Free Response - District Court of Arizona - Arizona

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

PAUL K. CHARLTON United States Attorney District of Arizona Lisa Jennis Settel Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-00-043-PHX-RGS Plaintiff, v. Manuel Ortiz-Morales aka Teofilo Cardona-Lopez, Defendant. GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR SUPERVISED RELEASE DISPOSITION

The United States of America, by and through its attorneys undersigned, hereby responds to defendant's Motion for Disposition on his Supervised Release violation and requests that this Court deny same. This request is supported by the attached Memorandum of Points and Authorities. Respectfully submitted this 7 th day of December, 2006 PAUL K. CHARLTON United States Attorney District of Arizona S/Lisa Jennis Settel LISA JENNIS SETTEL Assistant U.S. Attorney

Case 2:00-cr-00043-NVW

Document 22

Filed 12/07/2006

Page 1 of 4

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

MEMORANDUM OF POINTS AND AUTHORITIES On March 13, 2000, the defendant was convicted of illegal re-entry after deportation and sentenced by this Court to 60 months imprisonment to be followed by 36 months supervised release. The defendant was released from federal custody and was subsequently deported to Mexico on November 6, 2004, through Hidalgo, Texas. On December 1, 2005, the defendant was arrested by Border Patrol Agent near San Ysidro, California and subsequently charged, under the name Teofilo Cardona-Lopez, in United States District Court, Southern District of California, with re-entry after deportation pursuant to 8 U.S.C. Section 1326. On January 17, 2006, the defendant was sentenced to 33 months imprisonment followed by three years supervised release. On January 12, 2006, a Petition to Revoke on Supervised Release was requested by U.S. Probation in the current case. The Petition alleges that the defendant illegally re-entered the United States on December 1, 2005, and by doing so committed violated special condition number one, that if deported he shall not re-enter the United States without legal authorization. On September 18, 2006, the defendant filed his motion for disposition on his supervised release or in the alternative requesting that his sentence for the violation run concurrent with his federal sentence. The United States Sentencing Guidelines, while advisory, require that "[a] term of imprisonment imposed upon the revocation of probation or supervised release shall be order 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. Section 7B1.3(f). 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) (parole revocation); see also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (applying the holding of Morrissey to revocation of probation). 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

Case 2:00-cr-00043-NVW

Document 22

Filed 12/07/2006

Page 2 of 4

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

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. 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 even if the supervised release term expired while the defendant was in state custody. United States v. Garrett, 253 F.3d 443, 449 (9 th Cir. 2001). The Court found that no court or statute has placed such a duty on the government. The same argument applies for a prisoner in federal custody. In this case, the defendant was arrested in the United States a little more than a year into his 36 month term of supervised release and will have approximately 22 months left of supervised release once he has served his current re-entry sentence. Therefore, his release term will not have expired upon his release from prison. Based on the above, the defendant's motion should be denied. Once the defendant has completed his federal sentence he will be transferred to the District of Arizona to adjudicate his pending supervised release violation petition. The United States will request that any prison term imposed for defendant's supervised release violation be served consecutive to the sentence imposed for his 2006 re-entry conviction. In addition, the petition to revoke supervised release was timely and will remain timely long after he is released from prison. Therefore, his request for adjudication of supervised release or in the alternative a concurrent sentence should be denied.

/// /// ///

Case 2:00-cr-00043-NVW

Document 22

Filed 12/07/2006

Page 3 of 4

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

Respectfully submitted this 7th day of December, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona S/Lisa Jennis Settel LISA JENNIS SETTEL Assistant U.S. Attorney Certificate of Service I hereby certify that on this day, 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: Alicia Pineda I hereby certify that on this day, I served the attached document by facsimile on the following who are not registered participants of the CM/ECF System: Teofilio Cardona Lopez, Reg. # 44875-008, California City Correctional Center, P.O. Box 3001-0001, California City, CA 93504.

Case 2:00-cr-00043-NVW

Document 22

Filed 12/07/2006

Page 4 of 4