Free Response to Motion - District Court of Arizona - Arizona

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DIANE J. HUMETEWA United States Attorney District of Arizona DARCY A. CEROW Assistant U.S. Attorney Arizona State Bar No. 011822 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 E-mail - [email protected] Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-04-50079-001-PHX-FJM Plaintiff, v. Jorge Luis Casas-Perez, Defendant. GOVERNMENT'S RESPONSE TO DEFENDANT'S REQUEST TO RESOLVE SUPERVISED RELEASE VIOLATION

The United States of America, by and through its attorneys undersigned, hereby responds to defendant's above captioned motion and requests that this Court deny same. This request is supported by the attached Memorandum of Points and Authorities. Respectfully submitted this 14th day of April, 2008. DIANE J. HUMETEWA United States Attorney District of Arizona
/S/ DARCY A. CEROW

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DARCY A. CEROW Assistant U.S. Attorney

Case 2:04-cr-50079-FJM

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. FACTS

MEMORANDUM OF POINTS AND AUTHORITIES

On May 3, l999, defendant was sentenced in the Southern District of New York to 70 months incarceration to be followed by 36 months supervised release for a violation of Title 21 U.S.C. §846, Consiracy to Possess with Intent to Distribute more than five kilograms of Cocaine. Defendant's supervision began on November 6, 2003. Jurisdiction was transferred to this court on April 27, 2004. Nine (9) months later, on January 28, 2005, a petition to revoke supervised release was submitted to the Court alleging the defendant committed the crime of forgery on January 15, 2005, used cocaine, failed to obtain full-time employment, failed to schedule a substance abuse assessment with TASC and failed to participate in substance abuse testing. On February 5, 2005, this Court ordered the issuance of an arrest warrant based on the allegations in the petition. On May 16, 2005, the Court revoked defendant's supervised release and sentenced him to six (6) months incarceration to be followed by 36 months supervised release. On October 12, 2005, defendant's second term of supervision commenced. Seven (7) months later, on May 8, 2006, a second petition to revoke supervised release was submitted to the Court alleging the defendant failed to report to the U.S. Probation Office, failed to submit monthly reports, failed to appear for his court hearing in Maricopa County Superior Court on April 11, 2006 (a warrant was issued for defendant's arrest) and changed his address without notifying his probation officer. At the time the petition was filed, defendant's whereabouts were unknown. On May 11, 2006, the Court ordered that an arrest warrant be issued for defendant's arrest based on the allegations in the petition. On March 24, 2008, the defendant sent a letter to this Court requesting that he be brought before the court to resolve the outstanding revocation petition. The letter was filed April 2, 2008, with notice to the United States.

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According to defendant's probation officer, on September 25, 2007, defendant was

2 sentenced to 3.5 years imprisonment for theft of transportation and forgery, offenses which 3 occurred on August 19, 2004 and January 15, 2005 respectively, while defendant was serving 4 his term of supervised release. 5 B. LAW 6 Due process requires that a person accused of violating supervised release, parole, or

7 probation receive a revocation hearing "within a reasonable time after [the person] is taken into 8 custody". Morrissey v. Brewer, 408 U.S. 471, 488 (1972) (parole revocation); see also Gagnon 9 v. Scarpelli, 411 U.S. 778, 782 (1973) (applying the holding of Morrissey to revocation of 10 probation). In Moody v. Daggett, 429 U.S. 78, 86-87 (1976), the Supreme Court held that the 11 hearing mandated by Morrissey is required only after the person charged with violating parole 12 is taken into custody for the parole violation and that the issuance of a warrant and the lodging 13 of a detainer, while the person is incarcerated elsewhere for a separate crime, do not constitute 14 being taken into custody. Rather it is the execution of the warrant, after termination of the 15 intervening sentence, that takes the person into custody for the parole violation that triggers the 16 obligation for a Morrissey hearing. The Ninth Circuit held that the United States is not required 17 to writ a defendant out of state custody and bring him into federal custody for a supervised 18 release revocation hearing even if the supervised release term expired while the defendant was 19 in state custody. United States v. Garrett, 253 F.3d 443, 449 (9th Cir. 2001). The Court found 20 that no court or statute has placed such a duty on the government. 21 B. CONCLUSION 22 Based on the above, the defendant's motion should be denied. Defendant has engaged in

23 conduct which resulted in two (2) supervised release petitions being filed within 16 months. 24 During that time, he committed two (2) new offenses and absconded from the supervision of this 25 / / / / / 26 / / / / / 27 / / / / / 28
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1 Court. Once defendant has completed his state sentence he will be brought to federal court to 2 adjudicate his pending supervised release violation petition. 3 4 5 6 7 8 9 and 10 Original filed th copy of the foregoing mailed this 14 day of April, 2008 to: 11 Jorge Casas-Perez 12 P.O. Box 5002 (222049) Douglas, AZ 85608-5002 13 Denise Rose 14 U.S. Probation 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 14th day of April, 2008.

DIANE J. HUMETEWA United States Attorney District of Arizona
/S/ DARCY A. CEROW

DARCY A. CEROW Assistant U.S. Attorney

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