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BBC News - Council offers wage support scheme to boost job creation BBC News - Council offers wage support scheme to boost job creation. Council offers wage support scheme to boost job creation Sam Gibbs is one of those who has found employment thanks to the scheme Continue reading the main story Related Stories ... ELECTIONS: North East Lincs Council results by ward ELECTIONS: North East Lincs Council results by ward. THE results for North East Lincolnshire Council by ward have been announced. They are: Croft Baker - Lab hold Michael Burnett (Lab) 1,619 Bob Callison (Con) 964 Colin Eastwell (L... Council leader: 'I will not stand down' Conservatives, led by Coun Keith Brookes, said if Coun De Freitas did not leave his role within 48 hours, they too would back the motion. However, the embattled leader has dismissed the calls as political opportunism. He said he believed the position of the Conservatives had changed since the Liberal Democrats took overall control of the authority following the break-up of their coalition. eanor M Pidgen Liberal Democrat Term of Office until 2012 Croft Baker 24 Hardys Road Cleethorpes North East Lincolnshire DN35 0DH Home Tel: 01472 695477 Email: email@example.com Audit Committee : Liber... This is Grimsby | Ex-solicitor 'relieved' after being cleared of dishonesty This is Grimsby | Ex-solicitor 'relieved' after being cleared of dishonesty. This is Grimsby | Ex-solicitor 'relieved' after being cleared of dishonesty This is Grimsby | Ex-solicitor 'relieved' after being cleared of dishonesty. Ex-solicitor 'relieved' after being cleared of dishonesty Friday, August 12, 2011 Grimsby Telegraph Follow A WELL-KNOWN former solicitor has been cleared of d... BBC News - Council offers wage support scheme to boost job creation BBC News - Council offers wage support scheme to boost job creation. Council offers wage support scheme to boost job creation Sam Gibbs is one of those who has found employment thanks to the scheme Continue reading the main story Related Stories ... ELECTIONS: North East Lincs Council results by ward ELECTIONS: North East Lincs Council results by ward. THE results for North East Lincolnshire Council by ward have been announced. They are: Croft Baker - Lab hold Michael Burnett (Lab) 1,619 Bob Callison (Con) 964 Colin Eastwell (L... UK and Netherlands to sue Iceland over lost deposits « Xfm 95.1 Newscenter | Latest News from Ghana and the World.. UK and Netherlands to sue Iceland over lost deposits « Xfm 95.1 Newscenter | Latest News from Ghana and the World.. UK and Netherlands to sue Iceland over lost deposits back posted Today at 09:31 and has no comments. Post a Comment. Prime M... Councils rely on 'bullying' bailiffs - Telegraph Councils rely on 'bullying' bailiffs - Telegraph. Councils rely on 'bullying' bailiffs Intimidating practices being used by councils to collect unpaid parking fines have been identified by an investigation. If a debtor is not at... NELC pays out more than £45k in personal injury compensation | Accident Claims NELC pays out more than £45k in personal injury compensation | Accident Claims. According to a recently published article in the Grimsby Telegraph newspaper, the North East Lincolnshire Council has made more than £45,000 in personal injury ... This is Grimsby | Ex-solicitor 'relieved' after being cleared of dishonesty This is Grimsby | Ex-solicitor 'relieved' after being cleared of dishonesty. This is Grimsby | Ex-solicitor 'relieved' after being cleared of dishonesty This is Grimsby | Ex-solicitor 'relieved' after being cleared of dishonesty. Ex-solicitor 'relieved' after being cleared of dishonesty Friday, August 12, 2011 Grimsby Telegraph Follow A WELL-KNOWN former solicitor has been cleared of d... Funding agency fears over fraud | FE Week Funding agency fears over fraud | FE Week. Funding agency fears over fraud Ian Nash Jun 30, 2011 The Skills Funding Agency has promised a crackdown on fraud and misuse of public money in the FE and skills sector, which it admits is likely ... Gross misconduct allegation as Fenland Council suspends its £65,000 a year planning supremo - News - Cambs Times Gross misconduct allegation as Fenland Council suspends its £65,000 a year planning supremo - News - Cambs Times. Gross misconduct allegation as Fenland Council suspends its £65,000 a year planning supremo Story by: JOHN ELWORTHY , Editor Monday, Jul... Council spending over £500 As part of North East Lincolnshire Council's commitment to openness and transparency we are pleased to publish on a monthly basis details of the payments we have made to external bodies and suppliers over £500 (excluding VAT), and all Credit Notes. Strategic Director People and Communities Salary - £120,000 plus Relocation Package North East Lincolnshire Council. ELECTIONS: North East Lincs Council results by ward ELECTIONS: North East Lincs Council results by ward. THE results for North East Lincolnshire Council by ward have been announced. They are: Croft Baker - Lab hold Michael Burnett (Lab) 1,619 Bob Callison (Con) 964 Colin Eastwell (L... My 14 year old daughter was attacked by a 24 year old adult, a really vicious assault on school grounds in front of 100's of children, a teacher had to pull this adult off. Yet because the head of year knew the assailant she let her go, perverted the course of justice by deliberating taking statements from pupils that weren't even there. God knows what she told the police but they didn't even investigate and no charges were brought against the assailant even though they knew who she was. Lots of people havew very similar experiance with councilk officers and the council tax systems, I will email you privatly tonight as i may have some helpfull advice for you, i was bankrupted by my council in similar curcumstances. Post edited 8:17 pm - March 10, 2012 by Polystyrene Anchor I'm returning the bill I received this morning for my council tax liability which commences April 2012. If you recall I stated the following in a formal complaint dated 13 December 2011, to which the council have refused to address: "….. For this reason and because of the nightmare I have experienced over recent years due to the council's incompetence, I request that starting from next year my Council Tax account be no longer administered by NELC and arrangement be made for an alternative method for its collection." Post edited 11:51 am - March 14, 2012 by Polystyrene Anchor On behalf of the Head of Income & Payments Service, I am writing in response to your letter dated 8/3/12, which was received on 12/3/12. Post edited 8:59 pm - March 14, 2012 by Polystyrene Anchor Re: Refusal to make alternative arrangement for council tax payments I refer to your email of 13 March 2012, and note your refusal to make alternative arrangement for my council tax payments. You have also stated "that North East Lincolnshire Council will not enter into any further dialogue with you regarding this matter." Though you're unlikely to respond, I'm sure you'll be reading this, so I will ask anyway why have you - and the council's court enforcement manager on a previous occasion - replied to letters which were specifically sent to the head of income & payments service to address? Are both you and the court enforcement manager as I suspect, completely spineless? Having had talks with each of you, I'm convinced you're at least bull$_t artists. I'm at a loss to know how these government whores have got away with this for so long, and why the public have allowed it. I can only conclude that should such a case be brought before a judge, the whole can of worms would be there for all to see, and this is probably the last thing NELC wants. Post edited 12:09 pm - March 15, 2012 by Polystyrene Anchor However, if you think the council are incalcitrant, just wait till the Local Government Ombudsman do their bit and dismiss the council's failings as merely an acceptable inconvenience which they can't investigate, either because it is doesn't fall under their juristiction or it can be dealt with through the courts. North East Lincolnshire Council tried to recover council tax which I had already paid to them. This included: 7. The Rossendale's bailiff, under the observation of the Council's Income & Collection Manager, failing to comply
XXXX XXXX XXXX,
SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION TO SUPPRESS EVIDENCE This Court held a hearing on Defendant XXXX XXXX's Motion to Suppress Evidence on November 23, 1992. Following the hearing, the Court took Mr. XXXX's Motion under advisement and invited the parties to submit supplemental briefs. A.FALSE AFFIDAVIT At the suppression hearing, it became clear during the testimony of Officer Armando Perez that Perez submitted a false and misleading affidavit to a Dallas County Magistrate in order to obtain a search warrant for Mr. XXXX's home. "On this date, June 16, 1992, I, the Affiant [Armando Perez], received information from a confidential informant...in the City of Dallas, Dallas County, Texas, within the past twenty-four (24) hours. I, the Affiant, have received information from the informant regarding narcotics and other criminal cases and have found the information to be true and reliable." At the suppression hearing, however, Perez testified that, in fact, he had not received his information from a confidential informant as he swore to in his affidavit, but rather he had received his information from Agent Tom Crowley. T 9:9-15; T 11:1-3. Perez conceded that Agent Crowley was not the confidential informant he referred to in his affidavit (T 11:11-19, T 17:25-18:2) and, indeed, testified that he was not even sure who the confidential informant was! T 15:16-18. Furthermore, testimony was given by an agent of the Bureau of Alcohol, Tobacco and Firearms (ATF) that the ATF task force, to which Officer Perez is assigned, prefers to get state search warrants, even in federal cases, because a county magistrate gives less scrutiny to the facts contained in the affidavit than does a federal magistrate. Id. at 897. The Ninth Circuit found that Officer Thompson chose to mislead the magistrate issuing the search warrant because of the fact that Officer Epstein was not available to sign his own affidavit and Officer Thompson did not want to wait until he became available. " 'Unfortunately, the [Thompson] affidavit was not changed to state" Officer Epstein was told," but remained in the first person singular. The Ninth Circuit, relying on the United States Supreme Court decision in Franks v. Delaware, 438 U.S. 154 (1978), held that the evidence obtained from Officer Thompson's search warrant must be suppressed. Davis, 714 F.2d at 898. Second, the Ninth Circuit held that if the challenged material was excised from Thompson's affidavit, the search warrant would fail. Id. at 892. In Villemez v. State, 555 So2nd 342 (Ala. Crim. App. 1989) the Alabama Criminal Court of Appeals considered a search warrant affidavit alleging personal knowledge of facts attested to by an Investigator McCurley. Id. at 342. Id. at 344. Id. A similar analysis was performed by two different appellate courts in the State of Florida. In Florida v. Morrow, 459 So. 2d 321 (Fla. Dist. Ct. App.), reviewdenied., 458 So.2d 274 (Fla. 1984), a police officer affiant submitted an affidavit for a search warrant which stated "your affiant received information from a reliable confidential informant. Id. at 322. "[I]n fact, the affiant never communicated with the alleged confidential informant, but had spoken only to a fellow police officer who told the affiant about the reliability of the confidential informant and the information which the informant gave. Id. The Florida Court of Appeals then held that the police officer's statements of personal knowledge were "at least recklessly false" and when the false statement were excised from the affidavit there were not sufficient facts in the affidavit to support a finding of probable cause. Id. Seealso, Florida v. Beney, 523 So2d 744 (Fla. Dist. Ct. App. 1988) (evidence suppressed where police officer affiant claimed he received information from "confidential reliable source" when, in fact, information was obtained from New Jersey police officer). In light of the evidence presented at the suppression hearing and the established case law, it is clear that the evidence against Mr. XXXX should be suppressed. B.KNOCK AND ANNOUNCE As noted in Mr. XXXX's opening brief and in his reply brief, in order to conduct an unannounced entry (or in the words of Agent Gabourie a "dynamic entry" T 45:10) into a person's house there must be exigent circumstances. To prove exigent circumstances, the Government must make both a reasonable and articulable showing that evidence would be destroyed or that a defendant had a propensity for violence. See Brief in Support of Motion to Suppress pp. 5-10. In the instant case, all of the Government's witnesses testified that they heard no sounds consistent with a reasonable and articulable belief that evidence was being destroyed by Mr. XXXX. T 38:20-22; T 50:11-15; T 55:22-25. Likewise, all of the agents testified that they had no reasonable and articulable belief that Mr. XXXX was prone to violence that would have put them in jeopardy. T 9:16-21; T 13:19-24; T 26:16-18; T 27:7-12. In fact, Officer Perez's initial encounter with Mr. XXXX speaks volumes as to how Mr. XXXX would have acted had the agents complied with 18 U.S.C. ¤ 3109 and the Fourth Amendment. XXXX XXXX XXXX Attorney for Defendant I, F. Clinton Broden, certify that on the day of December, 1992, I caused a copy of this Supplemental Brief in Support of Motion to Suppress Evidence to be hand-delivered to Joseph Revesz, Assistant United States Attorney, at 1100 Commerce Street, Room 16G28, Dallas, Texas 75242. I, F. Clinton Broden, certify that on the day of December, 1992, I caused a copy of this Supplemental Brief in Support of Motion to Suppress Evidence to be hand-delivered to Joseph Revesz, Assistant United States Attorney, at 1100 Commerce Street, Room 16G28, Dallas, Texas 75242.
XXXX XXXX XXXX,
Nevertheless, the parties in this case entered a Plea Agreement pursuant to Fed. R. Crim. P. 11(e)(1)(C) agreeing that twenty-four months imprisonment was the appropriate sentence in this case and giving Mr. XXXX the right to argue that a lesser sentence was also appropriate. See Plea Agreement at ¦ 4. The Court accepted the Plea Agreement in this case at Mr. XXXX's rearraignment. The Memorandum of Law also provides support for Mr. XXXX's argument that a sentence of twelve months and one day imprisonment is the appropriate sentence in this case. District judges, therefore, need not shrink from utilizing departures when the opportunity presents itself and when circumstances require such action to bring about a fair and reasonable sentence. United States v. Gaskill, 991 F.2d 82, 86 (3rd Cir. 1993). II. BACKGROUND Mr. XXXX is a Vietnam Veteran. See PSI at ¦ 39. During his two year service to his country, Mr. XXXX earned a Bronze Star and two Purple Hearts. Id. As a result of his service, Mr. XXXX lost his left eye and is considered to be ninety percent disabled. Id. at ¦ 35. Mr. XXXX obtained the two guns involved in this case in approximately August 1992. He obtained the guns for self-protection and they were kept unloaded in the bottom of a locked tool box in his home. See PSI at ¦ 7. Significantly, between August 1992 and January 1993, when the guns were confiscated by ATF, Mr. XXXX never fired the guns. Mr. XXXX was extremely cooperative with ATF and remained free for almost a year before he voluntarily surrendered himself upon ATF's request. Since the offense, Mr. XXXX has gotten married, bought a new home in a new neighborhood, and plans to adopt two of his wife's three children. Id. at ¦ 33. Despite the fact that Mr. XXXX is considered to be ninety percent disabled, from May 1988 to January 1994 he was employed by the Quail Creek Apartments as a maintenance man. The manager of the 276 unit apartment complex informed the Federal Public Defender's Office that Mr. XXXX was always on time, that he was reliable, that he was an extremely hard worker who always went beyond his duties and that he received consistent raises. See Transcript of Detention Hearing at 5-6. The manager, Carolyn Taylor, also told the Federal Public Defender's Office that Mr. XXXX was "loved" by the residents of the complex. Id. Unfortunately, Mr. XXXX lost that six year job due to the instant arrest, but immediately found another job, indicating his desire to be a productive member of our society and his desire to be able to support his new family. Mr. XXXX has prior convictions for murder and attempted murder both arising out of the same domestic dispute in 1976. See PSI at ¦¦ 23-24. Mr. XXXX also has an aggravated assault conviction from 1985 arising out of a fight between him and another person. Id. at ¦ 25. Since 1985, Mr. XXXX has lived a crime free life. U.S.S.G., Chapter 1, Part A, ¤ 4(b). Nevertheless, the Commission has emphasized that "[w]hen a court finds an atypical case, one to which a particular guideline linguistically applies, but where conduct significantly differs from the norm, the Court may consider whether a departure is warranted. Id. "The Introduction [to the Sentencing Guidelines] thus makes clear that (with a few exceptions) a case that falls outside the linguistically applicable guidelines Îheartland' is a candidate for departure. United States v. Rivera, 994 F.2d 942, 947 (1st Cir. 1993) (emphasis in original). U.S.S.G. ¤ 5K2.11 further provides: Huddleston v. United States, 415 U.S. 814 (1974), quoting, S. Rep. SeealsoUnited States v. Pruner, 606 F.2d 871, 874 (9th Cir. 1979). In two very recent cases, United States Courts of Appeals have had an opportunity to consider atypical gun cases in the context of downward departure determinations. In December of last year, in United States v. White Buffalo, 10 F.3d 575 (8th Cir. 1993), the United States Court of Appeals for the Eighth Circuit considered a case in which police found a gun on the floorboard of the defendant's car when he was stopped for driving while intoxicated. The gun was an unloaded .22 single-shot bolt-action rifle with a shortened barrel. Id. at 576. White Buffalo pled guilty to the unlawful possession of an unregistered firearm. Id. White Buffalo had used the gun to kill animals around his home. Id. The District Court downward departed from an 18-24 month guideline imprisonment range to a sentence of three years probation. Id. The departure was based upon U.S.S.G. ¤ 5K2.11. Id. Indeed, the District Court found "that White Buffalo's actions were not the kind of misconduct and danger sought to be prevented by the gun statute. Id. The district court observed that although White Buffalo had the gun in his van, the gun was not loaded and there was no ammunition in the van or in White Buffalo's possession. The district court also noted that there was no evidence that White Buffalo ever brandished the gun or used it in a threatening way, White Buffalo had no criminal record, and White Buffalo's use of the weapon to shoot animals did not pose any quantifiable risk of accidental harm to others because he lived in a remote area of the reservation.....As for the harm targeted by the gun statute, the district court decided the law is meant to protect people from crime and violence, and not to protect predatory animals or restrict the lawful use of weapons. Id. The Government appealed the downward departure in White Buffalo, but the Eighth Circuit affirmed the District Court's sentence. The Court of Appeals held that U.S.S.G. ¤ 5K2.11 authorizes downward departures in gun possession cases in which the possession is only "technically unlawful. Id. In United States v. Hadaway, 998 F.2d 917 (11th Cir. 1993), the United States Court of Appeals for the Eleventh Circuit also considered an "atypical" gun case. In that case, a sawed-off shotgun was found in the defendant's home following a consent search. Id. at 919. The defendant claimed that he had the "sawed-off shotgun for reasonable purposes with no intent to use it in the fashion that our gun laws are designed to deter" because he was only "intending to keep it as a curiosity or use for parts. Id. at 919-20. The District Court, however, had not believed it had the power to depart on the grounds that the offense was "atypical. The Eleventh Circuit reversed: Because it is clear that the district court had the authority to depart downward if it were persuaded that Hadaway's case truly was "atypical...where conduct significantly differs from the norm," U.S.S.G. Ch. 1, Pt. A, n. 4(b), or that Hadaway's conduct threatened lesser harms, U.S.S.G. ¤ 5K2.11, we vacate the sentence. On remand, the district court should acknowledge that it possesses authority to depart downward on this basis and determine whether a downward departure is warranted in this case. Id. at 920. Given that Mr. XXXX brought the two firearms for his protection and the fact that the unloaded guns were kept locked away in his home and the fact that he never fired them, it is clear that Mr. XXXX did not threaten the type of harm designed to be eradicated by the felon in possession statute. SeealsoUnited States v. Pascarella, 1991 WL 148287 (N.D. Okla. 1991) (Downward departure applicable in an aggravated assault case where defendant disassociated himself with Skinhead group and enlisted in the Naval Service.). The discussion of one court, albeit involving drug rehabilitation, is very relevant to this case: I would consider it senseless, destructive and contrary to the objectives of the criminal law to now impose a year's jail term on this defendant. In this case, since the offense, Mr. XXXX has cooperated fully with ATF. He has married and made plans to adopt his wife's children. He immediately found a new job after an exemplary six year record at his old job and he has successfully completed home monitoring as part of his pretrial release. A long jail sentence will not only destroy Mr. XXXX, but it will deprive his family and the young children a provider. C. Military Service It is true that ordinary military service is not a basis for a downward departure. U.S.S.G. ¤ 5K1.11; Seealso, United States v. Peters, 978 F.2d 166, 170-71 (5th Cir. 1992). U.S.S.G. ¤ 5K1.11; Seealso, United States v. Peters, 978 F.2d 166, 170-71 (5th Cir. 1992). See, e.g., United States v. McCaleb, 908 F.2d 176, 179 (7th Cir. 1990). Clearly, Mr. XXXX's service to one's countr
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO SUPPRESS MEMORANDUM OF LAW IN SUPPORT OF MOTION TO SUPPRESS XXXX XXXX Attorney for Defendant A. THE ITEMS SEIZED FROM 629 MARSALIS AVENUE MUST BE SUPPRESSED BECAUSE NO VALID CONSENT WAS GIVEN BY XXXX XXXX, 1. XXXX XXXX did not give the Agents consent to enter his residence,,,,,,,,,,,, 2. Assuming arguendo that XXXX XXXX did give an agent consent to enter his residence to look for his green card, the consent was not given knowingly and voluntarily.,,,,,,,, 3. Assuming arguendo that XXXX XXXX did give an agent consent to enter his residence and that the consent was, in fact, given knowingly and voluntarily, the search nevertheless exceeded the scope of that alleged consent.,,,,,,,,,, B. THE ITEMS SEIZED FROM XXXX XXXX'S BEDROOM MUST BE SUPPRESSED BECAUSE NO VALID CONSENT WAS GIVEN BY JAMIE XXXX, C. THE STATEMENT GIVEN TO AGENTS ON JANUARY 3, 1994 BY XXXX XXXX WAS FRUIT OF THE ILLEGAL SEARCH OF MR. XXXX XXXX'S BEDROOM AND WAS ALSO OBTAINED IN VIOLATION OF MR. XXXX XXXX' RIGHT TO BE TAKEN BEFORE A MAGISTRATE WITHOUT UNNECESSARY DELAY THEREFORE IT MUST BE SUPPRESSED, ,,,, 2. Mr. XXXX was not taken before a magistrate judge without unnecessary delay as required by Fed. R. P. 5(a) following his arrest, therefore his subsequent confession occurring five days following his arrest should be suppressed on this basis as well,,,,, People v. Mullaney, 306 N.W.2d 347 (Mich. Ct. App. 1991),,,,, People v. Petrie, 453 N.Y.S.2d 725 (N.Y. App. Div. 1982) Schneckloth v. Bustamonte, 412 U.S. 218 (1973) Scott v. State, 337 So.2d 1342 (Ala. Crim. State v. Harris, 522 A.2d 323 (Conn. Ct. App. 1987),,,,,, United States v. Alvarez-Sanchez, 975 F.2d 1396 (9th Cir. 1992), cert. denied, 114 S.Ct. 299 (1993) United States v. Keeble, 459 F.2d 757 (8th Cir. 1972), 93 S.Ct. 1993 rev'd on other grounds, 412 U.S. 205 (1973) United States v. Mejia, 953 F.2d 461 (9th Cir. 1991), cert. denied,112 S.Ct. 1983 (1992), P. 5(a),,,,,,,,,, See also Declaration of XXXX XXXX ("XXXX XXXX Dec.") at ¦ 3. Agent Taylor was accompanied by a fellow special agent, several officers from the Dallas Police Department, and several United States Marshals (collectively "the Agents"). Id. Nevertheless, rather than removing Mr. XXXX from the scene and taking him to a detention facility, Mr. XXXX was taken from the corner of Marsalis Avenue, while handcuffed, to an area outside of his residence located at 629 Marsalis Avenue. See XXXX Dec. at ¦ 5. Mr. XXXX was asked to provide proof of his resident status in the United States by the Agents. Id. at ¦ 4. As a result of this request, Mr. XXXX asked his brother, who had been at the residence, to secure his green card from inside his mother's room located in the family home. Id. at ¦ 5. Thereafter, an agent followed Mr. XXXXâs brother, Jamie XXXX, into the residence and XXXX XXXX remained handcuffed outside. Id. at ¦ 6. See also Declaration of Jamie XXXX ("Jamie XXXX Dec.") at ¦ 4. At no time did XXXX XXXX or Jamie XXXX consent to have an agent follow Jamie XXXX into the residence. See XXXX XXXX Dec. at ¦ 7; Jamie XXXX Dec. at ¦ 4. ,Shortly after Jamie XXXX entered the home accompanied by the uninvited agent, several other agents entered the residence. See XXXX XXXX Dec. at ¦ 6; Jamie XXXX Dec. at ¦ 6. At some point in time, Jamie XXXX gave the one agent who originally accompanied him into the home permission to look in his mother's bedroom for XXXX XXXX 's immigration documents. See Jamie XXXX Dec. at ¦ 5. At the same time, however, the several other uninvited Agents began to search other rooms for items other than immigration documents. Id. at ¦ 6. Significantly, Jamie XXXX did not consent to have any of these other Agents engage in any type of search, and did not consent for any other room besides his mother's room to be searched, and did not consent for the search of his mother's room to extend beyond places the immigration documents would likely be kept. Id. at ¦ 7. ,One of the other Agents engaging in the non-consensual search of XXXX XXXXâs room found the Intratec Model DEC-DC9, nine millimeter caliber semi-automatic pistol that is the focus of this case under the mattress of a crib located in that room. See Taylor Memo at pg 2. Significantly, this room was not Jamie XXXXâs room and, even had he given the other Agents permission to search this room, he was without authority to allow those Agents entry into the room. See XXXX XXXX Z Dec. at ¦ 8; Jamie XXXX Dec. at ¦ 8. ,Following Mr. XXXX 's arrest and the search of his residence, he was taken to the Lew Sterrett Jail facility. See Taylor Memo at pg 2. Although the federal agent had probable cause to believe that Mr. XXXX XXXX had violated 18 U.S.C. ¤ 922(k), Mr. XXXX was not taken "without unnecessary delay" before the nearest available federal magistrate judge as required by Fed. R. P. 5(a). Eventually, on January 3, 1994, five days after Mr. XXXXâs arrest, Mr. XXXX gave Agent Taylor a statement in which he allegedly admitted that he owned the firearm in question and was aware that the firearm's serial number had been obliterated. See Exhibit D. Only then, on January 4, 1994, was Mr. XXXX finally taken before a Magistrate Judge to have counsel appointed. , XXXX XXXX was born in Mexico and moved to the United States in 1980 or 1981. , XXXX XXXX was born in Mexico and moved to the United States in 1980 or 1981. Mr. XXXX dropped out of high school after the tenth grade. Id. at ¦ 2. II. ARGUMENT A. THE ITEMS SEIZED FROM 629 MARSALIS AVENUE MUST BE SUPPRESSED BECAUSE NO VALID CONSENT WAS GIVEN BY XXXX XXXX. It is axiomatic that in the absence of a search warrant issued by a neutral and detached judicial officer, the Government has the burden of proving that a warrantless search is consensual and that such consent was freely and voluntarily given. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); Bumper v. North Carolina, 391 U.S. 543, 548 (1968). Id. at 229. Indeed, courts indulge every reasonable presumption against waiver of fundamental constitutional rights and do not presume acquiescence in the loss of fundamental rights. Johnson v. Zerbst, 304 U.S. 458, 464 (1938). ,,1. XXXX XXXX did not give the Agents consent to enter his ,residence While the Government now alleges that Mr. XXXX did consent to a search, it could easily have allowed this Court to fulfill its role as fact finder by simply tape recording the consent or having Mr. XXXX sign a consent form, yet it failed to do so. See United States v. Maragh, 756 F. Supp. 18, 22 (D.C. Cir. 1991). Therefore, the issue of whether Mr. XXXX gave consent to search is a factual dispute requiring a hearing. 2. Assuming arguendo that XXXX XXXX did give an agent consent to enter his residence to assist in the securing of his green card, the consent was not given knowingly and voluntarily. ,Assuming arguendo that XXXX XXXX did give the agent permission to enter his residence while his brother was locating his immigration papers, the evidence seized must still be suppressed because such alleged consent would not have been freely and voluntarily given. The United States Court of Appeals for the Fifth Circuit has focused on six factors in determining whether a consent to search is voluntary. (1) the voluntariness of the defendant's custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant's cooperation with the police; (4) the defendant's awareness of his right to refuse to consent; (5) the defendant's education and intelligence; and (6) the defendant's belief that no incriminating evidence will be found. United States v. Ponce, 8 F.3d 989, 997 (5th Cir. 1993). First, XXXX XXXX was undeniably under arrest and was in custody. Second, Mr. XXXX was in a coercive atmosphere on a dark street surrounded by numerous agents and officers from several law enforcement agencies and he was handcuffed. Third, there is no showing that Mr. XXXX was overly cooperative with
XXXX XXXX XXXX,
Indeed, Ms. XXXX has been placed in Criminal History Category III as a result of one shoplifting case and two cases involving liquor law violations where Ms. XXXX was convicted of serving undercover officers alcohol after-hours after having been ordered to do so by her employer. Id. at ¦¦33-35. U.S.S.G. ¤ 4A1.3, in fact, recognizes that "[t]here may be cases where the Court concludes that a defendantâs criminal history category over-represents the seriousness of a defendantâs criminal history. Moreover, this section has been utilized by numerous courts. See, e.g., United States v. Summer, 893 F.2d 63-67-68 (4th Cir. 1990) (District Court did not act unreasonably in excluding three driving with suspended license convictions from a defendantâs criminal history score); United States v. Anderson, 955 F. Supp. 935, 937 (N.D. Ill. 1997) (Defendant had drunk driving and domestic battery conviction. "Taking all of the relevant factors into consideration, and comparing Andersonâs criminal history to that of other defendants sentenced by the Court over the years, the Court concludes that criminal history category III significantly over-represents the seriousness of Andersonâs criminal history."); United States v. Hughes, 825 F. Supp. 866, 869 (D. Minn. 1993) (Court reduced criminal history category from II to I for defendant with two misdemeanor convictions); United States v. Baker, 804 F. Supp. 19, 22 (N.D. Cal. 1992) (Criminal history category of III reduced to I for defendant previously convicted of providing false information to a police officer and grand theft auto). WHEREFORE, Marie XXXX respectfully requests this Court to depart downward to criminal history category I or I. XXXX XXXX XXXX Attorney for Defendant I, F. Clinton Broden, certify that on _______________________, 1999, I cause the foregoing document to be served by ___ hand-delivery ___ first-class mail postage prepaid on Diane Jones, Assistant United States Attorney, 1100 Commerce Street, Third Floor, Dallas, Texas 75242 and Colleen A. Hammons, United States Probation Office, 1100 Commerce Street, Fourteenth Floor, Dallas, Texas 75242. I, F. Clinton Broden, certify that on _______________________, 1999, I cause the foregoing document to be served by ___ hand-delivery ___ first-class mail postage prepaid on Diane Jones, Assistant United States Attorney, 1100 Commerce Street, Third Floor, Dallas, Texas 75242 and Colleen A. Hammons, United States Probation Office, 1100 Commerce Street, Fourteenth Floor, Dallas, Texas 75242.