Free Sentencing Memorandum - District Court of Arizona - Arizona

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Neal C. Taylor BURNS, NICKERSON & TAYLOR, PLC 3003 North Central, Suite 310 Phoenix, AZ 85012 (602) 254-0004 Bar #7515 Attorney for Salvador Johnson

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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United States of America,
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Plaintiff, vs. Salvador Johnson, Defendant

) CR 04-0882-PHX-EHC ) ) ) DEFENDANT'S SUPPLEMENTAL ) ) SENTENCING MEMORANDUM ) ) ) )

This pleading is intended to supplement Defendant's previously filed Sentencing Memorandum and Objections to Presentence Report filed July 7, 2005 and the more comprehensive pleading entitled Defendant's Response to Government's Sentencing Memorandum filed October 20, 2006. On May 3, 2007, this Court continued Salvador Johnson's sentencing to May 7, 2007 at 4 pm. The Court noted that it was considering, inter alia, "reinstating the defendant's release status on conditions that the defendant submits a letter from

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Champion Homes stating that he would have a position if he's released". Counsel for Defendant hopes to have such a letter in hand by May 7, 2007.

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At that same hearing the Court wondered aloud about what Mr. Johnson was doing from March 9, 2007 ­ March 23, 2007. The Court indicated that this question did not have to be answered. 1 Nevertheless, this Court does deserve an explanation. A brief recap of Salvador Johnson's history is also in order.

HISTORY OF CASE. January 5, 2005, Defendant Salvador Johnson (Salvador) made his initial appearance in this matter. Salvador was in custody at the time. On February 9, 2005, Salvador was released from custody and placed at Recovery Homes, Inc. Salvador was immediately required to get a job and begin participating in programs that were held by Recovery Homes. Salvador was also required to attend other outside counseling and participate in various support groups. On April 26, 2005, Salvador entered a guilty plea in this matter. Salvador

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remained out of custody, as he remained a resident in good standing at Recovery Homes and was being supervised by Pretrial Services. Salvador had earlier obtained a job and continued to participate in AA programs and Narcotic Anonymous (NA) programs. He also continued to submit clean urine samples at the direction of Pretrial Services.

Counsel had intended to orally address Mr. Johnson's activities and the events leading up to his leaving Hobson House when the matter proceeded to sentencing. Upon further reflection, counsel acknowledges that the Court should have been given this information in writing and prior to the proceeding. 2

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On July 11, 2005, this Court continued Salvador's sentencing to January 9, 2006. As noted in the interim Pretrial Services report, Salvador remained in full compliance with all his release conditions. Salvador also continued to comply with all the stringent conditions of Recovery Homes. On January 9, 2006, Salvador's sentencing was continued to July 31, 2006.

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Salvador remained in full compliance with all his release conditions and remained a resident in good standing with Recovery Homes. On July 31, 2006, Salvador's sentencing was continued to October 23, 2006. Salvador remained in full compliance with all his conditions set by Pretrial Services and remained a resident in good standing with Recovery Homes. Salvador was promoted to Hobson House, a "Three Quarter House" located at 334 S. Hobson in Mesa. Salvador has been working at Champion Homes in Mesa for many months

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now. He was employed doing the assembly of mobile homes. In December of 2006, Salvador was honored as the Employee of the Month. He had received several pay raises and was making $12.00 per hour at the time the current problem arose.

EVENTS OF MARCH 9 ­ 23, 2007. On March 6, 2007, Salvador was residing at Hobson House. That Tuesday morning, Salvador went to work at Champion Manufactured Homes, as he did every Monday through Friday. After work, he went to his girlfriend's home as he often did.

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His girlfriend, or her mother, provided the transportation as Salvador does not have a vehicle. His girlfriend lives in the Native American community of Sacaton. Unfortunately, that night Salvador did not get back to Hobson House in time. 2 This constituted a violation of his rules. Salvador and the house manager at Hobson House had several discussions

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about what would be the punishment for the curfew violation. Salvador knew that he would lose some weekend privileges, but he thought it had not yet been determined what the final sanction would be. On Friday, March 9th, Salvador left for work like always. After work, his girlfriend picked him up and they went back to Hobson House where he cleaned up and changed clothes so they could go out to eat. At this time, Salvador was acting under the premise that the forfeited weekend time had not yet started.3 Accordingly, he did the same as he was previously allowed to do; he went to his girlfriend's house

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where he planned on spending the weekend. Saturday morning he received a call from one of the residents at Hobson House. The resident told Salvador that he "was in trouble with Gary"; that they were "gathering up all" his personal effects; and that "he would now be the Marshal's" concern. At this point, Salvador panicked. Ever present in his mind were the

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Salvador acknowledged that he had the bottom line responsibility for getting back on time. Nevertheless, because he relied on others for transportation, there was always a weak link in his transportation plans. In this case, Salvador accepts full responsibility for his late return on March 6th. 3 Apparently this was in error as the Hobson House Manager considered Salvador to be on restriction at this time. 4

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admonitions of the Court, his counsel, and Gary Gaston. From that point on he stayed in Sacaton and awaited his arrest. On March 23rd Salvador was taken into custody. One of the first things he did was ask for was a drug test. Salvador's absconding was an act of panic. It was not preplanned or

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premeditated. This can best be seen by what was left behind at Hobson House. Virtually everything of value­be it sentimental or pecuniary­was left behind. Those items included: 1. 2. 3. 4. Family and funeral mementos from his brother; His wooden flute that was used in ceremonies; His extensive collection of drawings done by himself and others; His large CD collection that included not only contemporary music but also difficult to obtain tribal music and music from pow-wows;

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Since Salvador had been working he had acquired a number of personal items that he had previously not been able to get for himself. 5
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His X-Box and several large speakers 4 ; Six pair of work pants, 6 dress shirts, 9 casual shirts, 5 pair of dress pants and several pairs of shoes;

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His coin collection; His bank statements and income tax information; and His legal documents.

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Since this Court initially released Salvador from custody on February 9, 2005, Salvador has had no positive urinalyses, no contact with police authorities, and he had remained gainfully employed. PERSONAL FAMILY BACKGROUND. As noted in prior pleadings, Salvador did not start life with the advantages that

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many of us take for granted. He was raised by two drug addicts who used him to steal to support their drug addictions. He was rejected by his birth father and scorned by his stepfather. His lack of parental guidance set him on a path to criminal behavior. Because parental guidance was often lacking, he was periodically removed from the home and placed with Child Protective Services. As a child, his peer group, as well as his family, consisted of persons who embraced a criminal life style. His juvenile history reflects this childhood background. In February of 2005, this Court gave Salvador an opportunity, a challenge and a

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new hope. For the most part, Salvador succeeded. For the most part, he complied with all the strict requirements of Recovery Homes, Inc. Salvador also participated in the many recovery and support programs that were offered to him. And, he gradually began to internalize the guidance and lessons he was being offered. By embracing the NA and AA programs Salvador found a new will and determination live a clean and lawful life. In addition, Salvador replaced the mores of his birth family with the moral code of Recovery Homes, his support group and his support group members. This new code speaks to personal responsibility and

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sobriety. Since the court released Salvador on February 9, 2005, Salvador has had over twenty-seven months of perfect sobriety. Since February 9th of 2005, Salvador has made great strides. But he has not been perfect. Salvador has made some missteps. Nevertheless his gains far exceed his minor travails. He has not fallen back into the slavery of drugs. He has not fallen

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back to a criminal lifestyle. Salvador's personal history is still part of him. He does remain a fragile soul that is fearful that he will slip back into the abyss. He also acknowledges that going to prison would be the easy path, the path of least resistance.

RECOMMENDATION. Prior to the May 3, 2007 sentencing date, Salvador assumed that he would be going to prison. 5 He blamed no one but himself. His letter to the Court was not a

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blatant plea for mercy or a shifting of blame. The letter spoke in gratitude and acknowledgement of the opportunities this Court gave him. In so doing, his letter also reflected many of the internalized changes that are Salvador today. The Court has indicated that it may reinstate Salvador's release conditions if Recovery Homes will take him back. It is unknown whether Recovery Homes will allow Salvador back into their facility. If that placement is not available, it is

Counsel informed Mr. Johnson that he would most likely be sentenced to prison. 7

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requested that the Court consider other possible placements and/or electronic monitoring. On the other hand, if the Court determines it should proceed with sentencing, it is submitted that the "History and Characteristics of the Defendant" (18 U.S.C §3553(a)(1)) would point to a sentence other than prison. If the Court proceeds with

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sentencing, it is requested that this Court place the Defendant, Salvador Johnson, on probation for a term of five years. RESPECTFULLY SUBMITTED this 7th day of May, 2007.

s/ Neal C. Taylor Neal C. Taylor BURNS, NICKERSON & TAYLOR, PLC

Copies of the foregoing mailed/ ECF/ e-mailed this 7th day of May 2007, to: The Honorable Earl H. Carroll United States District Court 401 West Washington Phoenix, AZ 85003 Michael Lee Assistant U.S. Attorney 40 North Central Ave., Ste. 1200 Phoenix, AZ. 85004 U.S. Probation Officer 401 West Washington Phoenix, AZ 85003

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Julie Roth BURNS, NICKERSON & TAYLOR, PLC

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