Opinion
CASE NO. 11-CR-00279-PAB-01
12-28-2012
UNITED STATES OF AMERICA, Plaintiff, v. 1. XAVIER GALVEZ-CHAVEZ, Defendant.
Barbara Skalla Kurkland Brush
JUDGE PHILIP A. BRIMMER
COURTROOM MINUTES
Courtroom Deputy: Kathy Preuitt-Parks
Court Reporter: Janet Coppock
Probation Officer: Katrina Devine
Time: one hour and 18 minutes
Interpreter: Susanna Cahill
Counsel
Barbara Skalla
Kurkland Brush
SENTENCING
11:05 a.m. COURT IN SESSION
APPEARANCES OF COUNSEL. Defendant is present and in custody. Interpreter sworn with no challenges to her qualifications. ORDERED: The statement of facts in the Plea Agreement and the Presentence Report are not disputed by the parties and are adopted in the Court's factual findings in this case. The report is incorporated by reference as part of the Court's findings and conclusions. Argument by Mr. Brush in support of defendant's objections to the presentence investigation report. Argument by Ms. Skalla. Further argument by Mr. Brush. Court states its findings and defendant's objections are sustained.
11:35 a.m. COURT IN RECESS
11:40 a.m. COURT IN SESSION
Court will hear argument as to the Government's Motion for Downward Departure Pursuant to 5K1.1 (Doc 459) 11:46 a.m. Bench conference begins. 11:57 a.m. Bench conference concludes. ORDERED: Transcript of argument at the bench conference is SEALED. ORDERED: Government's Motion for Downward Departure Pursuant to 5K1.1 (Doc 459) is GRANTED. Argument by Mr. Brush in support of defendant's Motion for Departure and comments addressing sentencing. Argument by Ms. Skalla and comments addressing sentencing. Defendant addresses the Court. Court states its findings and conclusions. ORDERED: Defendant's Motion for Departure (Doc 454) is DENIED. Statement by the Court regarding defendant's offense level, criminal history level and sentencing guidelines range. Defendant entered his plea on July 27, 2012 to counts One and Two of the Superseding Information. ORDERED: Court ACCEPTS the Plea Agreement. Court considers statutory factors of 18 USC § 3553(a) in arriving at sentence. ORDERED: Defendant shall be imprisoned for 126 months as to counts One and Two, to be served concurrently. Court RECOMMENDS that the Bureau of Prisons place the defendant at a facility in Milan, New Mexico or Phoenix, AZ. ORDERED: Upon release from imprisonment, defendant shall be placed on supervised release for a period of 5 years as to count One and 3 years as to count Two, to be served concurrently. ORDERED: Conditions of Supervised Release that:
(X) Within 72 hours of release from the custody of the Bureau of Prisons, defendant shall report in person to the probation office in the district to which the defendant is released.ORDERED: Special Condition of Supervised Release that:
(X) While on supervised release, the defendant shall not commit another federal, state, or local crime, shall not possess a firearm as defined in 18 U.S.C. § 921, and shall comply with the standard conditions that have been adopted by this Court.
(X) Defendant shall not unlawfully possess a controlled substance and submit to one drug test within 15 days of release on supervised release and at least two periodic drug tests thereafter for use of a controlled substance.
(X) Defendant shall cooperate in the collection of a DNA sample from the defendant as directed by the probation officer.
() Mandatory drug testing provisions of 18 U.S.C. § 3583(d) are WAIVED because the presentence investigation report indicates a low risk of future substance abuse by the defendant.
(X) If not deported, the defendant shall participate in and successfully complete a program of testing and/or treatment for substance abuse as directed by the probation officer until such time as defendant is released from the program by the probation officer. Defendant shall abstain from the use of alcohol or other intoxicants during the course of treatment. (Defendant will be required to pay the cost of treatment as directed by the probation officer.ORDERED: Defendant shall pay $200.00 to Crime Victim Fund (Special Assessment), to be paid immediately. ORDERED: Defendant shall pay a fine of $ (as follows: ( The defendant shall notify the United States Attorney of this district within 30 days of any change of mailing or residence address that occurs while any portion of the fine remains unpaid. ORDERED: No fine is imposed because defendant has no ability to pay a fine. ORDERED: Government's Motion for Decrease for Acceptance of Responsibility (Doc #458) is GRANTED. ORDERED: Government's Motion to Dismiss the Superseding Indictment (Doc #463) is GRANTED. ORDERED: Defendant advised of right to appeal. Any notice of appeal must be filed within 14 days. ORDERED: A copy of the presentence report shall be forwarded to the U.S. Bureau of Prisons and the U.S. Sentencing Commission. ORDERED: Defendant is REMANDED to the custody of the U.S. Marshal.
(X) If defendant is deported, he shall not re-enter the United States illegally. If defendant re-enters the United States legally, he is to report to the nearest U.S. Probation Office within 72 hours of he return.
(X) The special assessment obligation is due immediately. Any unpaid balances upon release from incarceration shall be paid in monthly installment payments during the term of supervised release. The monthly installment payment will be calculated as at lease 10 percent of the defendant's gross monthly wages.