Free Sentencing Statement - District Court of Colorado - Colorado

Case 1:01-cr-00109-WYD

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Filed 01/30/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case No. 01-cr-00109-WYD UNITED STATES OF AMERICA, Plaintiff, v. HUMBERTO ALONSO ORTIZ-ORONA, Defendant. ______________________________________________________________________________ DEFENDANT'S SENTENCING MEMORANDUM ______________________________________________________________________________ The Defendant, through his lawyer, makes this his sentencing memorandum: 1. Pursuant to a plea agreement in Case No. 05 CR 0090-MSK, a copy of which is attached and incorporated herein by reference, the Defendant entered a plea of guilty to Count One of the indictment in that action, charging him with aggravated illegal reentry. 2. Pursuant to the plea agreement, the Government was to make a nonbinding recommendation as to sentencing in this violation of supervised release case to run concurrent to the sentence imposed in Case No. 05 CR 0090 MSK. 3. On December 12, 2005, the Defendant was sentenced in Case No. 05 CR 0090 MSK, and received a sentence of 46 months in exchange for his plea of guilty. 4. The Defendant is currently serving that sentence. 5. While USSG 7B1.3(f), states that any sentence imposed for violation of supervised release be served consecutive to any sentence otherwise being served by the Defendant, that

Case 1:01-cr-00109-WYD

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provision is not mandatory, and does not prevent the Court from imposing concurrent sentencing for violation of supervised release. U. S. v. Urcino-Sotello, 269 F.3d 1195 (10th Cir., 2001). See also U.S. v. Leon-Flota, 376 F. Supp. 2nd 1283 ( Dist. N.M., 2005). 6. In determining whether to impose consecutive or concurrent sentencing, U.S.C. 18, Sec. 3584 indicates that the Court should consider the factors set forth in U.S.C. 3553(a). 7. In the case before the Court, the Defendant is charged with violating the terms and conditions of his supervised release by having been convicted of a new felony in Case No. 05-CR00090-MSK, which was aggravated illegal reentry into the United States. This case is similar to the fact situation presented in U.S. v. Leon-Flota, supra. 8. Before this action can be considered by the Court and whether to impose consecutive or concurrent sentencing is the seriousness of the offense. In this case, Mr. Ortiz-Orona was originally charged with aggravated illegal reentry, and this Court sentenced Mr. Ortiz-Orona to 41 months incarceration, which Mr. Ortiz-Orona completed. 9. As mitigation in this case, it should be noted that the Defendant was born in Mexico, but in 1980 was adopted by an American citizen. A copy of the Defendant's adoption certificate and birth certificate issued by the state of Colorado are attached and incorporated as Appendices 2 and 3 to this motion. The Defendant believed for a substantial period of time that by issuance of the birth certificate he had become an American citizen. As with most American citizens, a lawful birth certificate issued by a state is all the proof of citizenship that anyone has. 10. The Defendant spent virtually all of his childhood and adult life living in the United States. He attended public schools in the Rifle, Colorado, area and when he turned 18 he registered for the Selective Service as if he were an American citizen. The Defendant married an -2-

Case 1:01-cr-00109-WYD

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American citizen and has children and grandchildren who are American citizens. It has been difficult for the Defendant to accept the fact that even though in every respect he considers himself to be a citizen of this ountry, that legally he is not a citizen, and because of his prior conviction cannot become a legal citizen of this country. 11. The Defendant urges this Court to consider all of these factors in imposing sentence in this action, and that to consider the fact that because the Defendant will have served a total of 87 months after serving the sentence in Case No. 05 CR 00090 MSK, that the Defendant will have served a sufficient amount of time to reflect the seriousness of the offense for which he is charged and upon which the revocation of supervised release is based. 12. The Defendant urges this Court to accept the recommendations of the Government in this action and impose a concurrent sentence in this case to the sentence in Case No. 05 CR 00090 MSK. Respectfully submitted this 30th day of January, 2006.

______________________________ Edward J. Nugent #8419 405 Ridges Boulevard, Suite B Grand Junction, CO 81503 (970) 245-4617 (970) 243-3905 Fax [email protected]

Edward J. Nugent

Digitally signed by Edward J. Nugent DN: cn=Edward J. Nugent, c=US, o=Nugent & Palo, LLC, [email protected] Date: 2006.01.30 11:42:25 -07'00'

Case 1:01-cr-00109-WYD

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CERTIFICATE OF SERVICE I hereby certify that on the 30th day of January, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send the notification of filing to the following email addresses: Wyatt Burwell Angelo, Assistant United States Attorney [email protected]. and Stephen L. Laiche [email protected] I hereby certify that I have mailed or served the document in paper on the following non/PM/ECS participants by sending by facsimile to the U.S. Probation Department, fax number 303-844-5439:

Edward J. Nugent

Digitally signed by Edward J. Nugent DN: cn=Edward J. Nugent, c=US, o=Nugent & Palo, LLC, [email protected] Date: 2006.01.30 11:43:03 -07'00'

_____________________________ Edward J. Nugent #8419

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