Free Motion for Departure - District Court of Arizona - Arizona

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DAVID M. OCHOA Attorney at Law P.O. Box 22126 Phoenix, AZ 85028 Tel: (602) 971-4048 Fax: (602) 956-2007 Bar #: 002163 Attorney for Defendant Valencia-Valencia UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Plaintiff, ) ) vs. ) ) Jose Manuel Valencia-Valencia, ) ) Defendant. ) ____________________________) United States of America,

NO. CR04-1275-PHX-DGC MOTION REQUESTING DOWNWARD DEPARTURE AT SENTENCING

The defendant by and through his undersigned attorney respectfully moves this Court for a downward departure pursuant to U.S.S.G Sections 5K2.13 (Diminished Capacity) of the Federal Sentencing Guidelines. This Motion is further supported by the attached memorandum. Respectfully submitted: March 10, 2006

s/______________________________________ DAVID M. OCHOA

Case 2:04-cr-01275-DGC

Document 41

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MEMORANDUM FACTS: The defendant has read the presentence report (PSR) and states that the facts contained therein are accurate. The defendant sees no need to repeat what is already stated in the presentence report. Therefore, the defendant will adopt what is stated in report and incorporated it here in the "Facts". Page 9, Line 2 of the plea agreement permits the defendant to argue for a three (3) level downward departure regarding the defendant's mental status when he entered the United States. The government is free to object to the downward departure request. LAW: 5K2.13 permits for a downward departure if "(1) the defendant committed the offense while suffering from a significantly reduced mental capacity; and (2) the significantly reduced mental capacity contributed substantially to the commission of the offense." As noted in the PSR, the defendant was arrested on October 26, 2004. On November 2, 2004, when meeting with the defendant at the United States Marshal's holding area, undersigned questioned the defendant's mental status. It was learned that he had prior treatment for psychiatric issues. Counsel immediate started gathering information from family and CCA about defendant's mental history. Eventually, on January 31, 2005, counsel contacted Dr. Menendez to set up an appointment to examine the defendant. On February 10, 2005, this Court granted defendant's motion to have defendant examined by Dr. Kathryn Menendez to determine defendant's mental competency to stand trial. (Doc. # 17). On March 4, 2005 counsel met with the defendant at CCA and counsel noted in his file that he felt defendant was "out to lunch". On March 17, 2005, Dr. Menendez examined the defendant. Thereafter the Dr. Menendez called counsel and stated in her opinion he was not competent to assist in his defense. This conclusion was confirmed in the doctor's psychological report received on April 14, 2005. All this information was shared with then AUSA Somsan. He proceeded to prepare a motion to have defendant committed to restore defendant's competency. On June 27, 2005, a hearing was held on
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defendant's competency. At the conclusion of the hearing this Court issued an order to have the defendant committed to try to restore his competency. (Doc. # 28). The defendant was sent to Federal Medical Facility at Butner, NC. The defendant remained there until he was returned to the district. On January 9, 2006, the defendant appeared before this Court. At that time the defendant was found competent so assist counsel and to stand trial. (Doc. # 38). The defendant would just refer the Court to pages 10 and 11 of the PSR for a summary of the defendant's mental history. The defendant suffers from a bipolar disorder and he has a history of not taking his medication. It's a sad commentary by the defendant's wife that she feels that it is safer for the defendant to be incarcerated rather than living on his own in Mexico where there is no one to make sure he takes his medication. (PSR p. 10, paragraph 37). There is no question that the defendant has a mental disorder and that disorder significantly reduced the defendant's mental capacity and contributed substantially to the commission of the offense. For all the reasons stated above, the defendant moves this Court to grant defendant's requests for a three (3) level downward departure. CONCLUSION Before granting a departure of mental incompetency, the defendant's Total Offense Level is 17 and with a Criminal History Category IV, places him in a range of 37 to 46 months. With a three level downward departure, it would give the defendant a Total Offense Level of 14 and with a Criminal History Category IV, the defendant's sentencing range would be 27 to 33 months. The defendant requests this court to sentence the defendant to no greater that 27 months. Respectfully submitted: March 10, 2006

s/_______________________________________ DAVID M. OCHOA

Case 2:04-cr-01275-DGC

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CERTIFICATE OF SERVICE I hereby certify that on this date, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of Notice of Electronic Filing to the following CM/ECT registrants: AUSA Richard Suzuki I hereby certify that on this date, I caused to be placed in the mail a copy of this document to the Beth R. Steward, U.S. Probation Office, 401 W. Washington, SPC 7, Suite 160, Phoenix, AZ 85003-2119

s/__________________________________ DAVID M. OCHOA

Case 2:04-cr-01275-DGC

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