IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 13, 2011
UNITED STATES OF AMERICA, PLAINTIFF,
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
STIPULATION WITH RESPECT TO DEFENDANT'S MOTION FOR NEW TRIAL AND
WITH RESPECT TO SENTENCING AND ORDER.
Date: October 13, 2011
Time: 9:00 a.m.
Judge: Hon. Morrison C. England, Jr.
IT IS HEREBY STIPULATED by and among Assistant United States Attorney Paul Hemesath, counsel for Plaintiff, Defendant Alan Hernandez, and Assistant Federal Defender Jeffrey L. Staniels, counsel for Defendant as follows:
1. Following and based on discussions between counsel, it is agreed that the available evidence on the issue whether the serial number on the charged weapon was "obliterated," as that term is used in U.S.S.G. § 2K2.1(b)(4)(B), is ambiguous and does not reliably support a finding that the offense characteristic applies in this case.
2. Following substantial discussion between counsel, the parties are unable to agree whether Mr. Hernandez' prior conviction for violating California Vehicle Code 2800.2 constitutes a crime of violence so as to call for an adjustment to guideline 2K2.1, which applies in this case.
3. In order to limit the scope of further litigation while also promoting a fair resolution of this matter, Mr. Hernandez, through his counsel, agrees
a) to withdraw the pending motion for new trial and to waive his right to appeal or collaterally attack the conviction in the above case so long as the guideline range applied in this case effectuates the understanding set forth in paragraph 1, and;
b) notwithstanding paragraph 3.a, above, Mr. Hernandez reserves the right to appeal only the determination that the prior conviction referred to in paragraph 2, above, constitutes a crime of violence, if the sentence thereafter imposed exceeds 87 months.
IT IS FURTHER STIPULATED that the Speedy Trial Act does not apply to this post-trial application.
Dated: September 21, 2011 /s/ Paul Hemesath Paul Hemesath Assistant United States Attorney Counsel for Plaintiff Dated: September 21, 2011 /s/ Jeffrey L. Staniels Jeffrey L. Staniels Assistant Federal Defender Counsel for Defendant ALAN HERNANDEZ Dated: September 21, 2011 /S/ Alan Hernandez Alan Hernandez Defendant
The above stipulation of counsel is accepted. Counsel for Mr. Hernandez is directed to file a separate proposed order withdrawing the Motion for New Trial within 24 hours of the filing of this order.
IT IS SO ORDERED.
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