Free Response - 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 7 DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The United States, through counsel undersigned and pursuant to the Order of December 6, 2006, responds to defendant's letter to the Court seeking compassionate release under Directive 5050.46. The Court has construed the letter as a motion. The Court should deny the motion because defendant lacks standing to raise her claim directly. A. Background Defendant is currently serving two prison sentences for her role in an alien smuggling operation in and around Yuma, Arizona. On May 30, 2006, the Court sentenced defendant to a term of imprisonment of 33 months on the instant charge, and also fined defendant $25,000.00. The Court also imposed a separate, consecutive sentence of 11 months in CR05-883-PHX-EHC, a crime committed while she was on release on the instant case, and an additional $4,000.00 fine. On or around December 5, 2006, the Court received a letter from the defendant seeking a modification of her sentence, in the form of compassionate release under Directive 5050.46, and based in part on the putative hardship faced by defendant's children in her absence. United States of America, Plaintiff, v. Maria Rosa Barragan-Mercado, Defendant. UNITED STATES' RESPONSE TO DEFENDANT'S LETTER SEEKING COMPASSIONATE RELEASE CR04-1086-PHX-EHC

Case 2:04-cr-01086-EHC

Document 111

Filed 12/18/2006

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B.

Analysis A district court may not modify an imposed term of imprisonment except upon motion

of the Director of the Bureau of Prisons ("BOP"), or to the extent otherwise provided in Fed. R. Crim. P. 35, or in the event the Sentencing Commission has lowered the sentencing range for a particular offense. 18 U.S.C. § 3582(c). Because neither of the two Rule 35 options are applicable here,1 and because the Sentencing Commission has not lowered the sentencing range for alien smuggling offenses since the time of defendant's conviction, 2 a BOP motion is a condition precedent to modification of defendant's sentence. The BOP has not moved for relief on behalf of defendant in this case, and defendant lacks standing to bring the motion on her own. In the alternative, in the event the Court were to reach the merits of defendant's argument, defendant is not an appropriate candidate for compassionate release. BOP Directive 5050.46, a copy of which is attached as Exhibit A, sets forth the internal BOP standards for assessing compassionate release requests made by prisoners, and describes the extraordinary circumstances under which BOP may file a motion for compassionate release on behalf of a particular prisoner pursuant to 18 U.S.C. § 3582(c)(1). The BOP Director may only make a motion after review and recommendation by the Warden, the Regional Director, and the General Counsel. The Directive provides that the BOP will only move a district court to modify a sentence "in particularly extraordinary or compelling circumstances that could not reasonably have been foreseen by the court at the time of sentencing." Directive, at § 2a; see also 28 C.F.R. § 571.61(a). Defendant's letter rehashes the same arguments she and her lawyer made both in written mitigation materials and oral representations to the Court, and her claims were therefore

Rule 35(a) [clear error] does not apply because the sentence was imposed more than seven days ago, and Rule 35(b) [substantial assistance] can not apply in the absence of a government motion. The Sentencing Commission instead increased the sentencing range for alien smuggling offenses effective November 1, 2006 by, for example, increasing the offense level by two levels for defendants (like Ms. Barragan, see Plea Agr. at 8-9) who smuggle minors, and by increasing the offense level by two levels for the involuntary detention of aliens awaiting payment of smuggling fees. U.S.S.G. App. C, Amend. 692. 2
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entirely foreseeable at the time of sentencing. On the record before the Court, defendant is not an appropriate candidate for compassionate release. C. Conclusion For the foregoing reasons the Court should deny the motion. Respectfully submitted this 18th day of December, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona s/ Gary Restaino GARY M. RESTAINO Assistant U.S. Attorney CERTIFICATE OF SERVICE I hereby certify that on the above date, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to Charles Thomas, defendant's counsel in the underlying proceeding. I also certify that on the above date I sent a copy by first-class mail to defendant, at the following address: Maria Rosa Barragan-Mercado Prisoner # 64373-208 FCI Phoenix 37930 North 45th Avenue Phoenix, Arizona 85086-7057

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Case 2:04-cr-01086-EHC

Document 111

Filed 12/18/2006

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