Free Sentencing Memorandum - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 850 West Adams Street, Ste. 201 3 Phoenix, Arizona 85007 Telephone: (602) 382-2753 4 DONNA LEE ELM, #012127 5 [email protected] 6 Asst. Federal Public Defender Attorney for Defendant 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 17 vs. Armando Holguin-Martinez, Defendant. Armando Holguin-Martinez provides this Court with this Memorandum United States of America, Plaintiff, No. CR-04-50122-PHX-JAT SENTENCING MEMORANDUM

18 for consideration of the appropriate sentence for Mr. Holguin. His memorandum is 19 based upon his right to a fundamentally fair sentencing process pursuant to the Due 20 Process clause of the fifth amendment of the U.S. Constitution as well as his right to 21 a reasonable sentence pursuant to the Sixth Amendment and Booker.. 22 Respectfully submitted: August 3, 2005. 23 24 25 26 27 28 JON M. SANDS Federal Public Defender s/Donna Lee Elm DONNA LEE ELM Asst. Federal Public Defender

Case 2:04-cr-50122-JAT

Document 11

Filed 08/03/2005

Page 1 of 8

1 2 I. 3 4 5

Memorandum of Points and Authorities Post-Booker Supervised Release Violation Before the advent of United States v. Booker, __ U.S. __, 125 S.Ct. 738

(2005), the United States Sentencing Guidelines for supervised release violation

6 dispositions was "merely advisory." The District Court was permitted latitude to 7 fashion dispositions appropriately in response to the myriad of circumstances and 8 factual violation patterns that could occur in supervised release non-compliance. The 9 only boundaries a judge faced in dispositions were the "cap" of the maximum number 10 of years a supervised release could cumulatively receive, on the one hand, and return 11 12 to supervision or even early termination, on the other. Although Booker substantially 13 changed the way District Courts sentence a defendant, it therefore has only a little 14 impact on the way they handle supervised release dispositions (which were not 15 "mandatory" to start with). 16 Indeed, some Courts concluded that Booker had no impact on supervised 17 release violation dispositions because the Guidelines are not mandatory in that 18 th 19 context. See United States v. Contreras-Martinez, 409 F.3d 1236, 1241 (10 Cir. 20 2005) (noting that "reasonableness" standard had always been applied to review of 21 a violation sentence). Furthermore, Booker itself equated its holding with the 22 "reasonableness" standard of review of United States v. Tsosie, 376 F.3d 1210, 1218 23 (10th Cir. 2005), which was a supervised release violation case. Booker, 125 S.Ct. at 24 th 25 766; and see United States v. Cotton, 399 F.3d 316, 319 (8 Cir. 2005) (the new 26 / / / 27 28 2

Case 2:04-cr-50122-JAT

Document 11

Filed 08/03/2005

Page 2 of 8

1 standard of review under Booker is the same as the old one used for supervised 2 release revocations). 3 However, other jurisdictions have considered that more may be required 4 under Booker. The 2nd and 8th Circuits decided that Booker would apply to 5 6 revocation re-sentencings ­ even though those sentencing had always plainly been 7 discretionary ­ to apply Booker's "reasonableness" standard in place of the previous 8 "plainly unreasonable" converse standard. See United States v. Fleming, 397 F.3d 9 95, 97-99 (2nd Cir. 2005); Cotton, supra; United States v. Edwards, 400 F.3d 591, 10 592-93 (8th Cir. 2005). The 11th Circuit, in United States v. White, __ F.3d __, 2005 11 th 12 WL 1639381 at *3 (11 Cir. 2005), noted that the Guidelines for supervised release 13 violations was not "mandatory," so did not decide the matter directly; nonetheless, 14 it analyzed White's facts and circumstances under the sentencing statutes, including 15 18 U.S.C. § 3553. Id. at *4. 16 The Ninth Circuit has not decided whether and in what ways Booker will 17 apply to supervised release violations yet. But in any event, it is clear that District 18 19 Courts will continue to rely on traditional judgment of experienced, worldly jurists 20 in assessing the proper sanction for violations. See Booker., 125 S.Ct. at 803-04 21 (Breyer, J., diss.). That "traditional" notion asks a judge to "bring compassion and 22 common sense to the sentencing process," providing for individualized justice. 23 United States v. Williams, 65 F.3d 301, 309 (2nd Cir. 1995). Hence the District Court 24 25 is to apply its judicious discretion in a supervised release violation disposition, as 26 long as it effectuates a "reasonable" sentence consistent with Booker. 27 28 3

Case 2:04-cr-50122-JAT

Document 11

Filed 08/03/2005

Page 3 of 8

1 II. 2 3 4 5

Facts Supporting a "Reasonable" Disposition A. Reinstatement versus Terminal Disposition There are two general options available to the Court in this sentencing:

(1) reinstate Mr. Holguin to supervised release with some degree of punishment from

6 "time served" perhaps with referral to a halfway house, through the recommended 7 Sentencing Guidelines range of 5-11 months (USSG § 7B1.4(a)), to potentially the 8 maximum allowable sentence of 2 years (18 U.S.C. § 3583(e)(3)); or in the 9 alternative, terminate Mr. Holguin's supervision with some degree of punitive 10 sanction. Although there were initial discussions of simply doing the latter, for the 11 12 reasons discussed below, Mr. Holguin asks the Court to reinstate him to supervision. 13 Mr. Holguin had two children by a woman who now lives in Mexico; she 14 kept those children and, although he sends her money for them, he seldom sees them. 15 However, shortly before his supervised release violation, Mr. Holguin learned that 16 his present girlfriend, Sonia Hinojos, was pregnant with their first child.1 She has 17 been with him since November of 2004. She is unemployed so does not have medical 18 19 benefits; in addition, she does not have access to medical coverage available to the 20 indigent. Although no reputable hospital will turn her away when she is in active 21 labor, she will not have any pre-natal treatment available to her and their American 22 citizen baby. She is now approximately three months into the pregnancy and has kept 23 the baby without miscarriage. Through his work, Mr. Holguin was able to get her 24 25 26 28 Ms. Hinojos has provided the Court with a letter for consideration at 27 sentencing. 4
1

Case 2:04-cr-50122-JAT

Document 11

Filed 08/03/2005

Page 4 of 8

1 medical benefits once they were married. He hastily proposed, and they were 2 scheduled to be married on the Fourth of July ­ but his incarceration for this violation 3 interrupted those plans. 4 She still waits for him, staying with his relatives, until he can return to 5 6 support her. Her family left her here in Phoenix, and she has no base of support 7 except for Mr. Holguin. 8 9 10 11 when they had work available, although some days there was no work to be done. He 12 was paid $12.80/hour and enjoyed full medical and dental benefits. His employer 13 knew of his supervised release status and kept him on because he was a reliable and 14 hard worker. He understands that he can return to Atlas upon release. 15 16 17 18 coordinated efforts with Mr. Holguin's family to save his personal property from the 19 apartment and terminate his lease, and to continue payments and insurance coverage 20 for the truck so that he will still have his belongings and vehicle when he gets out of 21 jail. 22 23 24 ­ as it would provide him a way to be ultimately free from complications of 25 supervision ­ but he decided against it. His most pressing concern is to get medical 26 care for his future wife and baby as soon as he can; his priority, therefore, is not what 27 28 5 He had an apartment ­ nothing fancy ­ but a home for him and Sonia. He had a truck he had bought and was making payments on. This writer has Mr. Holguin had been doing fairly well in supporting himself and her. He worked at Atlas Cold Storage in Tolleson for a year. He would work full-time

Mr. Holguin considered the possibility of a terminal disposition seriously

Case 2:04-cr-50122-JAT

Document 11

Filed 08/03/2005

Page 5 of 8

1 may be perceived as an "easy way out," but to go under whatever rigors he must 2 comply with in order to get married and get back to work and start up medical 3 benefits. This has been a personally difficult decision for Mr. Holguin to make, but 4 he will ask this Court to reinstate his supervised release rather than simply serve some 5 6 time and be free. 7 8 9 10 11 13 Court should be apprised of some circumstances that help explain what led to his non12 compliance. Although he had gotten off to a rocky start on supervision, Mr. Holguin 14 had almost completed his two-year supervisory period without any violations when 15 the instant violations began to occur. In early spring, Mr. Holguin's mother died. His 16 probation officer was informed of this family crisis. He was crushed by this loss and 17 was depressed for some time. He struggled to stay on top of work and family 18 19 obligations (with his mother gone, it fell more on him to care for his aged 20 grandmother) ­ both of which he saw as paramount necessities ­ and disregarded his 21 obligations to the Court. Suffering from depression, he turned more and more to 22 alcohol for solace, which led to some drug abuse as well. 23 In April of 2005, when violations started, his probation officer sought 24 25 a reasonable intervention, a halfway house placement, but Mr. Holguin asked for 26 home arrest instead. Consequently, he agreed to a modification placing him on home 27 28 6 B. Circumstances Underlying his Violation Mr. Holguin fully accepts responsibility for violating his supervised release, and is not seeking to evade punishment that he deserves. Nonetheless, the

Case 2:04-cr-50122-JAT

Document 11

Filed 08/03/2005

Page 6 of 8

1 arrest. Nonetheless, he was still depressed and self-medicating with alcohol and 2 cocaine occasionally, and so could not get it together sufficiently to comply with the 3 stepped-up restrictions that requires. He realizes in hindsight that he would probably 4 have done better if structure had been imposed on him externally through a halfway 5 6 house, rather than trying to rely on self-regulation at that point. 7 8 9 10 11 13 14 a halfway house in New Mexico for a period of time. He thrived there, correcting his 12 substance abuse, and therefore was released to Arizona supervision. III. Conclusion For the foregoing reasons, it is "reasonable," appropriate, and fair to C. Prior Success under Structure Mr. Holguin had a "dirty" urinalysis at the time his supervision was to be transferred to Arizona. Consequently before transfer occurred, he was placed in

15 sanction Mr. Holguin by sentencing him to time he has served on this violation 16 already plus placement in a halfway house as soon as bed-space is available. He 17 accepts increased urinalysis to ensure sobriety. He asks to be allowed to marry Sonia 18 19 and return to work as soon as feasible once he is released. He had been scheduled to 20 conclude supervised release on September 18, 2005. He should have approximately 21 three months left of supervised release therefore. He asks to be placed back onto 22 supervised release and in a halfway house for the balance of his two-year term of 23 supervision. 24 25 / / / 26 / / / 27 28 7

Case 2:04-cr-50122-JAT

Document 11

Filed 08/03/2005

Page 7 of 8

1 2 3 4 5 6 7

Respectfully submitted: August 3, 2005. JON M. SANDS Federal Public Defender

s/Donna Lee Elm DONNA LEE ELM Asst. Federal Public Defender

Copy of the foregoing 8 has been submitted electronically rd 9 this 3 day of August, 2005, to: 10 Darcy Cerow Assistant United States Attorney 11 Two Renaissance Square 12 40 North Central Avenue Suite 1200 13 Phoenix, Arizona 85004-4408 14 Copy Mailed to: 15 Eric Olson 16 United States Probation Officer U.S. Courthouse 17 401 West Washington Street Phoenix, AZ 85004 18 19 Armando Holguin Defendant 20 21 s/Donna Lee Elm 22 DONNA LEE ELM 23 24 25 26 27 28 8

Case 2:04-cr-50122-JAT

Document 11

Filed 08/03/2005

Page 8 of 8