United States v. Cruz-Salmeron

• Court: District Court, District of Columbia
• Decided: November 23, 2010
• Docket: Criminal No. 2004-0507
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action No. 04-507-01 RJL/DAR NOE MARTIN CRUZ-SALMERON,

Defendant.

REPORT AND RECOMMENDATION

On April 29, 2005, Defendant was sentenced to a period of incarceration 36 months, and

a 36-month term of supervised release, upon his conviction of re-entry after deportation for an

aggravated felony. Defendant’s term of supervised release began on September 20, 2007.

According to the United States Probation Office, Defendant has incurred four violations

of his conditions of supervised release. In a Form PROB 12C-DC filed on January 12, 2010

(Document No. 29), Defendant’s assigned United States Probation Officer alleged that (1) on

November 10, 2009, Defendant was arrested in Harlingen, Texas on a civil complaint of assault;

(2) on the date of said arrest, Defendant was charged with “failure to identify” himself; (3)

Defendant, at the time of said arrest, was in possession of a large machete, and (4) on December

21, 2009, Defendant was charged in the Southern District of Texas with illegal re-entry, as he

returned to the United States following his deportation without legal authority.

In a PROB 12A-DC filed on September 17, 2010 (Document No. 36), Defendant’s

assigned United States Probation Officer provided a status report regarding Defendant’s pending

charges. The Probation Officer stated that Defendant was convicted of re-entry after deportation

– the charge which was the subject of the fourth alleged violation – and was sentenced on July United States v. Cruz-Salmeron

29, 2010 to a period of incarceration of 37 months and a three-year term of supervised release.*

Defendant, his counsel, the assigned United States Probation Officer and an Assistant

United States Attorney appeared before the undersigned United States Magistrate Judge on

September 20, 2010 for a preliminary revocation hearing. Defendant conceded the fourth alleged

violation. Defendant acknowledged that the applicable Sentencing Guidelines range is 12 to 18

months. Defendant did not oppose revocation, and asked that a sentence within the Guidelines

be imposed. Defendant also asked that this court’s sentence run concurrently with the Southern

District of Texas sentence he is now serving. Defendant, through counsel, suggested that a

sentence within that range would be unreasonable if it is consecutive to the Southern District of

Texas sentence. Defendant asked that if the sentence is to be a consecutive sentence, then such

sentence be limited to four months. In support of his request, Defendant offered several

mitigating circumstances, including the fact that Defendant’s aggravated felony conviction was

for forgery, rather than a crime of violence.

The Probation Officer recommended that the court depart from the Sentencing

Guidelines, and sentence Defendant to the statutory maximum term of 24 months, order that the

term run consecutively to the sentence Defendant is now serving, and impose no further term of

supervised release.

The Assistant United States Attorney did not support the recommendation of the United

States Probation Office that Defendant be sentenced to the statutory maximum. Instead, the

government requested a sentence at the high end of the Guidelines range, to be served

* A bench warrant was issued for Defendant’s failure to appear for arraignment on the assault charge, although he was in custody at the time of the hearing. No formal charges were brought against Defendant with respect to the third alleged violation. United States v. Cruz-Salmeron

consecutively to the sentence Defendant is now serving.

The Court finds, based on the representations made by counsel for the government, the

assigned United States Probation Officer, and counsel for the Defendant, that Defendant has

violated the conditions of his supervised release as alleged. Accordingly, the undersigned will

recommend that Defendant’s term of supervised release be revoked; that a sentence in

accordance with applicable law be imposed; and that no further term of supervised release

follow.

It is, this 23rd day of November, 2010,

SO RECOMMENDED.

/s/ DEBORAH A. ROBINSON UNITED STATES MAGISTRATE JUDGE