’
17 imprisonment falls at the bottom of this range. 1
18 The Probation Officer has calculated that defendant’s total
19 offense level is 27 because the Probation Officer has included as
20 part of the sentencing in this case defendant’s unrelated fraud and
21 gun cases that are also pending before the Court. The Probation
22 Officer’s multiple count analysis under USSG § 3D1.1 incorrectly
23 combines all of the pending cases, and thus adds three levels to
24
25 1The government has assumed that the Court will sentence
defendant in Nos. CR 20-522-MWF and 21-379-MWF before holding the
26 sentencing hearing in this case. If the reverse occurs, then
defendant’s criminal history will be Category V for the instant case
27 (PSR ¶ 125, at 23), and the government will instead recommend 70
months’ imprisonment, which would be the low end of defendant’s
28 guideline range if he remains in Category V for purposes of this
sentencing proceeding.
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Case 2:22-cr-00324-MWF Document 28 Filed 11/17/22 Page 6 of 10 Page ID #:145
1 defendant’s total offense level instead of just one. (PSR ¶¶ 104-
2 107.) This is incorrect. The proceedings for defendant’s fraud and
3 gun offenses have been appropriately consolidated since the gun
4 offense occurred during defendant’s arrest on the fraud charges.
5 Defendant’s drug offense is a completely separate matter that has not
6 been consolidated with the other cases. The sentencing for the drug
7 case is separate and the matters should not all be combined in the
8 multiple count analysis.
9 The Sentencing Guidelines prescribe that, “[f]or purposes of
10 sentencing multiple counts of conviction, counts can be . . .
11 contained in different indictments or informations for which
12 sentences are to be imposed at the same time or in a consolidated
13 proceeding.” USSG § 3D1.1, comment. (n.1). It is true that the
14 sentencing hearing in this case has been set on the same day as the
15 sentencing hearing in the fraud and gun cases, but this is due solely
16 to considerations of logistical convenience. Defendant’s drug case
17 is before the Court after having been transferred from the Western
18 District of Tennessee and concerns criminal conduct that occurred in
19 Memphis in January 2020. (PSR ¶¶ 26-33.) The drug case is related
20 to the fraud and gun cases only insofar as they all name the same
21 defendant. Defendant’s sentencing hearings in the drug case, on the
22 one hand, and in the consolidated fraud and gun cases on the other
23 hand, may occur back-to-back, but it would be no more appropriate to
24 consider those hearings as occurring “at the same time” or “in a
25 consolidated proceeding” as it would if defendant’s drug case had
26 never been transferred and the district court in the Western District
27 of Tennessee imposed sentence on the same day.
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Case 2:22-cr-00324-MWF Document 28 Filed 11/17/22 Page 7 of 10 Page ID #:146
1 In any case, the government is recommending that the Court
2 impose defendant’s sentence in this case to run concurrently with the
3 sentences imposed in the consolidated fraud and gun cases. Thus, the
4 government submits that its position regarding the application of the
5 multiple count adjustment is not only correct but will also likely
6 inure to defendant’s benefit.
7 B. Analysis of the § 3553(a) Factors
8 1. Nature and Circumstances of the Offense and History
and Characteristics of Defendant
9
After previously sustaining a similar drug-trafficking felony
10
conviction in 2011 (PSR ¶ 116), defendant attempted to traffic a slew
11
of controlled substances, mostly opioids, through an airport.
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Defendant committed this offense in the midst of an opioid epidemic
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that cost 68,630 American lives in 2020, 2 the year he was caught in
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Memphis attempting to stash drugs in his checked luggage. And, when
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defendant was caught, he chose to lie to law enforcement, falsely
16
claiming that he “owned a medical marijuana shop in California” and
17
that “the checked bag did not belong to him.” (PSR ¶ 30.)
18
The sentencing guidelines for defendant’s crime, which call for
19
a sentence of 77 to 96 months’ imprisonment, appropriately account
20
for the severity of defendant’s offense, both insofar as his elevated
21
criminal history score reflects the seriousness of his recidivism and
22
his offense level captures the damage done to the public through the
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dissemination of illegal drugs by individuals like defendant.
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2See National Institutes of Health, “Overdose Death Rates”
27 (Jan. 20, 2022), available at https://nida.nih.gov/research-
topics/trends-statistics/overdose-death-
28 rates#:~:text=Opioid%2Dinvolved%20overdose%20deaths%20rose,(Source%3A
%20CDC%20WONDER).
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Case 2:22-cr-00324-MWF Document 28 Filed 11/17/22 Page 8 of 10 Page ID #:147
1 2. Defendant’s Lengthy Criminal History Supports
Imposition of a 77-Month Sentence to Provide Specific
2 Deterrence and Protect the Public
3 Defendant’s criminal history goes back to his early adulthood.
4 His entire adult employment record comprises a brief stint in 2016
5 detailing cars while living in a halfway house (PSR ¶ 162), yet in
6 the same timeframe, defendant has managed to amass criminal
7 convictions in twelve cases including defendant’s three criminal
8 cases currently pending before the Court. (PSR ¶¶ 116-124.) In
9 particular, defendant has prior felony convictions for unlawful
10 possession with intent to sell dihydrocodeine and unlawful possession
11 of a firearm by a previously convicted felon -- offenses nearly
12 identical to two of the three federal charges for which defendant now
13 faces sentencing. Given that defendant’s prior prison sentences have
14 failed to deter him from recidivism, the sentence in this case must
15 be comparatively longer, both to offer that deterrence and to protect
16 the public from a defendant who has demonstrated little interest in
17 self-reform.
18 C. A Low-End, Concurrent Sentence Is Appropriate
19 The sentence in this case must account for the seriousness of
20 defendant’s drug-trafficking crime, his recidivism, and his
21 consistent lawlessness. Nevertheless, the government submits that a
22 sentence higher than the low end of his guideline range is not
23 necessary for the following reasons.
24 First, while defendant’s criminal history is lengthy, his prior
25 felony sentences were far shorter than what his guideline range
26 contemplates in this case: two years for his prior drug trafficking
27 crime and 30 months for his previous § 922(g) conviction. (PSR
28 ¶¶ 116, 123, at 19, 22). Since these prior sentences have proved to
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Case 2:22-cr-00324-MWF Document 28 Filed 11/17/22 Page 9 of 10 Page ID #:148
1 be inadequate to deter him, defendant’s sentence in this case must be
2 comparatively longer. But the Sentencing Guidelines already account
3 for this need in terms of defendant’s criminal history category,
4 which increases his sentencing range.
5 Second, defendant’s horrific childhood circumstances undoubtedly
6 set him on the wrong path in life. (PSR ¶¶ 138-147.) Although
7 defendant’s personal history is not an appropriate basis for a
8 downward departure, see USSG § 5H1.12 (“Lack of guidance as a youth
9 and similar circumstances indicating a disadvantaged upbringing are
10 not relevant grounds in determining whether a departure is
11 warranted.”), and defendant remains responsible for his own choices
12 to engage in criminal conduct, the government recognizes that his
13 ability to make good decisions may have been adversely affected by
14 his apparent lack of meaningful parenting. The recommended 77-month
15 sentence is sufficient to achieve just punishment and specific and
16 general deterrence while also affording defendant the opportunity to
17 seek necessary programing and education to set him up for success
18 upon his release. (E.g., PSR ¶ 160, at 31 (describing defendant’s
19 desire to obtain his GED while incarcerated)).
20 Third, the government is recommending that defendant be
21 sentenced to 96 months’ imprisonment in the fraud and gun cases.
22 Given the length of that sentence, defendant need not be sentenced to
23 a consecutive term of imprisonment to accomplish the goals of 18
24 U.S.C. § 3553(a) and certainly need not be sentenced above the low
25 end of his guideline range, which is already substantial.
26 V. CONCLUSION
27 For the foregoing reasons, and assuming defendant falls in
28 Criminal History Category VI, the government respectfully requests
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1 that this Court impose 77 months’ imprisonment followed by three
2 years of supervised release and a $100 special assessment, and that
3 this sentence be imposed to run concurrently with the sentences in
4 Nos. CR 20-522-MWF and 21-379-MWF.
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