Free Response in Opposition - District Court of California - California

Case 3:07-cr-03438-DMS

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LAW OFFICES OF JOHN R. FIELDING, JR. State Bar No. 108303 402 W. Broadway, Suite 1700 San Diego, CA 92101 Telephone: (619) 233-0467 Facsimile: (619) 233-0475 Attorney for Defendant LADISLAO OCAMPO FLORES

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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(HONORABLE DANA M. SABRAW) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) LADISLAO OCAMPO FLORES ) ) Defendant. ) _______________________________________) CASE NO. 07CR3438-001-DMS SENTENCING MEMORANDUM Date: June 6, 2008 Time: 9:00 a.m.

Comes now, defendant, Ladislao Ocampo FLORES ("Mr. Flores"), by and through his counsel, John R. Fielding, Jr., and submits the following Sentencing Memorandum: I. PLEA AND AGREEMENT Mr. Flores pled guilty to the One Count Information charging him with Misuse of a Passport in violation of Title 18 U.S.C. § 1544. The parties will jointly recommend the

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following base offense level and adjustments under the guidelines: a) b) c) d) Base Offense Level [2L2.2] Prior Deportation [2D1.1(a)(3)] Fraudulent Use of a U.S. Passport [2L2.2(b)(3)] Acceptance of Responsibility [3E1.1]
Defendant's Sentencing Memorandum -1-

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TOTAL OFFENSE LEVEL:

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II. GUIDELINE CALCULATIONS Mr. Flores submits the following guideline calculations which comply with the Plea Agreement: Total Offense Level: Criminal History Score: Criminal History Category: Guideline Range: 12 25 VI 30-37 months III. DISCUSSION Mr. Flores' life has been in a state of turmoil since his daughter, Yesenia, was struck and

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killed by a truck in December, 2006. Mr. Flores describes his life since that date as "full with desperation." (See Exhibit One, Mr. Flores' letter to the court). Sadly, Mr. Flores conviction in this case arises out of his desperate attempt to enter the country and visit Yesenia's gravesite. In his words, he felt he had to choose between "two evils," either break U.S. immigration law and visit her cemetery, or "fail as a father in the last goodby." [sic.] (See Exhibit Two, Mr. Flores'

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Statement of Facts in support of his improperly self-filed Motion to Dismiss). The PSR correctly notes that Mr. Flores was unable to control his emotions when relaying the details of his daughter's death: [Mr. Flores] became very emotional when discussing his daughters . . . he is very close to all of his daughters and is devastated by the loss of his middle daughter [Yesenia]. . . [Mr.] Flores has no sense of closure and says his ex-wife will not discuss his daughter or her death with him. He has not seen her grave and was unable to attend her funeral, and he feels guilty about that. (PSR at page, 10: lines 30-36) After meeting with Mr. Flores, Probation Officer, Ms. Williams, recommended that he seek professional counseling "based on his evident grief issues and because he was extremely

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emotional." A short time later, the U.S. Marshall granted the undersigned's request for a transfer to a facility capable of addressing Mr. Flores' special needs. Mr. Flores also wants to point out that his criminal history category substantially over-

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represents the seriousness of his criminal history and the likelihood that he will commit future crimes.1 First, it appears that Mr. Flores may not have actually suffered all of the convictions listed on the PSR. According to documents provided by U.S. Probation, the defendants in two of the Wisconsin convictions have different names and dates of birth than Mr. Flores. (See Exhibit

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Three). Second, Mr. Flores' Illinois convictions overstate his criminal sophistication and involvement. Each of those cases arises out of a small landscaping business where Mr. Flores took the fall for his boss who always managed to disappear whenever the authorities came looking for someone to blame. In the first conviction (arrest date, 4/15/97), Mr. Flores wrote a

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check to an employee for $300. Mr. Flores had no idea that there were insufficient funds in the company account to cover the check. The second and third convictions (arrest dates, 8/25/97 and 8/27/97) arose out his boss' penchant for over-scheduling prepaid landscaping appointments. When customers complained about no-shows, the blame fell on Mr. Flores who was the one addressing customer concerns over the phone and answering for them in court. In summary, Mr.

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Flores' criminal history does not accurately reflect his moral character and respect for the communities in which he has lived. /// ///

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Pursuant to the Plea Agreement, the undersigned may not ask this court for any downward departures. This summary of Mr. Flores' criminal history is for this Court's information only.
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IV. CONCLUSION Mr. Flores knows that he must be sentenced to prison. He respectfully asks this Court to sentence him to a prison term which takes into consideration the facts discussed above. Assistant U.S. Attorney, Joseph Orabona, after reviewing Mr. Flores' criminal history, has indicated that he will not object to defense counsel's request for a 24 month prison commit. Should the court

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decide that a lengthy prison commit is necessary in this case, Mr. Flores respectfully requests that it does not exceed 24 months.

Dated: June 2, 2008

Signed: /s/John Fielding John R. Fielding Attorney for Defendant [email protected]

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LAW OFFICES OF JOHN R. FIELDING, JR. State Bar No. 108303 402 W. Broadway, Suite 1700 San Diego, CA 92101 Telephone: (619) 233-0467 Facsimile: (619) 233-0475 Attorney for Defendant LADISLAO OCAMPO FLORES

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE DANA M. SABRAW)

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UNITED STATES OF AMERICA,

) ) Plaintiff, ) ) v. ) ) LADISLAO OCAMPO FLORES ) ) Defendant. ) _______________________________________) I, the undersigned, declare:

CASE NO. 07CR3438-001-DMS CERTIFICATE OF SERVICE

That I am over eighteen years of age, a resident the County of San Diego, State of
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California, and I am not a party in the within action; that my business address is: 402 W. Broadway, Suite 1700, San Diego, CA 92101. That I caused to be served the within SENTENCING MEMORANDUM on the Untied States Attorney's Office, by electronically filing the document with the Clerk of the United

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States District Court for the Southern District of California, 880 Front Street, San Diego, California 92101, using its ECF System, which electronically notifies them.

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I certify that the foregoing is true and correct. Executed June 2, 2008, at San Diego, California. Dated: June 2, 2008 Signed: /s/John Fielding John R. Fielding Attorney for Defendant [email protected]

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Certificate of Service