Free Memorandum - District Court of Arizona - Arizona

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Francisco Javier Avila-Lopez JAN -3 mug.
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cca/cA0c US DISTRICT coum
1=~.0. Box 6300 _ ,2; 0FAFuzoNA
Florence. Az. 85232-6300 gf! DHNHY
Defendant
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
UNITED STATES OF AMERICA, ) _ Case No. CRO4—O118P1—PHX-JAT
plaintiff. )
) MEMORANDUM IN SUPPORT OF
Vs- P ) MOTION IN REQUEST FOR
) CONTINUANCE
Francisco Javier Avila—Lopez» )
Defendant. )
STATEMENT OF FACTS
The Defendant filed a motion on December 20th; 2005. "TO
WITH DRAW GUILTY PLEA." However. the Defendant's actual attempt
for having this motion filed was originally aimed for November, 30th.
2005. Due to negligent disregard on behalf of CCA's staffing. the
motion was not filed at an earlier date. .
The-Defendant now respectfully requests that this court. under
due diligence. excercise its discretion and afford the Defendant
a time extention of thrity (30) day. The Granting of this request
would serve for the purposes of answering questions of law in regards
to the Defendant's underlying order of deportation.
LAW AND ARGUMENT
In regards to this request. we have no caselaw on point
that would authorize this court to grant this continuance. However,
the Defendant would argue that. because. the original date in which
it attempted to file the motion. was. earleir than the time frame .
as required in Rule 47(c) of the Federal Rules of Criminal Proce-
dure. under this court's discretion, it would be apparent that
Case 2:04-cr—O1188-JAT Document 54 Filed O1/O3/2006 Page10f2 i

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he, other than the CCA's negligence, would have met the five (5)
day requirement for filing motions under Rule 47(c].
Finally, Defendant would argue that under the language of
Title B U.S.C. §l326(d) that, he is entitled to mount a collateral
attack to the underlying deportation proceedings. See United States
V. Mendoza—Lopez, 481 U.S. 828,837,83B (l987)("Where a determina-
tion made in an administrative proceeding is to play a critical
role in subsequent imposition of critical sanction there must be
some meaningful review of the administrative proceedings. This
means at the very least that where the defects in an administra-
tive foreclosure judicial review of that proceeding an alternative
means of obtaining a judicial review must be made available before
the administrative order may be used to establish conclusively an
element of a criminal offense.").
CONCLUSION _ _
The Defendant made other attempts to have his collateral
attack of the underlying order of deportation. This court denied
continuance for filing of pretrial motions, and should this court
disregard this motion for continuance it will then deny hearing on
motion for withdrawal of guilty plea. Thus, denying Defendant review
of underlying order of deportation. Wherefore, we respectfully
request the granting of this motion, otherwise, would deny due
process of law, thus, not in the interest of justice.
RESPECTFULLY SUB TTED, this 3d •ay of 1-cember, 2005.
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Defendant
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Case 2:04-cr-01188-JAT

Document 54

Filed 01/03/2006

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Case 2:04-cr-01188-JAT

Document 54

Filed 01/03/2006

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