Free Motion to Continue Sentencing - District Court of Arizona - Arizona

1 TIMOTHY C. HOLTZEN 2 245 W. Roosevelt St. 3 Phoenix, Arizona 85003
State Bar No. 004723 Attorney at Law

4 (602) 799-6336 5 6 7 8 United States of America, 9 Plaintiff, 10
v. Attorney for Defendant UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) No. CR 04-1018-PHX-JAT MOTION TO CONTINUE SENTENCING AND REDESIGNATE AS A STATUS HEARING (Second Request for Continuance)

11 Frederick Marianito, 12 Defendant. 13 14 15 16 17 18 19 20 21 22
Copy of the foregoing served by ECF filing

The defendant, through undersigned counsel, moves this Court to continue the sentencing in this matter for approximately three weeks or as soon thereafter as the court's calendar permits, and to redesignate the hearing as a "status hearing" for the reasons set forth in the accompanying memorandum. Assistant United States Attorney, Daniel Drake, has no objection to this motion. RESPECTFULLY SUBMITTED May 11, 2006. s\ Timothy C. Holtzen Timothy C. Holtzen Attorney for Defendant

23 May 11, 2006 to: 24 Daniel Drake 25 26 27 28
Assistant U.S. Attorney and faxed to: Carlos Valentin, U.S. Probation Office and mailed to: Frederick Marianito, Defendant

Case 2:04-cr-01018-JAT

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MEMORANDUM Defendant Frederick Marianito pled guilty pursuant to a plea agreement. The

3 agreement is for a deferred sentencing for 12 months, which is different from ordinary 4 plea agreements usually presented to this Court. Pursuant to paragraph 2 of Marianito's 5 plea agreement: 6 7 8 9
The court shall continue the sentencing in this matter for a period of 12 months. The 12-month continuation of sentencing is conditioned on the defendant falling in Criminal History I and will commence after a status hearing at which time a sentencing date will be set. The status hearing will be set within 70 days after the entry of the of the plea of guilty to enable the United States Probation Office adequate time to prepare a presentence report. (Emphasis added.)

10 The defendant entered a guilty plea on November 4, 2005. The minute entry of that 11 date marked the standard form box "Sentencing set for" and provided the date of 12 February 13, 2006. On January 13, 2006, "Sentencing" was continued to March 20, 13 2006, at the request of the probation officer, to allow more time for the preparation of 14 the presentence report. Defense counsel moved thereafter to continue "sentencing" to 15 allow time for meeting personally with the defendant to review the presentence report, 16 anticipating possible objections to the presentence report and motions for departure.1 17 This Court granted the defense request and reset sentencing May 17, 2006. 18
Upon further review and reflection, it appears that any defense departure

19 motions at this time would be premature, since this Court need not make such 20 determinations for another 12 months at a time of sentencing. Meanwhile, facts, 21 circumstances, and the law could change. In fact, if the defendant does not violate his 22 supervision during the 12 months, the government will move to dismiss the case and 23 this Court would never have to make any findings on the accuracy of the presentence 24 25 26 27 28
Admittedly, even defense counsel mistakenly referred to the proceeding as a "sentencing" when it should have been referred to, or called to the attention of the court as, a "status hearing."
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1 report or make any rulings on possible departures. However, defense counsel believes 2 that now may be an appropriate time to lodge some objections to the presentence report 3 so that the court may have a better assessment about this case before proceeding with 4 the stipulations of the deferred sentencing of the plea agreement. 5
Defense counsel wishes to submit objections to the presentence report,

6 including to the amount of economic loss or restitution, even though determinations by 7 this Court may not be necessary at this time. The government and/or the probation 8 officer should be permitted time to respond, and the Assistant United States Attorney 9 considered that an additional two to three weeks should be sufficient time. 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
s\ Timothy C. Holtzen Timothy C. Holtzen Attorney for Defendant Based on the foregoing, the defense requests that a continuance of sentencing

11 be granted for three weeks, or as soon thereafter as the court's calendar permits.
RESPECTFULLY SUBMITTED May 11, 2006 .

Case 2:04-cr-01018-JAT

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