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

Filing 525

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Cygnus Systems, Inc. v. Microsoft Corporation, et al Doc. 525 1 2 3 4 LAW OFFICE OF RUBEN ESPARZA P.O. Box 9 Marana, AZ 85653 (520) 882-7788 fax ( 520) 203-0254 Computer No. 64558 Attorney No. 13823 Attorney for Defendant 5 6 7 8 9 10 vs. 11 LUIS ENRIQUE AYALA-GARCIA, 12 Defendant. 13 14 15 It is NOT expected that excludable delay under Title 18, USC 16 3161(h)(1)(F) will occur as a result of this memorandum. 17 The Defendant, LUIS ENRIQUE AYALA-GARCIA , by and through 18 undersigned counsel, pursuant to 18 USC 3553(a) and Rule 32 of the 19 Federal Rules of Criminal Procedure, respectfully submits to this 20 Court a Sentencing Memorandum in his case. 21 RESPECTFULLY SUBMITTED this 18th day of JUNE, 2007. 22 LAW OFFICE OF RUBEN ESPARZA 23 24 25 26 27 28 S/Ruben Esparza Ruben Esparza ATTORNEY FOR DEFENDANT LUIS ENRIQUE AYALA-GARCIA SENTENCING MEMORANDUM WITH OBJECTIONS UNITED STATES OF AMERICA, Plaintiff, Case No. CR 06-2061-TUC-CKJ-GEE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 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 Base OVERVIEW SENTENCING MEMORANDUM Mr. Ayala pled guilty to an indictment charging him with illegal re-entry pursuant to 8 USC 1326 with an enhancement under 1326 (b)(2). Mr. Ayala accepted the Government's plea offer under USSG 5K.3.1 conditions. The 1326(b)(2)enhancement was listed in the plea agreement as a theft charge from 14 October of 1988. The Government supplied various documents in support of the 1988 conviction. These documents may not provide sufficient proof that the prior qualifies for the (b)(2) enhancement. Mr. Ayala reviewed the pre-sentence report for accuracy. The report appears to be accurate. Portions involving acceptance of responsibility, criminal history, family history and offender characteristics are accurate. Additionally, Mr. Ayala understands that the recommendation in his case is for 41 months. Mr. Ayala objects to paragraph 14, involving the offense of assault on a police officer. See Objections section below. GUIDELINES Mr. Ayala pled guilty to illegal re-entry under 8 USC 1326. level is 8. The pre-sentence report lists a 16 level enhancement in paragraph 14. This enhancement is based on the offense listed in paragraph 26. The crime is listed as an aggravated assault, a crime of violence. The adjusted offense level is 24. Three levels are subtracted for acceptance of responsibility and savings to the government. Total offense level is 21. Mr. Ayala is objecting to the enhancement in paragraph 14. See objections below. 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 CRIMINAL HISTORY Mr. Ayala's criminal history category is listed as Category IV. Counsel reviewed the criminal history with Mr. Ayala. He question the age of the convictions in paragraph 24. It appears that Mr. Ayala was on warrant status from 1990 to 1999. Because of the warrant status he was sentenced to prison within the 15 year period under USSG 4A1.2(e). There are no objections to the criminal history portion. OBJECTIONS Mr. Ayala objects to the enhancement under paragraph 26. It is incumbent on the Government to provide any documents in support of any prior used to enhance the sentence of a defendant. The Government has indicated that the documents for this conviction are not in the possession of the government. This fact raises three points of law. First, the Government, and not the Court, must prove any prior criminal history for enhancement purposes1. Second, the Government's burden of proof must be by a standard higher than a preponderance of the evidence for any enhancement 2. In this case, a clear and convincing evidence standard applies3. Third, the Court is limited to examining conviction documents on their face for a categorical analysis. A modified categorical analysis is permitted by reviewing the charging documents, plea agreement and sentencing documents provided by the government. No other judicial investigation is permitted4. MITIGATION Pursuant to 18 USC 3553(a) any number of sentencing factors 3 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 are now to be considered as well as guidelines factors. Mr. Ayala is before the Court for sentencing on the charge of illegal re-entry. The circumstances of his arrest are listed in the pre-sentence report. He was attempting to cross marijuana across the border. He was trying to earn money to help his family pay for the funeral expenses of his mother and youngest brother. Mr. Ayala was beside himself with grief at his family's loss. He was helpless regarding death. He felt that perhaps he could ease the family's suffering with enough money to pay for the funerals. Mr. Ayala remained in Mexico for five years after his last deportation. He had no idea the amount of time that he was facing for the re-entry conviction. He will remain in Mexico for the remainder of his life. RESPECTFULLY SUBMITTED this 18th day of June, 2007. LAW OFFICE OF RUBEN ESPARZA S/Ruben Esparza Ruben Esparza ATTORNEY FOR DEFENDANT LUIS ENRIQUE AYALA-GARCIA 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Copies of the foregoing mailed/delivered to: Hon. Cindy K. Jorgenson 405 W. Congress Tucson, AZ 85701 David A. Kern AUSA 405 W. Congress #4800 Tucson, AZ 85701 Jeannie Moreno Probation Officer United States District Court 1.United States v. Pimentel-Flores, 339 F.3d 959 (9th Cir. 18 19 20 21 22 23 24 25 26 27 28 5 2.United States v Ameline, 400 F.3d 646, 656 n.7 (9th Cir. 2005) Rehearing en banc granted 401 F.3rd 1007 (9th Cir. 2005) 3. United States v. Jordan, 256 F.3d 922, 927 (9th Cir. 2001) 4.Shepherd v United States, 125 S.Ct 1254 (2005) 08/11/2003)

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