Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON 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 Plaintiff, v. Charles T. Winkler Defendant. CR-02-00460-001-PHX-MHM GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR RECONSIDERATION

The United States of America, by and through its attorneys undersigned, hereby responds to defendant's Motion for Reconsideration and requests that this Court deny same. This request is supported by the attached Memorandum of Points and Authorities. Respectfully submitted this 14 th day of April, 2006. PAUL K. CHARLTON United States Attorney District of Arizona S/DARCY A. CEROW DARCY A. CEROW Assistant U.S. Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES On September 9, 2003, this Court signed a Petition on Supervised Release which alleged that the defendant was arrested on August 3, 2003 and charged with theft from a vehicle and identify theft. The petition also alleged that the defendant used illicit substances on numerous occasions and failed to complete community service. According to the memorandum attached to the petition, the defendant was released from the Bureau of Prisons on April 19, 2003, began using methamphetamine in June, was fired from his job in July and arrested for the above offenses in August. On May 26, 2004, a superseding petition was filed to include the fact that the defendant was convicted of identify theft and sentenced to 2.5 years in State custody. Additionally, the defendant's county probation was revoked and he was sentenced to five (5) years custody to run consecutive to his conviction for identify theft. This Court signed the petition on June 2, 2004. A warrant was issued and lodged as a detainer because the defendant was still in State custody. On November 30, 2004, the defendant filed a pro se motion requesting that this Court dismiss the petition because the sentence he is currently serving in state court is far greater than any amount this Court could impose. On the same date, the defendant also filed a motion requesting a speedy trial. The United States opposed both motions. Court issued its order denying both motions. On December 16, 2004, this Court signed a second superseding petition that was filed in order to comply with the requirements of United States v. Vargas-Amaya, 389 F.3d 901 (9 th Cir. 2004). On July 20, 2005, the defendant filed his Motion to Dismiss for Want of Prosecution. This Court denied defendant's request on August 5, 2005 finding that the defendant was essentially filing a motion for reconsideration and that he had not stated a basis for reconsideration. Additionally, the Court found defendant's arguments without merit and relying on United States v. Garrett, 253 F.3d 443 (9 th Cir. 2001), held that the defendant would be brought before the Court upon his release from state custody. 2 On January 14, 2005, this

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On March 27, 2006, the defendant filed a Motion for Reconsideration of this Court's July 20, 2005 order. The defendant relies on Barden v. Koehane, 921 F.2d 476, (3 rd Cir. 1991) in support of his argument that there has been a change in the law since Garrett was decided. The defendant's reliance is misplaced because Braden is distinguishable on its facts from the instant case and is a Third Circuit case decided ten years before Garrett . In Braden, while awaiting trial on state charges, the defendant was brought to federal court and sentenced in federal court for a new crime. The defendant was then returned to state custody. The defendant began serving his state sentence and was subsequently brought to federal court to begin serving his federal sentence. The defendant argued that the Bureau of Prisons had the authority to designate state prison as a place of federal confinement for the purpose of determining whether or not the defendant was entitled to credit against his federal sentence for time spent in state custody. The Court held that the federal authorities had an obligation to look at the defendant's case but it was up to the Bureau of Prisons as to whether or not the defendant would receive any credit against his federal sentence for any time spent in state custody. (Id. at 478, 483) In this case, the defendant has not yet been sentenced for a violation of his supervised release and thus has no federal sentence to serve. Therefore Braden is not applicable to the facts of this case. Furthermore, as stated above, Braden is a Third Circuit case and is not binding on this Court which resides in the Ninth Circuit. Finally, Braden was decided ten years before Garrett which is the controlling legal authority in this Court. The defendant also relies on Fed. R. Crim P. 32.1 in support of his motion. The defendant argues that this Court has failed to follow this rule. The defendant's reliance is misplaced because this rule applies only when the defendant is in federal custody. The defendant remains in state custody. ///// ///// 3

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Based on the above, the United States requests that this Court deny defendant's request because he has failed to state a basis for reconsideration. Respectfully submitted this 14 th day of April, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona S/DARCY A. CEROW DARCY A. CEROW Assistant U.S. Attorney

Original filed and copy of the foregoing mailed this 14 th day of April, 2006, to: Charles T. W inkler #184251 P.O. Box 3100 Buckeye, AZ. 85326 Donna Bates U.S. Probation

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