Free Sentencing Memorandum - District Court of Arizona - Arizona

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TIMOTHY C. HOLTZEN Attorney at Law 245 W. Roosevelt St., Ste. B Phoenix, Arizona 85003 State Bar No. 004723 (602) 799-6336 (602) 368-9140 FAX Attorney for Defendant

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. ) ) ) ) ) ) ) ) ) ) ) CR 04-50094-PHX-DGC DISPOSITION MEMORANDUM

12 Charles Peter Miller, III,
Defendant.

Charles Peter Miller, III, through counsel, submits the attached memorandum

16 for the court's consideration in the matter of the pending supervised release disposition 17 hearing scheduled for June 11, 2007. 18 19 20 21 22 23 24 25 26 27 28
Copy of the foregoing served by ECF filing June 10, 2007 to: Darcy Cerow Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 and faxed June 10, 2007 to: David Gardner U.S. Probation Officer

Respectfully submitted: June 10, 2007.

/s Timothy C. Holtzen Timothy C. Holtzen Attorney for Defendant

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MEMORANDUM The Sentencing Guidelines approach proposes a federal sentence consecutive to

3 any other prison sentence. There are two alternatives which are more feasible and 4 appropriate here: termination of Miller's supervised release; or, revocation of Miller's 5 supervised release with a concurrent sentence. Miller is now 41 years old and is not 6 scheduled for release from the state parole until the month of his 47 th birthday. 7 1. 8
Facts On May 10, 1991, shortly after his 24 th birthday, Charles Miller, III, was

9 sentenced by the United States District Court in Oregon to imprisonment for 210 10 months for possession with the intent to distribute methamphetamine, which sentence 11 was later reduced to 168 months, followed by a term of 36 months of supervised 12 release. The court also sentenced Miller to 120 months for a felon in possession of a 13 firearm charge, to be served concurrently with the methamphetamine charge. After 14 about two-thirds of his adult life in federal prison and most of the remainder of his 15 adult life in state prison, Miller was released from the federal prison at the age of 36. 16 Miller had served a little over 12 years in federal prison on his 14-year sentence, 17 having received credit for good behavior. 18
Miller's supervised release began June 3, 2003. Approximately 13 months later

19 a Petition on Supervised Release was filed for technical violations. On August 13, 20 2004, Miller came before this Court and admitted his violations. This Court revoked 21 his supervised release and sentenced him to 10 months incarceration followed by 26 22 months of supervisor release. Miller now stands before this Court a second time on a 23 petition for action on supervised release. 24
Miller completed his 10 months of incarceration and was placed at the

25 Behavioral Systems Southwest ("BSSW") residential facility in Florence, Arizona. He 26 got a job at Motel 6 in Mesa, Arizona, and met a wonderful girl. He was in compliance 27 28 2

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1 with required programs at BSSW, including no drug or alcohol usage. All seven UA 2 samples were drug-free. All three BA samples were alcohol-free. (Attachment A, ¶ 3 III.) Things were finally going favorably for Miller. Then on July 18, 2005, Miller 4 returned from his job to BSSW and was ordered, without explanation, to "pack [his] 5 things and get out" within 15 minutes. No explanation for BSSW termination was ever 6 given to Miller and he did not know of anything with which he had not complied.1 7
Miller attempted to find an appropriate residence and continue working. He

8 subsequently returned to his lifelong problem of drug addiction, particularly 9 methamphetamine. Thereafter, Miller's life spiraled down. He failed to report to his 10 supervising probation officer, used a false identification to rent an automobile, and 11 failed to return that automobile to the rental company. Meanwhile, his supervising 12 officer determined that Miller had not reported a change of address and had no 13 monthly report for August of 2005. Thus, a petition in this case was filed on October 14 18, 2005. After learning that same day that Miller was considered a fugitive, Mesa 15 Police located Miller in the "stolen car." Miller pled guilty in Maricopa County 16 Superior Court to Theft of a Means of Transportation and Taking the Identity of 17 Another, each count as a repeat offender. The court sentenced Miller to 7.5 years 18 incarceration in the Arizona Department of Corrections. Pursuant to state law, Miller 19 must serve a period of community supervision after release for a period equal one day 20 21 22 23 24 25 26 27 28
Undersigned counsel contacted the Assistant Director, "Barry," at BSSW Florence, who researched and found the "dead file" for Miller. He advised counsel that he could not find a reason why Miller was terminated, no reason was stated on termination letter, the assigned case worker is now gone, and termination letters are not always given to residents. He also said that there were only a couple of write-ups in Miller's file but nothing sufficient for termination. Barry suggested that the probation officer might have more documentation. Undersigned counsel contacted the probation officer, USPO David Gardner, and he confirmed that there was no evidence in the file that Miller had been given an explanation or reason for termination from BSSW. He provided undersigned a copy of the "Terminal Report dated 5/31/05-7/18/05, attached hereto ("A"), which described only that "Mr. Miller was Unsuccessfully terminated from the program due to US. Marshal investigation."
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1 for every seven days incarcerated. A.R.S. § 13-601(I). The Arizona Department of 2 Corrections has calculated that his parole supervision will begin January 5, 2012 and 3 supervision is scheduled to terminate April 4, 2013. (Attachment B.) 4
Miller's security level and opportunities in the Arizona State prison have been

5 limited by the federal detainer in this case. Miller made requests to return to the federal 6 system to face revocation proceedings and seek disposition now. This Court issued a 7 writ of habeas corpus to bring him into the federal system. Miller has admitted the 8 violations alleged in the petition against him. 9 2. 10
Argument­ Additional Federal Imprisonment Consecutive to State Imprisonment Is Unnecessary. The sentencing question in this case differs from the question of whether to

11 release a defendant to the community or imprison him to protect society. The question 12 here is whether justice requires more prison time than Miller is already serving. Since 13 Miller is not scheduled for release from state prison until 2012 and release from state 14 parole supervision until 2013, any possible need for incarceration is met by his present 15 state imprisonment and is outweighed by the defendant's history and needs for 16 eventually reentering society. 17
This Court has authority to terminate Miller's supervision, albeit as

18 unsuccessful. Title 18 U.S.C. § 3583 expressly grants courts the power to terminate 19 supervised release after one year of post-release supervision.2 Miller has served more 20 than one year of post-release supervision, e.g., Miller was released from prison and 21 22 23 24 25 26 27 28
18 U.S.C. § 3583 provides: (e) Modification of conditions or revocation. The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and (a)(6)(1) terminate a term of supervised release and discharge the person released at any time after the expiration of one year of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the person released and the interest of justice[.] (Emphasis added.)
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1 placed under supervision on June 3, 2003 until the first petition for revocation was 2 filed July 7, 2004. The statute's cross-referenced factors to be considered are: 3 4 5 6 7 8 9 10 12
(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed-(B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (4) the kinds of sentence and the sentencing range established in the Sentencing Guidelines; (5) any pertinent policy statement of the Sentencing Guidelines (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense.

11 18 U.S.C. § 3553 (synopsized).
Two of the factors above, 18 U.S.C. § 3553(a)(4) and (a)(5), relate to the

13 Sentencing Guidelines. The guidelines suggestions of a range and a consecutive 14 sentence are merely policy statements. (U.S.S.G. Introductory Commentary and § 15 7B1.4.) All circuits agree that the policy statements are advisory and not binding on the 16 courts. See, United States v. Schwegel, 126 F.3d 551 (3d Cir. 1997)(collecting cases) 17 and United States v. George, 184 F.3d 1119 (9 th Cir. 1999). 18
The remaining factors weigh in favor of termination or a concurrent sentence.

19 First, the history and characteristics of the defendant are two separate things. The 20 defense agrees that his criminal history is bad but what underlies the history is very 21 important. Many letters were written in support of Miller for his Maricopa County 22 Superior Court 2006 sentencing for the recent state offenses. Those letters explain a 23 great deal about Miller's history and character from: (1) his father describing how 24 Miller's innocent event at age 6 led Miller to believe he was responsible for the 25 destruction of his family and horrible events thereafter (Attachment C); (2) Miller 26 admitting his wrongs, drug addiction, and hope for a future family life (Attachment D); 27 28 5

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1 (3) a woman with hope and faith in Miller (Attachment E); (4) a prior employer very 2 impressed with Miller (Attachment F); and (5) a grateful director of a community 3 program where Miller volunteered while on supervised release (Attachment G). 4
Second, there is a need to provide Miller with educational or vocational training

5 or other correctional treatment in the most effective manner. Miller has been housed at 6 Arizona State Prison Complex-Eyman, Cook Unit, as a security level 3 because there 7 was a federal detainer pending against him. Security level 3 has limited educational 8 and vocational training, as well as jobs within the prison. In level 3, Miller successfully 9 completed a course of Custodial Maintenance offered at the prison from Central 10 Arizona College. He wants to seek better training and a better job but cannot unless he 11 has a lower security level. He would like to seek training and job opportunities such as 12 Waste Water Treatment. With a lower security level and a better job he could save 13 money for his eventual release. He is presently working and receiving approximately 14 $45-$50 a month at a rate of about $.30 an hour. Undersigned Counsel contacted a 15 supervisor, Mr. Tucker, at the Eyman Unit. Mr. Tucker confirmed that if a prisoner has 16 a continued federal detainer he would remain in security level 3, which is medium 17 security. If he does not have a detainer, he can be moved to lower security levels and 18 obtain training in more areas and with more job opportunities. Tucker explained that 19 through the Work Incentive Program, a prisoner in the security level 3 can earn $.05-to 20 $.50 an hour. With lower security level and other training, a prisoner may get 21 employment from private industry that comes to the prison and he may then be paid 22 minimum wage. However, Tucker said a detainer may prohibit obtaining such industry 23 jobs and pay. If this Court terminates Miller's supervision, the barrier would be 24 removed and he should then be eligible to seek better training and employment. That is 25 why Miller requested to be brought to this Court for disposition on the pending 26 detainer. 27 28 6

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The other statutory factors to consider include deterrence to criminal conduct

2 and protecting the public from further crimes of the defendant. Those purposes are met 3 by imprisonment from the state court. Miller has no federal restitution due to anyone. 4 Furthermore, counsel is unaware of any "sentencing disparities" among defendants 5 who have been found guilty of similar conduct. 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
/s Timothy C. Holtzen Timothy C. Holtzen Attorney for Defendant CONCLUSION Based on the foregoing, Charles Miller, III, asks this Court to terminate his supervision. Alternatively, if his supervision were not to be terminated now, he asks that any sentence be imposed concurrently with his state imprisonment and without further supervision. Respectfully submitted: June 10, 2007. Consequently, the defense asks this Court to terminate his supervision. Alternatively, Title 18 U.S.C. § 3584 provides this Court with authority to

8 impose a sentence concurrent with Miller's state court sentence:
(a) Imposition of concurrent or consecutive terms.--If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively[.]

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