Free Memorandum - District Court of Arizona - Arizona

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LYNN T. HAMILTON 240 North Center Street Mesa, Arizona 85201 (480) 644-0093 (480) 644-0095 fax State Bar I.D. #004047 Attorney for Appellant

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, ) Plaintiff-Appellee, v. JUAN SAAVEDRA-MARTINEZ, Defendant-Appellant.

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CR 03-00455-PHX-EHC MEMORANDA (Honorable Earl H. Carroll)

COMES NOW counsel for Mr. Saavedra-Martinez to submit the following memoranda in compliance with the Court's orders of October 12, 2006. MEMORANDA FACTUAL BACKGROUND On January 18, 2006, the Court of Appeals affirmed the defendant's conviction in a memo decision. On June 16, 2006, the Court of Appeals directed counsel to notify the Court if either wished to pursue an Ameline remand. The Government and defense counsel did submit memoranda. On June 28, 2006, the Court of Appeals remanded this case to District Court to determine if the sentence would have been materially different if the Honorable Carroll had known Guidelines were advisory. ISSUE Case 2:03-cr-00455-EHC Document 72 Filed 10/15/2006 Page 1 of 5

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Does Mr. Saavedra-Martinez have a right to personally be present at the Ameline III remand for sentencing? ARGUMENT A. Right to Hearing and Personal Attendance

Appellant submits he does have a right to attend sentencing upon an Ameline III remand.1 The Sixth Amendment assures an accused the right to be present at all stages of a trial unless he voluntarily absents himself. Illinois v Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). This includes the imposition of sentence. Mayfield v. U.S. 504 F.2d 888 (10th Cir. 1988). In U.S. v Montgomery, 462 F.3rd 1067 (9th Cir. 2006), the Court of Appeals noted that: "[O]n an Ameline remand, a district court must `obtain the views of counsel at least in writing' prior to deciding whether re-sentencing is appropriate. Further this Court held that a district court's failure to obtain the views of counsel is not subject to a harmless error analysis." U.S. v Montgomery, supra, underscored the importance of procedural safeguards of Ameline. Mr. Saavedra-Martinez submits Ameline III and Montgomery outlined a minimally acceptable procedure on remand. Appellant contends that if an accused requests to be personally present at a hearing on remand, then he should be allowed to attend. Mr. Saavedra-Martinez submits that the legal terminology of vacate, remand and resentence are not nearly as important as the ultimate outcome of his sentence. Defendant urges the Court to allow an accused who seeks to be personally heard on an Ameline remand to have that opportunity. The defendant believes the ends of justice would be promoted by such a decision. Additionally, such a determination would be consistent with Federal Rules of Criminal Procedure.
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Rule 43 Federal Rules of Criminal Procedure requires the presence of the defendant at the imposition of sentence. Rule

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Rule 32(i)(4) requires the Judge to personally address the defendant and allow the defendant to speak prior to imposing sentence. Additionally, Rule 32(j)(1) requires the Court to advise the defendant of his right to appeal. B. No Required Hearing and No Personal Attendance

One may examine the case law in the general area of re-sentencing and reach the conclusion that an Ameline remand does not require a full hearing and the attendance of the accused. Generally, a defendant's presence is not required during a proceeding to reduce a sentence or correct a clerical error (See Rule 35, Federal Rules of Criminal Procedure). However, if a sentence has been vacated by the Court of Appeals, the accused has a right to attend. "Presence" means physical presence, not an appearance by video conference. U.S v Lawrence, 248 7 F.3rd 300 (4th Cir. 2001). The defendant must be present for re-sentencing only if sentence is more onerous, or the entire sentence was set aside and remanded for re-sentencing. Rust v U.S., 725 F.2d 1153 (8th Cir. 1984). In the matter sub judice, the Court of Appeals did not vacate Mr. Saavedra-Martinez's sentence. One might say the Court merely made an inquiry of the District Court about the sentence and the basis of the sentence. One must acknowledge that a recent post-Ameline III decision points to a record review with written input, rather than a sentencing in which the accused attends and allocutes.

In the decision of U.S. v Montgomery, the Court of Appeals wrote:

43(c)(4) indicates the defendant's attendance is not required for a Rule 35 sentence reduction.

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Under Ameline, the reviewing court, applying the plain error standard of review, is to determine whether it was clear from the District Court record that the sentence would have been materially different . . . Montgomery, supra, at 4 (Emphasis added). The Montgomery panel seems to have approved the submission of written supplements by counsel. The Ninth Circuit cited with approval, U.S. v Crosby, 397 F.3rd 103, 120 (2nd Cir. 2005) that upon remand, the District Court was not required to hold an in court hearing.

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CONCLUSION It appears that the Court of Appeals in U.S. v Montgomery established a minimal level of review upon remand by an examination of the record and supplements by counsel. Defendant urges that if an accused requests an opportunity to be personally present and heard regarding re-sentencing, that request should be granted. Such a request is not contradictory to Montgomery. Such a request allows for additional information or expressions of remorse

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beyond the minimal data in the record for remand. Defendant submits an Ameline remand could be as significant as the original sentencing to some accuseds. RESPECTFULLY SUBMITTED this 15th day of October 2006.

HAMILTON LAW OFFICE

/s/ Lynn T. Hamilton Lynn T. Hamilton Attorney for Appellant

CERTIFICATE OF SERVICE Case 2:03-cr-00455-EHC Document 72 Filed 10/15/2006 Page 4 of 5

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I hereby certify that on October 15, 2006, I electronically transmitted the
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attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a
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Notice of Electronic Filing to the following CM/ECF registrants:
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Emory T. Hurley, Esq. Assistant U.S. Attorney 40 N. Central Ave. #1200 Phoenix, AZ 85004-4408 s/ Lynn T. Hamilton

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