Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona TRACEY A. BARDORF Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 020623 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff-Respondent, v. Jose Espiridion Efrain Jamies-Salgado, aka Angel Reyes-Gonzalez, Defendant-Movant. The United States, by and through undersigned counsel, hereby responds to this Court's CR-04-1010-EHC-PHX CV-04-3052-EHC-PHX (HCE) SUPPLEMENTAL RESPONSE TO MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

16 Order dated June 27, 2006. [Criminal Case Dkt #24] 17 18 Facts On December 29, 2004, Defendant-Movant filed a Motion to Vacate, Set Aside, or

19 Correct Sentence pursuant to 28 U.S.C. § 2255, claiming that, notwithstanding the factual 20 assertions to which he plead guilty, he was not deported on July 30, 2001. [Criminal Case Dkt 21 # 13] On June 23, 2005, the government responded to the Motion and noted that documentary 22 evidence in Defendant-Movant's alien file contained his alien number and fingerprint and 23 indicated that he was in fact deported from the United States on July 30, 2001. [Criminal Case 24 Dkt # 21] On June 27, 2006, United States Magistrate Judge Héctor C. Estrada ordered the 25 government to file a supplemental brief. [Criminal Case Dkt # 24] The Court instructed the 26 government to address the fingerprint evidence related to the 2001 deportation of Defendant27 Movant and to provide an affidavit from Defendant-Movant's trial counsel regarding his 28 investigation into the facts surrounding that deportation.

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The government submitted fingerprint exemplars contained in Defendant's alien file to

2 the Forensic Document Laboratory (the "FDL") for fingerprint analysis. The results of the 3 analysis were recently received from the FDL. [A copy of the report and documents submitted 4 for review are attached hereto as Exhibit 1.] 5 Among the exemplars, the government submitted known fingerprints of Defendant,

6 warrants of removal (INS Form I-205) dated July 30, 2001 (identified as Exhibit 1.5 in the FDL 7 analysis), March 4, 1999 (identified as Exhibit 1.7 in the FDL analysis), and December 15, 1995 8 (identified as Exhibit 1.9 in the FDL analysis). The government also submitted the warnings to 9 alien ordered removed (INS Form I-294) that accompanied two of the foregoing warrants 10 (warning dated July 30, 2001 identified as Exhibit 1.6 in the FDL analysis, warning dated March 11 4, 1999 identified as Exhibit 1.8 in the FDL analysis). A warrant of removal is generally 12 considered to be evidence regarding a defendant's deportation because it is signed by a witness 13 to the deportation and contains the deportee's alien number, photograph, and fingerprint. A 14 warning to alien is a document given to aliens at the time of deportation and is imprinted with 15 the deportee's fingerprint at the time it is delivered to the deportee. 16 FDL examiners were unable to analyze the fingerprint on the warrant of removal dated

17 July 30, 2001 (Exhibit 1.5). FDL examiners further determined that the warning to alien dated 18 July 30, 2001 does not contain Defendant's fingerprint. Analysis revealed that the warrants of 19 removal dated March 4, 1999, and December 15, 1995 and the warning dated March 4, 1999, 20 all post-dating Defendant's conviction of an aggravated felony, do in fact contain Defendant's 21 signature. 22 Defendant was charged by Information of violating 8 U.S.C. § 1326, as enhanced by

23 (b)(2). That Information charged that Defendant had been deported or removed from the United 24 States on July 30, 2001. Defendant admitted in the plea agreement that this was so. As noted 25 above, the documents in Defendant's alien file do not corroborate a deportation on July 30, 2001. 26 Accordingly, the factual basis of the plea agreement is not supported and Defendant's writ 27 should be granted and his conviction vacated. 28 2

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As noted above, the evidence in Defendant's alien file support the element of the charge

2 that Defendant was in fact deported or removed from the United States prior to his voluntary 3 presence in the United States on September 1, 2004. Accordingly, the government hereby 4 moves this Court for an Order permitting it to amend the Information to provide a correct and 5 factually supported date of deportation. The government further asks that Defendant be held to 6 answer before the District Court on the charge of violation of 8 U.S.C. § 1326, as enhanced by 7 (b)(2). The government shall offer Defendant a plea agreement to resolve the charge with a 8 stipulated sentence of time served since September 1, 2004, the date of arrest. 9 10 Conclusion The government hereby requests that this Court issue an Order granting Defendant's writ

11 and vacating his sentence. The government further requests that this Court permit the 12 government to amend the Information to provide the correct date of deportation. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
Jose Espiridion Efrain Jaimes-Salgado, A#64243208 CI California City Correctional Institution, PO Box 3001-0001, California City, California 93504 Certificate of Service I hereby certify that on July 28, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and mailed a copy of the attached document to:

Respectfully submitted this 28th day of July, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona /S/ Tracey Bardorf Assistant U.S. Attorney

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