United States v. Alvarez-Castro

          HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          Honorable John Z. Boyle United States Magistrate Judge

         Pending before the Court is a Superseding Petition, filed on November 7, 2018, alleging two violations of supervised release. Pursuant to a Standing Order of Referral, dated July 21, 2012, the Honorable James A. Teilborg, Senior United States District Judge, referred the Superseding Petition to Revoke Supervised Release in the above-numbered case to the undersigned Magistrate Judge to “make the appropriate findings and recommendations and submit the necessary Report and Recommendation to the District Court . . .” as authorized under 18 U.S.C. § 3401(i) and 28 U.S.C. § 636(b)(3).

         I. Procedural Background.

         On March 1, 2018, Defendant was sentenced to 6 months of imprisonment and 12 months of supervised release. (Doc. 23.) On November 7, 2018, a Superseding Petition was filed alleging violations of Defendant's supervised release. (Doc. 39.)

         On December 6, 2018, this Court conducted an evidentiary hearing. The parties submitted written consent to the Court, and Defendant acknowledged his consent in court on the record. (Doc. 47.) The government proceeded on “Allegation 2” in the Petition^[1]:

         Allegation 2:

Violation of Standard Condition 1 which states, “You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of sentencing or your release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time frame. Grade C violation. U.S.S.G. §7Bl.l(a)(3)(B).”

On or about April 23, 2018, Manuel Alejandro Alvarez-Castro was released from the Bureau of Prisons and failed to report to the probation office within 72 hours of his release from imprisonment. Evidence supporting the alleged violation consists of an Immigration and Customs Enforcement correspondence confirming that he was not deported upon completion of his federal custody term of imprisonment; the Court's sentencing transcripts from March 1, 2018, confirming he was instructed to report to the probation office if not deported; and the testimony of the probation officer confirming he failed to report to the probation office within 72 hours of release from imprisonment.

(Doc. 39 at 1.)

         Defendant was present and assisted by counsel. The government called Probation Officer Ariel Palofax. Government's Exhibits #1 and 2 were admitted into evidence. (Doc. 51.) Government's Exhibit #1 contains the sentencing transcript, and Government's Exhibit #2 contain a Maricopa County Superior Court minute entry that shows Defendant was released from Maricopa County custody on May 2, 2018.

         Defendant testified. Defense Exhibits #101 and #102 were admitted into evidence. (Doc. 52.) Defendant's Exhibit #101 is a Maricopa County Superior Court summary of court dates for Defendant's criminal matter and Defendant's Exhibit #102 is a minute entry that shows Defendant appeared for a June 4, 2018 hearing.

         II. Findings of Fact.

         The Court submits the following findings of fact.

         A. Timeline of Events.

         On March 1, 2018, Defendant was sentenced to 6 months of imprisonment and 12 months of supervised release. (Doc. 23.)

         On April 23, 2018, Defendant was released from the Bureau of Prisons and subsequently taken into state custody.

         On May 2, 2018, Defendant was released from Maricopa County custody in CR 2017-148566. (Exhibit #1.)

         On June 4, 2018, Defendant appeared (out of custody) for a Maricopa County ...