Free Transcript - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA _________________ UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) vs. ) ) JESUS RIVERO JAQUEZ-DIAZ, ) ) Defendant. ) ) ______________________________) BEFORE:

CR04-0021-PHX-PGR Phoenix, Arizona October 30, 2006 9:50 A.M.

THE HONORABLE PAUL G. ROSENBLATT, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS SENTENCING HEARING

APPEARANCES: For the Government: U.S. ATTORNEY'S OFFICE By: Glenn B. McCormick, Esq. 40 North Central Avenue, Suite 1200 Phoenix, AZ 85004 For the Defendant Jesus Rivero Jaquez-Diaz: DANIEL R. RAYNAK, P.C. By: Daniel R. Raynak, Esq. 45 West Jefferson, Suite 225 Phoenix, AZ 85003 Official Court Reporter: Elizabeth A. Lemke, RDR, CRR, CPE Sandra Day O'Connor U.S. Courthouse, Suite 312 401 West Washington Street, SPC 34 Phoenix, Arizona 85003-2150 (602) 322-7247 Proceedings Reported by Stenographic Court Reporter Transcript Prepared by Computer-Aided Transcription

Case 2:04-cr-00021-PGR

Document 86

Filed 05/29/2008

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P R O C E E D I N G S (Called to the order of court at 9:50 a.m.) THE CLERK: Criminal matter 04-21. United States v.

Jesus Rivero Jaquez-Diaz on for sentencing. Counsel, please announce. MR. MC CORMICK: Good morning, Your Honor. Glenn

McCormick for the United States. MR. RAYNAK: Good morning, Your Honor. Daniel Raynak

on behalf of Mr. Jaquez-Diaz who is present. THE COURT: Rivero Jaquez-Diaz? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir. Is your true and correct name Jesus

Mr. Jaquez-Diaz, my first question to you

is did you have a chance to review with Mr. Raynak the presentence investigation report that was prepared for your case? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: no objections. family. MR. RAYNAK: THE COURT: Yes, Judge, that's accurate. The Court adopts the presentence Yes, sir.

And, counsel, it appears that you filed

You did file some letters from friends and

investigation report in all respects, factually, legally, and insofar as the guideline computations are concerned. Sir, you have been charged by the government in an UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 86 Filed 05/29/2008

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indictment with the crime of Felon in Possession of a Firearm, a Class C felony offense, and you have pled guilty to that charge, and this is the time set for sentencing. Do you have anything to say to the Court before sentence is imposed? JESUS RIVERO JAQUEZ-DIAZ: Yes, sir.

First of all, Your Honor, I would like to thank my family for being here to support me, and that's all I can tell you, Your Honor. THE COURT: MR. RAYNAK: Mr. Raynak. Judge, we have his wife and his daughter

would like to speak on his behalf. LUPE JAQUEZ: Jaquez. Yes, Your Honor. My name is Lupe

I'm Jesse's wife.

And I would like to ask the Court

that it could be lenient because he's our only sole provider at home and that's all I can ask you. THE COURT: Thank you, ma'am. Good morning, Your Honor. My name

MELISSA JAQUEZ: is Melissa Jaquez. Jaquez.

I'm the oldest daughter of Mr. Jesus

The reason I'm standing right here, Your Honor, is to plead to you the sentencing that you give my dad, for it just for him to come home. provider. role model. UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 86 Filed 05/29/2008 We can't have him gone. He's our sole

He is our father.

He is the man of the house, the

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He portrays a big scene in our home and our lives. He is also the father and the grandfather, I'm sorry, of my three children. He takes care of me, my sister's children.

Taking him away would devastate each and every one of us, Your Honor. My son who is 13 looks at my dad as his own My heart is

dad, and in his eyes, his heart would be broken. broken.

And all I ask is, Your Honor, please, be lenient. Take it in your heart and know that there is a lot of hurt if this man was to be taken away from us. Thank you, Your Honor. THE COURT: MR. RAYNAK: of people speaking. Thank you, ma'am. Your Honor, that's all we have in terms I would like to point out, Judge, and I

know you have looked at the letters, but when I looked at the letters, Your Honor, a couple thing stood out to me. One was from Melissa Roeder who was an ex-sister-in-law on his wife's side. And the fact that she

would take the time to write a letter, even though she was no longer connected to the family and she was originally connected to the family by marriage and talks about the type of person he was, to me speaks about the type of person that he is. And then I notice the one from his neighbor who had been a combat veteran and he had indicated that he had no UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 86 Filed 05/29/2008

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problems and would be happy to trust his own grandchildren. He was a neighbor. He's not a relative. And to me that also,

I think, says something about my client. And then finally, he was described by another -- I'm sorry, by Travis Monroe, who is a friend who described him as the glue that keeps his house together. Now, I can tell the Court that during the time that I have represented Mr. Jaquez, that he has taken this matter very seriously. met with me. Every time I met with him, his wife has also

I do believe he is a devoted family man --

family man and a devoted father and grandfather and a good husband. I know his criminal history. He had been involved in

the past and he has admitted that he at one point was certainly addicted to drugs. his life. And it kind of came on late in

He didn't really have this early on in his life.

It kind of came when he was really into his 30's before he had that problem. And I know that he has taken responsibility for what happened here. He has always emphasized to me he didn't bring It was his son who is

the weapons into the home. incarcerated.

But he knew they were there and he agreed to

keep them in his bedroom, as that's where he made his mistake. There is no question it is a mistake. have done that. He should not

He should have insisted not only he not have

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them in his home, but his son as well, and that's where he was wrong and he has accepted responsibility for that. I have looked at the recommendation from the probation officer. I believe it's appropriate. I understand

what the guidelines call for, but I think because of the age of his felonies, the fact that he has shown remorse, and the fact that he is the sole support for quite a few people and has taken this very seriously -- and I know the Probation Office emphasizes he hasn't missed court. anything to violate his pretrial release. positive factors. And finally, I would add, I'm confident, Judge, he is not going to be back. And I can't say that with a lot of I He hasn't done Those, I think, are

clients and I can't say with a hundred percent certainty.

have learned over 21 years, you can't say that, but I'm more confident that he won't be back than most clients I have, because I think it has affected him. I have seen how he has sat with me when we talked about this case and got very emotional. very emotional. His wife has gotten

She's got some health problems. They met years ago And even

It's a very loving relationship.

when they were in high school and they are together.

though he understands he is going to be incarcerated, that's not going to break that bond. But I think that bond is strong enough and he UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 86 Filed 05/29/2008

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understands now that I don't think he is going to be involved in this type of criminal activity again. not, and I believe he won't. And I hope he is

And I would ask the Court to

consider the recommendation from the Probation Department that not only -- you know, to basically go outside the guidelines and consider that for their recommendation and I hope the Court takes that into consideration. Thank you. THE COURT: Government's position? Your Honor, the Plea Agreement calls

MR. MC CORMICK:

for the government to recommend the low end of the guideline range, which is 37 months. The government does that. That is

our recommendation based on the plea. I am aware of what the presentence report contains and its recommendation, and I recognize that the Court is free to make whatever sentence it feels is appropriate. THE COURT: Thanks.

Well, Mr. Jaquez-Diaz, a lot becomes

apparent to anybody who reads about your background and the circumstances surrounding your committing this crime, which is only a crime because you had committed a crime back in 1993 -oh, and before I go forward, I think the presentence investigation report does need to be corrected on page 3, paragraph 4. I believe that the record -- that should read that the records check determined the defendant had been convicted UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 86 Filed 05/29/2008

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February 8, 1993 of Conspiracy to Possess Narcotics Drugs for Sale, a felony in Maricopa County Superior Court, CR92-92312. Is that correct? MR. RAYNAK: Yes. Yes, sir.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

But the point is, Mr. Jaquez, the law And I guess it's easy

says that you can't possess firearms.

to say that these were your son's firearms, but that brings up another issue. Your daughter mentioned that you're a role model to your grandchildren. But that hasn't been the best of role

models, because unfortunately, your kids have gotten themselves in trouble, and now have gotten you in trouble. And now there's a whole bunch of grandchildren that depend on you and you're not going to be there. You can't be there.

And I read with real interest your granddaughter's letter that I just got this morning from Francine. And in it,

of course, all the letters ask for compassion and leniency. She says that you tell them all to be truthful. JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

And you need to be truthful in telling

them why you're here and you need to be truthful to explain to them why the Court can't just send you home and put you on probation. The rules are just too strict for that and you have UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 86 Filed 05/29/2008

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to be a better role model in hoping that everybody in your family understands that they've got a responsibility to keep you out of jail. You're getting a little old, a little long in the tooth to be going back to jail. And I suggest about one more

trip with your criminal history category and that's going to be kind of it for you and they need to understand the truth of that. When you get out here, you're going to have to walk the straight and narrow and they're going to have to help you do that. And you can't be using drugs anymore because that's

going to get you back in jail. JESUS RIVERO JAQUEZ-DIAZ: THE COURT: kids understand that. I understand, sir.

And you've got to make sure that your If they're going to keep their criminal

activity, they've got to do it some place else, because you're no longer responsible for them. It's not going to be easy. of a lot of people. You're the sole support I

And now you're going to get locked up.

don't know what happens to them for the next period of years, but you could be locked up here. And I know Mr. Raynak

explained it to you, for almost four years imprisonment. That's what the guideline range is. And it's going to be like

six or eight years if you ever come back in federal court. JESUS RIVERO JAQUEZ-DIAZ: I understand, sir.

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THE COURT: point for you.

So, this is -- has got to be the turning

If it isn't, they're going to have to spend

all of their visits with you in some prison somewhere. The Court has -- believes that pursuant to the Sentencing Reform Act of 1984 that the purposes of 18 United States Code, Section 18, 3553(a) are met by entering judgment that you, Jesus Diaz-Jaquez -- Jaquez-Diaz be committed to the custody of the Bureau of Prisons for 24 months. You shall pay a special assessment in the amount of $100 which is due immediately. The Court finds you do not have the ability to pay and orders the fine waived. Upon release from imprisonment, you should be placed on supervised release for three years. While on supervised release, you shall comply with the standard conditions of supervision adopted by this court in General Order 05-36. Of particular importance is that you

shall not commit another federal, state, or local crime during the term of supervision. Within 72 hours of release from the custody of the Bureau of Prisons, you shall report in person to the Probation Office in the district to which you are released and you shall comply with the following additional conditions. You shall participate as instructed by the Probation Office in a program of substance abuse treatment, which may UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 86 Filed 05/29/2008

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include testing for substance abuse. You shall contribute to the cost of treatment in an amount to be determined by the probation officer. You shall submit your person, your property, including but not limited to computer, electronic devices, and storage media, your residence, office, or vehicle, to a search conducted by a probation officer at a reasonable time and in a reasonable manner. You shall provide the probation officer access to any requested financial information. You are prohibited from owning, maintaining, or using a firearm. You shall abstain from all use of alcohol or alcoholic beverages. Do you understand all these terms and conditions? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

At this time I would advise you of your

right to appeal in the event the Court has imposed an unlawful sentence. And those rights are that you have ten days from this date in which to file a Notice of Appeal. If you don't appeal

within ten days, then you'll lose your right to appeal. Also, if you don't have the funds for an attorney, the court would appoint one to represent you. The court would also provide at no cost to you a UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 86 Filed 05/29/2008

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certified transcript of the record to assist in that appeal. However, having reviewed those rights with you and reviewing this Plea Agreement on page 4, paragraph 5, it clearly provides a waiver of defenses and appeal rights wherein you waive all of those rights if the court imposes a sentence consistent with this agreement and it's clear to the Court that it does. Do you agree with that, Mr. Raynak? MR. RAYNAK: THE COURT: Yes, sir. The Pretrial Services Report recommends

that you be permitted to voluntarily surrender and the Court's going to order that you be allowed to voluntarily surrender. You have -- what's it taking now, do we know, for designation? U.S. MARSHAL: of now. days. MR. RAYNAK: Your Honor, if I may, would it be Your Honor, I don't know what it is as

I know it was taking thirty days -- thirty to sixty

possible if he could report sometime after the Christmas holiday? THE COURT: I don't think so. The longer he puts it

off, the longer he is away from his family. But I will order that you have 30 days from this date in which to file -- to voluntarily surrender to the institution designated by the Bureau of Prisons. UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 86 Filed 05/29/2008 However, if

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you have not received that designation, you should report to the U.S. Marshal's Office here in the courthouse no later than 12:00 noon on what would that be -THE CLERK: THE COURT: November 30th. November 30, 2006.

Do you understand that? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

That means you've also got to stay in

touch with the court concerning the conditions of your release. JESUS RIVERO JAQUEZ-DIAZ: THE COURT: I understand, sir.

Anything further? No, sir. However,

MR. MC CORMICK:

There are no counts to dismiss, Your Honor.

there were three weapons which the Plea Agreement calls for forfeiture and I ask the Court order the forfeiture of those three weapons. MR. RAYNAK: THE COURT: No objection. So ordered.

(Proceedings adjourned at 10:10 a.m.) * * *

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 86 Filed 05/29/2008 s/Elizabeth A. Lemke ELIZABETH A. LEMKE, RDR, CRR, CPE 2008. I, ELIZABETH A. LEMKE, do hereby certify that I am duly appointed and qualified to act as Official Court Reporter for the United States District Court for the District of Arizona. I FURTHER CERTIFY that the foregoing pages constitute a full, true, and accurate transcript of all of that portion of the proceedings contained herein, had in the above-entitled cause on the date specified therein, and that said transcript was prepared under my direction and control. DATED at Phoenix, Arizona, this 29th day of May, C E R T I F I C A T E

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