Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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JON M. SANDS Federal Public Defender SAUL M. HUERTA, JR. Assistant Federal Public Defender Arizona State Bar No. 018410 407 West Congress Street, Suite 501 Tucson, Arizona 85701-1310 Telephone: (520) 879-7500 Facsimile: (520) 879-7601 [email protected] Attorney for Defendant SMH/asp 03/11/2008 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, Plaintiff, v. Marcial Avila-Anguiano, Defendant. ) ) ) ) ) ) ) ) ) ) NO: CR-04-0594-3-PHX-ROS MOTION FOR NEW SENTENCING AND PRESENTENCE REPORT

Defendant, MARCIAL AVILA-ANGUIANO, through counsel, requests this Court to
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order that a new sentencing hearing be held and that a presentence report be prepared for the new
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sentencing hearing. This request is made for the following reasons.
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Statement of Facts
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On May 17, 2006 Mr. Avila-Anguiano was sentenced per the jury's guilty verdict of
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August 24, 2005 as to Counts One through Six of the Superseding Indictment. He was sentenced
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to a term of 60 months on Counts One, Two, Four, Five and Six, said counts to run concurrently,
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and to a term of 120 months on Count Three, said count to run consecutively to the
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aforementioned counts with credit for time served. Counts Four, Five and Six in combination
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carried a mandatory minimum of 60 months. Counts One and Two had no mandatory minimum.
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This period of incarceration is to be followed by a term of supervised release. Mr. Avila26

Anguiano filed a Notice of Appeal on May 25, 2006. On September 25, 2007 the Ninth Circuit
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Court of Appeals affirmed as to Counts Two and Three and reversed and remanded for a new
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trial as to Counts Four, Five and Six.
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On January 16, 2008, counsel for the Government filed a Motion to Dismiss Counts Four, Five and Six without prejudice. The Court granted that motion and on February 7, 2008 dismissed Counts Four, Five and Six without prejudice. Undersigned counsel's office was advised, on or about February 25, 2008, that a motion would have to be filed if Mr. Avila-Anguiano wanted a new sentencing hearing. This motion for a new sentencing hearing is being filed on that basis. Additionally, defense counsel is requesting that apart from a new sentencing hearing be held, that a new presentence report be prepared for the Court's consideration in re-sentencing Mr. Avila-Anguiano. Law on New Sentencing Hearing After Remand In the instant case, the Ninth Circuit Court of Appeals remanded for a new trial as to Counts Four, Five and Six. Once those counts were dismissed, the District Court's sentence was unbundled. Had Mr. Avila-Anguiano been convicted on those counts again, it is presumed that the same sentence would have remained. However, dismissal of the said counts calls for a new sentencing hearing. Dismissal of the counts is in many ways similar to a total reversal of the counts or a finding that the defendant is not guilty of those counts.1 It is similar in that the Court, upon sentencing a defendant now, would not consider those counts to be convictions. In similar situations, a new sentencing hearing is required, even if the sentences that are vacated are concurrent to other sentences that are upheld. United States v. Bennett, 363 F.3d 947, 949, 955 (9th Cir. 2004) (entire sentence vacated when one of two counts of conviction reversed, although sentence was 121 months as to each count, sentences to be served concurrently); United States v. Stewart, 420 F.3d 1007, 10121021-22 (9th Cir. 2005) (same). Additionally, this is true even if the remand does not call for a new sentencing. United States v. Ruiz-Alvarez, 211 F.3d 1181, 1182 (9th Cir. 2000).2 Thus, the case law clearly indicates that a person in Mr. Avila-Anguiano's position should get a new sentencing hearing.

They are also obviously very different. The government is still allowed to re-bring the charges again at a later time, barring certain exceptions. And although there is a presumption of innocence, the government, if it can bring the case, can overcome that at a trial.
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In this case, the remand did not call for a new sentencing because it called for a new trial. Document 186 2 Filed 03/11/2008 Page 2 of 3

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Government Position Assistant United States Attorney Joe Koehler has no objection to the Court holding a new sentencing hearing for the defendant. The government would also be satisfied if the Court only states that it would have imposed the same sentence in the absence of those counts and reaffirms the prior sentence. Undersigned counsel does object to the latter since undersigned counsel wishes to present mitigating evidence to the Court at a new sentencing hearing. Conclusion Based on the preceding case law, undersigned counsel respectfully requests the Court order a new sentencing hearing be held. Additionally, undersigned counsel requests a new presentence report be prepared prior to said sentencing hearing. RESPECTFULLY SUBMITTED this 11th day of March 2008. JON M. SANDS Federal Public Defender s/ SAUL M. HUERTA, JR. ____________________________ SAUL M. HUERTA, JR. Assistant Federal Public Defender Copy of the foregoing provided by ECF or other means this 11th day of March 2008 to: THE HONORABLE ROSYLN O. SILVER United States District Court JOE KOEHLER, Assistant United States Attorney's Office, Phoenix BETH STEWART United States Probation Office, Phoenix
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