Opinion
No. CR-17-01547-01-PHX-JAT
12-10-2018
United States of America, Plaintiff, v. Manuel Alejandro Alvarez-Castro, Defendant.
REPORT AND RECOMMENDATION
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE:
Pending before the Court is a Superseding Petition, filed on November 7, 2018, alleging two violations of supervised release. Pursuant to a Standing Order of Referral, dated July 21, 2012, the Honorable James A. Teilborg, Senior United States District Judge, referred the Superseding Petition to Revoke Supervised Release in the above-numbered case to the undersigned Magistrate Judge to "make the appropriate findings and recommendations and submit the necessary Report and Recommendation to the District Court . . ." as authorized under 18 U.S.C. § 3401(i) and 28 U.S.C. § 636(b)(3).
I. Procedural Background.
On March 1, 2018, Defendant was sentenced to 6 months of imprisonment and 12 months of supervised release. (Doc. 23.) On November 7, 2018, a Superseding Petition was filed alleging violations of Defendant's supervised release. (Doc. 39.)
On December 6, 2018, this Court conducted an evidentiary hearing. The parties submitted written consent to the Court, and Defendant acknowledged his consent in court on the record. (Doc. 47.) The government proceeded on "Allegation 2" in the Petition:
The government moved to dismiss Allegation 1 because the police officers who were subpoenaed to testify regarding Allegation 1 did not appear at the hearing.
Allegation 2:(Doc. 39 at 1.)
Violation of Standard Condition 1 which states, "You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of sentencing or your release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time frame. Grade C violation. U.S.S.G. §7Bl.l(a)(3)(B)."
On or about April 23, 2018, Manuel Alejandro Alvarez-Castro was released from the Bureau of Prisons and failed to report to the probation office within 72 hours of his release from imprisonment. Evidence supporting the alleged violation consists of an Immigration and Customs Enforcement correspondence confirming that he was not deported upon completion of his federal custody term of imprisonment; the Court's sentencing transcripts from March 1, 2018, confirming he was instructed to report to the probation office if not deported; and the testimony of the probation officer confirming he failed to report to the probation office within 72 hours of release from imprisonment.
Defendant was present and assisted by counsel. The government called Probation Officer Ariel Palofax. Government's Exhibits #1 and 2 were admitted into evidence. (Doc. 51.) Government's Exhibit #1 contains the sentencing transcript, and Government's Exhibit #2 contain a Maricopa County Superior Court minute entry that shows Defendant was released from Maricopa County custody on May 2, 2018.
Defendant testified. Defense Exhibits #101 and #102 were admitted into evidence. (Doc. 52.) Defendant's Exhibit #101 is a Maricopa County Superior Court summary of court dates for Defendant's criminal matter and Defendant's Exhibit #102 is a minute entry that shows Defendant appeared for a June 4, 2018 hearing.
II. Findings of Fact.
The Court submits the following findings of fact.
A. Timeline of Events.
On March 1, 2018, Defendant was sentenced to 6 months of imprisonment and 12 months of supervised release. (Doc. 23.)
On April 23, 2018, Defendant was released from the Bureau of Prisons and subsequently taken into state custody.
On May 2, 2018, Defendant was released from Maricopa County custody in CR 2017-148566. (Exhibit #1.)
On June 4, 2018, Defendant appeared (out of custody) for a Maricopa County Superior Court hearing. (Exhibit #102.)
On July 3, 2018, prosecution was suspended in Maricopa County CR 2017-148566. (Exhibit #101.)
On October 19, 2018, a Petition to Revoked Supervised Release issued by the Court.
On October 29, 2018, Defendant was arrested on the Petition alleging a violation of supervised release. (Doc. 38.)
On November 7, 2018, a Superseding Petition to Revoke Supervised Release issued by the Court.
B. Probation Officer Ariel Palofax.
On direct examination, United States Probation Officer Ariel Palofax testified to the identity of Defendant. Defendant stipulated that Defendant is the person who was sentenced by this Court and who was released by the Maricopa County Superior Court in CR 2017-148566. Defendant did not report to US Probation at any time. If he had attempted to contact the US Probation Office, that attempt would have been recorded in the records of the US Probation Office.
On cross-examination, Officer Palofax testified that no person from US Probation met with Defendant or gave him any forms regarding supervised release. He testified he was familiar with 18 U.S.C. § 3624(c)(3) ("the United States Probation System shall, to the extent practicable, offer assistance to a prisoner during prerelease custody under this subsection"). US Probation knew that Defendant had an outstanding state arrest warrant, but no person from the probation office met with Defendant while he was in the custody of the Bureau of Prisons. After Defendant's release to state authorities, no one from the US Probation Office attempted to make contact with Defendant. Although a pre-release plan is typically set for defendants being released from the Bureau of Prisons, a defendant with an immigration detainer typically does not have a pre-release plan because there is no local residence or supervision to implement. Defendant had two prior misdemeanor illegal entry/eluding examination convictions (2014, 2015), but he was not placed on supervised release in those cases. The probation office did not allow Defendant to reside anywhere in the United States.
On re-direct examination, Defendant's criminal convictions and removal history (as reflected in the Presentence Report pages 5-7) were introduced:
5/31/2013 Chandler City Court - Reckless Driving
11/13/2014 Chandler City Court - Driving Suspended License
12/1/2014 Defendant removed from United States (PSR Page 6)
12/3/2014 US District Court Tucson - Illegal Entry
3/13/2015 Defendant removed from United States (PSR Page 6)
12/7/2015 Chandler City Court - Failure to Stop for Accident
12/7/2015 Chandler City Court - Shoplifting
2/2/2016 US District Court Phoenix - Alien Eluding Examination
5/28/2016 Defendant removed from the United States (Plea - Doc. 21)
10/22/2017 Date of Offense in this matter
B. Defendant Manuel Alejandro Alvarez-Castro.
On direct examination, Defendant testified that no one from the US Probation Office met with him after his release from the Bureau of Prisons. He stated that after his release from prison, he was taken into custody from a Mesa City Court. He said he complied with his release conditions from the Mesa City Court. Defendant testified that no one told him to report to US Probation. He stated he would have reported if he had known that was required.
On cross-examination, Defendant testified he understood the interpreter at sentencing. He stated that he did not know he was placed on supervised release. He stated that no one told him the meaning of supervised release.
On re-direct examination, Defendant testified that he remembered his sentencing hearing. He did not remember everything from sentencing because it was in both Spanish and English and he did not always know who to listen to. He stated no one gave him a copy of what was spoken at the sentencing hearing. He did not know he was required to go to the US Probation Office after being released on his local case. He stated he would have reported to "federal probation" if he had known it was required.
III. Conclusions of Law.
"A district court may 'revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release . . . if the court . . . finds by a preponderance of the evidence that the defendant violated a condition of supervised release.'" United States v. Vallejo, 69 F.3d 992, 994 (9th Cir. 1995) (quoting 18 U.S.C. § 3583(e)(3)).
The government must prove that Defendant knowingly violated his supervised release. See United States v. Vega, 545 F.3d 743, 750 (9th Cir. 2008) ("We construe [the condition] with well-established jurisprudence under which we presume prohibited criminal acts require an element of mens rea" to establish a supervised release violation); United States v. Farley, 696 Fed. App'x. 210, 213 (9th Cir. 2017) (finding the government was required to prove defendant knowingly violated a supervised release term).
The Court concludes that Defendant violated his supervised release because he did not report to the US Probation Office as expressly directed by the Court. At sentencing, the Court stated that 1) Defendant was placed on supervised release, 2) while on supervised release he must comply with terms of supervision, 3) within 72 hours of release from imprisonment he must report to US Probation, and 4) if he violated supervised release he could face future imprisonment for that violation. Specifically, the Court stated:
THE COURT: All right. Pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that Manuel Alejandro Alvarez-Castro is hereby committed to the Bureau of Prisons for six months. The Court finds the defendant does not have the ability to pay and orders the fine waived and the
assessment waived as well pursuant to 18 U.S.C. 3014(a). Upon release from imprisonment, the defendant shall be placed on supervised release for 12 months. And while on supervised release the defendant shall comply with the mandatory and standard conditions of supervision as adopted this court in General Order 17-18. Of particular importance, the defendant shall not commit another federal, state, or local crime during the term of supervision.(Exhibit 1 at 2-3.)
Within 72 hours of sentencing or release from the custody of Bureau of Prisons, the defendant shall report in person to the probation office in the district to which the defendant is released, if not deported.
Defendant shall comply with the following special condition: If deported, you must not reenter the United States without legal authorization.
I want to emphasize that last point because if you come back again illegally, then you're going to be facing two prison sentences. One for the crime that brings you here today, but the next time, with this felony on your record, the next time the sentencing for the crime of illegal reentry is going to be much greater. And the government can bring you back into my court and ask me to revoke your supervised release, if you come back while you are on supervised release, and send to you jail for violating your supervised release. And those two prison sentences would be added together.
On November 28, 2017, Defendant pleaded guilty before Magistrate Judge Eileen Willett. (Doc. 17.) Defendant's plea agreement states that he can be placed on supervised release for "up to three years." (Doc. 21.)
Defendant was present in the community from May 2, 2018 (released from state custody) to October 29, 2018 (arrested for supervised release violation). Defendant made no attempts to contact US Probation.
After his release from custody on May 2, 2018, Defendant did appear for two court dates in his Maricopa County drug case. (Exhibit #100.) The prosecution in that matter was suspended on July 3, 2018. (Id.) While the Court has considered that Defendant complied with court orders in that case, the Court has also considered that Defendant has a history of violating removal orders. Undoubtedly, Defendant received no assistance from the US Probation Office regarding his supervised release. No probation officer met with Defendant and no individuals gave him written instructions regarding his supervised release obligations.
But, this is a case where the District Court Judge who sentenced Defendant personally instructed him to report to the US Probation Office upon his release from imprisonment. Defendant was told in simple terms that he was being placed on supervised release. Defendant's sentencing was a solemn event, and Defendant's explanation that he did not know he had been ordered to report to the US Probation Office is not credible. Defendant testified that the proceeding was in English and Spanish, and that he did not understand all of it. But Defendant's answers to the Court's questions indicates he was listening to the Court. (See Exhibit #1 at page 4.)
Similarly, Defendant stated that he did not know how to report to the US Probation Office because no person gave him instructions. But Defendant had previous court appearances at the city, county, and federal levels. If he knew he was required to report to US Probation, he could have asked his state or federal counsel for additional information. Defendant had months to do so.
IV. Recommendation
Based on the foregoing and pursuant to 28 U.S.C. § 636(b) and LRCrim 57.6(d)(4), Rules of Practice for the District of Arizona, the undersigned Magistrate Judge RECOMMENDS that the Honorable James A. Teilborg, Senior United States District Judge, after an independent review of the record, find Defendant violated the terms of supervised release contained in Allegation 2.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(b)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
IT IS ORDERED setting a final disposition hearing for December 19, at 1:30 p.m. before the Honorable James A. Teilborg, Senior United States District Judge, in Courtroom 503, Sandra Day O'Connor U.S. Courthouse, 401 West Washington Street, Phoenix, Arizona.
IT IS FURTHER ORDERED that the U.S. Probation Department shall prepare a Disposition Report and the Defendant shall cooperate with the Probation Department in its preparation of the Disposition Report.
IT IS FURTHER ORDERED the parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b)(2). Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Judge without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Crim. P. 59.
Dated this 10th day of December, 2018.
/s/_________
Honorable John Z. Boyle
United States Magistrate Judge