Free Response to Motion - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona DARCY A. CEROW Assistant U.S. Attorney Arizona State Bar No. 011822 [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-03-742-01-PHX-SRB Plaintiff, v. Juan Sanchez-Hurtado, Defendant. The United States of America, by and through its attorneys undersigned, hereby responds GOVERNMENT'S RESPONSE TO DEFENDANT'S OBJECTIONS TO THE COURT'S IMPOSITION OF PROBATION/SUPERVISED RELEASE

15 to defendant's above captioned motion and requests that this Court deny same. The request is 16 supported by the attached Memorandum of Points and Authorities. 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted this 20th day of July 2007. DANIEL G. KNAUSS United States Attorney District of Arizona
/S/ DARCY A. CEROW

DARCY A. CEROW Assistant U.S. Attorney

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1 2 A. FACTS 3

MEMORANDUM OF POINTS AND AUTHORITIES

On September 22, 2003, this Court sentenced the defendant to 24 months imprisonment

4 to be followed by three (3) years of supervised for a violation of Title 8 U.S.C. §1326(a), Illegal 5 Reentry after Deportation, with a sentencing enhancement pursuant to Title 8 U.S.C. 6 §1326(b)(2). As a special condition of supervised release, this Court ordered the defendant not 7 to reenter the United States without legal authorization. Defendant's supervised release

8 commenced on March 25, 2005 upon his release from imprisonment. The defendant was 9 deported to Mexico on March 26, 2005. 10 According to the pending revocation petition, on June 12, 2006 and October 31, 2006,

11 the defendant was arrested by San Francisco authorities for possession of drug paraphernalia and 12 possession of marijuana respectively. On November 3, 2006, the defendant was again deported 13 to Mexico. 14 Based on the above contacts with San Francisco authorities, on January 17, 2007,

15 defendant's probation officer filed a petition to revoke defendant's supervised release alleging 16 that he had reentered the United States without legal authorization as evidenced by the arrests. 17 At the time of the filing of the petition, defendant's whereabouts were unknown so this Court 18 authorized the issuance of an arrest warrant. 19 Subsequent to defendant's November 3, 2006 deportation, he again illegally entered the

20 United States and on March 6, 2007 was convicted in the Southern District of California of 21 illegal reentry. The defendant is currently in custody at California City Correctional Center in 22 California serving his sentence for this offense. His projected release date is December 30, 23 2008. Due to defendant's custody status, the arrest warrant issued for the revocation petition has 24 been lodged as a detainer with California authorities. 25 On June 4, 2007, defendant filed the instant motion setting forth three (3) arguments.

26 First, he asserts that his revocation petition should be dismissed because he never received 27 written or oral notice of his conditions of supervision. Second, the defendant asserts that the 28 warrant issued by this Court for his violation should be dismissed because the revocation petition

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1 was not signed under oath or affirmation. Finally, the defendant asserts that the filing of the 2 revocation petition and any resulting custody sentence violates Apprendi v. New Jersey, 530 U.S. 3 466, 120 S.Ct. 2348 (2000). 4 B. LAW AND ARGUMENT 5 6 1. Notice of Special Condition The defendant claims that he never received notice of the condition that he not

7 commit a new crime and, therefore, this Court must dismiss the revocation petition. 8 The revocation petition does not allege that defendant committed a new crime. It

9 alleges a violation of Special Condition 1 which requires that defendant not reenter the United 10 Sates without legal authorization. The defendant received actual notice of this condition at his 11 sentencing hearing on September 22, 2003 when this Court ordered, "While on supervised 12 release, the defendant is ordered to comply with . . . the following additional condition: The 13 defendant shall not reenter the United States without legal authorization." (RT 9/22/03 pg. 6)1 14 15 2. Dismissal of the Warrant The defendant claims that the warrant must be dismissed because it was not signed

16 under oath or affirmation as required by United States v. Vargas-Amaya, 389 F.3d 901 (9th Cir. 17 2004). The defendant's claim lacks merit. On Page 2 of the revocation petition the probation 18 officer affirms, "In conformance with the provision of 28 U.S.C. §1746, I declare, under penalty 19 of perjury, that the foregoing is true and correct to the best of my knowledge." 20 Such affirmation complies with the requirements of Vargas-Amaya. 21 22 3. Apprendi Violation The defendant claims that the supervised release revocation violates Apprendi in that

23 it provides for additional incarceration that was not authorized at the time of sentencing. The 24 defendant relies on United States v. Liero, 298 F.3d 1175 (9th Cir. 2002) to support his claim. 25 26 27 28
1

A copy of the sentencing transcript is attached as Exhibit A for the Court's review.

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1

In Liero, the defendant was sentenced to 15 months in prison to be followed by three

2 (3) years of supervised release for a violation of Title 21 U.S.C. §§ 952 & 960, importation of 3 marijuana. Liero violated his conditions of supervised release (twice) and was sentenced to nine 4 (9) months in custody for the second violation. Liero argued that his punishment for the 5 supervised release violation was in addition to the statutory maximum term of imprisonment for 6 his offense (five (5) years imprisonment plus a mandatory term of supervised release) and thus 7 violated Apprendi. Relying on a review of the applicable statutes violated by Liero and prior 8 case law holding that a term of supervised release is part of the original sentence, the Court 9 found no Apprendi violation because Liero's original sentence of 15 months imprisonment plus 10 three (3) years of supervised release fell within the statutory maximum term. Id. at 1178. 11 The holding in Liero applies to the facts in this case. The statutory maximum term of

12 imprisonment for a violation of Title 8 U.S.C. §§ 1326(a) enhanced by (b)(2) is 20 years. This 13 Court sentenced the defendant to 24 months imprisonment to be followed by three (3) years of 14 supervised release. Thus, the term of incarceration plus supervised release is well within the 15 statutory maximum term of 20 years. 16 C. CONCLUSION 17 The defendant received actual notice of the special condition of supervised release when

18 he was sentenced by this Court. Dismissal of the warrant is not required because the petition 19 was signed under affirmation by the probation officer. There is no Apprendi violation because 20 defendant's sentence did not exceed the statutory maximum term of 21 / / / / / 22 / / / / / 23 / / / / / 24 / / / / / 25 / / / / / 26 / / / / / 27 28

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imprisonment. For all the above reasons, defendant's motion should be denied. Respectfully submitted this 20th day of July, 2007.

DANIEL G. KNAUSS United States Attorney District of Arizona
/S/ DARCY A. CEROW

DARCY A. CEROW Assistant U.S. Attorney
I hereby certify that on July 20, 2007 I electronically transmitted the foregoing document to the Clerk's Office using the CM/ECF System for filing and mailed a copy to: Juan Sanchez-Hurtdao Reg. No. 61890-208 California City Correctional Center P.O. Box 2590 California City, CA 93504 Craig W. Haraga U.S. Probation

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