Free Motion to Extend Time - District Court of Arizona - Arizona

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MICHAEL D. KIMERER, #002492 AMY L. NGUYEN, #023383 Kimerer & Derrick, P.C. 221 East Indianola Avenue Phoenix, Arizona 85012 Telephone: 602/279-5900 Facsimile: 602/264-5566 Attorneys for Defendant

6 7 8 9 10 11 12 13 14 15 16 17 counsel, respectfully requests this Court to extend her current self-surrender date of July 7, 18 19 20 21 22 23 24 25 26 27 28 s/s Michael D. Kimerer MICHAEL D. KIMERER AMY L. NGUYEN Counsel for Defendant Bossingham KIMERER & DERRICK, P.C. 2008, for approximately ninety (90) days. Additionally, Ms. Bouzaglo respectfully requests this Court to consider modifying her sentence of fourteen months imprisonment. This Motion is supported by following Memorandum of Points and Authorities. RESPECTFULLY SUBMITTED this 27th day of June, 2008. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) AMANDA PATRICIA BOSSINGHAM, ) ) Defendant. ) ) No. 02CR00477-001-PHX-MHM MOTION TO EXTEND SELFSURRENDER DATE AND REQUEST TO CONSIDER MODIFICATION OF SENTENCE (Expedited Ruling Requested) (Before the Honorable Mary H. Murguia)

Defendant, Amanda Bossingham (now Amanda Bouzaglo), through undersigned

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MEMORANDUM OF POINTS AND AUTHORITIES Factual Background On November 6, 2003, Ms. Bouzaglo (formerly known and identified in this case as Ms. Bossingham), entered into a plea agreement with the Government in which she pled guilty to one count of Misuse of a Social Security Number, a class D felony offense. (Doc. 40). The criminal

6 7 8 9 10 11 12 13 14 15 16 Court of Appeals dismissing Ms. Bouzaglo's appeal (doc. 83), this Court set a new self-surrender 17 18 19 20 21 22 since the date of her arrest on October 11, 2002. Since she was sentenced by this Court 23 24 25 26 27 28 approximately four years ago, Ms. Bouzaglo has drastically turned her life around. At the time of her offense, Ms. Bouzaglo's mother had just passed away, her marriage had just failed, and her small business went under as a result of her divorce. However, during her criminal case and following her sentencing, she removed herself from the environment she was in when she date of July 7, 2008. (Doc. 85). II. Ms. Bouzaglo's Conduct Since She Was Sentenced It has now been almost seven years since Ms. Bouzaglo committed the offense, and four years since she was sentenced. She has been out of custody and monitored by Pretrial Services by thirty-six (36) months supervised release, and ordered her to pay $36,294.95 in restitution. (Doc. 68). She filed a timely Notice of Appeal. (Doc. 70). On August 12, 2004, this Court granted Ms. Bouzaglo's Motion for Release Pending Appeal and ordered that her self-surrender date be stayed until the appeal was concluded. (Doc. 79). Following an Order by Ninth Circuit conduct occurred on August 16, 2001. Specifically, Ms. Bouzaglo pled guilty to submitting an application for a line of credit with M & I Bank using the social security number of another person. The Bank approved the line of credit in the amount of $15,000. On June 15, 2004, this Court sentenced Ms. Bouzaglo to fourteen months prison followed

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committed the offense and severed all ties with individuals that influenced her life and actions in a negative way. Toward the end of her criminal case, Ms. Bouzaglo met a man by the name of Salomon Bouzaglo, who is now her husband of five years. With her husband's overwhelming support, Ms. Bouzaglo made drastic changes in her life and formed new, positive relationships. The

6 7 8 9 10 11 12 13 14 15 16 Nicholas Youth Organization and the Fraternal Order of Police. She is also very involved in the 17 18 19 20 21 22 Perhaps the best person to comment on Ms. Bouzaglo's conduct since her offense and 23 24 25 26 27 28 sentencing is her Pretrial Services Officer, Greg Ceylia, who has been monitoring her for more than three years. According to Mr. Ceylia, Ms. Bouzaglo is in full compliance with all conditions of pretrial release, including full-time employment, random urinalysis, regular reporting and house visits. She also continues to make regular payment toward restitution. Mr. Ceylia stated that she Arizona Republican Party and volunteered numerous hours of her time during the 2006 elections. (See Letter from Matt Salmon, attached as Ex. B). In 2005, she was 1 of 250 people appointed to the Republican Presidential Task Force in Arizona. attached as Ex. C). (See Commission of Accomplishment, the catering business and completing daily operational duties necessary for the business. The Bouzaglo's have hosted several charitable events at their restaurant and use it as a tool to help raise money for non-profit organizations. Ms. Bouzaglo donates her time and money to various organizations, such as the St. Bouzaglo's opened a restaurant named Amy's Baking Company in Scottsdale, Arizona, which is now very successful. (See Articles, attached as Ex. A). The Bouzaglo's spend most of their time at the restaurant, as their presence is necessary for its continued operation. Ms. Bouzaglo is solely responsible for creating the entire menu, cooking, baking, training their staff, ordering, managing

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is one of the strongest people on his current caseload and has no worries about her being involved in criminal activity in the future. Mr. Ceylia further commented on the change he has observed in Ms. Bouzaglo since her sentencing and believes that if anyone is deserving of a reduced sentence, it is her. Additionally, shortly after she was sentenced in the instant case, Ms. Bouzaglo was placed

6 7 8 9 10 11 12 13 14 15 16 III. 17 18 19 20 21 22 advisory and sentencing judges have more discretion in imposing an appropriate sentence. See 23 24 25 26 27 28 United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005); United States v. Menyweather, 431 F.3d 692, 695-96 (9th 2005). In fact, because Ms. Bouzaglo was sentenced just seven months before Booker came down and her case was still on direct review at that time, she would normally be entitled to a new sentencing hearing or, at the very least, review of her As stated by Mr. Ceylia, if there is anyone deserving of a reduction or modification of sentence, it is Ms. Bouzaglo. (See also Letters of Support, attached as Ex. E). Her conduct since her offense exemplifies the concepts of rehabilitation and reformity. She is a perfect example of why prison is not appropriate in all cases, and why the Federal Sentencing Guidelines are now Modification of Sentence successfully terminated on June 4, 2008. According to her probation officer, James Pfeifer, she has been in "total compliance" with all of her probationary terms. (See Letter from James D. Pfeifer, attached as Ex. D). It is Mr. Pfeifer's opinion that justice would be better served if Ms. Bouzaglo is able to serve her sentence out of custody. (Id.). on four years probation by the Fourth Judicial District for Colorado Springs for the similar offenses of Theft and Forgery. Significantly, the conduct underlying those offenses occurred just two months before the instant offense, approximately seven years ago. Ms. Bouzaglo's probation term was monitored by Pinal County here in Arizona on a courtesy basis until it was recently

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sentence for reasonableness. See United States v. Ameline (Ameline II), 409 F. 3d 1073 (9th Cir. 2005) (en banc). Unfortunately, by entering into a plea agreement with the Government, Ms. Bouzaglo waived her right to appeal, which has been held to be valid even in light of the changes in sentencing law imposed by Booker. See United States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir. 2005). Indeed, that is the very reason Ms. Bouzaglo's appeal was dismissed by

6 7 8 9 10 11 12 13 14 15 16 and fairness. It would also allow Ms. Bouzaglo to continue to make restitution payments on a 17 18 19 20 21 22 and will undermine all of the progress she has made in her life over the last 8 years. 23 24 25 26 27 28 IV. Extension of Self-Surrender Date As previously discussed, Ms. Bouzaglo currently owns a business with her husband for which she is primarily responsible. She has been out of custody since her arrest on October 11, 2002, and only recently learned of the current self-surrender after this Court entered the Order on regular basis. At the very least, the information concerning her conduct since her sentencing in 2004 is presented to demonstrate to this Court and all parties involved that a criminal defendant such as Ms. Bouzaglo can be rehabilitated without spending time in a Federal prison. In fact, in this instance, serving time in a Federal prison will undoubtedly prove to be counterproductive P., does not apply to this case. However, the extraordinary circumstances surrounding Ms. Bouzaglo's case is nevertheless being presented to this Court with the hope that there is some way her sentence can be modified to allow her to serve some or all of her time out of custody. Such a result would be consistent with the spirit of Booker as well as basic principles of equity the Ninth Circuit. (See Doc. 83). Undersigned counsel readily acknowledges that without an Order from the Ninth Circuit remanding the case for re-sentencing, it is very unlikely that this Court will be able to modify her sentence. Similarly, undersigned counsel acknowledges that Rule 35, Fed. R. Crim.

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June 6, 2008. Consequently, Ms. Bouzaglo has not had enough time to make all the financial and business arrangements necessary to ensure her restaurant will continue to operate in her absence. Even then, its sustainability without her presence is questionable. She also needs to make arrangement relating to her personal finances, such as bank accounts, loans, credit cards, etc. Moreover, Ms. Bouzaglo has not yet been designated to a BOP facility, which would allow

6 7 8 9 10 11 12 13 14 15 16 to serve some or all of her 14-month prison sentence out of custody. If that is not possible, Ms. 17 18 19 20 21 22 RESPECTFULLY SUBMITTED this 27th day of June, 2008. 23 24 25 By: 26 27 28 /s/Michael D. Kimerer Michael D. Kimerer Amy L. Nguyen Counsel for Defendant Bossingham Kimerer & Derrick, P.C. Bouzaglo respectfully requests this Court to extend her current self-surrender date of July 7, 2008, for approximately ninety (90) days. Ms. Bouzago further respectfully requests this Court to issue an expedited ruling in this matter in light of the current self-surrender date of July 7, 2008. who stated that he has no objection to a 90-day extension of the current self-surrender date. V. Conclusion Given the foregoing extraordinary circumstances surrounding Ms. Bouzaglo's sentence and conduct while on release, she respectfully requests this Court to modify her sentence to enable her to self-surrender to the facility directly, rather than to the U.S. Marshall's Office. As this Court is likely aware, surrendering to the U.S. Marshall's Office usually requires transportation to CCA in Florence, Arizona, eventually followed by transportation to the designated facility. Lastly, undersigned counsel contacted the attorney for the Government, Mr. Daniel Drake,

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CERTIFICATE OF SERVICE

I hereby certify that on June 27, 2008, I electronically transmitted the attached motion to the Clerk of the Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants:

The Honorable Mary H. Murguia United States District Judge 401 W. Washington Phoenix, AZ 85003 Daniel Drake Assistant United States Attorney 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 By: s/s Nancy M. Alexander

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