Cygnus Systems, Inc. v. Microsoft Corporation, et al

Filing 12

ORDER pursuant to General Order 05-25 granting 8 Motion for Admission Pro Hac Vice; granting 9 Motion for Admission Pro Hac Vice; granting 10 Motion for Admission Pro Hac Vice; granting 11 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)

C y g n u s Systems, Inc. v. Microsoft Corporation, et al

D o c . 12

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D IA N E J. HUMETEWA U n ite d States Attorney D is tric t of Arizona J A M E S A. DEVITTO S p e c ia l Assistant U.S. Attorney Evo A. Deconcini U.S. Courthouse 405 West Congress, Suite 4800 Tucson, Arizona 85701-5040 T e le p h o n e : 520-620-7300 j a m e s .d e v it t o @ u s d o j . g o v A tto rn e ys for Plaintiff U N IT E D STATES DISTRICT COURT D IS T R I C T OF ARIZONA U n ite d States of America, Plaintiff, v. E r a sm o Olivarez-Moreno, D efe n d a n t. ) ) ) ) ) ) ) ) ) ) )

C R -07 -04 2 3 -T U C -JM R (JC G ) G O V E R N M E N T 'S RESPONSE T O DEFENDANT'S MOTION T O DISMISS FOR FAILURE T O STATE AN ELEMENT OF T H E OFFENSE

Plaintiff, United States of America, by its attorneys, Diane J. Humetewa, United S ta te s Attorney for the District of Arizona and James A. DeVitto, Special Assistant United S ta te s Attorney, hereby submits the following response to defendant's Motion to Dismiss f o r Failure to State an Element of the Offense as follows: On March 7, 2007, Defendant was indicted for re-entry after deportation under 8 U .S .C . 1326 as enhanced by 8 U.S. C. 1326(b)(2). The indictment reads as follows: O n or about February 7, 2007, at or near Douglas, in the D is tric t of Arizona, Erasmo Olivarez-Moreno, an alien, e n te re d and was found in the United States of America after h a v in g been denied admission, excluded, deported, and re m o v e d therefrom at or near Nogales, Arizona on or about F e b ru a ry 5, 2007, and not having obtained the express consent o f the Attorney General or the Secretary of the Department of H o m e lan d Security to reapply for admission thereto; in v io la ti o n of Title 8, United States Code, Section 1326, en h an ce d by Title 8, United States Code, Section 1326(b)(2).

Dockets.Justia.com

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In Almendarez-Torres v. United States, 523 U.S. 224, 226-227, 118 S.Ct. 1219, 140 L .E d .2 d 350 (1998), the U.S. Supreme Court addressed the question of whether an in d ic tm e n t for a violation of 8 U.S.C. § 1326 as enhanced by 8 U.S.C. § 1326(b)(2) must in c l u d e a defendant's prior aggravated felony conviction and held as follows: W e conclude that the [1326(b)(2)] subsection is a penalty p ro v is io n , which simply authorizes a court to increase the s e n te n c e for recidivist. It does not define a separate crime. C o n s e q u e n tly, neither the statute nor the Constitution requires th e Government to charge the factor that it mentions, the e a rlie r conviction, in the indictment. Subsequently, the Ninth Circuit Court of Appeals, in United States v. MartinezR o d r ig u e z, 472 F.3d. 1087, 1092-93 (9 th Cir. 2007), cited Almendarez-Torres in their h o ld i n g as follows: [ I]n United States v. Reyes-Pacheco, 248 F.3d 942, 943-44 (9 th Cir. 2001), the defendant contended that "the district court im p ro p e rly enhanced his [§1326] sentence on the basis of a p rio r aggravated felony conviction that was neither admitted n o r charged in the indictment and proven beyond a reasonable d o u b t." We found that the defendant's argument was f o re c lo s e d by Almendarez-Torres v. United States, 523 U.S. 2 2 4 , 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). ReyesP a c h e co , 248 F.3d at 944. In Almendarez-Torres, the S u p r e m e Court held that § 1326(b)(2) "simply authorizes a c o u rt to increase the sentence for recidivist. It does not define a separate crime." 523 U.S. at 226, 118 S.Ct. 1219. The Court in Almendarez-Torres rejected the argument that, because the f a ct of recidivism increased the maximum term to which a d e f en d a n t could be sentenced, recidivism was an element of th e crime that must be charged in the indictment and proven b e yo n d a reasonable doubt. Id. at 239, 118 S.Ct. 1219. We hold that "[t]he district court did not err by considering [ M a rtin e z 's ] prior aggravated felony conviction[s] despite the f a ct that such conduct was neither admitted nor charged in the in d ic tm e n t, presented to a jury, and proven beyond a re a so n a b le doubt." Reyes-Pacheco, 248 F.3d at 945. Defendant's sole contention in his motion is that as an element of the offense, the ind ictm en t must contain the date of defendant's underlying felony conviction. However,

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d e f e n d a n t's contention is without merit as the U.S. Supreme Court and the Ninth Circuit C o u rt of Appeals have ruled otherwise. Due to the above, defendant's motion must be dismissed. . Respectfully submitted this 27 th day of December, 2007. D IA N E J. HUMETEWA U n ite d States Attorney D is tric t of Arizona s/J a m e s A. Devitto J A M E S A. DEVITTO S p e c ia l Assistant United States Attorney

C o p y of the foregoing served electronically o r by other means this 27 th day of December, 2007, to: M a tth e w J. McGuire, Esq. A tto rn e y for Defendant

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