Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Filing 221

Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Doc. 22

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

Hortencia Delgadillo, Esq. P.O. Box 844 Tucson, Arizona 85702 Telephone: [phone] E-mail: [e-mail] State Bar No. 010595 Attorney for: Defendant NELSON ADONAI LOPEZ-MENDOZA

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, vs. NELSON ADONAI LOPEZ-MENDOZA, Defendant. Defendant, by and through his counsel undersigned, submits the following Sentencing Memorandum for purposes of his sentencing on July 17, 2009. Defendant agrees with the analysis of the United States Probation Department that Defendant's criminal history supports only a four-level enhancement. MEMORANDUM OF POINTS AND AUTHORITIES Legal Argument The United States Probation Department
1

No. CR08-01238-TUC-CKJ-HCE DEFENDANT'S SENTENCING MEMORANDUM

has

concluded

that

UNITED STATES V. NELSON ADONAI LOPEZ-MENDOZA-CR08-01238-TUC-CKJ-HCE

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

Defendant's prior conviction for Aggravated Assault on a Peace Officer, in violation of A.RS. §13-1204(A), does not qualify as a crime of violence under either 8 U.S.C. §1101(a)(43) or under U.S.S.G. §2L1.2, comment (n.1)(B)(iii). (See PSR p. 4, fn. 1). Accordingly, the Probation Department has assigned only a four-level enhancement based on this prior conviction. (PSR p. 4, ¶13). Defendant agrees that the Probation

Department has assessed the appropriate offense level. The government claims that Defendant should be assessed a 16-level enhancement based on the subject prior conviction and argues that this conviction qualifies as a crime of violence under a modified categorical approach. (See p. 5 of government's Objections to the Presentence Report, hereinafter "Objections"). assertion is incorrect as discussed below. Federal courts apply the categorical approach established by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), in order to make an initial determination of whether a prior conviction qualifies as a predicate offense, for purposes of applying the 16-level enhancement under §2L1.2(b)(1)(A). United States v. Navidad-Marcos, 367 F.3 905, 908 (9th Cir. 2004). This analysis requires the sentencing court to look only to "the fact of conviction and the statutory definition of the prior offense" in evaluating the proposed enhancement. United States v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir. 2002). This

UNITED STATES V. NELSON ADONAI LOPEZ-MENDOZA-CR08-01238-TUC-CKJ-HCE

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

The Ninth Circuit Court of Appeals has previously held that A.RS. §131204(A), the statute under which Defendant Lopez-Mendoza was convicted, is overbroad and does not categorically qualify as a crime of violence for purposes of this enhancement. See United States vs. Esparza-Herrera, 557 F.3d 1019, 1025 (9th Cir. 2009). "Under the categorical approach, aggravated assault requires a mens rea of at least recklessness under circumstances manifesting extreme indifference to the value of human life." Id., at 1025 (court concluded that the defendant's statute of conviction, A.R.S. §13-1204(A)(11), encompassed ordinary recklessness, and therefore his conviction was not a conviction for generic aggravated assault or a crime of violence.) When a defendant's state statute of conviction does not define a categorical crime of violence, federal courts apply a "modified categorical

approach." See Penuliar v. Gonzales, 435 F.3d 961, 966 (9th Cir. 2006). This involves a limited examination of documents in the record of conviction in order to determine if there is sufficient evidence to conclude that the defendant was convicted of the elements of the generically defined crime. United States v. Wenner, 351 F.3d 969 (9th Cir. 2003). The sentencing court may appropriately review the "charging document, written plea agreement, transcript of plea colloquy and explicit factual finding by the trial judge or to which the defendant assented" in order to determine whether the enhancement should

UNITED STATES V. NELSON ADONAI LOPEZ-MENDOZA-CR08-01238-TUC-CKJ-HCE

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

apply. Almazan-Becerra, 456 F.3d 949, 952 (9th Cir. 2006) (quoting Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254 (2005). The review of documents beyond the statute and charging document is narrowly restricted in order to achieve the objective of the statute and in order to avoid any evidentiary disputes. Almazan-Becerra, 456 F.3d at 952. A sentencing enhancement of 16 levels for a qualifying offense is a significant penalty. See Sandoval-Venegas, 292 F.3d 1101, 1106 (9th Cir. 2002). Under these

circumstances, the court must determine if the record establishes unequivocally that the defendant was convicted of the generically defined crime. Corona-Sanchez, at 1211. (emphasis added). "If judicially noticeable facts would allow the defendant to be convicted of an offense other than that defined as a qualifying offense, the offense cannot be used to enhance a defendant's sentence." Corona-Sanchez, 291 F.3d at 120304. In this case, the Government is incorrect is its assertion that the judicially noticeable documents that are available establish unequivocally that the prior offense was a crime of violence. The record before the Court requires the Court to infer and "read between the lines" in order to conclude that Defendant committed a "crime of violence." See Sandoval-Venegas, 292 F.3d 1101, 1106 (9th Cir. 2002) ("Because the consequences of a sentence enhancement for a qualifying conviction are significant, we

UNITED STATES V. NELSON ADONAI LOPEZ-MENDOZA-CR08-01238-TUC-CKJ-HCE

4

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

have noted that "might" simply cannot be enough). The evidence available to the Court that can be gleaned from the judicially noticeable documents does not establish that Defendant acted either "intentionally" or knowingly." See Esparza-Herrera, 557 F.3d 1019. At most, the transcript excerpts

from Defendant's plea colloquy and the Grand Jury proceedings that pertain to the subject offense raise only the suggestion or possibility that Defendant may have acted with the requisite intent. (See Objections p. 4). However, this falls far short of the standard set by the court in Esparza-Herrera. Id. Consequently, the Court has insufficient basis for concluding that Defendant acted with the requisite mens rea during the offense that gave rise to his 2007 conviction for assault on a federal officer. The Court should follow the analysis of the United States Probation Department and assess only a four-level enhancement for Defendant's 2007 assault conviction. DATED this 14th day of July 2009 S/Hortencia Delgadillo HORTENCIA DELGADILLO Attorney for Defendant Original of the foregoing filed by ECF this 14th day of July 2009with: Clerk of the Federal District Court 405 W. Congress, Suite 1500 Tucson, AZ 85701
UNITED STATES V. NELSON ADONAI LOPEZ-MENDOZA-CR08-01238-TUC-CKJ-HCE

5

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

Copy of the foregoing delivered by ECF this 14th day of July 2009 to: Hon. Cindy K. Jorgenson United States District Court Judge 405 W. Congress Tucson, Arizona 85701 Erica McCallum Assistant U.S. Attorney Office of the United States Attorney 405 W. Congress, Suite 4800 Tucson, Arizona 85701 Probation Officer United States Probation Department 405 W. Congress Tucson, Arizona 85701

UNITED STATES V. NELSON ADONAI LOPEZ-MENDOZA-CR08-01238-TUC-CKJ-HCE

6