Free Stipulation - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona GARY M. RESTAINO Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 017450 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America,
CR04-1086-PHX-EHC

Plaintiff, v. Maria Rosa Barragan-Mercado, Defendant.

CR05-883-PHX-EHC STIPULATION OF THE PARTIES WITH RESPECT TO FORM OF JUDGMENT AND IMPACT OF 18 U.S.C. § 3147

The parties, through counsel undersigned and at the Court's direction, submit this stipulation

16 with respect to the form of judgment and the impact of 18 U.S.C. § 3147. 17 First, consistent with the amended plea agreement in CR05-883-PHX-EHC, the parties 18 stipulate to separate judgment and conviction orders in each of the above cases. 19 Second, consistent with the plain language of 18 U.S.C. § 3147, the parties stipulate that at 20 least some portion of the sentence imposed in CR05-883-PHX-EHC must be imposed 21 consecutive to CR04-1086-PHX-EHC. 18 U.S.C. § 3147 provides for a statutory sentencing 22 enhancement of up to ten years for the commission of the new offense while on pretrial release 23 for the initial charge, to be imposed consecutive to the sentence on the initial charge. 24 Defendant, in the plea agreement, admits to the factual predicate for the enhancement and also 25 to an upward Guidelines adjustment. Although the government did not allege the enhancement 26 in the information in CR05-883-PHX-EHC, an uncharged statutory sentencing enhancement is 27 constitutional under Apprendi provided that the total sentence does not exceed the statutory 28 maximum sentence without the enhancement. United States v. Ellis, 241 F.3d 1096, 1103-04

Case 2:04-cr-01086-EHC

Document 98

Filed 04/25/2006

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1 (9th Cir. 2001). Accordingly, provided that the total sentence imposed in CR05-883-PHX-EHC 2 is less than the ten year statutory maximum under 8 U.S.C. 1324(a)(1)(A)(i) and (a)(1)(B)(i), the 3 Court may constitutionally impose the uncharged enhancement and must impose at least one 4 day of the sentence in CR05-883-PHX-EHC consecutive to the sentence imposed in CR04-10865 PHX-EHC. The parties reserve their respective positions as to how much of the sentence in 6 CR05-883-PHX-EHC should run consecutive. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 25th day of April, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Charles Thomas CHARLES M. THOMAS Attorney for Defendant s/ Gary Restaino GARY M. RESTAINO Assistant U.S. Attorney

Case 2:04-cr-01086-EHC

Document 98

Filed 04/25/2006

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