Free Trial Brief - District Court of Arizona - Arizona

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John W. Rood, III State Bar No. 003458 817 North Second Street Phoenix, AZ 85004 (602) 258-1778 Attorney for Defendant-Appellant UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, v. SERGIO LEYVA-SOLANO, Defendant. District Court Nos. CR-00-1015-PHX-SMM CR-04-0149-PHX-SMM B R I E F

COMES NOW the Defendant, SERGIO LEYVA-SOLANO, by and through counsel, and pursuant to the Court's Order of February 8, 2006 files the following Brief. QUESTION PRESENTED WOULD THIS COURT HAVE IMPOSED A MATERIALLY DIFFERENT SENTENCE ON JUNE 14, 2004 HAD IT KNOWN AT THE TIME OF SENTENCING THAT THE SENTENCING GUIDELINES WERE ADVISORY? ARGUMENT On December 12, 2005 the United States Court of Appeals for the Ninth Circuit filed a Memorandum Decision in the above-numbered causes. At that time the Court indicated it could

not reliably determine whether the sentence imposed would have been materially different had the District Court known that the sentencing guidelines were advisory.

Case 2:04-cr-00149-SMM

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Filed 03/16/2006

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As this Court is aware, Leyva-Solano went to trial on an allegation of violation of 8 U.S.C. § 1326(a) as enhanced by § 1326(b)(2), Re-entry after Deportation. The trial began on April

6, 2004 and concluded on April 7, 2004 with a guilty verdict. At the trial, Mr. Leva-Solano testified and admitted that he was a citizen of Mexico and not of the United States and that he had been deported from the United States in August of 2001. He further indicated that he had not received consent to

reenter and had not reapplied for admission to the United States. He also admitted to a prior felony conviction from August 13, 2001. (Reporter's Transcript, hereinafter referred to as RT 6-

14-04, pp. 250-254.) No objection was filed to the presentence report nor did Leyva-Solano or his counsel argue that the government had failed to prove the prior conviction to the jury. As a result of the presentence investigation, prepared by Ariel F. Palafox of the United States Probation Office, the Court determined that guideline provisions placed Mr. LeyvaSolano at a total offense level of 16 and a criminal history category of III. It thus found that the guideline range for

imprisonment was 27 to 33 months and the probation officer recommended the Court sentence Leyva-Solano to 30 months. At the time set for sentencing, the Court proceeded with an admit/deny hearing on the violation of supervised released in CR 00-1015. During the course of the admit/deny

hearing, Mr. Leyva-Solano submitted the question of the violation

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of the terms and conditions of his supervised release to the Court based upon what had occurred at trial. (Id. pp. 8-14)

It is obvious from the transcript of the sentencing proceeding the Court considered only one thing in determining its sentence and that was whether or not it should give Mr. LeyvaSolano a lower sentence based upon acceptance of responsibility. Based on the Court's statements, this decision was a matter of discretion and one in which the Court felt it inappropriate to give Mr. Leyva-Solano a downward departure. As to the sentence on the disposition of Mr. LeyvaSolano's violation of supervised release, the Court indicated that it was discretionary whether or not to sentence Mr. LeyvaSolano to a term of months which would run consecutively to his sentence in CR 04-0149-PHX-SMM. In fact, in using that

discretion, the Court sentenced him to 10 months with the Bureau of Prisons and made that sentence concurrent with the sentence in CR-04-0149. (Id. pp. 21-22 and 29) As the Court of Appeals'

decision indicates, there are no problems with the Court basing its guideline range on U.S.S.G. § 2L1.2. Moreno-Hernandez, 149 F.3d 906. United States v.

(9th Cir. 2005)

Thus, the Court had the option of sentencing Mr. Leyva-Solano to probation or up to 20 years with the Bureau of Prisons. It instead used its discretion and sentenced Mr. Leyva-

Solano on CR 04-0149 to 30 months with the Bureau of Prisons and a concurrent term in CR 00-1015 to 10 months with the Bureau of Prisons. Even the presentence report, using the guidelines,

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indicated the Court could have sentenced Leyva-Solano up to 33 months with the Bureau of Prisons and up to 24 months on the supervised release, and the Court could have made that consecutive to any sentence imposed on the new charge. In fact, based on the reading of the sentencing and disposition transcript, counsel can only believe that the Court, in fact did use its discretion in sentencing Mr. Leyva-Solano, and that its sentence would not have been different had the Court known that the guidelines were advisory. RESPECTFULLY SUBMITTED this 16th day of March, 2006.

/s John W. Rood III Attorney for Defendant I hereby certify that on March 16, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF registrants: Assistant U.S. Attorney Jacki L. Ireland COPIES of the foregoing mailed this 16th day of March, 2006 to: Honorable Steven M. McNamee

20 21 22 Sergio Leyva-Solano, #45493-008 California City CI P.O. Box 3001-0001 California City, California 93504

23 /s John W. Rood III 24 25 26

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