Free Motion to Modify Conditions of Release - 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, CON Defendant.

CASE NO: CR04-1299-PHX-EHC ) ) NOTICE OF MOTION AND MOTION ) TO ENTER RULING ON MOTION TO ) SET ASIDE PLEA/INDICTMENT; ) ALTERNATIVELY TO TERMINATE ) OR MODIFY SUPERVISED RELEASE ) CONDITIONS ) )

COMES NOW the Defendant, Manuel A. Gamboa, by and through undersigned counsel, and does hereby respectfully move the Court for an Order on his Motion (1) Striking the Indictment, previously before the Court for hearing on March 16, 2007, or alternatively, for an Order Terminating or Modifying Supervised Release Conditions. This Motion is supported by the Memorandum of Points and Authorities attached hereto. Respectfully Submitted this 20th day of August, 2007.

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

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MEMORANDUM OF POINTS AND AUTHORITIES

FACTUAL HISTORY OF THE CASE On or around February 2, 2007, Defendant, MANUEL A. GAMBOA caused to be filed

with this Court a Motion to Set Aside both his plea in the underlying case, and the Indictment 6 7 8 9 10 11 12 (3) 13 14 15 16 17 18 The Government filed its Opposition to Defendant's Motion on or around February 12, 19 20 21 22 23 24 25 resultingly, even absent the setting aside of the conviction itself as was sought by Defendant, he 26 27 28 was eligible for immediate release, having been held in custody for a period in excess of seven (7) months beyond the appropriate sentence. 2007, and the matter was set for oral argument on March 16, 2007. At the time of the scheduled hearing on that Motion, the United States moved the Court to correct Defendant's sentence, acknowledging at that time that the calculation set forth in the Pre-sentencing Report was erroneous. It was thus revealed that as a consequence of this error, the actual period of incarceration should have been for a term of twelve (12) months only, and (4) As reflected in the Plea Agreement itself, as well as the Court's record, the underlying basis for that conviction was an admitted allegation that the defendant had suffered a prior felony conviction in 1999, in the State of California, Superior Court Case No. SCD 141849. That conviction, as alleged, served as the disabling event upon which defendant was deemed a "felon-in-possession". In connection with that plea, Mr. Gamboa was sentenced to 27 months imprisonment, together with a three (3) year "tail" of a period of supervised release. (2) under which that plea had been entered. The grounds upon which that Motion was based is summarized as follows: (1) The Defendant had been named in two-defendant information charging him with the sole count of being a felon-in-possession on or about December 4, 2004. On April 28, 2005, Mr. Gamboa entered a guilty plea to that charge, Count 2 of the Indictment, Title 18, U.S.C. 922(g)(1).

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The government's Motion was granted by the Court, and appropriately, the Court issued an Order for the immediate release of the Defendant. The hearing on Defendant's Motion was,

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 As noted, the underlying conviction resulted in Defendant being sentenced to a term of 25 26 27 28 21 months. As of the date when the government first acknowledged its error in the calculation of that term of imprisonment, the Defendant had already been incarcerated for a period of 19 months 3 days, (roughly 60% more than that required), justifying this Court's Order for his immediate release as of the date of the government's motion to correct the sentencing term. Case 2:04-cr-01299-EHC Document 83 Filed 08/24/2007 3 Page 3 of 6 (2) CONDITIONS INHERENT WITH A TERM OF SUPERVISED RELEASE ARE OVERBURDENSOME AND INCONSISTENT WITH ITS PURPOSE For the reasons set forth in Defendant's Motion, as filed with this Court on February 12, 2007, no such finding can be made, and the Court should now enter its ruling granting Defendant's Motion. (1) ANY VIOLATION OF 922 REQUIRES AN AFFIRMATIVE FINDING THAT THE ACCUSED WAS, AT THE TIME OF THE OFFENDING CONDUCT, A CONVICTED FELON sentence which flowed from the same, inclusive 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). 3. LEGAL ARGUMENT by stipulation, deferred, pending either a ruling on the same by this Court, or if needed, further argument. As a result of that ruling defendant commenced a term of supervised release, effective March 16, 2007. Of course, it remains Defendant's position that the conviction itself, as well as the

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At that time, Defendant commenced a period of supervised release, and this has continued through the present time. As such, Defendant has "completed" more than 12 months

3 4 5 6 7 Pursuant to Rule 32.1 the Sentencing court is given the authority to shorten the term or 8 9 10 11 12 13 14 probation or of supervised release; and an attorney for the government has received notice of the 15 16 17 18 (probation) and § 3583 (supervised release). The court may, after considering the factors set 19 20 21 22 23 24 25 26 27 28 forth in section 3553 (a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)(1) terminate a term of supervised release and discharge the defendant 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 defendant released and the interest of justice; relief sought, has had a reasonable opportunity to object, and has not done so. The court's disposition of the case is governed by 18 U.S.C. § 3563 and § 3565 end 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). This is true so long as the relief sought is favorable to the person and does not extend the term of of this 36-month term. Throughout this entire time, (both during the period of actual incarceration and presently under the terms of his supervised release), Defendant has demonstrated exemplary conduct, and his service of this sentence has been without incident.

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In the case at bar, the Movant's conviction is improper, and any sentence is inappropriate. Alternatively, the excess time served, coupled with the following period of

3 4 5 6 (3) 7 8 9 10 possible. Despite having served a period of incarceration well beyond that which was required, 11 12 13 14 15 16 17 from Mexico, where a substantial amount of his work is done, limits his value to his employer. 18 19 20 Both the Indictment and the Plea Agreement in the matter at hand is suspect, since each 21 22 23 24 25 26 27 circumstances. 28 must stand, if at all, on Mr. Gamboa having been previously convicted in a 1999 California case of a felony for which he received a sentence punishable by imprisonment for a term exceeding one year. Both, of course, must fail. It is respectfully submitted that this lack of the proper prerequisite felony is fatal and the indictment should be set aside and Mr. Gamboa released forthwith from his custodial CONCLUSION throughout which he acted as a model prisoner, completing various programs and educational courses, and despite having continued with that exemplary conduct throughout this recent period of supervised release, Movant remains subject to various limiting, if not debilitating conditions. Of the greatest importance at this juncture, and as more fully discussed in the Declaration of MANUEL GAMBOA filed concurrently herewith, restrictions upon his ability to travel to and Minimally, the conditions imposed in connection with the Movant's term of supervised release should be subject to modification by this Court so as to impose the least restrictions MODIFICATION OF EXISTING CONDITIONS OF SUPERVISED RELEASE supervised release represents substantial and sufficient satisfaction of the sentence, as modified by the government's correction of its error in calculating his sentence.

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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

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/ Clyde S. Munsell Clyde S. Munsell, Attorney for Defendant same be terminated at this time, or otherwise modified so as to reflect only the minimum conditions deemed appropriate and allow for his travel freely within and outside of the United States as may otherwise be lawful. Dated: August 24, 2007 Respectfully submitted,

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