Free Reply to Response - District Court of Arizona - Arizona

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CLYDE S. MUNSELL Attorney at Law (CA BAR 51213) 284A Third Avenue Chula Vista, CA 91910 Telephone: (619) 224-3151 Facsimile : (619) 224-6775 e-mail: [email protected] Attorney for Defendant, MANUEL A. GAMBOA Pro Hac Vice

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,) Plaintiff,

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. MANUEL A. GAMBOA, Defendant.

CASE NO: CR04-1299-PHX-EHC ) ) DEFENDANT'S REPLY PURSUANT ) TO ORDER DATED SEPTEMBER 18, ) 2007 RE MOTION TO SET ASIDE ) ) ) ) )

COMES NOW the Defendant, Manuel A. Gamboa, by and through undersigned counsel, and does reply to the Court's Order dated September 18, 2007 as hereinafter set forth. Respectfully Submitted this 12th day of October, 2007.

s/ Clyde S. Munsell Clyde S. Munsell Attorney for Defendant Gamboa

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MEMORANDUM OF POINTS AND AUTHORITIES

THE GOVERNMENT'S RESPONSE TO THE MOTION IS NOT IN ACCORDANCE WITH THE COURT'S ORDER, IS UNTIMELY, AND SHOULD NOT BE SUBJECT TO CONSIDERATION BY THE COURT On or around February 2, 2007, Defendant, MANUEL A. GAMBOA caused to be filed

6 7 8 9 10 11 12 miscalculation of the Defendant's imposed sentence and its own Motion to correct the same. 13 14 15 16 17 18 19 20 21 22 While it remains the position of the Defendant's that the very conviction which now 23 24 25 26 27 28 serves as the basis of this term of supervised release, is without lawful basis and improper given the lack of a requisite felony conviction upon which to satisfy the elements for a violation of Section 922 (g) (1), Defendant does, in accordance with the Court's Order of September 18, 2007, herein address the issue as to what effect a 12-month sentence has upon a term of supervised release. Since that date, no further action has been taken in regards to the underlying Motion to Set Aside the Plea Agreement and Sentencing. On September 18, 2007, the Court, stated "IT IS ORDERED that within twenty (20) days the government shall file supplemental briefing in response to Defendant's Motion to Terminate or Modify Supervised Release Conditions." (emphasis added). Once again, the Government has been late to respond, its Response having been filed on October 11, 2007, and Defendant hereby objects to said filing as untimely and time-barred. with this Court a Motion to Set Aside both his plea in the underlying case, and the Indictment under which that plea had been entered. The Government filed its Opposition to Defendant's Motion on or around February 12, 2007, and the matter was set for oral argument on March 16, 2007. A ruling on that Motion was "stayed" upon the Government acknowledging a

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1 2 3 4 5 6 7 8 9 10 amount of time he would have served under the corrected 12-month term. As such, and in 11 12 13 14 15 16 17 of a request to terminate or modify that aspect of sentencing, the Court has the ability to address 18 19 20 21 22 23 24 such modifications at any time prior to the expiration or termination of the term of supervised 25 26 27 28 release." By that express language, Congress has expressly authorized the district court to retain jurisdiction over and supervise the release of convicted defendants, including during the pendency of their appeals, or as in this case, a Motion to Set Aside. United States v. D'Amario 412 F.3d 253 (9th Cir. 2002). Case 2:04-cr-01299-EHC Document 90 Filed 10/14/2007 3 Page 3 of 9 this issue in a situation where a term of supervised release was not a requisite component of the imposed sentence. Pursuant to 18 U.S.C. § 3583(e)(2) and Fed.R.Crim.P. Rule 32.1(c), the district court has plenary jurisdiction to supervise a convicted defendant's release, including the jurisdiction to modify the conditions of supervised release. The statute authorizes the district court to make keeping with the statutory provisions of 18 U.S.C. § 3563 and § 3565 (probation) and § 3583 (supervised release), 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), (a)(6), and (a)(7) modify the entirety of its sentence based upon such a change in circumstances. While this statutory scheme generally requires the Defendant first having served 12 months of supervised release before the Court's consideration In the matter before the Court, the Defendant's conviction first resulted in the imposition of a sentence of 21 months. By the time the government acknowledged its error in the pre-sentencing calculation of that term of imprisonment, the Defendant had already been incarcerated for a period of 19 months 3 days, and had therefore served roughly twice the 2. IT IS WITHIN THE DISTRICT COURT'S AUTHORITY TO MODIFY ITS SENTENCE, INCLUSIVE OF TERMINATING OR AMENDING A TERM OF SUPERVISED RELEASE

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Passed as part of the Sentencing Reform Act of 1984, 18 U.S.C. Secs. 3551-3559, 35613566, 3571-3574, 3581-3586, & 28 U.S.C. Secs. 991-98 (1988 & Supps.), the supervised release

3 4 5 6 7 8 9 10 11 12 13 14 15 period of 16 17 18 19 20 21 22 serve the general punishment goals of § 3553(a). (citing United States v. Lussier, 104 F.3d 32, 23 24 25 26 27 28 35 (2d. Cir. 1997)). In that determination, the relevant factors are referred to in § 3583(e)(2) and specified in § 3553(a), and include, in pertinent part, the nature and circumstances of the offense, the need for deterrence, the need to protect the public, the need to provide defendant with training or medical care, and the relevant provisions of the Sentencing Guidelines. Although incarceration that it deemed necessary to achieve the objectives consistent with the legislature purpose of that non-detentive monitoring period. In United States v. Miller 205 F.3d 109 (9th Cir. 2000), it was recognized that a sentencing court must be able to respond to changes in the defendant's circumstances that may render a previously imposed condition of release either too harsh or inappropriately tailored to Correct Sentencing, Defendant's sentence was corrected to reflect a term of 12 months. When that sentence was corrected, resulting in an overall reduction of the term by nearly one-half, the corresponding issue of the length of supervised released was not addressed. Consequently, it may be presumed that since it was the Court's indicated desire to impose sentence at the lowest end, the Court similarly would have selected a term of supervised release proportional to the alteration statute, 18 U.S.C. Sec. 3583(e), of which the SRR provision is a part, authorizes a court to alter a term of supervised release in a number of ways, the first of which is to terminate a term of supervised release and discharge the person released at any time after the expiration of one year of supervised release. United States v. O'Neil 11 F.3d 292 (1st Cir. 1993). In the case at bar, as a direct result of the Court's ruling on the Government's Motion to

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subject to constitutional constraints, statutory limitations, and the guidelines themselves, sentencing is, by and large, within the province of the district court.

3 4 5 6 7 8 9 10 11 12 13 14 Under Rule 32.1 the Sentencing court is given the authority to shorten the term or end 15 16 17 18 19 20 21 22 23 24 25 26 27 public from further crime by defendant), (a)(2)(D) (need to provide defendant with correctional 28 treatment), (a)(4) (the kinds of sentences and sentencing range established for defendants with is warranted by the conduct of the defendant and in the interests of justice." 18 U.S.C. § 3583(e)(1). The statute directs the court to consider many of the same factors that the court weighs when imposing the original sentence. The statute directs the court to make an evaluation based on 18 U.S.C. § 3553(a)(1) (nature and circumstances of the offense and the defendant's history and characteristics), (a)(2)(B) (need to deter criminal conduct), (a)(2)(C) (need to protect probation early upon its own motion without a hearing. In that vein, while the modification of probation is a part of the sentencing procedure, ordinarily entitling the probationer to a hearing, a modification favorable to the probationer may be accomplished without a hearing in the presence of defendant and counsel. United States v. Bailey, 343 F.Supp. 76 (W.D.Mo. 1971). Additionally, a district court may terminate supervised release, "if it is satisfied that such action (1st Cir.) cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989). United States v. O'Neil (Supra). 3. IMPOSITION OF THE ADDITIONAL TERM OF SUPERVISED RELEASE WAS NOT MANDATORY, AND IS NOW EXCESSIVE GIVEN THE 12-MONTH TERM OF IMPRISIONMENT Sentences typically contain a variety of components, e.g., an incarcerative component, a monetary component (a fine or cost-of-confinement order), and a non-detentive, non-monetary component (supervised release). These components often interrelate, and where events result in one component of the bundle being reconfigured, it may often be better practice to enlist the district court to retrofit the entire package. United States v. Pimienta-Redondo, 874 F.2d 9, 14

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similar characteristics under applicable Sentencing Commission guidelines and policy statements), (a)(5) (any pertinent policy statement of the Sentencing Commission in effect on the

3 4 5 6 to follow imprisonment when a sentence of imprisonment of more than one year is imposed, or 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 term of supervised release is to be included, the length of the term and the conditions of 25 26 27 28 supervised release to be imposed should must take into account the factors set forth in section 3553 (a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7). At the very least, Defendant's period of incarceration was excessive, resulting in an effective sentence well beyond that which was warranted by the crime alleged. That excess time served, coupled with the following period of supervised release represents substantial and sufficient satisfaction of the sentence, as modified by the government's correction of its error in calculating his sentence. In determining whether to include a term of supervised release, and, if a was then believed to be the lower level applicable. Likewise, a three-year term of supervised release was ordered in accordance with statutory discretionary authority for that Felony Class. Presumably, imposition of the three-year term was so as to strike parity between those two sentencing functions, and afford a reasonable time to fulfill the legislature purpose associated with each. when required by statute." Guidelines § 5D1.1(a). (emphasis added). The ranges of supervisedrelease periods specified by the Guidelines vary according to the classification of the defendant's offense. When first sentenced in this matter, the Court imposed a period of incarceration at what date of sentencing), and (a)(6) (need to avoid unwarranted disparities among similar defendants. The Guidelines provide that the sentencing court "shall order a term of supervised release

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1 2 3 4 5 6 7 8 9 10 11 supervised release, the excess portion of his prison term cannot be credited against his 12 13 14 15 16 17 18 of justice")), and where no statutory section required that the Defendant be ordered to serve any 19 20 21 22 5. 23 24 25 26 27 28 supervised release is intended to facilitate "the integration of the violator into the community, while providing the supervision designed to limit further criminal conduct." U.S.S.G. Ch. 7, Pt. Imprisonment and supervised release are designed to serve very different purposes. See Douglas, 88 F.3d at 534 (citing United States v. Love, 19 F.3d 415, 417 & n. 4 (8th Cir.), cert. denied, 513 U.S. 967, 115 S.Ct. 434, 130 L.Ed.2d 346 (1994)). Rather than being punitive, CONCLUSION minimum term of supervised release for his offense, the parameters of his supervised-release term are governed by the Guidelines and the Court's discretion. (emphasis added). supervised-release term; However, as noted by the Court in the similar case of United States v. Barresi 361 F.3d 666 (2nd Cir 2004), 03-1368, such a defendant is free to seek early termination of his supervised release term pursuant to 18 U.S.C. § 3583(e)(1) (court may terminate an individual's supervised release obligations "at any time after the expiration of one year . . . if it is satisfied that such action is warranted by the conduct of the defendant released and in the interest In a situation where the imposition of a three-year supervised-release term is mandated by statute, the district court could not reduce that term to compensate the Defendant for extra time spent in prison. See United States v. Johnson, 529 U.S. 53, 54-56 (2000) (where a defendant has served excess prison time but had been sentenced to the statutory minimum period of 4. DEFENDANT'S SERVICE OF EXTRA TIME SHOULD BE CONSIDERED BY THE COURT IN DETERMINING WHETHER SUPERVISED RELEASE IS NECESSARY

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A, comment. (n. 4), p.s.; see also Quinones, 936 F.Supp. at 155. As such, the more time a defendant serves in prison, more likely the greater his need for a period of supervised release. In

3 4 5 6 7 8 9 10 11 12 13 to consider some of the same factors a court must weigh when imposing a sentence generally. 14 15 16 17 18 19 sentence and the sentencing range established for the applicable category of offense committed 20 21 22 23 24 25 26 criminal statute. 27 28 by the applicable category of defendant as set forth in the [sentencing] guidelines," id. Sec. 3553(a)(4). In short, factors to be considered in imposing a term of supervised release include the dangerousness of the defendant as well as the severity of the term of imprisonment already imposed on the defendant. Thus, at least some of the defendants most in need of supervised release are those who receive prison terms at or near the maximum allowed by an individual See 18 U.S.C. Sec. 3583(c) (1988). These include "the nature and circumstances of the offense and the history characteristics of the defendant," id. Sec. 3553(a)(1); "the need for the sentence imposed--to afford adequate deterrence to criminal conduct" and "to protect the public from further crimes of the defendant," id. Sec. 3553(a)(2)(B)-(C); and most tellingly, "the kinds of prison sooner than worse-behaved inmates, but as a consequence were supervised for longer periods on the outside. The present statute requires a sentencing court contemplating a term of supervised release fact, Congress effectuated this change because under the parole system, a defendant serving the majority of a long-term sentence in custody, and therefore in great need of post-incarceration supervision would get little whereas a defendant who did not need such supervision would get a great deal. Indeed, this disparity was almost assured by the parole system: better-behaved inmates, who presumably could handle life outside of prison on their own reasonably well, left

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1 2 3 4 5 6 7 the nature of the offense, (the purchase of a firearm at a gun show while allegedly subject to the 8 9 10 11 12 13 14 discretion, any special unfairness perceived to exist because of the unusual circumstances of his 15 16 17 18 19 20 21 Dated: October 12, 2007 22 23 24 25 26 27 28 s/ Clyde S. Munsell Clyde S. Munsell, Attorney for Defendant Respectfully submitted, case, it is respectfully submitted that the lack of the proper prerequisite felony in this instance is fatal and the indictment should be set aside. Alternatively, it is respectfully requested that since Movant has served nearly twice his required jail term, as well as a substantial period of the imposed supervised release term, that the sentence be modified, and the condition of supervised release stricken. disabling conditions of a prior felony conviction), the limited period of the applicable prison term, and Mr. Gamboa's successful transition to the community, a continuation of an extended period of supervised release is unnecessary and unwarranted, serving only to impede his ability to fully integrate into society and to perform job duties freely. Taking into account "the interests of justice", which here could include, in the court's The Defendant, as a result of the Government's error, had his liberties denied for a period of not 12 months as was later amended, but for nearly 19 months. Had Defendant's release date been correctly established at the time of sentencing, his transition to any period of supervised release would have begun after a brief period of incarceration and residential confinement. Given

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