Opinion
NO. CR.S-11-436-MCE
01-04-2012
UNITED STATES OF AMERICA, Plaintiff, v. RODRIGO MACIEL-VALENCIA, Defendant.
DANIEL J. BRODERICK Federal Public Defender CARO MARKS Designated Counsel for Service Attorney for Rodrigo Maciel-Valencia BENJAMIN WAGNER United States Attorney Caro Marks for MICHELE BECKWITH Assistant U.S. Attorney Attorney for Plaintiff
DANIEL J. BRODERICK, Bar #89424
Federal Defender
CARO MARKS, Bar #159267
Designated Counsel for Service
Attorney for Defendant
RODRIGO MACIEL-VALENCIA
STIPULATION AND ORDER CONTINUING STATUS CONFERENCE AND EXCLUDING TIME
Judge: Hon. Morrison C. England Jr.
IT IS HEREBY STIPULATED by and between the parties hereto through their respective counsel, MICHELE BECKWITH, Assistant United States Attorney, attorney for Plaintiff, and CARO MARKS, attorney for RODRIGO MACIEL-VALENCIA, that the status conference hearing date of January 5, 2011 be vacated, and the matter be set for status conference on February 2, 2012 at 9:00 a.m.
The reason for this continuance is as follows: as noted in the parties' previously filed Stipulation and Proposed Order (Dec. 13, 2011) there is a legitimate question whether the defendant's prior felony qualifies as a "drug trafficking offense" as that term is used in U.S.S.G. § 2L1.2(b)(1)(A). At the time that Stipulation was filed, Probation had not yet prepared the Alien Pre-Plea PSR.
Now, the PSR has been prepared and distributed. The defense strongly disagrees with Probation's conclusion that the defendant's prior conviction does in fact constitute a "drug trafficking offense".
Today, the defense concluded its research and is preparing to file objections to this portion of the PSR.
The parties seek a continuance to allow both Probation and government counsel time to consider the defense's objection, respond to it, and allow the defense to reply before ascertaining whether formal objections will have to be submitted. Government counsel is unavailable until January 5, 2011 and defense counsel is out of the country from January 6-23. By the time both counsel are present simultaneously in the Eastern District of California (January 23), Probation and government counsel will have had sufficient time to consider and respond to the defendant's objection. Then, the parties will know with certainty whether the court will be called upon to adjudicate the issue, or whether the PSR will be modified. As noted in the December 13 Stipulation, the parties may seek an additional continuance if it appears the matter will require further litigation.
Based upon the foregoing, the parties agree that the time under the Speedy Trial Act should be excluded from the date of signing of this order through and including February 2, 2012 pursuant to 18 U.S.C. §3161 (h)(7)(A)and (B)(iv)[reasonable time to prepare] and Local Code T4 based upon continuity of counsel.
Respectfully submitted,
DANIEL J. BRODERICK
Federal Public Defender
Caro Marks
CARO MARKS
Designated Counsel for Service
Attorney for Rodrigo Maciel-Valencia
BENJAMIN WAGNER
United States Attorney
Caro Marks for
MICHELE BECKWITH
Assistant U.S. Attorney
Attorney for Plaintiff
ORDER
UPON GOOD CAUSE SHOWN and the stipulation of all parties, it is ordered that the January 5, 2011, status conference hearing be continued to February 2, 2012, at 9:00 a.m. Based on the representation of defense counsel and good cause appearing therefrom, the Court hereby finds that the failure to grant a continuance in this case would deny defense counsel reasonable time necessary for effective preparation, taking into account the exercise of due diligence. The Court finds that the ends of justice to be served by granting a continuance outweigh the best interests of the public and the defendant in a speedy trial. It is ordered that time up to and including the February 2, 2012 status conference shall be excluded from computation of time within which the trial of this matter must be commenced under the Speedy Trial Act pursuant to 18 U.S.C. § 3161(h)(7)(A) and (B)(iv) and Local Code T-4, to allow defense counsel reasonable time to prepare.
____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE