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

Filing 243

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C y g n u s Systems, Inc. v. Microsoft Corporation, et al D o c . 243 1 2 3 4 5 6 D I A N E J. HUMETEW A U n ite d States Attorney D is tr ic t of Arizona T I M O T H Y F. ANDREW S A s s i s t a n t U.S. Attorney Arizona State Bar No. 021658 4 0 3 5 S. Avenue A Y u m a , Arizona 85365 ( 9 2 8 ) 344-1087 tim .a nd r e w s @ u s d o j .g o v U N IT E D STATES DISTRICT COURT 7 D IS T R IC T OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s / Timothy F. Andrews TIMOTHY F. ANDREWS A s s is ta n t United States Attorney D IA N E J. HUMETEWA U n ite d States Attorney D is tric t of Arizona T h e United States, through undersigned counsel, submits this response to the defendant's o b je c tio n to the pre-sentence report. The defendant has objected to the 16-level sentencing e n h a n c e m e n t assessed in paragraph 16 of the pre-sentence report; and, for the reasons set forth in the accompanying Memorandum of Points and Authorities, the United States recommends that th e Court overrule the defendant's objection. R e sp e c tf u lly submitted this 20th day of March 2006. U n ite d States of America C R -0 7 -1 2 6 4 -P H X -E H C P l a in tif f , v. V ic e n te Rios-Rios, Defendant. G O V E R N M E N T 'S RESPONSE TO DEFENDANT'S OBJECTION TO PRE-SENTENCE REPORT Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. F A C T S AND PROCEDURAL HISTORY O n September 28, 2007, the defendant was arrested and charged with violating 8 U.S.C. 1 3 2 6 (a), enhanced by 1326 (b)(1), Reentry after Deportation. The defendant subsequently p le a d ed guilty by way of plea agreement. The pre-sentence report assessed the defendant a 16level increase under USSG 2L1.2(b)(1)(A) based on the defendant's prior conviction for battery u n d e r Florida Statute 784.07. PSR 13. The defendant filed an objection to the enhancement a r g u in g that the enhancement should be in the amount of 4 levels, not 16 levels. The objection ra is e s the issue of whether the available judicially noticeable documents support a conclusion th a t the defendant's battery conviction qualifies as a crime of violence under USSG 2 L 1 .2 (b )(1 )(A ). The United States concedes that it does not possess the judicially noticeable d o c u m e n ts required to prove the defendant's conviction for battery is a crime of violence. H o w e v e r, the defendant does have another conviction, for aggravated assault under Florida S ta tu te 784.021, that does categorically qualify as a crime of violence. I I . L A W AND APPLICATION A "crime of violence" is any crime that "has as an element the use, attempted use, or th re a ten e d use of physical force against the person of another." USSG 2L1.2 comment. (n .1 (B )(iii ). When determining whether the conviction in question qualifies as a crime of v io le n c e, the Court should first look to the fact of the conviction and the statutory definition of th a t conviction. Taylor v. United States, 495 U.S. 575 (1990); United States v. Lopez-Montanez, 2 9 1 F.3d 926, 929 (9th Cir. 2005). When the language of the statute that forms the basis of the c o n v ic tio n penalizes both conduct which qualifies as a crime of violence and conduct which d o e s not, the Court may then look to judicially noticeable facts to decide whether the conviction m e e ts the definition of a crime of violence. United States v. Lopez-Montanez, 291 F.3d at 931. T h e United States agrees that the defendant's battery conviction does not categorically q u a lif y as a crime of violence. A battery under Florida law includes intentionally touching a n o th e r person against his or her will. F.S. 784.03. Simply touching a person is not an act of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v io le n c e, and offensive touching is not tantamount to a crime of violence. See Ortega-Mendez v . Gonzales, 450 F.3d 1010, 1017 (9th Cir. 2006). The available judicially noticeable facts in th e instant case are an information alleging that the defendant committed the battery by " in te n tio n a lly touching or striking" an officer and a judgment. These documents by themselves d o not conclusively establish that the defendant committed a violent act. T h e probation department, however, discovered that the defendant does have another c o n v ic tio n , for aggravated assault, and this conviction categorically qualifies as a crime of v iolen ce . PSR 24. Florida defines the term "assault" as "an intentional, unlawful threat by word o r act to do violence to the person of another, coupled with an apparent ability to do so, and d o in g some act which creates a well-founded fear in such other person that such violence is im m in e n t." F.S. 784.011. This language tracks the 9th Circuit's definition of an assault. See U n ite d States v. Lewellyn, 481 F.3d 695, 697 (9th Cir. 2007)(the Court stated that the generic d e f in itio n of an assault includes the "threat to inflict injury upon the person of another which, w h e n coupled with an apparent present ability, causes a reasonable apprehension of immediate b o d ily harm"). Under Florida law, an aggravated assault is an assault with a deadly weapon, w ith o u t the intent to kill, or an assault with an intent to commit a felony. F.S. 784.021. F u r th e rm o re , an aggravated assault is among the offenses enumerated in the Sentencing G u id e lin e s' definition of a crime of violence, USSG 2L1.2 comment. (n.(1)(B)(iii)); and, when a n offense is specifically enumerated in the application note to 2L1.2, the 9th Circuit has " c o n sis te n tly drawn the conclusion that the offense is a per se crime of violence under the G u id e lin e s." United States v. Rodriguez-Guzman, 506 F.3d 738, 740 (9th Cir. 2007) citing U n ite d States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir.2005). 3 1 2 3 4 5 6 III. C O N C L U S IO N T h e United States recommends that the Court overrule the defendant's objection. While the d e f e n d a n t's battery conviction does not categorically qualify as a crime of violence, his c o n v ic tio n for aggravated assault in paragraph 24 of the report is categorically a crime of v io le n c e. R e sp e c tf u lly submitted this 20th day of March 2008. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 C E R T IF IC A T E OF SERVICE 22 23 24 25 26 27 28 4 J u a n Rocha A tto rn e y for Defendant b y: s/ Timothy F. Andrews I hereby certify that on March 20, 2008, I electronically transmitted the attached document to the Clerk's Office using the ECF System for filing and transmittal of a Notice of Electronic F ilin g to the following ECF registrants: s / Timothy F. Andrews TIMOTHY F. ANDREWS A s s is ta n t United States Attorney D IA N E J. HUMETEWA U n ite d States Attorney D is tric t of Arizona

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