Free Transcript - District Court of California - California

Case 3:08-cr-00128-BEN

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, PLAINTIFF, V. JOSE LUIS RIOS-FLORES, DEFENDANT. . . . . . . . . . . . . . . . . .

. . . . . . . . . .

NO. 08-CR-00128-BEN APRIL 21, 2008 10:20 A.M. SAN DIEGO, CALIFORNIA

TRANSCRIPT OF ACCEPTANCE OF PLEA, WITH PROBATION OFFICER'S REPORT BEFORE THE HONORABLE ROGER T. BENITEZ UNITED STATES DISTRICT JUDGE APPEARANCES: FOR THE PLAINTIFF: U.S. ATTORNEY'S OFFICE SOUTHERN DISTRICT OF CALIFORNIA BY: CHRISTOPHER M. ALEXANDER, ESQ. 880 FRONT STREET, ROOM 6293 SAN DIEGO, CALIFORNIA 92101

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FOR THE DEFENDANT: FEDERAL DEFENDERS OF SAN DIEGO BY: JOSEPH M. MC MULLEN, ESQ. 225 BROADWAY, SUITE 900 SAN DIEGO, CALIFORNIA 92101 COURT REPORTER: DEBORAH M. O'CONNELL, RPR, CSR 880 FRONT STREET, ROOM 4290 SAN DIEGO, CALIFORNIA, 92101 MARIA PAZ-SANDOVAL, INTERPRETER LORI BRYANT, PROBATION DEPARTMENT REPORTED BY STENOTYPE, TRANSCRIBED BY COMPUTER

ALSO PRESENT:

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SAN DIEGO, CALIFORNIA, APRIL 21, 2008, 10:20 A.M. * * * * THE CLERK: FIVE ON CALENDAR, CASE NO. 08-CR-0128,

USA V. LUIS RIOS-FLORES, ACCEPTANCE OF PLEA, WITH PROBATION OFFICER'S REPORT. MR. MC MULLEN: GOOD MORNING, YOUR HONOR. JOSEPH

MC MULLEN, FEDERAL DEFENDERS, ON BEHALF OF MR. RIOS-FLORES. MR. ALEXANDER: GOOD MORNING, YOUR HONOR.

CHRISTOPHER ALEXANDER, ON BEHALF OF THE UNITED STATES. MR. MC MULLEN: YOUR HONOR, MR. RIOS-FLORES IS HE WILL BE ASSISTED BY THE

ARRIVING BEFORE THE COURT.

COURT-CERTIFIED, SPANISH-SPEAKING INTERPRETER. THE COURT: THIS MATTER IS SET FOR ACCEPTANCE OF PLEA I'VE REVIEWED THE PLEA AGREEMENT,

AND SENTENCING THIS MORNING.

AND I'VE REVIEWED THE FINDINGS AND RECOMMENDATIONS OF THE MAGISTRATE JUDGE, AND I NOTE THERE ARE NO OBJECTIONS. I'VE REVIEWED THE PRESENTENCE REPORT; I'VE REVIEWED THE DEFENDANT'S SENTENCING MEMORANDUM; I'VE REVIEWED THE GOVERNMENT'S SENTENCING SUMMARY CHART. AFTER REVIEWING THOSE

DOCUMENTS, IT APPEARS THAT THE DEFENDANT DID KNOWINGLY, INTELLIGENTLY, VOLUNTARILY, AND EXPRESSLY ENTER A GUILTY PLEA. HE UNDERSTOOD THE NATURE OF THE CHARGES; HE UNDERSTOOD THE CONSEQUENCES OF ENTERING THE PLEA; HE UNDERSTOOD HIS RIGHTS; HE WAIVED HIS RIGHTS. AND IT APPEARS THERE IS A FACTUAL BASIS FOR

THE ENTRY OF THE PLEA; THEREFORE, THE PLEA WILL BE ACCEPTED.

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I'LL NOTE THAT UNDER BOOKER, THE GUIDELINES ARE ADVISORY ONLY. I'LL IMPOSE SENTENCE BASED ON 3553(A) FACTORS. MR. MC MULLEN, DO YOU ACKNOWLEDGE THAT IF I IMPOSE A SENTENCE WITHIN THE GUIDELINE RANGE, THAT THE DEFENDANT HAS WAIVED AND GIVEN UP ALL RIGHTS TO APPEAL AND COLLATERAL ATTACK? MR. MC MULLEN: THE COURT: YES, YOUR HONOR.

MR. RIOS-FLORES, DO YOU ACKNOWLEDGE THAT

IF I IMPOSE A SENTENCE WITHIN THE GUIDELINE RANGE, YOU'VE WAIVED AND GIVEN UP ALL RIGHT TO APPEAL AND COLLATERAL ATTACK? THE DEFENDANT: THE COURT: YES, YOUR HONOR. LET ME JUST TELL YOU, I NOTE

ALL RIGHT.

THAT THE GOVERNMENT HAS RECOMMENDED 18 MONTHS IN THIS CASE. I'VE REVIEWED THE SENTENCING MEMORANDUM, AND I CAN'T GO ALONG WITH THE GOVERNMENT'S RECOMMENDATION OF 18 MONTHS. MR. RIOS-FLORES WAS JUST CONVICTED OF AN IDENTICAL OFFENSE IN 2006, AND HE WAS SENTENCED TO 13 MONTHS IN PRISON. HE WAS

RELEASED IN SEPTEMBER OF '07, AND HE JUST TRIED TO DO IT AGAIN, AND I MIGHT ADD, UNDER VERY SIMILAR CIRCUMSTANCES. IF I'M NOT

MISTAKEN, BOTH CIRCUMSTANCES REQUIRED OR INVOLVED THE USE OF DOCUMENTS THAT HAD BEEN ALTERED. MR. MC MULLEN: THE COURT: THAT'S CORRECT, YOUR HONOR. THIRTEEN MONTHS DIDN'T WORK.

ALL RIGHT.

I HAVE NO REASON TO BELIEVE THAT 18 MONTHS WILL WORK, SO I'M GOING TO IMPOSE THE MAXIMUM SENTENCE OF 24 MONTHS. MR. MC MULLEN, I HAVE GOT SOME TIME. I WILL LISTEN TO YOU

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IF YOU WANT TO TRY TO TALK ME OUT OF THAT SENTENCE.

I WILL

INDICATE, HOWEVER, THAT I DO RESERVE THE RIGHT TO IMPOSE A HIGHER SENTENCE, AND UNDER BOOKER, I'M NOT BOUND BY THE GUIDELINES, SO YOU MAY JUST WISH TO SUBMIT THE MATTER. MR. MC MULLEN: YOUR HONOR, I WOULD JUST LIKE TO I THINK THAT -- OF COURSE, IT'S

BRIEFLY ADDRESS THIS MATTER.

EXACTLY WHAT I WANTED TO DO, ADDRESS THIS COURT, BECAUSE OF COURSE I COULD SEE IT WOULD BE OF PARTICULAR CONCERN TO THE COURT THAT THERE WAS THE AGGRAVATING CIRCUMSTANCES OF SIMILAR PRIOR ACTIVITY. SO WE HAVE THIS AGGRAVATING FACTOR THAT SOMETIMES IS ABSENT IN OTHER CASES. BUT I THINK ONE THING WE DO HAVE HERE,

THAT WE'VE SET FORTH IN OUR SENTENCING MEMORANDUM, IS THAT THERE ARE PARTICULAR POSITIVE FACTORS IN THIS CASE, MITIGATING FACTORS. MR. RIOS-FLORES, AS I'VE SAID BEFORE, HAS LIVED A VERY ADMIRABLE LIFE. AND THE PART THAT IS ADMIRABLE IS NOT THE

EARLY SPORTS ACHIEVEMENTS THAT MAKE HIM -- QUALIFY HIM FOR THE NATIONAL SWIMMING TEAM IN MEXICO CITY FOR THE OLYMPICS IN 1968, THE MIDDLE WEIGHT BOXING TITLE IN 1972. THE ADMIRABLE PART, AS

SET FORTH IN THE LETTERS OF HIS FAMILY, IS THE FACT THAT HE APPLIED THAT ENTHUSIASM FOR SPORTS TO HELP AND INSPIRE NOT JUST THE PEOPLE IN HIS OWN FAMILY, BUT PEOPLE AROUND HIM. HE VOLUNTEERED WORKING AS A LIFEGUARD. HE ALSO WORKED

WITH PHYSICALLY-CHALLENGED PEOPLE IN A NUMBER OF VOLUNTEER

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TYPES OF PROGRAMS, AND THAT'S HAD THE EFFECT OF -- I MEAN HIS CHILDREN REALLY LOOK UP TO THAT AND SORT OF FOLLOW THE SAME PATHS. THESE CIRCUMSTANCES HERE, CERTAINLY WE HAVE SOMEONE WHOSE FAMILY IS HERE IN THE UNITED STATES, AND THAT WAS THE MOTIVATION BEHIND THIS. SO WE WOULD JUST ASK THAT YOUR HONOR

CONSIDER THE PARTICULAR AND VERY UNIQUE MITIGATING FACTORS IN THIS CASE, AND THAT'S WHY WE'RE REQUESTING THE JOINT RECOMMENDATION OF 18 MONTHS. AND I'D ALSO POINT OUT TO THE COURT THAT NEXT MONDAY, MR. RIOS-FLORES FACES SENTENCING BEFORE JUDGE HAYES FOR THE LAST MATTER. AND THE PROBATION OFFICE IN THAT CASE HAS

RECOMMENDED THE HIGH END OF THE GUIDELINE RANGE, TEN ADDITIONAL MONTHS CONSECUTIVE TO THIS SENTENCE. THE COURT: ALL RIGHT. WELL, GIVEN THAT I'M IMPOSING

SENTENCE FIRST, I SUPPOSE THAT JUDGE HAYES CAN TAKE THAT INTO CONSIDERATION IF HE THINKS IT'S APPROPRIATE. MR. ALEXANDER, ANYTHING YOU WISH TO ADD? MR. ALEXANDER: THE COURT: NO, YOUR HONOR. THANK YOU.

DOES PROBATION HAVE ANYTHING? WE HAVE NO ADDITIONAL

PROBATION OFFICER: INFORMATION, YOUR HONOR. THE COURT:

MR. RIOS-FLORES, YOU HAVE A RIGHT TO IS THERE ANYTHING

ADDRESS THE COURT BEFORE I IMPOSE SENTENCE. YOU WISH TO ADD, SIR?

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THE DEFENDANT: THE COURT:

NO, YOUR HONOR. WELL, MR. MC MULLEN, YOU

ALL RIGHT.

PRESENT A GOOD ARGUMENT ON BEHALF OF YOUR CLIENT, BUT UNFORTUNATELY, I DON'T THINK ANY OF THAT DETRACTS FROM THE FACT THAT, AS I SAID, HE WAS JUST CONVICTED OF THIS OFFENSE IN 2005. AND NOT ONLY WAS IT THE SAME OFFENSE, BUT IT EVEN INVOLVED THE SAME AGGRAVATING FACTORS OF USING FALSE OR FALSIFIED DOCUMENTS. AS I SAID, 13 MONTHS DIDN'T SEND THE MESSAGE, SO I DON'T KNOW WHY 18 MONTHS WOULD. BUT MAYBE 24 MONTHS WILL. AND

PERHAPS JUDGE HAYES WILL GIVE HIM THE ADDITIONAL 10 MONTHS CONSECUTIVE; PERHAPS HE WON'T. MONTHS IS REASONABLE. SO I'M GOING TO REMAND HIM TO THE CUSTODY OF BUREAU OF PRISONS FOR A PERIOD OF 24 MONTHS. I'LL PLACE HIM ON AS A CONDITION I DON'T KNOW. BUT I THINK 24

SUPERVISED RELEASE FOR A PERIOD OF THREE YEARS.

OF SUPERVISED RELEASE, HE WILL OBEY ALL LAWS, INCLUDING STATE, COUNTY, AND FEDERAL. ONE OF THOSE LAWS, SIR, IS THAT YOU NOT ATTEMPT TO ENTER, ENTER, OR BE FOUND IN THE UNITED STATES WITHOUT OFFICIAL PERMISSION OF THE UNITED STATES GOVERNMENT. IF YOU'RE

DEPORTED, EXCLUDED, OR ALLOWED TO VOLUNTARILY RETURN TO MEXICO, YOU WILL NOT REENTER THE UNITED STATES ILLEGALLY AND WILL REPORT TO YOUR PROBATION OFFICER WITHIN 24 HOURS OF ANY REENTRY. SUPERVISION WILL BE WAIVED UPON YOUR DEPORTATION,

EXCLUSION, OR VOLUNTARY DEPARTURE.

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THE GUIDELINE RANGE FOR THE FINE IN THIS CASE APPEARS TO BE IN THE RANGE OF $3,000 TO $30,000; HOWEVER, IT DOES NOT APPEAR HE HAS THE ABILITY TO PAY ANY FINE, SO NO FINE WILL BE IMPOSED. I WILL ORDER THAT HE PAY $100 SPECIAL ASSESSMENT.

COUNSEL, IF YOU'LL PLEASE COME UP AND PICK UP A COPY OF THE SUPERVISED RELEASE CONDITIONS. MR. RIOS-FLORES, YOU HAVE IN YOUR HAND A COPY OF THE SUPERVISED RELEASE CONDITIONS. PLEASE KEEP IN MIND IF YOU

VIOLATE THE CONDITIONS, SIR, YOU CAN BE PLACED IN CUSTODY FOR UP TO AN ADDITIONAL 3 YEARS OVER AND ABOVE THE 24 MONTHS THAT I'VE ALREADY IMPOSED. I'LL GO THROUGH THE GUIDELINE CALCULATIONS FOR PURPOSES OF THE RECORD. THIS APPEARS TO BE A BASE OFFENSE LEVEL 12, THE GOVERNMENT HAS MOVED,

ENHANCED TO 18, UNDER 2L1.1(B)(6).

THEREFORE THE COURT WILL AGREE, TO A 3-LEVEL REDUCTION FOR ACCEPTANCE OF RESPONSIBILITY, AND A 2-LEVEL DEPARTURE FOR FAST-TRACK, WHICH RESULTS IN AN ADJUSTED OFFENSE LEVEL OF 13; A CRIMINAL HISTORY SCORE OF V, CRIMINAL HISTORY CATEGORY 3, RESULTS IN A GUIDELINE RANGE OF 18 TO 24 MONTHS. CONSIDERING

THE 3553(A) FACTORS, I BELIEVE THAT 24 MONTHS IS REASONABLE. IS THERE ANYTHING THAT I'VE OVERLOOKED, ANYTHING I'VE OMITTED TO ADDRESS, ANYTHING WE SHOULD TALK ABOUT? MR. ALEXANDER? MR. ALEXANDER: YOUR HONOR, I DIDN'T HEAR, DID THE

COURT IMPOSE THE $100 SPECIAL ASSESSMENT?

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THE COURT: THANK YOU.

THAT IS VERY -- I DID, ACTUALLY.

BUT

I APPRECIATE YOU MENTIONING THAT.

VERY TACTFULLY

DONE, I MIGHT ADD. MR. MC MULLEN? MR. MC MULLEN: YOUR HONOR, WE WOULD JUST ASK FOR A

RECOMMENDATION TO THE BUREAU OF PRISONS, THAT MR. RIOS-FLORES BE PLACED AS CLOSE AS POSSIBLE TO VISTA, CALIFORNIA AS POSSIBLE. I'M NOT SURE IF THAT WOULD BE BEST LEFT TO THE

SOUTHERN DISTRICT OF CALIFORNIA OR THE WESTERN REGION -THE COURT: LET ME, NOT AS PART OF MY JUDGMENT,

PROVIDED THAT IT IS CONSISTENT WITH THE BUREAU OF PRISONS' HOUSING NEEDS, REQUIREMENTS, REGULATIONS, BUDGETARY CONSTRAINTS, SECURITY RULES, ETC., THAT TO THE EXTENT THEY CAN DO SO, THEY HOUSE MR. RIOS-FLORES IN A FACILITY THAT IS NEAR VISTA, CALIFORNIA, EITHER IN THE SOUTHWESTERN REGION OF THE UNITED STATES OR THE WESTERN REGION OF THE UNITED STATES. ANYTHING ELSE? MR. MC MULLEN: THE COURT: THAT'S ALL, YOUR HONOR. THANK YOU.

THANK YOU.

(RECESS AT 10:31 A.M.) ---000---

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C-E-R-T-I-F-I-C-A-T-I-O-N I HEREBY CERTIFY THAT I AM A DULY APPOINTED, QUALIFIED AND ACTING OFFICIAL COURT REPORTER FOR THE UNITED STATES DISTRICT COURT; THAT THE FOREGOING IS A TRUE AND CORRECT TRANSCRIPT OF THE PROCEEDINGS HAD IN THE AFOREMENTIONED CAUSE; THAT SAID TRANSCRIPT IS A TRUE AND CORRECT TRANSCRIPTION OF MY STENOGRAPHIC NOTES; AND THAT THE FORMAT USED HEREIN COMPLIES WITH THE RULES AND REQUIREMENTS OF THE UNITED STATES JUDICIAL CONFERENCE. DATED: APRIL 21, 2008, AT SAN DIEGO, CALIFORNIA.

_________________________________ DEBORAH M. O'CONNELL, CSR #10563 REGISTERED PROFESSIONAL REPORTER