Case5:11-cr-00554-EJD Document131 Filed01/29/14 Page1 of 3

1 MELINDA HAAG (CABN 132612) United States Attorney 2 J. DOUGLAS WILSON (DCBN 412811) 3 Chief, Criminal Division 4 SUSAN KNIGHT (CABN 209013) HANLEY CHEW (CABN 189985) 5 Assistant United States Attorneys 6 7 8 9 Attorneys for United States of America 10 11 12 13 14 15 16 17 18 19 20 On January 6, 2012, pursuant to a Plea Agreement, defendant David Foley (defendant) pled v. DAVID FOLEY, Defendant. UNITED STATES OF AMERICA, Plaintiff, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ) CASE NO. 09-00670 EJD ) 11-00554 EJD ) ) UNITED STATES' RESPONSE TO DEFENDANT=S ) MOTION TO MODIFY JUDGMENT ) ) ) ) ) 150 Almaden Boulevard, Suite 900 San Jose, California 95113 Telephone: (408) 535-5056 FAX: (408) 535-5066 E-Mail: Hanley.Chew@usdoj.gov Susan.Knight@usdoj.gov

21 guilty to Count One of the Superseding Indictment in United States v Foley, No. CR 09-00670 EJD, 22 which charged him with conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. 371 23 (mail and wire fraud count), and Count One of the Indictment in United States v Foley, No. CR 1124 00554 EJD, which charged with conspiracy to commit bank fraud, in violation of 18 U.S.C. 1349 25 (bank fraud count). On January 21, 2014, this Court sentenced the defendant to a term of 24 months 26 of imprisonment, to be followed by a three-year period of supervised release. On January 27, 2014, 27 defendant filed a motion to modify the judgment in the above-captioned actions. 1 Defendant requests 28
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Although defendant calls his motion a motion for correction of clerical error in final

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1 that this Court modify the judgment in case number CR 11-00554 to reflect that the sentencing guideline 2 range should be 0-6 months and that the sentence should be one of probation. Defendant also requests 3 that the Court delete Special Conditions Nos. 1 (payment of restitution and special assessments), 3 4 (opening new lines of credit/debt), 4 (mental health treatment program) and 5 (searches) from the 5 judgments in both cases. Defendants motion is without merit. 6 The proper sentencing range for defendants bank fraud count is 37-46 months. Although the

7 offense level for the bank fraud is 6 (as acknowledged by the Court at sentencing), the mail and wire 8 fraud count and the bank fraud group pursuant to U.S.S.G. 3D1.2(d), which provides that offenses 9 covered by [ 2B1.1] are to be grouped under this subsection[.] Both the mail and wire fraud count and 10 the bank fraud count are governed by U.S.S.G. 2B1.1. Once those counts are grouped together, the 11 combined offense level for both counts is 21 and defendants sentencing guideline range is 37-46 12 months. Such a result was clearly contemplated by the Plea Agreement in the above-captioned cases, 13 which states: The parties agree that the combined offense level, if any, pursuant to U.S.S.G. 3D.14, 14 will be decided by the Court subsequent to the Courts determination of the appropriate loss amounts of 15 each of the two counts of conviction. See Plea Agreement, 7. 16 In addition, contrary to his characterization, defendant had ample notice and opportunity

17 to object to the special conditions of supervised release in the final judgments. The Ninth Circuit has 18 held that: Where a condition of supervised release is not on the list of mandatory or discretionary 19 conditions in the sentencing guidelines, notice is required before it is imposed, so that counsel and the 20 defendant will have the opportunity to address personally its appropriateness. United States v. Wise, 21 391 F.3d 1027, 1033 (9th Cir. 2004). The final Presentence Report (PSR) and the Probation Offices 22 Sentencing Recommendation in this case was released on August 5, 2013. Each of the special 23 conditions to which the defendant now objects was expressly included in the list of proposed conditions 24 of supervised release in the Sentencing Recommendation. 2 Prior to sentencing, defendant referenced 32 25 separate issues and concerns that he had with the PSR and the Sentencing Recommendation. See 26 judgment, his motion seeks substantive changes to the judgments and is more properly identified as a 27 motion to modify the judgment. 2 The Sentences Guidelines also clearly contemplate the imposition of the opening new lines of 28 credit/debt and mental health treatment program conditions. See U.S.S.G. 5B1.3(d)(2) & (5).

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1 Docket No. 232 for case, No. CR 09-00670, and 106 for case, No. CR 11-00554. Defendant specifically 2 referenced some of the Probation Offices proposed special conditions of supervised release (i.e., drug 3 testing and providing a DNA sample) on that list. This Court took the time at sentencing to go through 4 each of defendants issues and concern individually and provided defendant with an opportunity to raise 5 any additional ones. Defendants failure to do so at that time does not now entitle him to the elimination 6 of those special conditions to which he now objects for the first time. Moreover, the government 7 believes that the Court expressly adopted the recommendations of the PSR and Probation Office 8 concerning the terms and conditions of defendants supervised release at sentencing. Defendant 9 received all the advance notice and opportunity to be heard to which he was entitled. Accordingly, the

10 government respectfully requests that the Court deny defendants motion to modify his judgment. 11 12 DATED: January 29, 2014 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ SUSAN KNIGHT HANLEY CHEW Assistant United States Attorneys Respectfully submitted, MELINDA HAAG United States Attorney