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United States v. Olivera-Rueles

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 13, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ISMAEL OLIVERA-RUELES, DEFENDANT.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

STIPULATION TO CONTINUE STATUS CONFERENCE HEARING; ORDER THEREON (time change) Date November 12, 2010 Time: 8:45 a.m.

Judge: Hon. Lawrence J. O'Neill

IT IS HEREBY STIPULATED by and between the parties hereto, and through their respective attorneys of record herein, that the Status Conference Hearing in the above-captioned matter scheduled for October 15, 2010, may be continued to November 12, 2010, at 9:00 a.m.

A continuance is necessary so that the probation report which will be submitted to the Court, and which will become a part of the defendant's record, does not contain and perpetuate the incorrect description of previous conviction. The language used in the report purports to describe the offense of conviction as the entry of a sexual offender upon school property. It was based upon an incorrect description in the Department of Justice's state summary criminal index (CII). However, there was never any allegation, nor was the defendant ever charged or convicted of a sexual offense. Additionally, the underlying police report describes the simple offense of loitering upon school property after having been asked to leave.

A motion brought by defense counsel to clarify defendant's record in Kings County was heard and orally granted on September 1, 2010. At the Court's request, a proposed Order on Motion to Clarify Docket and Official Record was submitted to the Kings County Superior Court for signature. Upon attempting to ascertain the status of the proposed order we were advised the judge who heard the matter, the Hon. Lynn Atkinson, is on medical leave. His clerk further stated that their office was extremely short staffed, but that she would submit the order to the presiding judge for further action. At this time, we have been unable to determine whether the presiding judge has had an opportunity to review the order.

We have provided probation with the written motion which was submitted to the Kings County Superior Court, Hanford Division, and which was orally granted on September 1, 2010. We have also provided the police report which described the activity of conviction. Although the report shows that the conduct described did not involve any allegations of a sexual nature or sexual offender status, probation is not prepared to change their report until we provide them with the order.

The parties agree that the delay resulting from the continuance shall be excluded in the interests of justice, including but not limited to, the need for the period of time set forth herein for further defense preparation pursuant to 18 U.S.C. §§ 3161(h)(7)(A) and (B).

ORDER

Time is excluded in the interests of justice pursuant to 18 U.S.C. §§ 3161(h)(7)(A) and (B). The Court sets the time for the hearing for 8:45 a.m. due to the nature of the change requested. The mere mention of such an issue has safety matters attached. Good cause having been shown, the motion is GRANTED.

IT IS SO ORDERED.

20101013

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