Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona DANIEL R. DRAKE Assistant U.S. Attorney 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Arizona State Bar No. 003781 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-03-1012-PHX-DGC Plaintiff, v. Kimberly Cordilla Davis, Defendant. The United States respectfully requests this Court to enter an order denying defendant's Motion to Modify Conditions of Supervised Release. Defendant seeks to be relieved of the condition that she reside in a Community Corrections Center for 120 days as a term of her supervised release. The motion should be denied because this Court gave considerable thought before imposing the sentence of 10 months imprisonment followed by 120 days of confinement in a half-way house as a condition of supervised release. When the court entered that order, it was well aware of defendant's family's circumstances and the impact such a sentence would have on defendant's family. The current circumstances cited by defendant, while perhaps different from those six or twelve months ago, were not unforeseeable when the court pronouced sentence. Indeed, they could have occurred at a much earlier date when defendant was still in prison. These circumstances are not a sufficient basis for the court to modify its previously considered sentence. Respectfully submitted this 18th day of October, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /s/ Daniel R. Drake DANIEL R. DRAKE Assistant U.S. Attorney
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GOVERNMENT'S RESPONSE TO MOTION TO MODIFY CONDITIONS OF SUPERVISED RELEASE

1 MEMORANDUM 2 Defendant's family conditions have been with her throughout this proceeding. Defendant 3 was first arrested in September 2003. At that time, she had a number of people who, to varying 4 degrees, depended upon her. On each occasion when a court was confronted with a decision 5 whether to release defendant or take her into custody, defendant's family circumstances were 6 raised as an argument in favor of defendant being continued on release. 7 The unfortunate circumstances of her family did not, however, serve as sufficient 8 incentive for defendant to conform her behavior to the requirements of law and the court. 9 Defendant was placed on probation for three years on May 3, 2004 (CR 26). A petition to 10 revoke her probation was filed on March 31, 2005 (CR 28). Defendant admitted violating the 11 terms of probation on May 2, 2005, but disposition was continued a number of times before this 12 Court entered its order revoking probation on December 12, 2005 (CR 31, 50, and 51). During 13 those intervening months, the court afforded defendant repeated opportunities to demonstrate 14 that she deserved to be continued on release. The indulgence by the court was met by continued 15 violations of the court's orders. 16 Unfortunately, and most unfortunately for her family, defendant was unable to control 17 her behavior. On June 2, 2005, she was convicted of possession of dangerous drugs in Maricopa 18 County Superior Court. After she admitted violating the terms of probation on May 2, 2005, 19 defendant used marijuana, and failed to submit to drug testing, as required, on at least 11 20 occasions. On two additional occasions, she tampered with the urinalysis testing process by 21 consuming a substance designed to mask the presence of drugs. One of these occasions when 22 Davis used marijuana was on or about August 25, 2005, a date when she was before the court 23 for a final disposition hearing. Disposition was subsequently reset for October 24, 2005, and 24 then again reset to December 7, 2005. Defendant continued to violate her probationary terms 25 in August and September 2005. 26 Ms. Davis should be allowed to complete the sentence originally contemplated by the 27 court. Doing so would lengthen the time she is away from the pull of drugs. It would also allow 28
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1 her to stabilize herself in a half-way house setting before returning to the stress-filled home 2 environment where she might once again relapse again to drug usage. 3 For the foregoing reasons, defendant's motion to modify the conditions of supervised

4 release should be denied. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 18th day of October, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /s/Daniel R. Drake DANIEL R. DRAKE Assistant U.S. Attorney

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CERTIFICATE OF SERVICE I hereby certify that on October 18, 2006, I electronically transmitted the attached document to the Clerk's Office using the ECF system for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Milagros A. Cisneros #020410 Assistant Federal Public Defender 850 W. Adams Street, Suite 201 Phoenix, Arizona 85007

8 and to the following person who is not a ECF Registrant Sharon Werner 9 U.S. Probation Officer 10 /s/Daniel R. Drake 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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