U.S. v. Cano-Matus

Full title: UNITED STATES OF AMERICA, Plaintiff, v. FRANCISCO CANO-MATUS, Defendant

Court: United States District Court, S.D. California

Date published: May 23, 2007

Cr. No. 04-1175GT (S.D. Cal. May. 23, 2007)

Opinion

Cr. No. 04-1175GT.

May 23, 2007

ORDER

GORDON THOMPSON JR., Senior District Judge

On May 7, 2007, defense counsel for Defendant, Francisco Cano-Matus, electronically filed Motions to Dismiss the Petition. Because these Motions were filed late, the Court had them stricken from the record. At the OSC hearing on May 14, 2007, defense counsel withdrew one motion, however he orally renewed the Motion to Dismiss based on the argument that the supervised release scheme is unconstitutional.

This argument is precluded by Ninth Circuit case law. The Ninth Circuit has consistently held that the revocation of supervised release and the resulting incarceration is part of the original sentence. United States v. Huerta-Pimental, 445 F.3d 1220 (9^th Cir. 2006). Hence, no additional fact finding is necessary. Id. Also, since revocation and the possible sentence are discretionary, neither Booker nor the Sixth Amendment are violated. Id. Therefore, the Ninth Circuit has consistently held that the supervised release scheme is constitutional. Accordingly,

IT IS ORDERED that Defendant's Motion to Dismiss is DENIED.