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United States v. Powell

September 11, 2008

UNITED STATES OF AMERICA, PLAINTIFF/APPELLEE,
v.
WILLIAM D. POWELL, DEFENDANT/APPELLANT.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER GRANTING ASSISTANT FEDERAL DEFENDER WALCOTT'S MOTION TO WITHDRAW AS COUNSEL (Doc. 124) AND DISMISSING APPELLANT'S APPEAL (Doc. 110) AS MOOT

Defendant William Powell, represented by Assistant Federal Defender Melody Walcott, appeals from his conviction and sentence following his admission to violating Charge 2 of the petition for violation of supervised release. (Doc. 110).

Ms. Walcott has filed a motion to be relieved as counsel of record, for appointment of new counsel and for a new briefing schedule. (Doc. 124). Contemporaneously with this motion, Ms. Walcott filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Defendant filed a "Response to Motion to Dismiss and Recommendation for Summary Judgment" (Doc. 129).

Defendant was charged with possession of a firearm in a federal facility, a Class A misdemeanor, in violation of 18 U.S.C. § 930(a). Defendant consented to proceed before the United States Magistrate Judge. (Doc. 4). Defendant pleaded guilty pursuant to a written Plea Agreement. (Docs. 24 & 26).

Defendant was sentenced on September 17, 2003, to a $300 fine and a one-year term of supervised release. (Doc. 30). Defendant did not appeal his conviction or sentence.

On June 14, 2004, a Petition for Warrant or Summons for Offender Under Supervision was filed. (Doc. 32). Defendant was arrested and ordered detained. (Doc. 36). Defendant was represented by Federal Defender Mark Lizarraga. A Superseding Petition for Warrant or Summons for Offender Under Supervision was filed on October 6, 2004, alleging three violations of the terms of supervised release. (Doc. 39). On October 8, 2004, Defendant admitted Charge 2 of the Superseding Petition, with the proviso that Charges 1 and 3 would be dismissed at the time of sentencing. (Doc. 40). Charge 2 alleged:

On or about March 29, 2004, in the City of Modesto, California, the offender contacted the victim named in a Stanislaus County Superior Court Domestic Violence Restraining Order, violating Section 166(a)(4) California Penal Code - Violation of a Court Order, in violation of Standard Condition Number 1 which states, 'The defendant shall not commit another federal, state or local crime.'

Submitted as evidence in support of Charge 2 was "Stanislaus County Superior Court, Docket Number 1073460, showing that on April 6, 2004, the offender pled Nolo Contendere to 166(a)(4) PC - Violation of a Court Order." Defendant filed a Sentencing Memorandum on December 1, 2004. (Doc. 68). After a sentencing hearing on December 1, 2004 before Magistrate Judge Snyder, Defendant was sentenced to 9 months in custody and a 12-month term of supervised release. (Docs. 69-7 70). On December , 2004, Defendant filed an appeal to the District Court of his sentence based on a violation of Rule 43, Federal Rules of Criminal Procedure during the December 1, 2004 hearing. (Docs. 71 & 77). On June 16, 2005, Petitioner's appeal was granted; his sentence was vacated and the matter remanded for re-sentencing to a randomly assigned Magistrate Judge other than Magistrate Judge Snyder. (Docs. 87 & 96).

On February 1, 2006, Petitioner, then represented by Federal Defender Melody Walcott,*fn1 was sentenced by Magistrate Judge Beck for the admitted supervised release violation to 9 months in custody with 9 months credit for time served and no term of supervised release. (Docs. 107 & 111). On February 13, 2006, Petitioner filed a Notice of Appeal from the Judgment for Revocation of Probation. (Doc. 110).

In support of the motion to be relieved as counsel, Ms. Walcott avers:

1. The Federal Defender was appointed to represent Mr. Powell in the district court. Mark Lizarraga was appellant's counsel when he entered his plea. I represented Mr. Powell after the appeal to this Court regarding his sentencing on December 1, 2004.

I was present at all stages of the re- sentencing proceedings.

2. I spoke with Mr. Powell on several occasions regarding his case. I also communicated with Mr. Powell by letter and by email. We discussed what he believed to be the issues in his case. I also discussed what I believed was the appropriate resolution of the case.

3. Besides speaking with Mr. Powell, I reviewed the discovery documents and the court file. I further reviewed applicable legal materials to determine whether Mr. Powell had a reasonable defense to the supervised release violation. I also spoke with Mark Lizarraga, who ...


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