Free Supplemental Memorandum - District Court of California - California

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1 VICTOR N. PIPPINS 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 3 San Diego, California 92101-5008 4

California State Bar No. 251953 225 Broadway, Suite 900

Telephone: (619) 234-8467 ext. 3737

5 Attorneys for Mr. Juan Gutierrez-Balderrama 6 7 8 9 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE THOMAS J. WHELAN) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 07CR3448-W DATE: May 12, 2008 TIME: 9:00 A.M. DEFENDANT'S SENTENCING MEMORANDUM

11 UNITED STATES OF AMERICA, 12 13 v. 14 JUAN GUTIERREZ-BALDERRAMA 15 16 17 TO: 18 19

Plaintiff,

Defendant.

CAROL C. LAM, UNITED STATES ATTORNEY; FRED SHEPPARD, ASSISTANT UNITED STATES ATTORNEY; AND LISA WILLIAMS, UNITED STATES PROBATION OFFICER: Juan Gutierrez-Balderrama, the defendant in this case, by and through his counsel, Victor

20 Pippins and Federal Defenders of San Diego, Inc., hereby files the following Sentencing Memorandum. 21 22 23

I. INDIVIDUAL BEFORE THE COURT Mr. Gutierrez-Balderrama is a 44 year old Mexican citizen who has lived his entire life in the city

24 of Mexicali. His whole family, including six siblings, live in Mexicali as well, forming what is a very tight25 knit family. [PSR 3] Mr. Gutierrez is the husband of Romelia Vasquez Carillo, and the proud father of three 26 minor children. [PSR 4]. Two of these children, 9 year old Melissa and 10 year old Angel live with 27 Mr. Gutierrez and his wife in Mexicali. Mr. Gutierrez's first child, from another relationship, is 13 year old 28 Cassandra, who lives with her mother in Mexicali. [PSR 4]. Mr. Gutierrez has often stated how difficult it

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1 has been for him to separated from his family during his incarceration. 2

Mr. Gutierrez is a hardworking and well educated man. He completed twelve years of formal

3 education in Mexico and one year of college. He also fulfilled his 1 one year requirement in the Mexican 4 army as a young man. [PSR 5]. Over the years, Mr. Gutierrez has worked at a number of different jobs in 5 order to support his family. Most recently he worked at a taco stand, but has also worked in a glass assembly 6 plant, as a security guard, and as a janitor. [PSR 5]. 7

The instant offense blemishes an otherwise spotless criminal record. Mr. Gutierrez has never engaged

8 in behavior similar to the offense at hand. He has had no juvenile adjudications and no criminal convictions. 9 [PSR 9]. Further, he has never been charged with committing a criminal act prior to the instant offense.[PSR 10 2]. This clean history is supported by the fact that Mr. Gutierrez had a Border Crossing visa. Such a visa is 11 not available to people with criminal convictions. 12

Mr. Gutierrez is ashamed of the act that led to his conviction in this case. This aberrant act was the

13 result of desperation due to the serious medical condition of Mr. Gutierrez's mother, who is disabled and 14 unable to care for herself because of serious complications of her diabetes. Mr. Gutierrez did not have a car, 15 and thus was unable to transport her to medical appointments which she regularly needs. He agreed to 16 participate in the act that led to his arrest in order to get a car to help him to care for her. He had no intention 17 of continuing in this activity after getting a vehicle that he could use to transport his mother. The fact that he 18 has been separated from his mother, and thus not available to help her in her day to day activities is a source 19 of a great deal of stress and grief. 20

Mr. Gutierrez's role in the instant offense, although serious, was brief and minor. Mr. Gutierrez

21 agreed to drive a car across the border that had drugs concealed within in exchange for an undisclosed 22 vehicle. The person who arranged the smuggling was a patron of the taco shop where Mr. Gutierrez worked. 23 After seeing that this patron seemed to have a number of different vehicles, Mr. Gutierrez asked how much 24 he could buy one for. This patron named a price that was far in excess of what Mr. Gutierrez could afford, 25 but offered to give him a car if Mr. Gutierrez would smuggle a load of drugs into the United States. 26 27 28

II. SENTENCING REQUEST UNDER 18 U.S.C.§ 3553(a) Mr. Gutierrez-Balderrama respectfully requests a sentence of credit time served with a 2 year term 07cr3448-W

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1 of supervised release. This request is based on the Mr. Gutierrez's history and characteristics and the nature 2 of the offense, as described above. The district court has discretion to consider all relevant factors presented 3 by a defendant when imposing a sentence. Koon v. United States, 518 U.S. 81 (1996). 18 U.S.C. § 3553(a) 4 sets forth the factors a district court must consider when imposing a sentence upon a defendant. The 5 Guidelines are among the factors a sentencing judge must consider, however, the Guidelines no longer impose 6 binding sentencing requirements in light of the recent ruling in United States v. Booker, 125 S. Ct. 738 (2005). 7 Booker invalidated subsection (b)(1) of 18 U.S.C. § 3553 and subsequently, sentencing judges are now 8 required only to consider the Guidelines as one factor in conjunction with other sentencing goals. Id. 9

In light of Booker, the Court has greater leeway to consider a variety of relevant factors concerning

10 Mr. Gutierrez-Balderrama's character and his involvement in the instant offense. 125 S.Ct. 738. The instant 11 case warrants a sentence of credit time served and two years supervised release. 12 13

III. THE PLEA AGREEMENT

14 Base Offense Level [§ 2D1.1(c)(11)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 15 Adjustment for Safety Valve [§§ 2D1.1(b)(9), 5C1.2] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 2 16 Adjustment for Minor Role [§ 3B1.2] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 2 17 Adjustment for Acceptance of Responsibility [§ 3E1.1] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 2 18 Departure for Fast Track [§ 5K2.20]

....................................................-2

19 Total Offense Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 20 Criminal History Category I (0 Criminal History Points) 21 Sentencing Guideline Range . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-12 months 22 23 24 25

IV. ADJUSTMENTS AND DEPARTURES. 1. The Court Should Adjust Downward Two (2) Levels for Minor Role. Pursuant to U.S.S.G. § 3B1.2(b), a two level downward departure is warranted if the defendant

26 played a minor role in the offense. Mr. Gutierrez did not load the drugs, did not know where in the car they 27 were, and was not going to unload them upon arrival in to the United States. Mr. Gutierrez's role in the 28 instant offense was limited to his courier duties. Accordingly, Mr. Gutierrez requests a two level adjustment

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1 for his minor role in the offense. 2 3 4

2. The Court Should Adjust Downward Two (2) Levels for Acceptance of Responsibility. Mr. Gutierrez should receive a two level downward departure for his acceptance of responsibility.

5 Mr. Gutierrez relieved the government of its burden of preparing for trial by accepting a plea agreement and 6 entering a guilty plea early in the proceedings. Pursuant to U.S.S.G. § 3E1.1, the Court should depart two 7 levels because Mr. Gutierrez accepted responsibility for his involvement in the present offense. 8 9

3. The Court Should Adjust Downward Two (2) Levels for Limitations of Statutory Minimums Mr. Gutierrez should receive a two level downward departure for the limitation on applicability of

10 statutory minimum sentences under U.S.S.G. § 5C1.2. Mr. Gutierrez has zero criminal history points as his 11 has no previous criminal convictions. He did not use violence or threaten violence when committing the 12 instant offense. The commission of the instant offense did not result in death or serious bodily injury. And, 13 as Mr. Gutierrez was only a minor participant in the instant offense, a courier, he took no leadership role in 14 the planning and commission of the event. Finally, Mr. Gutierrez has had a chance to and willingly provided 15 to the Government information regarding the instant offense. As he has met all the requirements of § 5C1.2, 16 he should receive a two point departure for the offense. 17 18 19

4. The Court Should Adjust Downward Two (2) Levels for Participation in an Early Disposition Program Mr. Gutierrez should receive a two level downward departure for participating in the Government's

20 "fast track" program. Pursuant to U.S.S.G. § 5K3.1, Mr. Gutierrez's participation in this early disposition 21 program saved the Government and court numerous hours in the prosecution of this offense, thus his sentence 22 should be reduced to reflect such conservation of man-hours. 23 24

5. The Court Should Depart Downward Two (2) Levels for Aberrant Behavior Mr. Gutierrez should receive a two level downward departure for his aberrant behavior in the

25 commission of the instant offense, his only criminal charge or conviction. A downward departure may be 26 warranted when the defendant's conduct is a single act of aberrant behavior. United States v. Takai, 941 F.2d 27 738, 743 (9th Cir. 1991); see U.S.S.G. § 5K2.20. 28

A downward departure for aberrant behavior is commonly awarded when a first offense constitutes 07cr3448-W

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1 a single act of truly aberrant behavior. United States v. Dickey, 924 F.2d 836, 838 (9th Cir. 1990), cert. 2 denied, 502 U.S. 943 (1991); see also United States v. Fairless, 975 F.2d 664 (9th Cir. 1992); United States 3 v. Morales, 972 F.2d 1007 (9th Cir. 1992), cert. denied, 507 U.S. 1012 (1993); United States v. Takai, 941 4 F.2d 738 (9th Cir. 1991). 5

To determine whether or not an offense constitutes an act of aberrant behavior, the sentencing court

6 must look to the totality of the circumstances. Fairless, 975 F.2d at 667. The Tenth Circuit reached a similar 7 conclusion in United States v. Pena, 930 F.2d 1486 (10th Cir. 1991). In Pena, the defendant drove a vehicle 8 to a border checkpoint near Truth or Consequences, New Mexico. The vehicle contained marijuana. The 9 Tenth Circuit upheld an eight level downward departure based on the aberrational character of the 10 defendant's conduct. The court noted, 11 12 13 14

[defendant's] behavior . . . was an aberration from his usual conduct, which reflected long term employment, economic support of his family, no abuse of controlled substances, and no prior involvement in the distribution of such substances. Thus, courts frequently consider a defendant's lack of criminal involvement, economic

15 Id. at 1495.

16 conditions, and character when determining whether the circumstances warrant a departure. 17

This is Mr. Gutierrez's first offense and consideration of the "totality of the circumstances,"

18 combined with lengthy work history and otherwise spotless criminal record reveals a combination of factors 19 worthy of a two-level downward departure. Mr. Gutierrez has always been employed and tried to provide 20 for his family. [PSR 5]. The fact that Mr. Gutierrez is 44 years old and never even been charged with a crime 21 prior to this incident shows that he is exactly the type of person who the aberrant behavior departure was 22 created for. Mr. Gutierrez his a hardworking man who, one this one occasion, tried to take a shortcut which 23 he has already paid dearly for. He had no financial interest in the marijuana he was transporting, and was not 24 involved in any of the planning associated with this venture. His involvement in this offense was an aberrant 25 occurrence for which he has deep remorse. 26 // 27 // 28 //

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1 2 3 4 5 6

V. CRIMINAL HISTORY Mr. Gutierrez's criminal history category is I as he has no prior convictions. VI. SENTENCING RECOMMENDATION Mr. Gutierrez's requests that the Court impose a custodial sentence of credit time served so that

7 he can return home to continue supporting his family. Mr. Gutierrez has already served over four months in 8 custody, which has been a truly eye-opening experience for a person who had never spent a day in jail before. 9 His lack of criminal history shows that he is not a danger to the community, and the pain that Mr. Gutierrez 10 and his family have suffered due to his incarceration have provided an adequate deterrent to any further 11 criminal activity. Under the totality of the circumstances, the interests of justice would be best served by an 12 imposition of a sentence of credit time served with 2 years of supervised release. 13 14 15 16 Date: May 7, 2008 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,

/s/ Victor N. Pippins _______________________________________ VICTOR N. PIPPINS Federal Defenders of San Diego, Inc. Attorneys for Mr. Gutierrez-Balderrama

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1 VICTOR N. PIPPINS

California State Bar No. 251953
2 FEDERAL DEFENDERS OF SAN DIEGO, INC.

225 Broadway, Suite 900
3 San Diego, California 92101-5008

Telephone: (619) 234-8467
4 Email: [email protected] 5 Attorneys for Defendant 6 7 8 9 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE THOMAS J. WHELAN) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 07CR3448-W Date: May 12, 2008 Time: 9:00 a .m. CERTIFICATE OF SERVICE

11 UNITED STATES OF AMERICA, 12 13 v. 14 JUAN GUTIERREZ-BALDERRAMA, 15

Plaintiff,

Defendant.
16 17 18

Counsel for Defendant certifies that the foregoing pleading is true and accurate to the best

19 of his information and belief, and that a copy of the foregoing document has been served this day upon: 20 21 22 emailed to: 23 24 25 DATED: 26 27 28

Fred A. Sheppard [email protected],[email protected] Lisa Williams, United States Probation Officer Respectfully submitted,

May 7, 2008

/s/ Victor N. Pippins VICTOR N. PIPPINS Federal Defenders of San Diego, Inc. Attorneys for Defendant

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