Free Memorandum - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JACKI L. IRELAND Assistant U.S. Attorney Arizona State Bar 019144 40 N. Central Ave., Ste. 1200 Phoenix, Arizona 85004 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Sergio Leyva-Solano, Defendant. The United States of America, by and through undersigned counsel, hereby submits its CR 04-0149-PHX-SMM GOVERNMENT'S POSITION REGARDING SENTENCING/DISPOSITION AFTER REMAND

14 views regarding sentencing/disposition, and asks this Court to find that it would not have 15 imposed a materially different sentence had it known that the sentencing guidelines were merely 16 advisory. 17 Facts 18 The defendant was arrested by Immigration and Customs Enforcement agents on January 19 21, 2004, and the next day, a felony complaint was filed alleging a violation of Title 8, United 20 States Code §1326(b)(2). A petition to revoke the defendant's Supervised Release in CR 0021 1015 was filed on February 5, 2004. The defendant was then indicted on February 18, 2004 on 22 the charge of illegal reentry after deportation, in violation of Title 8, United States Code 23 §1326(b)(2), and subsequently went to trial on that charge on April 6, 2004. The defendant was 24 found guilty by a jury on April 7, 2004 and came before this Court for sentencing and disposition 25 on June 14, 2004. 26 At the time of sentencing, this Court believed it was bound by the sentencing guidelines, 27 as United States v. Booker, 125 S.Ct. 738 (2005) had not yet been decided. This Court stated 28

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on the record that the guideline range for the new felony offense was 27-33 months, and the range for the supervised release case was 4-10 months. (Exhibit 1, pgs. 14, 21). During sentencing, this Court heard from both the defendant and defense counsel, and this Court noted that it could give the defendant levels off for acceptance of responsibility, but chose not to since the defendant had taken the case to trial. (Exhibit 1, pgs. 15-18, 22-23). This Court further noted that the defendant's prior felony conviction was "a pretty serious one with firearms". (Exhibit 1, p. 18). With regard to whether the two sentences should be consecutive, as the guidelines suggested they should be, this Court stated that "it would seem unduly harsh to run them consecutively". (Exhibit 1, p. 22). This Court then sentenced the defendant to the middle of the range in the new case, 30 months, and the top of the range in the supervised release case, 10 months, to be run concurrently. (Exhibit 1, pgs. 19, 29). Argument Clearly, this Court would not have sentenced the defendant to a materially different sentence had it known that the sentencing guidelines were merely advisory. This Court sentenced the defendant in the middle of the range in the new case and exercised its discretion to deny the defendant a downward adjustment for acceptance of responsibility. This Court clearly felt that the range was appropriate for the defendant, or it would have given him a downward adjustment for acceptance of responsibility and would have imposed a sentence at the low end of the range instead of a sentence in the middle. Further, even though this Court ran the sentences concurrently, this Court still chose to impose ten months in the supervised release case, which was the high end of the range. The record shows that this Court believed that the guideline sentencing ranges were reasonable and appropriate, thus, the sentences would not have been materially different had this Court not been bound by the sentencing guidelines.

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Based on the foregoing, the Government respectfully requests this Court to find that it would not have imposed a materially different sentence had it known that the sentencing guidelines were merely advisory. Respectfully submitted this 14 th day of March, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /S/ Jacki L. Ireland JACKI L. IRELAND Assistant U.S. Attorney

Certificate of Service 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I hereby certify that on March 14 th , 2006, I electronically transmitted the attached 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: John W. Rood III

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EXHIBIT 1

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