Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 850 W. Adams, Suite 201 Phoenix, Arizona 85007 3 Telephone: (602) 382-2727 4 MILAGROS A. CISNEROS State Bar # 020410 5 [email protected] Asst. Federal Public Defender 6 Attorney for Defendant 7 8 9 10 11 12 13 14 15 vs. Luis Armando Higuera-Llamas, Defendant. Defendant, Luis Armando Higuera-Llamas, through undersigned United States of America, Plaintiff, No. CR 04-800-1-PHX-JAT MOTION TO DISMISS PETITION TO REVOKE SUPERVISED RELEASE (Oral Argument Requested) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

16 counsel, respectfully moves this Court to dismiss his pending petition to revoke 17 supervised release and to enter an order terminating his supervised release in this 18 case. This motion is supported by the attached Memorandum of Points and 19 Authorities. 20 21 22 23 24 25 26 27 28 s/Milagros A. Cisneros MILAGROS A. CISNEROS Respectfully submitted: February 23, 2007. JON M. SANDS Federal Public Defender

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MEMORANDUM OF POINTS AND AUTHORITIES On February 16, 2007, Luis Armando Higuera-Llamas had his initial

3 appearance on a petition to revoke his supervised release in the instant case. He 4 respectfully requests that this Court dismiss the petition because it was filed well 5 beyond the expiration of his 12-month period of supervision. Accordingly, this Court 6 lacks jurisdiction to revoke Mr. Higuera-Llamas's supervised release. 7 I. 8 FACTS Mr. Higuera-Llamas was arrested on June 20, 2004 and detained on

9 Illegal Reentry charges in case number CR 04-800-PHX-EHC. See Court Docket. 10 He was convicted of Illegal Reentry, at trial, on October 7, 2004. [Dkt. # 34.] On 11 December 20, 2004, Mr. Higuera-Llamas was sentenced to 18 months of 12 incarceration, with 12 months of supervised release to follow. [Dkt. #46.] Mr. 13 Higuera-Llamas filed a notice of appeal of his conviction and sentence on December 14 30, 2004. [Dkt. # 47.] 15 Mr. Higuera-Llamas was transferred to the Bureau of Prisons ("BOP") 16 facility in Lompoc, California to complete his term of imprisonment. Mr. Higuera17 Llamas reports that, on or about September 29, 2005, upon completion of his term of 18 imprisonment, he was released from Lompoc, having received over two months of 19 "good time" credit. He also reports that, on or about October 1, 2005, Mr. Higuera20 Llamas was transferred to the Immigration and Customs Enforcement ("ICE") facility 21 in Eloy, Arizona while waiting for a decision on his appeal. On March 17, 2006, the 22 Court of Appeals affirmed the district court's judgment. 23 Memorandum in CA # 05-10020, attached hereto as Exhibit A. 24 On March 29, 2006, Mr. Higuera-Llamas filed a motion for stay of his 25 removal with the Court of Appeals. See Case Summary in CA # 06-71596, attached 26 hereto as Exhibit B. The motion was dismissed on September 27, 2006 and the 27 28 2 See Judgment and

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1 mandate in that case issued on November 2, 2006. Id. Mr. Higuera-Llamas was 2 removed from the United States on November 27, 2006. Mr. Higuera-Llamas was 3 continuously detained, by the immigration authorities, from the time of his release 4 from BOP custody on or about September 29, 2005 until the time of his removal, on 5 November 27, 2006. 6 On December 25, 2006, Mr. Higuera-Llamas was found in the United 7 States and was charged in CR 07-0045-PHX-JAT, with Attempted Illegal Reentry 8 After Deportation, pursuant to Title 8, United States Code, Section 1326(a) and 9 enhanced by (b)(1). He has been in pretrial detention since that time. A petition to 10 revoke Mr. Higuera-Llamas's supervised release in CR 04-800-PHX-EHC (now CR 11 04-800-PHX-JAT) was filed on February 5, 2007 based upon the allegations in CR 12 07-0045-PHX-JAT, and a warrant for his arrest issued on February 12, 2007. He was 13 initialed on the petition on February 16, 2007. The petition incorrectly states that Mr. 14 Higuera-Llamas was released from Bureau of Prisons custody on March 1, 2006. 15 II. 16 LAW AND APPLICATION A district court's authority to revoke a term of supervised release extends

17 for a reasonable time beyond the expiration of the supervised release term if, prior 18 to expiration of the supervised release term, a warrant or summons has been issued 19 based upon an allegation that a condition of supervised release has been violated. See 20 18 U.S.C. § 3583(I) (emphasis added). The issue of tolling is governed by 18 U.S.C. 21 § 3624(e), which provides in relevant part that: 22 23 24 25 26 27 28 A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days. 18 U.S.C. § 3624(e). "Imprisonment" means only the period of incarceration that the prisoner serves as a "penalty or sentence" for his crime, and not, for instance, the pretrial detention period, the purpose of which is to protect the public and to ensure the 3

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1 prisoner's appearance at trial. United States v. Morales-Alejo, 193 F.3d 1102, 1105 2 (9th Cir. 1999). Indeed, the relevant statute does not expressly authorize the tolling 3 of a term of supervised release during a period of detention by immigration 4 authorities, and such tolling would be inconsistent with other statutory provisions. 5 See 18 U.S.C. § 3583(d) ("If an alien defendant is subject to deportation the court 6 may provide, as a condition of supervised release, that he be deported and remain 7 outside the United States, and may order that he be delivered to a duly authorized 8 immigration official for such deportation.") (emphasis added). 9 Mr. Higuera-Llamas's term of supervised release expired on or about 10 September 29, 2006, twelve months after he was released from BOP custody. The 11 running of his term of supervised release was not tolled during the period of time he 12 was in immigration detention because such a detention does not constitute 13 imprisonment. Indeed, his term of imprisonment concluded on or about September 14 29, 2005, when he was awarded a good time credit and released from BOP custody. 15 Between September 29, 2005 and November 27, 2006 Mr. Higuera-Llamas was not 16 "imprisoned" in connection with any crime; he was simply in immigration detention. 17 Even assuming, arguendo, that Mr. Higuera-Llamas was not awarded 18 good time credit and that he served his 18-month sentence in full, which he did not, 19 his supervised release would have expired well before the petition issued and even 20 before the commission of the violation alleged therein. Mr. Higuera-Llamas was 21 arrested on June 20, 2004 and the 18-month period of imprisonment would have 22 expired December 20, 2005. Thus, under no calculation would it have been possible 23 for Mr. Higuera-Llamas to complete his term of imprisonment on March 1, 2006. 24 The 12-month period of supervised release would have begun, at the very latest, on 25 December 20, 2005 and expired on December 20, 2006. Mr. Higuera-Llamas was 26 found in the United States on December 25, 2006. 27 28 4

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CONCLUSION For the foregoing reasons, Mr. Higuera-Llamas respectfully requests that

3 this Court dismiss the petition on supervised release presently pending in the instant 4 case and enter an order terminating his supervised release. 5 6 7 8 9 10 11 Respectfully submitted: February 23, 2007. JON M. SANDS Federal Public Defender Milagros A. Cisneros MILAGROS A. CISNEROS Asst. Federal Public Defender

Copy of the foregoing transmitted 12 by ECF for filing this 23rd day of February, 2007, to: 13 AMY MARTIN 14 Special Assistant United States Attorney Two Renaissance Square 15 40 North Central Avenue Suite 1200 16 Phoenix, Arizona 85004-4408 17 Copy faxed/mailed to: 18 MATT BASS United States Probation 19 Field Supervision Office 4000 N. Central Ave., #2300 20 Phoenix, AZ 85012-3516 21 ARIEL PALAFOX 22 U.S. Probation Officer 401 W. Washington Street 23 Phoenix, Arizona 85003 24 LUIS ARMANDO HIGUERA-LLAMAS Defendant 25 26 s/Milagros A. Cisneros M. Cisneros 27 28 5

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