Free Memorandum - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona EMORY T. HURLEY Assistant U.S. Attorney Arizona State Bar No. 014812 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-03-455-PHX-EHC Plaintiff, v. Juan Saavedra-Martinez, Defendant. GOVERNMENT'S MEMORANDUM REGARDING THE DEFENDANT'S PRESENCE DURING THE REMAND PROCESS

The United States respectfully submits the following memorandum in response to the

15 court's query whether and when the presence of the defendant is required during the remand 16 process contemplated by United States v. Ameline, 409 F.3d 1073(9th Cir. 2005). The 17 defendant's presence is not required unless and until the court resentences defendant. Fed. R. 18 Crim. P. 43. There is no requirement to have the defendant present at the initial stage of the 19 remand process where the district court considers whether it might have imposed a different 20 sentence. 21 In United States v. Ameline, the Ninth Circuit established a procedure to deal with cases 22 where there were issues regarding the sentence imposed by judges then under the impression that 23 the Sentencing Guidelines were mandatory. 409 F.3d 1073. United States v. Booker, 125 S.Ct. 24 738 (2005), of course, held that the guidelines were merely advisory and district judges were free 25 to impose any reasonable sentence in accordance with the factors set forth in 18 U.S.C. 3553 (a). 26 In those cases where a sentencing issue appeared, the Ninth Circuit adopted a limited remand 27 approach along the lines employed by the Second Circuit under United States v. Crosby, 397 28

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1 F.3d 103 (2005). Ameline, 409 F.3d at1080. The Ameline court decided that a remand to the 2 district court to answer the question whether the sentence would have been materially different 3 had the court known that the Guidelines were advisory, is "[tlhe only practical way (and it 4 happens also to be the shortest, the easiest, the quickest, and the surest way) to determine 5 whether" there was prejudice. 409 F.3d at 1079. Prior to making this determination, the 6 sentencing court must solicit the views of counsel in writing on the issue of whether resentencing 7 is appropriate. United States v. Montgomery, 462 F.3d 1067, 1069 (9th Cir. 2006). Should the 8 sentencing judge conclude a materially different sentence would have been imposed under an 9 advisory guideline sentencing framework, then the judge should vacate the sentence and set the 10 matter for resentencing. At resentencing the court would impose what it viewed as a reasonable 11 sentence under the factors set forth in 18 U.S.C. 3553(a). 12 The question comes, then, when in this process is the presence of the defendant required?

13 Rule 43(a), Fed. R. Crim. P., requires the defendant's presence at: 14 15 16 (1) the initial appearance, the initial arraignment, and the plea; (2) every trial stage, including jury impanelment and the return of the verdict; and (3) sentencing.

17 The clear language of the rule suggests the defendant need not be present at status conferences, 18 nor when the court is deciding or ruling upon a motion, nor when the court is determining 19 whether it might have, or announcing that it would have, imposed a different sentence. Nothing 20 in the rule requires otherwise. Indeed, subpart (b) of the rule provides a list of circumstances 21 when the defendant need not be present, and includes within this list a sentence correction - a 22 proceeding involving the correction or reduction of sentence under Rule 35 or 18 U.S.C. 23 3582(c). 24 Thus, to the extent the court decides whether or not the sentence would have been

25 different, the defendant need not be present. Fed. R. Crim. P. 43 (b)(4). Only if the court were 26 inclined to impose a different sentence must the defendant be present for imposition of that 27 sentence. "If the district court would have imposed a different sentence in an advisory 28 regime...the original sentence will be vacated, and the district court, with the defendant present,

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1 will resentence in accordance with the Reform Act as modified by Booker. See Crosby, 397 2 F.3d at 120." Ameline, 409 F.3d at 1081. 3 Such a procedure makes sense legally and practically, with due consideration for the

4 disruption of inmates' lives and inconvenience to the court system. Only those defendants 5 receiving a different sentence would be brought from the institution to the courthouse for re6 sentencing. On the other hand, if every defendant were brought back for status conferences and 7 the sentencing court's initial determination whether it would have imposed a materially different 8 sentence, every defendant and countless Bureau of Prisons, U.S. Marshal, and court staff 9 personnel and budgets would be impacted, even though there might be no change in the sentence 10 and thus no prejudice to the defendant. Defendants might miss needed rehabilitative programs 11 or languish in holding cells while awaiting the next transport out. The actual disruption and 12 dislocation of the defendant wending his or her way back to the sentencing court might be more 13 harmful than having the defendant stay put and read that the original sentence stands or has been 14 reduced. 15 While there is sparse authority on this point, this approach is consistent with the Federal

16 Rules of Criminal Procedure and the effort of the court in Ameline to fashion an efficient and 17 workable method of dealing with the large number of cases where these sentencing issues are 18 present. 19 20 21 22 23 24 25 26 27 28 Respectfully submitted this 20th day of October, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /s/Emory T. Hurley EMORY T. HURLEY Assistant U.S. Attorney

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CERTIFICATE OF SERVICE

I hereby certify that on October 20, 2006, I electronically transmitted the attached document 3 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: Lynn T. Hamilton. 4 5 S/Emory T. Hurley 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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