Free Sentencing Memorandum - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 850 West Adams Street, Ste. 201 Phoenix, Arizona 85007 3 Telephone: (602) 382-2753 4 DONNA LEE ELM, #012127 Asst. Federal Public Defender 5 Attorney for Defendant [email protected] 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Alredo Vasquez-Arias, Defendant. The Defendant, Alfredo Vasquez-Arias, through undersigned counsel, respectfully provides this Court with the following Disposition Memorandum for its consideration in deciding the appropriate disposition for Mr. Vasquez-Arias's violation. It is based upon his right to a fundamentally fair sentencing process pursuant to the Due Process clause of the fifth amendment of the U.S. Constitution as well as his right to a reasonable sentence pursuant to the Sixth Amendment and United States v. Booker, __ U.S. __, 125 S.Ct. 738 (2005), and is supported by the following Memorandum of Points and Authorities. Respectfully submitted: August 30, 2005. JON M. SANDS Federal Public Defender s/Donna Lee Elm DONNA LEE ELM Asst. Federal Public Defender United States of America, Plaintiff, No. CR-03-50006-PHX-EHC DEFENDANT'S DISPOSITION MEMORANDUM IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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Memorandum of Points and Authorities Before the advent of United States v. Booker, __ U.S. __, 125 S.Ct. 738

2 I. Post-Booker Supervised Release Violation 4 (2005), the United States Sentencing Guidelines for supervised release violation 5 dispositions was "merely advisory." The District Court was permitted latitude to 6 fashion dispositions appropriately in response to the myriad of circumstances and 7 factual violation patterns that could occur in supervised release non-compliance. The 8 only boundaries a judge faced in dispositions were the "cap" of the maximum number 9 of years a supervised release could cumulatively receive, on the one hand, and return 10 to supervision or even early termination, on the other. Although Booker substantially 11 changed the way District Courts sentence a defendant, it therefore has only a little 12 impact on the way they handle supervised release dispositions (which were not 13 "mandatory" to start with). 14 Indeed, some Courts concluded that Booker had no impact on supervised 15 release violation dispositions because the Guidelines are not mandatory in that 16 context. See United States v. Contreras-Martinez, 409 F.3d 1236, 1241 (10th Cir. 17 2005) (noting that "reasonableness" standard had always been applied to review of 18 a violation sentence). Furthermore, Booker itself equated its holding with the 19 "reasonableness" standard of review of United States v. Tsosie, 376 F.3d 1210, 1218 20 (10th Cir. 2005), which was a supervised release violation case. Booker, 125 S.Ct. at 21 766; and see United States v. Cotton, 399 F.3d 316, 319 (8th Cir. 2005) (the new 22 standard of review under Booker is the same as the old one used for supervised 23 release revocations). 24 However, other jurisdictions have considered that more may be required The 2nd and 8th Circuits decided that Booker would apply to 25 under Booker.

26 revocation re-sentencings ­ even though those sentencing had always plainly been 27 discretionary ­ to apply Booker's "reasonableness" standard in place of the previous 28 "plainly unreasonable" converse standard. See United States v. Fleming, 397 F.3d 2

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1 95, 97-99 (2nd Cir. 2005); Cotton, supra; United States v. Edwards, 400 F.3d 591, 2 592-93 (8th Cir. 2005). The 11th Circuit, in United States v. White, __ F.3d __, 2005 3 WL 1639381 at *3 (11th Cir. 2005), noted that the Guidelines for supervised release 4 violations was not "mandatory," so did not decide the matter directly; nonetheless, 5 it analyzed White's facts and circumstances under the sentencing statutes, including 6 18 U.S.C. § 3553. Id. at *4. 7 The Ninth Circuit has not decided whether and in what ways Booker will 8 apply to supervised release violations yet. But in any event, it is clear that District 9 Courts will continue to rely on traditional judgment of experienced, worldly jurists 10 in assessing the proper sanction for violations. See Booker., 125 S.Ct. at 803-04 11 (Breyer, J., diss.). That "traditional" notion asks a judge to "bring compassion and 12 common sense to the sentencing process," providing for individualized justice. 13 United States v. Williams, 65 F.3d 301, 309 (2nd Cir. 1995). Hence the District Court 14 is to apply its judicious discretion in a supervised release violation disposition, as 15 long as it effectuates a "reasonable" sentence consistent with Booker. 16 II. Facts Supporting a "Reasonable" Disposition 17 19 Mr. Vasquez-Arias did well the first half of his supervised release. For He had broken up with his wife of many years, Monica Vasquez18 about eighteen (18) months, he worked, took some classes, and had clean drug tests. 20 Noriega, in 2002; candidly, he confessed that the dissolution was due to his foolish 21 infidelity. But once he was out of prison in 2003, she called him, offering to "put all 22 that" behind them and start afresh. So, the pair rekindled their relationship. She 23 would come to Arizona to visit him on weekends and some days off, and they spoke 24 frequently by telephone. With her visits, he got to see his son as well, who was 12 25 when the pair gave their marriage another chance. 26 Mr. Vasquez-Arias was extremely close to his grandmother, who had 27 raised him much of his childhood and always supported and encouraged him through 28 a difficult life. About two years ago, as her health deteriorated, the family moved 3

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1 ancient Marcelina Arrietta-Carmona to the Palm View Nursing Home in Yuma, 2 Arizona. Her husband would come to the border to cross legally into Arizona to visit 3 her in the nursing home. Mr. Vasquez-Arias, the only family member fluent in 4 English, would always be sent to pick him up and transport him to and from the 5 border during these routine, heart-breaking visits. 6 Marcelina lived at the Palm View for the final eighteen (18) months of 7 her life, surrounded by a loving family (including Mr. Vasquez-Arias) who visited her 8 regularly. She died on February 14, 2005 ­ Valentine's Day. That day, family was 9 alerted that the end appeared near; so the Defendant, his father, and grandfather spent 10 all day with her. No sooner had they left, than Mr. Vasquez-Arias's mother (who is 11 employed at Palm View) called to alert him that she was dying. He urgently called 12 his father, but by the time he reached him, their matriarch had passed on. It fell on 13 Mr. Vasquez-Arias to inform his father that she was gone. When he recounted these 14 events to counsel months later, he recalled ­ his eyes still brimming ­ "How do you 15 tell your dad his mom just died? I did not know how to say it ­ `Grandma's gone,' 16 just wasn't saying enough." 17 For an emotionally vulnerable man like Mr. Vasquez-Arias, being 18 deprived of his grandmother's support and being saddled with the burden of passing 19 on news of this sorrowful death to his father was very difficult to bear. He tried to 20 "be strong" and bear up admirably, but he felt lost. Meanwhile, however, because of 21 his fluency and cultural assimilation, he had to undertake all the funeral arrangements 22 and help a grieving family that was falling apart in the wake of this calamity. Monica 23 and his son joined him for this ordeal, but it remained a constant struggle for him to 24 forge ahead. Due to his obligations and an in-born machismo, Mr. Vaquez-Arias 25 never had the time to properly grieve for his loss. Instead, it haunted him in his quiet, 26 still moments. 27 / / / 28 / / / 4

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It was as Marcelina was facing her final days that Mr. Vasquez-Arias's

2 attention to probation requisites fell off. Occasional self-medication with street drugs 3 soon before her death escalated quickly when he was dealing with the flood of 4 emotions he was trying to keep in check after she was gone. He started experiencing 5 what, in hindsight, were symptoms of depression: he would not eat, kept to himself, 6 did not go out or enjoy social companionship, and found himself crying at the drop 7 of a hat. As he sunk into black, desperate moods, he deliberately sought out street 8 drugs because they made him "feel strong again" during his lowest lows. Eventually, 9 the usage devolved into dependency. By April, he was using fairly regularly again, 10 and started neglecting other obligations of supervision such as filing monthly reports. 11 Ironically, he singled out certain responsibilities and followed through 12 with those with earnest commitment. He stayed in school, earning his 2-semester 13 Certificate in Welding at Arizona Western College. He also remained steadily 14 employed and was a responsible worker. 15 Monica knows the extent of his backsliding. Understanding intimately 16 what he was dealing with, she resolved to support him, and intends to appear and 17 speak for him at sentencing. 18 III. A "Reasonable" Disposition 19 The Defense, Government, and Probation Office agreed to a disposition 20 outcome of five (5) months in prison for this violation. Given the extenuating 21 circumstances of his violating behavior, Mr. Vasquez-Arias's willingness to enter 22 drug treatment, the support of his family, and the fact that he did persevere in holding 23 his family and job together, and even completed his course of college education , five 24 (5) months of incarceration is sufficient to establish sobriety, provide a just sanction 25 for non-compliance, and allow for residential placement by his release date. It is, 26 therefore, "reasonable." 27 / / / 28 / / / 5

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Mr. Vasquez-Arias therefore asks the Court to follow the agreed-upon 3161(h)(1)(F) may occur as a result of this motion or from an order based thereon. Respectfully submitted: August 30, 2005. JON M. SANDS Federal Public Defender s/Donna Lee Elm DONNA LEE ELM Asst. Federal Public Defender

2 disposition recommendation in his case.

Copy of the foregoing 10 delivered this 30th day of August, 2005, to: 11 DARCY CEROW 12 Assistant United States Attorney Two Renaissance Square 13 40 North Central Avenue Suite 1200 14 Phoenix, Arizona 85004-4408 15 16 Copy mailed to:

PASCUALE LINAREZ 17 United States Probation Officer 325 W. 19th Street, Suite A 18 Yuma, AZ 85364 19 ALFREDO VASQUEZ-ARIAS Defendant 20 21 s/Donna Lee Elm Donna Lee Elm 22 23 24 25 26 27 28 6

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