Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona Lisa Jennis Settel Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-01-053-PHX-SRB Plaintiff, v. Jesus Beltran-Romero, Defendant. GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR SUPERVISED RELEASE DISPOSITION

The United States of America, by and through its attorneys undersigned, hereby responds

15 to defendant's Motion for Disposition on his Supervised Release violation and requests that this 16 Court deny same. This request is supported by the attached Memorandum of Points and 17 Authorities. 18 19 20 21 22 23 24 25 26 27 28 PAUL K. CHARLTON United States Attorney District of Arizona S/ Lisa J. Settel LISA JENNIS SETTEL Assistant U.S. Attorney Respectfully submitted this 12th day of January, 2006

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MEMORANDUM OF POINTS AND AUTHORITIES On April 9, 2001, the defendant was convicted of illegal re-entry after deportation and sentenced by this Court to 30 months imprisonment to be followed by 36 months supervised release. The defendant was released from federal custody on March 3, 2003 and subsequently deported to Mexico the next day. On March 8, 2005, the defendant was arrested in Phoenix by the Phoenix Police Department and charged with possession of dangerous drugs for sale, two counts of possession of narcotic drugs for sale, possession of drug paraphernalia, misconduct involving weapons/drugs, and mistconduct involving weapons/prohibited possesor. On July 18, 2005, the defendant pled guilty to possession for sale of narcotic drugs and he was sentenced on Augsut 17, 2005 to five years state prison. On November 8, 2005, a Petition to Revoke on Supervised Release was requested by U.S. Probation. The Petition alleges that the defendant illegally re-entered the United States on March 8, 2005 and by doing so committed the Federal crime of Re-entry After Deportation in violation of 8 U.S.C. Section 1326(a) enhanced by (b)(2). On December 28, 2005, the defendant filed his motion for disposition on his supervised release or in the alternative requesting that his sentence for the violation run concurrent with his Arizona state sentence. Due process requires that a person accused of violating supervised release, parole, or probation receive a revocation hearing "within a reasonable time after [the person] is taken into custody". Morrissey v. Brewer, 408 U.S. 471, 488 (1972) (parole revocation); see also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (applying the holding of Morrissey to revocation of probation). In Moody v. Daggett, 429 U.S. 78, 86-87 (1976), the Supreme Court held that the hearing mandated by Morrissey is required only after the person charged with violating parole is taken into custody for the parole violation and that the issuance of a warrant and the lodging of a detainer, while the person is incarcerated elsewhere for a separate crime, do not constitute being taken into custody. Rather it is the execution of the

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1 warrant, after termination of the intervening sentence, that takes the person into custody for 2 the parole violation that triggers the obligation for a Morrissey hearing. The Ninth Circuit 3 found that the United States is not required to writ a defendant out of state custody and bring 4 him into federal custody for a supervised release revocation hearing even if the supervised 5 release term expired while the defendant was in state custody. United States v. Garrett, 253 6 F.3d 443, 449 (9th Cir. 2001). The Court found that no court or statute has placed such a duty 7 on the government. 8 Based on the above, the defendant's motion should be denied. Once he has completed

9 his Arizona sentence he will be turned over to the U.S. Marshals Service to adjudicate his 10 pending supervised release violation petition. 11 12 13 14 15 16 17 18 19 I hereby certify that on the 12th day of January, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF 20 System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jon Sands 21 I hereby certify that on 12th day of January, 2006, I served the attached document by 22 facsimile on the following who are not registered participants of the CM/ECF System: Alicia Pineda 23 I hereby certify that on the 12th day of January, 2006, I served the attached document by 24 mail: Jesus R. Beltran 25 26 27 28 LISA JENNIS SETTEL Assistant U.S. Attorney PAUL K. CHARLTON United States Attorney District of Arizona S/ Lisa J. Settel Respectfully submitted this 12th day of January, 2006.

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