Patricia A. Gitre PATRICIA A. GITRE, P.L.C. 331 N. First Avenue, Suite 150 Phoenix, Arizona 85003 State Bar No: 011864 (602) 452 - 2918 fax (602) 532 - 7950 [email protected] Attorney for Fuller
IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, vs. MOTION FOR CORRECTION OF THE JUDGMENT PURSUANT TO RULE 36 CR04-00373-006 PHX-JAT
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ARBUARY D. FULLER ,
Defendant.
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Defendant, Arbuary D. Fuller, through undersigned counsel hereby moves the Court to correct the clerical error pursuant to Rule 36. The defendant hereby requests that the court reissue the judgment as time served concurrent with imprisonment in District Court, Clark County, Nevada, as stated in the minutes dated December 5, 2005 but not incorporated into the judgment. See criminal minutes and judgment attached and incorporated herein. Defendant was sentenced to five (5) months in the above cause number to run concurrent with his state sentence which expired on November 5, 2006. Defendant is now in the custody of the US Marshal's office in the State of California upon the Marshal's belief that defendant must serve an additional five months in federal custody. At this time, defendant has been held in federal custody over 6 weeks past the expiration of his state sentence (and thus his federal sentence). AUSA Richard Mesh has no objection to this motion or an order thereon.
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For the above reason, Defendant respectfully requests that this Court reissue, as soon as possible, a corrected judgment stating that defendant is sentenced to 5 months time served and email the judgment to Randall (USMS)
CERTIFICATE OF SERVICE I hereby certify that on 12/19/2006 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
Judge James A. Tielborg EFC to: Richard I. Mesh s/ Patricia Gitre
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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America v. Arbuary Daniel Fuller Aliases: Melvin Henderson, "C-Rock" USM#: 39386-048 THE DEFENDANT ENTERED A PLEA OF guilty on 8/2/2005 to Count 15 of the Superseding Indictment. ACCORDINGLY, THE COURT HAS ADJUDICATED THAT THE DEFENDANT IS GUILTY OF THE FOLLOWING OFFENSE(S): violating Title 18, USC §371, Conspiracy to Commit Fraudulent Use of a Social Security Number, 42 U.S.C. 408(a)(7)(B), a Class D Felony offense, as charged in Count 15 of the Superseding Indictment. IT IS THE JUDGMENT OF THIS COURT THAT the defendant is hereby committed to the custody of the Bureau of Prisons for a term of FIVE (5) MONTHS on Count 15. Upon release from imprisonment, the defendant shall be placed on supervised release for a term of THREE (3) YEARS on Count 15. IT IS FURTHER ORDERED that all remaining counts are dismissed on motion of the United States as to this defendant only. CRIMINAL MONETARY PENALTIES The defendant shall pay to the Clerk the following total criminal monetary penalties: SPECIAL ASSESSMENT: $100.00 FINE: $waived RESTITUTION: $-0-
JUDGMENT IN A CRIMINAL CASE
(For Offenses Committed on or After November 1, 1987)
No. CR 04-00373-006-PHX-JAT Patricia A. Gitre (Appointed)
Attorney for Defendant
The Court finds the defendant does not have the ability to pay and orders the fine waived.
If incarcerated, payment of criminal monetary penalties are due during imprisonment at a rate of not less than $25 per quarter and payment shall be made through the Bureau of Prisons' Inmate Financial Responsibility Program. Criminal monetary payments shall be made to the Clerk of U.S. District Court, Attention: Finance, Suite 130, 401 West Washington Street, SPC 1, Phoenix, Arizona 85003-2118. Payments should be credited to the various monetary penalties imposed by the Court in the priority established under 18 U.S.C. § 3612(c). The total special assessment of $100.00 shall be paid pursuant to Title 18, United States Code, Section 3013 for Count 15 of the Superseding Indictment. Any unpaid balance shall become a condition of supervision and shall be paid within 90 days prior to the expiration of supervision. Until all restitutions, fines, special assessments and costs are fully paid, the defendant shall immediately notify the Clerk, U.S. District Court, of any change in name and address. The Court hereby waives the imposition of interest and penalties on any unpaid balances.
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SUPERVISED RELEASE Upon release from imprisonment, the defendant is placed on supervised release for a term of THREE (3) YEARS on Count 15. The defendant shall report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons. For offenses committed on or after September 13, 1994: The defendant shall refrain from any unlawful use of a controlled substance. Pursuant to 18 USC §3563(a)(5) and 3583(d) the defendant shall submit to one drug test within 15 days of release from imprisonment and such other periodic drug tests thereafter, as directed from time to time by the probation officer. The defendant shall not possess a firearm, ammunition or other dangerous weapon as defined in 18 U.S.C. §921. The defendant shall comply with the standard conditions of supervision adopted by this Court in General Order 04-11: 1) 2) 3) 4) 5) 6) 7) 8) 9) You shall not commit another federal, state, or local crime during the term of supervision. You shall not leave the judicial district or other specified geographic area without the permission of the Court or probation officer. You shall report to the Probation Office as directed by the Court or probation officer, and shall submit a truthful and complete written report within the first five days of each month. You shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer. You shall support your dependents and meet other family responsibilities. You shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons. You shall notify the probation officer at least ten days prior to any change of residence or employment. You shall refrain from excessive use of alcohol and are subject to being prohibited from the use of alcohol if ordered by the Court in a special condition of supervision. You shall not purchase, possess, use, distribute or administer any narcotic or other controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 801) or any paraphernalia related to such substances, without a prescription by a licensed medical practitioner. Possession of controlled substances will result in mandatory revocation of your term of supervision. You shall not frequent places where controlled substances are illegally sold, used, distributed or administered, or other places specified by the Court. You shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer. You shall permit a probation officer to visit at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer. You shall immediately notify the probation officer (within forty-eight (48) hours if during a weekend or on a holiday) of being arrested or questioned by a law enforcement officer. You shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the Court.
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15) As directed by the probation officer, you shall notify third parties of risks that may be occasioned by your criminal record or personal history or characteristics, and shall permit the probation officer to make such notification and to confirm your compliance with such notification requirement. 16) If you have ever been convicted of a felony, you shall refrain from possessing a firearm, ammunition, destructive device, or other dangerous weapon. If you have ever been convicted of a misdemeanor involving domestic violence, you shall refrain from possession of any firearm or ammunition. Possession of a firearm will result in mandatory revocation of your term of supervision. This prohibition does not apply to misdemeanor cases that did not entail domestic violence, unless a special condition is imposed by the Court. 17) Unless suspended by the Court, you shall submit to one substance abuse test within the first 15 days of supervision and at least two periodic substance abuse tests thereafter, pursuant to 18 U.S.C. §§ 3563(a)(5) and 3583(d); 18) If supervision follows a term of imprisonment, you shall report in person to the Probation Office in the district to which you are released within seventy-two (72) hours of release. 19) You shall pay any monetary penalties as ordered by the Court. You will notify the probation officer of any material change in your economic circumstances that might affect your ability to pay restitution, fines, or special assessments. The following special conditions are in addition to the conditions of supervised release or supersede any related standard condition: 1. 2. 3. 4. 5. You shall submit your person, property (including but not limited to computer, electronic devices, and storage media), residence, office, or vehicle to a search conducted by a probation officer, at a reasonable time and in a reasonable manner. You shall provide the probation officer access to any requested financial information. You are prohibited from making major purchases, incurring new financial obligations, or entering into any financial contracts without the prior approval of the probation officer. You shall complete 100 hours of community service at the rate of not less than 10 hours per as approved and directed by the probation officer, to be completed within the first 18 months of supervision. You shall cooperate in the collection of DNA as directed by the probation officer.
THE COURT FINDS that you have been sentenced in accordance with the terms of the plea agreement and that you have waived your right to appeal and to collaterally attack this matter. The waiver has been knowingly and voluntarily made with a factual basis and with an understanding of the consequences of the waiver. The Court may change the conditions of probation or supervised release or extend the term of supervision, if less than the authorized maximum, at any time during the period of probation or supervised release. The Court may issue a warrant and revoke the original or any subsequent sentence for a violation occurring during the period of probation or supervised release. IT IS FURTHER ORDERED that the Clerk of the Court deliver two certified copies of this judgment to the United States Marshal of this district.
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The Court orders commitment to the custody of the Bureau of Prisons. The defendant is remanded to the custody of the United States Marshal. Date of Imposition of Sentence: Monday, December 5, 2005 DATED this 7th day of December, 2005.
RETURN I have executed this Judgment as follows: Defendant delivered on to at institution designated by the Bureau of Prisons, with a certified copy of this judgment in a Criminal case. By: United States Marshal Deputy Marshal , the
CC: USA/CNSL(Patricia A. Gitre)/PROB(2)/PTS/FIN/JUDGE/USM(2 certified)/Order Book
CR 04-00373-006-PHX-JAT - Smith 12/6/05 2:26pm
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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA - Phoenix DATE: 12/5/2005
CRIMINAL SENTENCING MINUT
CASE NUMBER: CR 04-00373-006-PHX-JAT
Hon. JAMES A. TEILBORG, United States District Judge #: 7025 USA vs. Arbuary Daniel Fuller DEFT: PRESENT NOT PRESENT Deputy Clerk Teddy Bengtson A.U.S. Attorney Richard I. Mesh Attorney for Defendant Patricia A. Gitre (Appointed) Custody Crt Rptr/ECR: David C. German Interpreter Language N/A
JUDGMENT [SENTENCE] Defendant is placed on probation for a period of on Ct(s) with supervision w/o supervision
Committed to the custody of the Bureau of Prisons to be imprisoned for a period of 5 Months on Ct 15 of the Superseding Indictment, concurrent with imprisonment in District Court, Clark County, Nevada
Docket C205415.
Supervised release term of 3 Years by law on Ct(s) 15 Fine of $waived on Ct(s) 15 Restitution of $-0- ordered pursuant to 18 U.S.C. 3596 Special Assessment of $100.00 pursuant to 18 U.S.C. 3013 on Ct(s) 15 On Motion of U.S. Atty: Ct(s) all remaining counts are dismissed as to this defendant only. Order bond exonerated Bond exonerated upon surrender to USM Appeal bond set at $ TOTAL FINE $waiv
Dft advised of waiver of right to appeal
Dft to surrender under Voluntary Surrender Program as directed to the designated institution by the U.S. Marshal. The Court adopts the Magistrate Judge's Findings and Recommendations filed in this matter and acce the defendant's plea of guilty and plea agreement. Other: The Court is advised by defense counsel that it is not necessary to seal sentencing or associated
documents. Defendant's Objections to Presentence Report and Motion for Downward Departure [194] are argued to the Court. The Court overrules defendant's objections and denies defendant's motion [194]. Government's Motion for Downward Departure and Supplement to Motion for Downward Departure (pursuan to 5K1.1) are argued to the Court. IT IS ORDERED granting Government's Motions for the reasons set fort on the record, resulting in a 4-level downward departure, to Offense Level 8. The Court intends to enter an order that the defendant be given federal credit for time the defendant was incarcerated from the date a writ w issued (on or about 7/8/05) taking him into Federal custody. Having been advised by defense counsel that she has experienced problems in the past with the bureau of prisons complying with such an order , Government having no objection, the Court sentences the defendant to 5 months bureau of prisons, which takes into accou defendant's incarceration as described above. (Time in Court: 20 minutes)
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