UNITED STATES DISTRICT COURT

_______________DISTRICT OF TEXAS

_______________ DIVISION

UNITED STATES OF AMERICA	                 §
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V.						     §  		Cause No. ________________
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SUPPLEMENTAL MOTION FOR EXPEDITED RECONSIDERATION OF SENTENCE

TO THE HONORABLE ____________________, UNITED STATES DISTRICT JUDGE FOR THE ___________ DISTRICT OF TEXAS:

	COMES NOW Defendant, ____________, by her attorney, __________________, and respectfully submits this supplemental motion for expedited reconsideration of sentence, requesting that this Honorable Court reconsider the sentence imposed on ______________.  Specifically, she requests this Honorable Court to, upon reconsideration, grant her a reduction for acceptance of responsibility.  ____________________ respectfully shows the Court the following:
I
Procedural History
	On (date), ____________________ filed a motion to reconsider sentence.  The motion, however, failed to address the statutory provision giving the Court authority to reconsider ____________________’s sentence.  ____________________ files this supplemental motion in order to address the legal authority allowing the Court to resentence her, and to ask for an expedited reconsideration. 
II
Legal Authority To Reconsider Sentence
	Federal Rule of Criminal Procedure 35(c) provides that “[t]he court, acting within 7 days after the imposition of sentence, may correct a sentence that was imposed as a result of arithmetical, technical, or other clear error.” United States v. Gonzalez, 163 F.3d 255, 263 (5th Cir. 1998) (emphasis in original).  The 7 days provided for correction of sentence begins to run from the time when the Court orally pronounces sentence.  Id. at 264.  In ____________________’s case, the Court orally pronounced sentence on January 31, 2002; therefore, the Court has until Monday, February 11, 2002 to reimpose sentence.  See Fed.R.Crim.P. 45(a) (“When a period of time prescribed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.”).  Because the time within which the Court may resentence ____________________, is very short, she respectfully requests expedited reconsideration of the sentence imposed.  In order to further expedite the resentencing, ____________________ voluntarily waives her right to be present at the resentencing in the event this motion is granted.  See Fed.R.Crim.P. 43(b)(2) (defendant may voluntarily waive right to be present at sentencing).
III
Contrary to the Government’s Assertion, ____________________ Did Not 
Deny Culpability for any Element of the Illegal Re-Entry Offense to 
Which She Plead Guilty

I	____________________ moved for a downward departure urging two grounds.  She asked the Court to consider her cultural assimilation and the relative lack of egregiousness of her offense conduct in considering whether to downwardly depart from the guideline range.  The Government response was two-fold.  First it argued that the facts presented by ____________________ were not sufficient to support a downward departure.  Second, the Government urged the Court to deny ____________________ an acceptance of responsibility reduction.  It contended that ____________________’s argument concerning the lack of egregiousness of her offense conduct amounted to a denial of culpability for an element of the offense.  The present motion addresses the Government’s second argument and urges this Honorable Court to reconsider its decision to grant the Government’s motion to deny ____________________ acceptance of responsibility.  
	The Government stated at sentencing that ____________________ claimed that she went into the INS innocently seeking advise on how to reinstate the resident alien status she had lost. (Sent. at 3.)1  It argued that this “claim” constituted a denial that she was in the United States without the required permission from the Attorney General.  (Id.)  The Government asserts that such a denial was inconsistent with accepting responsibility for the charge of being in the United States illegally.  (Sent. at 8.)  The Government’s argument is incorrect under the law and is a mis-characterization of the elements of the illegal re-entry offense.
IV	
The Court’s Denial of Acceptance of Responsibility Based on 
the Prosecution’s Mistaken Characterization of the Elements of
the Illegal Re-Entry Offense Was Erroneous 

	To obtain a conviction under 8 U.S.C. § 1326, the Government must show (1) the Defendant is an alien (2) who was previously deported, and (3) thereafter re-entered the United States voluntarily, unless (4) she secured permission of the Attorney General to re-apply for admission into the United States.  See 8 U.S.C. § 1326(a).2   The Government argues that ____________________’s description of her conduct in approaching the INS was a denial of the fourth element listed above.  In so arguing, the Government mis-characterizes this element and any defense to it. To prove this element, the Government must present evidence that ____________________ had not received the consent of the Attorney General of the United States to reapply for admission to the United States.3  ____________________, by way of her plea of guilty, admitted to this element and did not put the Government to its proof.  However, even if ____________________ had claimed that she believed she had the Attorney General’s permission to seek re-admission to the United States, this would not be a defense to illegal re-entry.4  United States v. TreviZo-Martinez, 86 F.3d 65, 68 (5th Cir. 1996).  Every circuit court of appeals that has ruled on the issue, including the Fifth Circuit, has held that the Government is not required to show specific intent in an illegal re-entry prosecution.  Id.  See, e.g., United States v. Carlos Colmenares, 253 F.3d 276 (7th Cir. 2001).  There is no defense of “reasonable mistake” available to a defendant accused of illegal re-entry.  TreviZo, 86 F.3d 65, 69.  Therefore, even if, as the Government contends, ____________________ claimed to have believed she had permission to reapply for admission into the United States, this would not have been an assertion of a defense nor a denial of culpability.  The Government cannot claim that she should be denied acceptance of responsibility for presenting a mitigating factor that would never constitute a defense of the charge against her.  For this reason, it was improper for the Court to base its denial of acceptance of responsibility reduction on ____________________’s assertions in her downward departure motion. 
		V
	____________________ accepted full responsibility for her illegal re-entry after deportation.  She entered her plea of guilty on_______________.  She waived her right to a plea hearing before a United States District Judge and entered her plea of guilty before a United States Magistrate Judge.  Her plea was entered nearly a week prior to her first docket call setting.  At no time did ____________________ present a defense to the illegal re-entry charge.  Rather, she promptly and in open court admitted to all of the elements of the charge against her.  She did not and does not deny any of these admissions.  The Government did not expend any resources preparing for trial.  Discovery tendered to defense counsel by the Government indicates that she admitted her guilt to INS officers at the time of her arrest.  ____________________ demonstrated her acceptance of responsibility for the offense charged and timely entered a plea of guilty.  She merits a three-level downward adjustment for acceptance of responsibility per U.S.S.G. § 3E1.1.  	
	PRAYER
	For the reasons stated, Defendant respectfully prays this Honorable Court, after reviewing all previously-filed pleadings in this case as well as the present motion, reconsider the sentence imposed on ________________, and thereafter afford her a three-level downward adjustment for acceptance of responsibility.

							Respectfully submitted.
							____________________
							Name
							State Bar No.
							Address
							City, State, Zip
							Telephone
							Fax
							Attorney for Defendant

CERTIFICATE OF SERVICE

         On _______________, I cause to be served a copy of this Motion on _______________ (Attn: Assistant United States Attorney _____________), United States Attorney for the _____________District of Texas, by sending it by facsimile and mailing it to him at __________________.  On this same date, I also caused to be served a copy of this Motion on United States Probation Officer ____________________.
 								
							__________________________
							Attorney for Defendant