Case Information
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America, 10 Plaintiff, 11 vs. FAUSTO EDUARDO PEREZ-HERNANDEZ, 14 Defendant.
CR 07-50052-TUC-RCC (GEE)
REPORT AND RECOMMENDATION
The District Court referred this case to the Magistrate-Judge for an evidentiary hearing on allegations the defendant violated conditions of his supervised release. The defendant consented in writing to proceed before the Magistrate-Judge and the evidentiary hearing was held on July 2, 2007. Upon consideration of the evidence presented, the Magistrate-Judge recommends the District Court, after its de novo review, find the defendant has violated the conditions of his supervised release.
FACTS:
On September 20, 2005, having pleaded guilty to Illegal Re-entry after Deportation Subsequent to a Felony, the defendant was sentenced in the Southern District of Texas to 21 months of incarceration to be followed by a three year term of supervised release which commenced upon his release from prison on October 27, 2006. On April 4,
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Case 4:07-cr-50052-RCC-GEE Document 13 Filed 07/16/07 Page 2 of 3
2007, the present petition was filed alleging the defendant violated a special condition which prohibited his illegal re-entry into this country. Specifically, it is alleged the defendant was deported/removed on October 27, 2006, and was subsequently found at or near Nogales, Arizona, having received no legal authorization to re-enter. It should be noted that on April 4, 2007, the District Court Judge in Texas signed the order transferring the defendant's case to Arizona, and on May 14, 2007, the Arizona District Court accepted the transfer of jurisdiction.
EVIDENCE:
Sean Belleau
Belleau is a federal probation officer currently assigned to the Tucson office. From the probation file maintained on the defendant Belleau presented a copy of the Judgment from the defendant's conviction in the Southern District of Texas. See Exhibit 1 attached hereto. He testified that page four of the Judgment contains a "special condition of supervision" prohibiting the defendant from re-entering the country illegally if deported. He testified it is his experience that at sentencing the judge will advise a defendant of all the supervised release conditions imposed. Belleau also presented from that file a copy of a Warrant of Removal/Deportation indicating Fausto Eduardo Perez-Hernandez was removed on October 27, 2006. See Exhibit 2 attached hereto.
Belleau also testified the defendant was indicted on January 31, 2007, for illegal re-entry (on January 3, 2007) in CR-07-170-TUC-RCC, and had pleaded guilty to that charge on March 13, 2007.
DISCUSSION:
All of the aforementioned testimony and exhibits were presented and admitted
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without objection. In view of the foregoing this court is satisfied the government has established by a preponderance of the evidence that this defendant violated his supervised release as set forth in the petition.
RECOMMENDATION:
In view of the foregoing, the magistrate recommends that the District Court, after its independent review of the record, find the defendant violated the conditions of his supervised release as set forth in the petition. Any party may file and serve objections within 10 days after being served with a copy of this Report and Recommendation. If objections are not timely filed, the party's right to de novo review may be waived. If objections are filed, the parties should direct them to the District Court by omitting the magistrate's initials from the caption.
This Report and Recommendation is being faxed to all counsel on today's date. The Clerk of the is directed to send a copy this Report and Recommendation to all counsel.
DATED this day of July, 2007.