Free Order - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs. Juan Saavedra-Martinez, Defendant.

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CR 03-455-PHX-EHC O R D E R

The Ninth Circuit remanded this matter for this Court to decide whether re-sentencing is appropriate. Following remand the Court obtained the views of counsel before deciding whether re-sentencing is necessary (Dkt. 74). See United States v. Montgomery, 462 F.3d 1067 (9th Cir. 2006). Memoranda were filed by the Government and Defendant. (Dkts. 75-76). The Court has reviewed the sentencing proceedings in the case. The statutory sentence is up to twenty years. The

Presentence Report found a Total Offense Level of 24, with a Criminal History Category of IV, and a Guideline Sentencing Range of 77 to 96 months. Probation was 87 months.
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The sentencing recommendation by

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The Presentence Report did not give Defendant an adjustment for Acceptance of Responsibility. For reasons

noted on the record the Court afforded Defendant this adjustment, resulting in an offense Level 21, with a Criminal History Category IV, and a sentencing range of 57 to 71 months. Defendant was sentenced to 64 months. (Dkt. 75 -

attached Reporter's Transcript of Proceedings Sentencing). This Court "on Ameline remand" (Id. at 1067) and in compliance with the Opinion of the Ninth Circuit, has considered the Memoranda filed by the parties and the factors that the Court can take into consideration under 18 U.S.C. § 3553. Defendant was sentenced at the mid-range of the Mandatory Guidelines sentencing range determined by the Court. Defendant's Memorandum expressed the hope that the Court "would afford greater weight to his assimilation into the mainstream of U.S. life and decrease his sentence upon remand," i.e., "cultural assimilation." (Dkt. 76). Although not identified in the Guidelines, "cultural assimilation" can arguably be considered by a Court. See United States v. Rivas-Gonzales, 365 F.3d 806 (9th Cir. 2004). The record in this case does not support such a departure or adjustment. Considering Defendant's sentence and the discretion afforded the Court under § 3553(a)(2)(A)(B)(C) the Court finds that if the Guidelines had been advisory, it would not have ordered a different sentence. Defendant has a serious
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criminal history; he has been deported to Mexico and reentered illegally; he poses a risk to re-enter illegally and commit other criminal acts in this country. Accordingly, based on its reasonableness review, the Court will not order re-sentencing. DATED this 1st day of December, 2006.

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