Free Response - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1772

Filed 04/21/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 1:00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, RUDY CABRERA SABLAN, Defendants. __________________________________________________________________ William Sablan's Reply To The Government's Response To Wm DP-29 Regarding Striking Conviction Under 18 U.S.C. § 922(g)(1) __________________________________________________________________ Defendant William Sablan ("William"), through undersigned courtappointed counsel, submits the following in reply to the government's response to William's Motion To Strike Conviction Under 18 U.S.C. § 922(g)(1) From The Government's NOI As A Basis For The Alleged Statutory Aggravating Factor Set Out In 18 U.S.C. § 3592(c)(2) [Wm DP-29]. The government's response is Document # 1753. 1. The government's response points out "three problems" with William's argument in Wm DP-29. (Response at 4): a) "First, the defendant's 1999 conviction for violating § 922(g)(1)
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Case 1:00-cr-00531-WYD

Document 1772

Filed 04/21/2006

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did not occur in a local CNMI court." (Id.). William has acknowledged this fact. See William DP-20 at 2 n. 2. The question at hand, however, is whether this "federal" conviction is a valid one because of its reliance on a CNMI conviction as its predicate. 18 U.S.C. § 922(g)(1) describes the predicate conviction as a conviction "in any court", which the United States Supreme Court has interpreted to mean "domestic courts, not foreign courts." Small v. United States, 125 S. Ct. 1752, 1758 (2005). Although the CNMI and the United States have a political relationship, the CNMI is a self-governing commonwealth, and the judicial power of the CNMI is vested in its own judiciary, which has original jurisdiction over criminal actions arising under the CNMI Code. As such, the convictions obtained in those courts are more akin to foreign convictions than domestic convictions. b) "Second, under the plain language of § 3592(c)(2), the qualifying offense need only be one punishable by more than one year imprisonment and involving the use, attempted use, or threatened use of a firearm." (Response at 4). Actually, the plain language of § 3592(c)(2) is "[f]or any offense . . . the defendant has previously been convicted of a Federal or State offense punishable by a term of imprisonment of more than 1 year, involving the uses . . . of a firearm." (Emphasis added). Count two of the information in CR99-00018 to which William pled guilty did not charge a federal offense.
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Case 1:00-cr-00531-WYD

Document 1772

Filed 04/21/2006

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c) "Third, even if William Sablan's convoluted reading of § 3592(c)(2) were true, he does not explain why a conviction from the CNMI is not a `state' conviction within the meaning of the FDPA." (Response at 4). The principle that statutes are to be interpreted according to their plain meaning, see e.g., Amoco Prod. Co. v. Village of Gambell, 490 U.S. 531, 548 (1987), supports William's contention that a CNMI conviction is neither a federal, nor a state conviction. Cf. Northern Mariana Islands v. United States, 279 F.3d 1070, 1072 (9th Cir. 2002) (`[u]nder the plain meaning of "State" as it appears in the Quiet Title Act, the CNMI clearly would not qualify", yet for purposes of that statute it would be treated as if it were) (citing Fleming v. Department of Public Safety, 837 F.2d 401, 406 & n.6 (9th Cir. 1988) (noting that, although the CNMI possesses certain attributes of statehood, it is not a State). 2. Thus the "three problems" perceived by the government are not, in fact, problematic to William's postition. WHEREFORE, William respectfully requests that the Court strike his § 922(g)(1) conviction as a basis for the statutory aggravating factor alleged in the NOI. Dated: April 21, 2006

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Case 1:00-cr-00531-WYD

Document 1772

Filed 04/21/2006

Page 4 of 4

Respectfully submitted, Patrick J. Burke Dean Neuwirth Burke & Neuwirth P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 By: s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan CERTIFICATE OF SERVICE I hereby certify that on April 21, 2006, I electronically filed the foregoing William Sablan's Reply To The Government's Response To Wm DP-29 Regarding Striking Conviction Under 18 U.S.C. § 922(g)(1) with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected] [email protected] By: s/Susan L. Foreman Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

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