Free Response to Motion - District Court of Arizona - Arizona

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DIANE J. HUMETEWA United States Attorney District of Arizona Darcy A. Cerow Assistant U.S. Attorney Arizona State Bar No. 011822 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 E-mail - [email protected] Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-01-0038-001-PHX-SRB Plaintiff, v. Steven Anthony Murillo, Defendant. GOVERNMENT'S RESPONSE TO DEFENDANT'S REQUEST FOR SPEEDY TRIAL AND CONCURRENT SENTENCE

The United States of America, by and through its attorneys undersigned, hereby responds to defendant's above captioned motion and requests that this Court deny same. This request is supported by the attached Memorandum of Points and Authorities. Respectfully submitted this 21st day of August, 2008.. DIANE J. HUMETEWA United States Attorney District of Arizona
/S/ Darcy A. Cerow

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DARCY A. CEROW Assistant U.S. Attorney

Case 2:01-cr-00038-SRB

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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 26 27 28 B. LAW A. FACTS

MEMORANDUM OF POINTS AND AUTHORITIES

On October 15, 2001, this Court sentenced defendant to 84 months imprisonment with three (3) years of supervised release to follow for a violation of Title 21 U.S.C. §841(a)(1), Possession of a Controlled Substance (marijuana) with Intent to Distribute. The defendant has a criminal history category of V under the Sentencing Guidelines. Defendant's supervision commenced on January 23, 2006 upon defendant's release from imprisonment. Nine months later, on September 11, 2006, defendant's probation officer filed a revocation petition with the Court alleging that defendant committed the crimes of Possession of Narcotic Drugs and Possession of Drug Paraphernalia on or about August 1, 2006. The petition also alleges that defendant failed to report, failed to submit written monthly reports, failed to notify his probation officer of his change of residence and his whereabouts were unknown. Based on the allegations in the petition, on September 18, 2006, this Court ordered that a warrant issue for defendant's arrest. On August 7, 2008, defendant filed a request with the Court seeking a revocation hearing and a concurrent sentence to run with the sentence he is currently serving in the Arizona Department of Corrections at Douglas, Arizona. The United States opposes defendant's request.

Due process requires that a person accused of violating supervised release, parole, or probation receive a revocation hearing "within a reasonable time after [the person] is taken into custody". Morrissey v. Brewer, 408 U.S. 471, 488 (1972) (parole revocation); see also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (applying the holding of Morrissey to revocation of probation). In Moody v. Daggett, 429 U.S. 78, 86-87 (1976), the Supreme Court held that the hearing mandated by Morrissey is required only after the person charged with violating parole is taken into custody for the parole violation and that the issuance of a warrant and the lodging
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1 of a detainer, while the person is incarcerated elsewhere for a separate crime, do not constitute 2 being taken into custody. Rather it is the execution of the warrant, after termination of the 3 intervening sentence, that takes the person into custody for the parole violation that triggers the 4 obligation for a Morrissey hearing. The Ninth Circuit held that the United States is not required 5 to writ a defendant out of state custody and bring him into federal custody for a supervised 6 release revocation hearing even if the supervised release term expired while the defendant was 7 in state custody. United States v. Garrett, 253 F.3d 443, 449 (9th Cir. 2001). The Court found 8 that no court or statute has placed such a duty on the government. 9 B. CONCLUSION 10 Based on the above, the defendant's motion should be denied. Once defendant has

11 completed his Arizona sentence, he will be brought to federal court to adjudicate his pending 12 supervised release revocation petition. 13 14 15 16 17 18 19 and 20 Original filed st copy of the foregoing mailed this 21 day of August, 2008 to: 21 Steven A. Murillo 22 ADC #077522, B2-B-16 Arizona State Prison Complex-Douglas 23 Mohave-South Yard Unit P.O. Box 5002 24 Douglas, AZ 85608 25 Elizabeth Simons U.S. Probation 26 27 28
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Respectfully submitted this 21st day of August, 2008.

DIANE J. HUMETEWA United States Attorney District of Arizona
/S/ Darcy A. Cerow

Darcy A. Cerow Assistant U.S. Attorney

Case 2:01-cr-00038-SRB

Document 93

Filed 08/21/2008

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