Free Order on Motion for Modification of Sentence - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 Defendant. 14 15 Pending before the Court is Defendant's motion to adjudicate his petition to revoke 16 supervised release. After considering the arguments raised by the parties in their briefing, 17 the Court now issues the following ruling. 18 On March 13, 2000, Defendant was convicted of Illegal Re-entry After Deportation 19 in violation of 8 U.S.C. §§ 1326(a) and (b)(2), and sentenced to 60 months imprisonment 20 followed by 36 months supervised release. Defendant was released from federal custody and 21 deported to Mexico on November 6, 2004. 22 On December 1, 2005, Defendant was arrested by Border Patrol near San Ysidro, 23 California and charged in the United States District Court, Southern District of California, 24 with Illegal Re-entry After Deportation. Defendant was subsequently sentenced to 33 25 months imprisonment followed by 36 months supervised release for the re-entry violation. 26 On January 24, 2006, a Petition to Revoke Supervised Release was filed in this case 27 alleging that on or about December 1, 2005, Defendant re-entered the United States without 28
Case 2:00-cr-00043-NVW Document 23 Filed 12/20/2006 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs. Manuel Ortiz-Morales a.k.a. Teofilo Cardona-Lopez,

) ) ) ) ) ) ) ) ) ) ) )

CR-00-43-PHX-RGS ORDER

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

legal authorization and violated special condition number one ­ "[i]f deported, you shall not re-enter the United States without legal authorization." On September 18, 2006, Defendant filed a motion to adjudicate the petition to revoke supervised release or, in the alternative, requesting that his sentence for the alleged violation run concurrent with his federal sentence. 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). 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 of a detainer, while the person is incarcerated elsewhere for a separate crime, do not constitute being taken into custody. Rather, it is the execution of the warrant, after termination of the intervening sentence, that takes the person into custody for the parole violation that triggers the obligation for a Morrissey hearing. Applying this reasoning, the Ninth Circuit found that the United States is not required to writ a defendant out of state custody and bring him into federal custody for a supervised release revocation hearing. See United States v. Garrett, 253 F.3d 443, 449-50 (9th Cir. 2001). The Court found that no court or statute has placed such a duty on the federal government. See id. at 450. Although Defendant in this case is in federal custody, this same reasoning applies. Accordingly, Defendant's motion to adjudicate the petition to revoke supervised release will be denied. Moreover, the Court will deny Defendant's request that his sentence for the alleged violation run concurrent with his federal sentence. Although its policy statements are not binding on the Court, the United States Sentencing Guidelines advise that "[a] term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of probation or supervised release." U.S.S.G. § 7B1.3(f). -2Case 2:00-cr-00043-NVW Document 23 Filed 12/20/2006 Page 2 of 3

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

The Court finds that Defendant is not entitled to have any sentence imposed pursuant to his alleged supervised release violation run concurrent with his federal sentence. Accordingly, the Court, having reviewed Defendant's motion, the Government's response thereto, and the record in this case, IT IS ORDERED denying Defendant's motion to adjudicate his petition to revoke supervised release. DATED this 19th day of December, 2006.

-3Case 2:00-cr-00043-NVW Document 23 Filed 12/20/2006 Page 3 of 3