Free Motion to Modify Conditions of Release - District Court of Arizona - Arizona

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CLYDE S. MUNSELL, ESQ. GLENN W. CHAROS, ESQ. 284A Third Avenue Chula Vista, CA 91910 Telephone: (760) 291-1125 Facsimile : (760) 291-1127 e-mail:[email protected]

(#51213) (#115506)

Attorney for Defendant, MANUEL A. GAMBOA Pro Hac Vice

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

10 11 12 13 14 15 16 17 18 19 and does hereby respectfully, in accordance with the Court's Order dated January 8, 2008, move 20 21 22 23 24 25 26 27 28 s/ Clyde S. Munsell Clyde S. Munsell Attorney for Defendant Gamboa the Court for an Order Terminating Supervised Release Conditions. This Motion is supported by the Memorandum of Points and Authorities attached hereto. Respectfully Submitted this 20th day of June, 2008. COMES NOW the Defendant, Manuel A. Gamboa, by and through undersigned counsel, vs. MANUEL A. GAMBOA, Defendant. UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) CASE NO: CR04-1299-PHX-EHC NOTICE OF PETITION AND MOTION TO TERMINATE SUPERVISED RELEASE

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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 under which that plea had been entered. The grounds upon which that Motion was based is

7 8 9 10 11 12 (3) 13 14 15 16 17 18 19 2007, and the matter was set for oral argument on March 16, 2007. 20 21 22 23 24 25 26 was eligible for immediate release, having been held in custody for a period more than seven (7) 27 28 months in excess of the appropriate period of incarceration. 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 resultingly, even absent the setting aside of the conviction itself as was sought by Defendant, he (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) 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). 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.

The Government filed its Opposition to Defendant's Motion on or around February 12,

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The government's Motion was granted by the Court, and the Court did issue an Order for the immediate release of the Defendant.

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 on March 16, 2007, he immediately began a period of supervised release. This remains true 24 25 26 27 28 through today. Resultingly, Defendant has now "completed" more than 16 months of this 36month term, with an ordered prison term of 12 months. Throughout this entire time, (both during the period of actual incarceration and presently under the terms of his supervised release), As noted hereinabove, the initial error in calculating Defendant's guideline term resulted in Defendant being sentenced to a term of 21 months, and by the time the error was corrected, the Defendant had already been incarcerated for a period of 19 months 3 days, nearly double want he would have served had the proper sentence been imposed. Upon the Court's release of Defendant 3. (A) LEGAL ARGUMENT CONDITIONS INHERENT WITH A TERM OF SUPERVISED RELEASE ARE INCONSISTENT WITH ITS PURPOSE GIVEN THE 12 MONTH SENTENCE As a result of that ruling defendant commenced a term of supervised release, effective March 16, 2007. Subsequent to that hearing, Defendant did bring Motion before this Court seeking to address the underlying conviction, and in the alternative, asking that the Court terminate or modify his supervised release. On January 8, 2008, after hearing argument on the matter, the Court entered its Order, which stated in pertinent part:

"With respect to terminating the defendant `s supervised release after twelve (12) months, if a report is submitted to the Court from the defendant's supervising probation office in California advising the Court that the defendant has complied with his conditions of supervised release without incident, the Court would consider a petition for early termination of supervised release."

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Defendant has demonstrated exemplary conduct, and his service of this sentence has been without incident.

3 4 5 6 7 8 the presence of defendant and counsel. United States v. Bailey, 343 F.Supp. 76 (W.D.Mo. 1971). 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (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; In view of the excess time served, coupled with the amount of time which Defendant has successfully completed under supervised release represents substantial and sufficient satisfaction of the sentence imposed. As noted in the Declaration of Glenn W. Charos filed concurrently The court's disposition of the case is governed by 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)This is true so long as the relief sought is favorable to the person and does not extend the term of probation or of supervised release; and an attorney for the government has received notice of the relief sought, has had a reasonable opportunity to object, and has not done so. In the instant action, it was the Government's indication at the time of the hearing in January, 2008 that it would not oppose such a termination following completion of a 12 month period. Pursuant to Rule 32.1 the Sentencing court is given the authority to shorten the term or 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

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herewith, Defendant has maintained full and complete compliance with all terms and conditions of his supervised release, as confirmed by his supervising Probation Officer.

3 4 5 Pursuant to 18 U.S.C. § 3583(e)(2) and Fed.R.Crim.P. Rule 32.1(c), the district court has 6 7 8 9 10 11 12 pendency of their appeals, or as in this case, a Motion to Set Aside. United States v. D'Amario 13 14 15 16 17 18 19 term of supervised release and discharge the person released at any time after the expiration of 20 21 22 23 24 25 26 27 28 Under Rule 32.1 the Sentencing court is given the authority to shorten the term or 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 one year of supervised release. United States v. O'Neil 11 F.3d 292 (1st Cir. 1993). 3. IMPOSITION OF THE ADDITIONAL TERM OF SUPERVISED RELEASE WAS NOT MANDATORY, AND IS NOW EXCESSIVE GIVEN THE 12-MONTH TERM OF IMPRISIONMENT 412 F.3d 253 (9th Cir. 2002). 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 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 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 such modifications at any time prior to the expiration or termination of the term of supervised 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 (B) SUPERVISED RELEASE WAS NOT REQUIRED IN THE INSTANT ACTION

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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

3 4 5 6 7 8 9 public from further crime by defendant), (a)(2)(D) (need to provide defendant with correctional 10 11 12 13 14 15 16 17 18 19 20 offense. 21 22 23 24 25 26 sentencing functions, and afford a reasonable time to fulfill the legislature purpose associated 27 28 with each. When first sentenced in this matter, the Court imposed a period of incarceration at what 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 The Guidelines provide that the sentencing court "shall order a term of supervised release to follow imprisonment when a sentence of imprisonment of more than one year is imposed, or 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 treatment), (a)(4) (the kinds of sentences and sentencing range established for defendants with similar characteristics under applicable Sentencing Commission guidelines and policy statements), (a)(5) (any pertinent policy statement of the Sentencing Commission in effect on the date of sentencing), and (a)(6) (need to avoid unwarranted disparities among similar defendants. 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

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CONCLUSION Based upon the foregoing, 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 same be terminated at this time. Dated: June 24, 2008 Respectfully submitted,

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

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