Free Response to Motion - District Court of Arizona - Arizona

1 2 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

DIANE J. HUMETEWA United States Attorney District of Arizona DARCY A. CEROW Assistant U.S. Attorney [email protected] Arizona State Bar No. 011822 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-04-00321-PHX-JAT Plaintiff, v. Jose Ramon Dominguez Defendant. GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION REQUESTING SENTENCING IN ABSENTIA OR DISMISSAL OF REVOCATION PETITION

The United States of America, by and through its attorneys undersigned, hereby responds to defendant's above captioned motion and requests that this Court deny same. This response is contained in the attached Memorandum of Points and Authorities. Respectfully submitted this 30th day of June, 2008. DIANE J. HUMETEWA United States Attorney District of Arizona
/S/ DARCY A. CEROW

DARCY A. CEROW Assistant U.S. Attorney

Case 2:04-cr-00321-JAT

Document 17

Filed 06/30/2008

Page 1 of 3

1 2 A. FACTS 3

MEMORANDUM OF POINTS AND AUTHORITIES

On June 14, 2004, the defendant was convicted of Illegal Re-entry after deportation with

4 sentencing enhancement pursuant to Title 8 USC §§1326(a) & (b)(2). This Court imposed a 5 thirty-seven (37) month term of imprisonment to be followed by two (2) years of supervised 6 release. Defendant's supervised release began on December 22, 2006 when defendant was 7 released from custody. Defendant was deported to Mexico on January 18, 2007. 8 Five months later, on June 28, 2007, the defendant, using the alias Jose Luis Avila-Meza,

9 was arrested by Border Patrol Agents at or near Otay Mesa, California Port of Entry. The 10 defendant had not obtained the express consent from the Secretary of the Department of 11 Homeland Security to re-enter the United States. As a result of his arrest, the defendant was 12 charged and convicted of illegal re-entry in the Southern District of California. Defendant is 13 currently serving a fifty-four (54) month sentence at FCI Herlong, California for his conviction. 14 Defendant's projected release date is May 29, 2011. 15 On June 16, 2008, the defendant filed a motion with the Court requesting that he be

16 sentenced in absentia for violating his supervised release and further requests that his sentence 17 run concurrent with the San Diego sentence. In the alternative, defendant requests that the 18 revocation petition be dismissed due to the length of his current sentence. 19 B. LAW 20 Violations of Supervised Release are governed by Fed. R. Crim. P. 32.1 which requires the

21 defendant's presence before this Court before it can sentence the defendant for a violation of 22 supervised release. Thus, the defendant's waiver of appearance is prohibited under the rules. 23 Regarding the defendant's request to dismiss the petition, the defendant fails to cite to any

24 legal authority in support of his request. Furthermore, the government opposes this request 25 given the facts of this case. The defendant has been deported on numerous occasions and, 26 according to his presentence report, has more than 30 aliases. When the defendant appeared 27 before this Court, he had been deported on March 8, 2004 and illegally re-entered the United 28

Case 2:04-cr-00321-JAT

Document 17

Filed 06/30/2008

Page 2 of 3

1 States five days later on March 13, 2004. Given these facts, dismissal of the petition is not 2 warranted. 3 C. CONCLUSION 4 Based on the above, the defendant's motion should be denied. Once he has completed his

5 California sentence, he will be brought before this Court to address the allegations in the 6 supervised release petition. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Melissa Sullivan U.S. Probation Jose Valenzuela Meza Reg. #63109-208 Federal Correctional Institution P.O. Box 800 Herlong, CA 96113-0800 Original filed and copy of the foregoing mailed this 30th day of June, 2008 to: I hereby certify that on June 30, 2008 I electronically transmitted the forgoing 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:

Respectfully submitted this 30th day of June, 2008.

DIANE J. HUMETEWA United States Attorney District of Arizona
/S/ DARCY A. CEROW

DARCY A. CEROW Assistant U.S. Attorney

Case 2:04-cr-00321-JAT

Document 17

Filed 06/30/2008

Page 3 of 3