The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO PLEAD GUILTY TO VIOLATION OF SUPERVISED RELEASE AND FOR IMPOSITION OF SENTENCE IN ABSENTIA
On September 10, 2008, Defendant filed a motion to, in effect, immediately plead guilty to (or admit) violation(s) of the terms of his supervised release and to request the imposition of a sentence in absentia to run concurrently with the 46-month sentence he is currently serving at the Talladega, Alabama, Federal Correctional Institution. Defendant also requests enforcement of his rights to a speedy trial and under the Interstate Agreement on Detainers, and seeks appointment of counsel to assist him in this matter.
On August 1, 2003, after pleading guilty to 8 U.S.C. §1324(a)(1)(A)(ii) and (v)(II), transportation of an illegal alien, Defendant was sentenced to twelve months and one day in custody and three years supervised release. Thereafter, on August 20, 2004, a Petition for Warrant or Summons for Offender under Supervision was filed against Defendant, alleging various re-entry, controlled substance, and vehicle code violations of his supervised release. Based on these allegations, Defendant's supervised release was revoked on January 28, 2005 and he was re-sentenced to a term of twelve months and one day (to run consecutively to the sentence imposed for the related San Diego Superior Court Case, SCD-181986) and two years supervised release.
On February 28, 2008, another Petition for Warrant or Summons for Offender under Supervision was filed against Defendant, this time alleging violation of 8 U.S.C. §1326 and various firearms possession statutes (18 U.S.C. §§ 922(g)(5)(A), 922(g)(1), and 924(a)(2)). This court issued a no-bail bench warrant for Defendant, who was thus served with a Detainer on March 4, 2008.
Although Defendant does not so state, the basis of his motion invites application of Rule 32.1 of the Federal Rules of Criminal Procedure. However, Rule 32.1's due process protections apply only to one "held in custody for violating probation or supervised release." FRCP 32.1(a)(1) and (b)(1)(A). Since Defendant is not currently held on the issued Warrant, but instead is in custody in Alabama pursuant to a wholly separate charge, Rule 32.1 affords him no relief. See U.S. v. Tucker, 524 F.2d 77 (1975).
Furthermore, Defendant has failed to demonstrate any actionable prejudice to his ability to contest revocation of supervised release would result from delaying proceedings until he completes his intermediate sentence. First, Defendant has not suggested the delay would cause him any "difficulty in contesting the alleged facts constituting a violation of [his] release conditions; hardship in finding and presenting favorable witnesses; or inability to produce evidence of mitigating circumstances which might result in continued probation despite the violation... ." See U.S. v. Wickham, 618, F.2d 1307 (9th Cir. 1979). Additionally, the Wickham court noted actionable prejudice is ordinarily "caused by government action" rather than "the probationer's own criminal conduct." Id. at 1310. Here, the delay in resolution of the Warrant is not due to the government's conduct, but to Defendant's own criminal conduct and resulting sentence in Alabama.
For the reasons set forth above, the Motion is DENIED. IT IS SO ORDERED.
© 1992-2008 VersusLaw ...