United States District Court, D. Arizona
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 ...