Free Judgment for Revocation - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 04-cr-00423-MSK

3 UNITED STATES OF AMERICA, 4 Plaintiff, 5 vs. 6 CHRISTINA D. ORTIZ, 7 Defendant. 8 _______________________________________________________________ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REPORTER'S TRANSCRIPT (Sentencing Hearing: Order) _______________________________________________________________ Proceedings before the HONORABLE MARCIA S. KRIEGER, Judge, United States District Court for the District of Colorado, occurring at 10:23 a.m., on the 3rd day of November,

2006, in Courtroom A901, United States Courthouse, Denver, Colorado. APPEARANCES THOMAS O'ROURKE, Assistant U.S. Attorney, 1225 17th Street, Suite 700, Denver, Colorado, 80202, appearing for the plaintiff. CLIFFORD BARNARD, Attorney at Law, 1790 30th Street, Suite 280, Boulder, Colorado, 80301-1033 , appearing for the defendant. Proceeding Recorded by Mechanical Stenography, Transcription Produced via Computer by Paul Zuckerman, 901 19th Street, Room A259, Denver, Colorado, 80294, (303) 629-9285

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(The following proceedings were had and entered of record after the Court heard the arguments of counsel and statement of defendant:) THE COURT: Okay. The record in this case reflects

that on -- by report dated May 1, 2006, the defendant was essentially charged with a number of violations of the probation conditions imposed in this case. It's important to

note that the sentence that was imposed here was issued on June 6, 2005; and the defendant was sentenced to three years of supervised probation. Among the conditions that she was

required to comply with were that she participate in a program of mental health treatment; that she pay for the cost of the treatment if she was able; that she not incur any new credit charges or open any additional lines of credit without approval of the probation officer; that she reside in a community corrections center for a period of six months to commence on July 5, 2005, or as soon as a bed was available, and that she surrender on an outstanding warrant within 30 days of entry of judgment. Implicit in the standard conditions was that she not violate any state, federal, or local laws. And on August 8,

2005, I modified her conditions of probation to include a special condition that she participate in a program of testing and treatment for drug abuse as directed by the probation officer until such time as she was released from that program.

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And I specifically directed that she abstain from the use of alcohol and other intoxicants during the course of treatment. Now, in the May 1, 2006, report are 12 violations which were alleged. These are for the most part possession and The dates that they

use of controlled substance violations.

occurred were July 8, 2005; July 22, 2005; July 25, 2005; August 1, 2005; November 18, 2005; February 15, 2005; February 21, 2006; February 24, 2006; March 21, 2006; April 12, 2006, and April 18, 2006. There is one violation for a failure

to participate in drug and alcohol treatment as directed by the probation officer. At the hearing that was conducted on May 25, 2006, the defendant admitted the 12 alleged violations; and the Court at that time deferred imposing any penalty based upon the defendant's positive steps that were taken in close proximity to the date of the hearing. But the Court advised Ms. Ortiz at

that time -- and I'm going to quote from the record: "What I'm going to do in this case is I'm going to continue sentencing, and I'm going to allow the Government to request a sentencing hearing on the violations you've admitted in the event there is any further violation of the conditions of your probation. That's not just a hot UA; that is also

failing to attend the required treatment, it is also failing to take your medication, it is also failing to keep your job. In

other words, your freedom depends upon adherence to all of the

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conditions of your probation.

And any slip-up, as minor as it

may be to you, will result in a setting of a sentencing hearing on the violations that you have already admitted. Since that hearing, the Government has returned, requesting that sentence be imposed on the violations because the defendant submitted a hot urine sample on August 24, 2006. And there were a couple of other allegations which the Government declined to proceed on at the prior hearing. I've listened to the arguments that have been made by counsel here and to Ms. Ortiz's statement. I receive the Defendant's

Defendant's Exhibits A and Defendant's Exhibit B.

Exhibit A are a collection of letters from friends and relatives of Ms. Ortiz who believe that she has been making good progress and are hopeful that she'll be able to address her drug addiction problem. In determining the appropriate sentence for these 12 violations, I consider not only the report but the arguments that have been made here, and I consider the provisions of 18 U.S.C. Section 3553(a). After I advise counsel of the sentence I intend to impose, I'll give you an opportunity to make any further argument that you want to make before the sentence is actually imposed. With a violation of probation or supervised release, the Court has a number of options available to it. The

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Sentencing Guidelines provide for a Class C violation with a criminal history category of II, to which the parties have not had any dispute, that the appropriate sentencing range would be 4 to 10 months of incarceration followed by 2 to 3 years of supervised release. The probation officer and the United States Attorney request an incarceration term of 10 months and a supervised release period of two years, subject to a number of conditions which are specified in the sentencing recommendation. Ms. Ortiz has requested through her counsel that the Court do one of three things: either just continue on probation and add additional conditions, or require as a condition of probation that she live at the halfway house, or impose an incarceration term at the bottom end of the range, four months. In determining what the appropriate penalty is, the Sentencing Guidelines are doubly advisory. First of all,

they're advisory because they say they're advisory in this particular context; and secondly they're advisory because the Supreme Court has made the Sentencing Guidelines themselves advisory. So what the Court considers in a circumstance like

this are the factors and the considerations set out in 18 U.S.C. Section 3553(a), and those -- those particular considerations are that the sentence imposed reflect the seriousness of the offense, promote respect for law, provide just punishment, adequately deter criminal conduct, protect the

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public from further crimes by the defendant, and provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. And what the Court is directed to consider

in fashioning that kind of sentence is the nature and circumstances of the offense, the history and characteristics of the defendant, the kind of sentences that are available, what the Sentencing Guidelines would require, and in the appropriate case, the need to avoid unwarranted sentence disparities among defendants with similar records found guilty of similar conduct, and the need for restitution. What is troubling to me in this particular circumstance are several things: first of all that the 12 violations reflected in the probation violation report span a time period of July 8, 2005, through April 18, 2006. Now,

during that time period, Ms. Ortiz was under the supervision of the probation department, and she was living in a halfway house, and she was mandated to participate in drug treatment. Apparently, the combination of halfway house and mandated drug treatment and supervision by the probation department was ineffective in inspiring her and supporting her in addressing the drug addiction problem. The second thing that concerns me is that Ms. Ortiz has been here before, and she has told me that she's trying really hard. And I have no doubt about her sincerity in

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believing that she can address this drug addiction problem and that she wants to address it. I have no doubt that her friends

and family encourage her in that endeavor and believe that she can lick it; but as my mother used to say, actions speak louder than words. We can want to do the right thing; but ultimately, And

it doesn't matter how much we want to do it if we don't. here we are seeing another hot UA. desire is not enough. people isn't enough.

What this says to me is

It says to me hanging out with the right It says to me that probation supervision None of the things

and time in the halfway house isn't enough.

that I have tried thus far have been enough to support and direct Ms. Ortiz in licking this problem. Now, I take the admonition of 18 U.S.C. Section 3553(a) that the sentence should provide the defendant with the correctional treatment that is appropriate for her in the most effective manner very seriously. And when the sentence I have

imposed has failed, I need to acknowledge that failure and ratchet it up to see if there is something else that will work here. What concerns me is that nothing we have done thus far has been effective; and as a consequence, I have to look at the available options that will help Ms. Ortiz address the drug addiction problem. Mental health counseling hasn't done it,

drug counseling hasn't done it, halfway house hasn't done it. That leaves me with a limited range of options, and the options

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that are available do not include repeating what hasn't worked. So I'm not inclined to leave Ms. Ortiz on probation and I'm not inclined to reassign her to a halfway house, because it hasn't worked. What I am inclined to do is pursuant the guideline recommendation sentence her to a period of incarceration where a more intensive program can be obtained and where the importance of addressing this issue can be emphasized. I am --

I intend to follow that with a period of supervised release, with the condition that Ms. Ortiz reside in the -- in a community corrections center for a period of time; in other words, to continue the supervision on a slightly less intense level coupled with the kinds of programs that we have attempted to use effective here thus far. In other words, we're going to

backtrack here and start with a more intense approach and follow it with what we started with in this case but wasn't effective thus far, and maybe the combination of incarceration followed by supervised release will be more effective this time. In order to avail Ms. Ortiz of the kind of structure and intensity of treatment that the Bureau of Prisons can provide, I intend to sentence her to the full 10 months that is recommended by the guidelines, to be followed not by two years of supervised release but by three years of supervised release, and as a condition of that supervised release six months of

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community corrections housing following her release from the Bureau of Prisons and subject to all of the conditions that have been imposed thus far. So that includes the standard

conditions, mental health counseling, drug counseling, any restriction on incurring credit charges without the permission of the probation officer. These are the conditions that are

reflected in the sentencing recommendation. Is there any further argument at this time? MR. O'ROURKE: MR. BARNARD: No, your Honor. Your Honor, without rehashing too much,

the only thing I'd point out was that obviously the halfway house, which was begun in the first place, was at the beginning of the sentence. And in the last six months, she's done -- has I understand what the Court is wishing

improved significantly.

to accomplish, which is to accomplish what's in her best interest in the long run. With regard to the -- to any sentence that the Court imposes with regard to incarceration, we would ask that Ms. Ortiz be permitted to surrender herself at least two weeks after this date -- I would suggest December 1 -- so that she could give her employer a two-week notice, so she has the best possible chance of getting reemployed once she finishes, so that she can go back into the community and have the best chance of success. THE COURT: Any objection to that?

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MR. O'ROURKE: THE COURT:

No, your Honor. I want

I think that's a very good idea.

Ms. Ortiz to succeed here, and I want her to have the best option of succeeding. That will require that she get a job

when she's released; and so long as she's done a good job at her current job and she affords them the kind of deference and respect, that two weeks' notice would -- perhaps that job will be available to her when she is released. Then it is the judgment of this court -MR. O'ROURKE: Your Honor, I'm sorry to interrupt, but

Mr. Perez just pointed out to me that perhaps the court cannot impose a three-year term of supervised release under the guidelines because of the term of imprisonment. THE COURT: Well -And I'm not sure how the calculation

MR. O'ROURKE:

THE COURT:

Maybe Mr. Perez can tell me what is the

term of supervised release, the maximum term that can be imposed. THE PROBATION OFFICER: Your Honor, pursuant to 18

U.S.C. Section 3583(h) and the United States Sentencing Guidelines Section 7B1.3(g)(2), the maximum term of supervised release that can be imposed was that which was originally statutorily available, which was three years minus any time of imprisonment that is imposed upon revocation.

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THE COURT:

So it would be three years less 10 months. Exactly, your Honor.

THE PROBATION OFFICER: THE COURT: Thank you.

To make it simple, we'll make it two

Then having considered all of the factors under 18 U.S.C. Section 3553(a), the recommendations of the guidelines, particularly the circumstances relating to the violations of the terms of probation, and with particular attention to the Court's desire to provide the appropriate correctional treatment to Ms. Ortiz in the most effective manner, the Court, pursuant to the Sentencing Reform Act and pursuant to the Sentencing Guidelines enters the following judgment: The defendant, Christina D. Ortiz, will be remanded to the care and custody of the Bureau of Prisons to be incarcerated for a term of 10 months. Said period of

incarceration will be followed by a term of supervised release of two years. Six months of the term of supervised release

will be spent in a community corrections center. The conditions previously imposed on the probationary period or on the term of probation will all be imposed on the term of supervised release. This means that the defendant will

not commit another federal, state or local crime, not illegally possess controlled substance, not possess a firearm or destructive device that is prohibited by law, and comply with the standard conditions as adopted by the court. She will

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refrain from the unlawful use of a controlled substance and submit to one drug test within 15 days of release on supervised release and two periodic drug tests -- at least two periodic drug tests thereafter for use of a controlled substance. She will participate in a program of testing and treatment for drug and alcohol abuse as directed by the probation officer until such time as she's released from the program by the probation officer. And to the extent that she

is able, she will pay for the cost of treatment as directed by the probation officer. She will participate in a program of

mental health treatment as directed by the probation officer until such time as she is released from that program; and to the extent that she is able, she will pay for the cost of that program if so directed by the probation officer. She will not incur new credit charges or open additional lines of credit without approval of the probation officer unless she's in compliance with the periodic payment obligations pursuant to the Court's judgment and sentence. And I think we had a restitution obligation here. Isn't that right? MR. BARNARD: Your Honor, there was a restitution Ms. Ortiz believed The records

obligation, and we were looking into that.

that she was down to owing $39 and some cents. showed $99.

She has paid $40 this morning, so that if she is

correct, she should have fulfilled her obligation; otherwise,

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there may still be a $50 -THE COURT: All right. Well, this condition will lift

as soon as she has satisfied her restitution obligation. And the Court further orders that Ms. Ortiz will selfsurrender to the appropriate designated facility of the Bureau of Prisons. Is there a date that you anticipate that determination will be made? THE PROBATION OFFICER: Your Honor, it takes

approximately four weeks for the Bureau of Prisons to make that designation. If an earlier time frame for voluntary surrender

is contemplated, then surrender to the U.S. Marshal's Service here would be appropriate. Then they can take her into custody

and then that designation can be made. THE COURT: I will leave to the agreement between the

United States Attorney and the defense counsel as to the date for self-surrender, but it will be no later than December 15, 2006. Any need for clarification, further explanation, or modification? MR. O'ROURKE: MR. BARNARD: Honor. THE COURT: All right. That time period for selfNo, your Honor. Not on behalf of Ms. Ortiz. No, your

surrender will also allow Ms. Ortiz the opportunity to wind up

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her affairs in anticipation of incarceration. I trust that the form of judgment will be submitted by the probation officer. Is that right? That's right, your Honor. And that will conclude this Thank you, counsel.

THE PROBATION OFFICER: THE COURT: matter. All right.

We will stand in recess.

Ms. Ortiz, use all of the skills you can and the treatment programs you can avail yourself of so you're not back here. Let me also advise you before we recess of your right to appeal. If you choose to appeal, have you to file a notice Now,

of appeal within ten days of entry of the judgment.

ordinarily, Mr. Barnard would do that for you; but if he is not able to or is unwilling to do so and you request, I'll direct the Clerk of the Court to file a notice of appeal on your behalf. THE DEFENDANT: THE COURT: Okay. Thank you.

Anything further? No, your Honor. No, your Honor.

MR. O'ROURKE: MR. BARNARD: THE COURT:

We'll stand in recess.

(Recess at 10:49 a.m.) * * * * *

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REPORTER'S CERTIFICATE I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. at Denver, Colorado, this 3rd day of November, 2006. Dated

______________________________ Paul A. Zuckerman