Free Supplemental Memorandum - District Court of California - California

Case 3:07-cr-03195-LAB

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LAW OFFICE OF ERIC BEAUDIKOFER ERIC BEAUDIKOFER, SBN: 56524 414 VINE STREET EL CENTRO, CA 92243 TELEPHONE: (760)353-9250 FAX: (760)353-0963 ATTORNEY FOR DEFENDANT Humberto Lugo-Martinez

UNITED STATE DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATE OF AMERICA ) ) ) Plaintiff, ) ) ) vs ) ) HUMBERTO LUGO-MARTINEZ, ) ) Defendant. ) ) _________________________________)

Case No. 07-CR-3195-002-LAB SUPPLEMENTAL SENTENCING MEMORANDUM OF DEFENDANT

Date: May 05, 2008 Time: 9:30 a.m. Dept.: Hon. Larry A. Burns

Defendant was determined in the Presentence Report to have two criminal history points and thus fell within a criminal history category II. One point was based on a CVC 14601 conviction, i.e., driving on a suspended license, he suffered in 2003 in Imperial County Superior Court. It was based on his plea of guilty made at the time of his arraignment without the benefit of counsel. Defendant moved to have his plea of guilty withdrawn and the judgment thereon vacated on the grounds that he pled guilty at the time of his arraignment without benefit of counsel, and did not understand that an element of the offense required that he knew that his license had been suspended at the time he was Page 1 of 3

Case 3:07-cr-03195-LAB

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unlawfully driving, which he did not. Because he did not have the benefit of counsel that element was not properly explained to him and he moved to have his guilty plea withdrawn and judgment vacated.. At the hearing on April 23, 2008, his motion was granted. Judgment was vacated and his guilty plea was withdrawn. The matter was re-calendar for arraignment/pre-trial and setting. At that time, he entered a plea of guilty to count 3, violation of CVC 12500, driving without a valid license in his possesion, as an infraction. Infractions do not require actual knowledge of suspension, so justice was done and his plea of guilty was accepted. See exhibit A, attached hereto, a certified copy of the orders following hearing. The People then moved to dismiss the remaning counts, an appropriate fine was levied and acknowledged as paid in full. Exhibit A. By reason of the foregoing, it is respectfully submitted that defendant criminal history is now in category I. As noted on page 5, lines 23-30 of the Presentence Report, a CVC 12500 violation, as an infraction, results in no criminal history points. Thus, the calculus used on lines 13-21 of the same page should essentially be redone with no criminal history points assessed for the offense. Thus, defendants total criminal history points is now appropriately 1, instead of 2, placing him in a Criminal History Category of I. Because of this, defendant now is eligible for safety valve, and respectfully request an opportunity to meet with the government, if needed, so he may meet the safety valve criteria, unless the government accepts his previous statements to the agents wherein he confessed his involvement in the crime as meeting the safety valve requirements. Thus, under the circumstances , defendant believes he is eligible to receive

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a sentence consistent with his plea agreement and respectfully asks the court to impose the guideline recommended lower end sentence for a level 19 offense of a criminal history category I offender, i.e., of 37 months, and that he be recommended for the 500 hour drug program and be housed near the Southern District of California.

Both the government and the probation department have been faxed copies of the order vacating judgment attempted to be attached hereto.

Respectfully submitted,

//s// Eric Beaudikofer Eric Beaudikofer Attorney at Law

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