Free Response to Motion - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona PAUL V. ROOD Assistant U.S. Attorney Arizona State Bar No.004494 [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, CR-04-1299-PHX-EHC Plaintiff, v. Manuel A. Gamboa, Defendant. GOVERNMENT'S SUPPLEMENTAL RESPONSE TO THE DEFENDANT'S MOTION TO TERMINATE OR MODIFY SUPERVISED RELEASE CONDITIONS

The United States of America, through undersigned counsel responds to the defendant's motion with a request that the court deny the motion to modify or terminate Supervised Release. This response is based upon the following memorandum of points and authorities. Excludable delay under 18 U.S.C. § 3161(h) may occur as a result of this motion or an order based thereon. Respectfully submitted this 11 th day of October, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona S/Paul V. Rood PAUL V. ROOD Assistant U.S. Attorney

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Memorandum of Points and Authorities: In the government's original response to the defendants motions there was no specific response to that portion of the motion dealing with Supervised Release. Pursuant to the court's order of September 18, 2007, this supplement will address Supervised Release. The defendant wants supervised release to be terminated or modified. While it is correct that the defendant was incarcerated for a longer period of time due to a guideline mis calculation, it does not warrant any extraordinary measures or consideration by the court. TERMINATION OF SUPERVISED RELEASE The defendant moves for a termination of his Supervised Release arguing his original conviction is in firmed and as such there is no valid conviction to support a term of Supervised Release. This is the subject of the pending motion to set aside the conviction filed by the defendant. If however this is an argument based upon unlawfully imposed conditions, the court is without authority to modify supervised release based upon an illegality. See United States v. Gross 307 F.3d 1043, (9 th Cir. 2002) The second basis for a termination is that the claim that defendant meets the requirements of Title 18 United States Code, Section 3583(e)(1) Modification of conditions or revocation, which allows the court to terminate supervised release if warranted. MODIFICATION OF TERMS OF SUPERVISED RELEASE If the court does not terminate supervised release, the defendant asks for modification of the terms. Defendant says the conditions are too restrictive. He refers specifically to the prohibition on the defendant going to Mexico for work. Like termination, the basis for modification of Supervised Release is found in 18 U.S.C. § 3583(e)(1). A defendant must meet certain requirements before requesting the court take action on Supervised Release. The defendant has not met the first requirement: 2 a person has served at

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least one year on supervised release. Gamboa has not been on supervised release for one year. The defendant was sentenced to a 36 month term of Supervised Release at his original sentencing. That term did not begin to run until his incarceration finished. He was released from confinement on or about March 16, 2007. The period of Supervised Release started on that date and is to run for 3 years. The 1 year period of Supervised Release required by the statute will not be until or about March 16, 2008. The addition "service" claimed by the defendant, satisfying 18 U.S.C. § 3583(e)(1) was spent in the Bureau of Prisons. There is no legal basis to claim that this time was actually part of Supervised Release. As he has not been on Supervised Release for the one year period, the request to terminate or modify is premature and should be denied. In conclusion, the court has the authority to terminate or modify Supervised Release pursuant to 18 U.S.C. § 3583(e)(1), however the defendant must be "eligible" before asking the court for such relief. While not directly relating to the requests under 18 U.S.C. § 3583(e)(1), the court can be asked to intercede with the probation department if defendant clearly demonstrates a need to travel out of the country on business and the probation officer will not give permission. Respectfully submitted this 11 th day of October, 2007.

DANIEL G. KNAUSS United States Attorney District of Arizona S/Paul V. Rood PAUL V. ROOD Assistant U.S. Attorney

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CERTIFICATE OF SERVICE I hereby certify that on October 11, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Clyde Munsell s/Paul V. Rood PAUL V. ROOD

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