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United States v. Lopez-Vivas

United States District Court, D. Arizona

April 16, 2014

United States of America, Plaintiff,
v.
Douglas Enrique Lopez-Vivas, Defendant.

REPORT AND RECOMMENDATION

JACQUELINE M. RATEAU, Magistrate Judge.

Pursuant to District Judge Zipp's Order, the Defendant's Evidentiary Hearing came on for hearing before Magistrate Judge Jacqueline M. Rateau on April 7, 2014. Defendant was present and assisted by counsel. The Government presented one witness. The Defendant testified in his own defense.

I. FINDINGS OF FACT

On January 10, 2014, a Petition to Revoke Supervised Release was filed alleging that the Defendant violated his conditions of supervised release by committing a federal crime during the term of his supervision. According to the Petition, on November 8, 2010, the Defendant was sentenced to serve 37 months in prison followed by 36 months of supervised release. The Defendant's term of supervised release began to run on March 15, 2013, when he was released from prison. His conditions of supervision included the following language, "[t]he defendant shall not commit another federal, state or local crime."

Probation Officer Pauline Ware testified at the evidentiary hearing that the Defendant was deported on May 8, 2013, through El Paso, Texas, and was again found in the United States without legal authorization on September 5, 2013, near Kupk in the District of Arizona. In fact, on April 4, 2014, the Defendant went to trial and was convicted of illegally entering the United States after deportation. Sentencing is scheduled for June 16, 2014.

The Defendant also testified at the hearing. He admitted that he committed this new offense but argued that he should not again be punished for his prior convictions.

II. CONCLUSIONS OF LAW

A court may revoke a defendant's supervised release if it finds by a preponderance of the evidence that the defendant violated a condition of his supervised release. United States v. Musa, 220 F.3d 1096, 1100 (9th Cir.), cert. denied, 531 U.S. 999, 121 S.C. 498, 148 LED.2d 469 (2000); see also 18 U.S.C. § 3583(e)(3).

Having considered the testimony, the pleadings in the current case and the conviction entered in CR13-01677-TUC-JGZ(JR), the Magistrate Judge finds by a preponderance of the evidence that the Defendant violated his conditions of supervised release.

III. RECOMMENDATION FOR DISPOSITION BY THE DISTRICT COURT JUDGE

Based on the foregoing and pursuant to 28 U.S.C. § 636 (b) and Local Rule 1.7(d)(2), Rules of Practice of the United States District Court, District of Arizona, the Magistrate Judge RECOMMENDS that the District Court, after an independent review of the record, find that the Defendant violated his terms of supervised release by committing another federal crime.

Pursuant to 28 U.S.C. §636(b)(1)(B), the parties have fourteen (14) days from the date of this Report and Recommendation to file written objections to these findings and recommendations with the District Court. Any Objections and Responses to objections filed should be filed as CR13-01677-TUC-JGZ. No Replies shall be filed unless leave is granted from the District Court.


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