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Re: Jose M. Zambrano

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 14, 2011

RE: JOSE M. ZAMBRANO

The opinion of the court was delivered by: Honorable Michael J. Seng

MEMORANDUM

United States Magistrate Judge Yosemite, California

Dismissal of Probation Warrant

Your Honor:

This memorandum is to request the Court vacate and recall the probation violation warrant issued for the defendant's arrest.

The Ninth Circuit Court of Appeals decision in U.S. v. Vargas-Amaya, 389 F.3d 901 (2004) ruled that a district court's jurisdiction to revoke supervision beyond the term of supervision ordered is extended if the warrant was issued "upon probable cause, supported by Oath or Affirmation," as required by the Fourth Amendment.

On May 8, 2003, the above defendant appeared before the Honorable Sandra M. Snyder for sentencing based on a guilty plea to violation of 18 USC 1361, Injury of Natural Resource (Count 2) and violation of 36 CFR 2.1(a)(1)(ii), Disturb Natural Feature (Count 3). The remaining count was dismissed. The defendant was placed on Limited Supervised Probation for 24 years. He was also ordered to pay $35 in special assessments and $717.25 restitution. In addition to the standard conditions of Limited Supervised Probation, the defendant was also ordered to participate in a public service campaign regarding the preservation of natural resources in Yosemite National Park. He was also to remain outside of Yosemite National Park during the term of probation and was to report to the law enforcement office for post-arraignment booking. Finally, the Court ordered that probation would become unsupervised upon completion of all special conditions of supervision.

On July 21, 2004, the probation officer filed a Petition for Warrant or Summons, which alleged the following violations of the conditions of probation: 1) Failure to Notify Probation Officer of a Change of Address; and 2) Failure to Pay Restitution. On July 27, 2004, the Court issued a warrant for the defendant's arrest. The warrant remains outstanding. Since the Petition filed by the probation officer was issued prior to the ruling in Vargas-Amaya, there was no oath or affirmation of the violations by the probation officer.

Based on U.S. v. Vargas-Amaya, it is recommended the Court recall the warrant and dismiss the case.

Respectfully submitted,

Rick C. Louviere Assistant Deputy Chief U.S. Probation Officer Dated: February 14, 2010 Fresno, California RCL

cc: United States District Court Clerk's Office United States Marshals Service

THE COURT ORDERS

(X ) Vacate the Petition for Warrant or Summons dated December 12, 2002, and recall the warrant pursuant to U.S. Vargas-Amaya.

IT IS SO ORDERED.

Michael J. Seng UNITED STATES MAGISTRATE JUDGE

20110214

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