Free Appeal Transcript - District Court of California - California

Case 3:07-cr-03057-WQH

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT REPORTER: VS.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, PLAINTIFF,

) ) ) ) ) SAN DIEGO, CALIFORNIA APRIL 18, 2008 CASE NO. 07CR3057-WQH

JOSE LOWELL MAGANA, DEFENDANT.

) )

REPORTER'S TRANSCRIPT OF PROCEEDINGS SENTENCING W/PO REPORT BEFORE THE HONORABLE WILLIAM Q. HAYES UNITED STATES DISTRICT JUDGE

MAURALEE A. RAMIREZ OFFICIAL COURT REPORTER UNITED STATES DISTRICT COURT 880 FRONT STREET, ROOM 4290 SAN DIEGO, CALIFORNIA 92101 TEL. 619-236-0368 COMPUTER-AIDED TRANSCRIPTION

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A P P E A R A N C E S: FOR THE GOVERNMENT: U.S. ATTORNEY'S OFFICE BY: STEVE MILLER ASSISTANT U.S. ATTORNEY 880 FRONT STREET SAN DIEGO, CALIFORNIA 92101 FOR THE DEFENDANT: BURCHAM AND ZUGMAN BY: GARY PAUL BURCHAM, ESQ. 964 5TH AVENUE, SUITE 300 SAN DIEGO, CALIFORNIA 92101 619-699-5930

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SAN DIEGO, CALIFORNIA; MONDAY APRIL 18, 2008 10:03 A.M. THE CLERK: CALLING NUMBER 8 ON CALENDAR, CASE

07CR3057; UNITED STATES OF AMERICA VERSUS JOSE LOWELL MAGANA, ON FOR ACCEPTANCE OF PLEA WITH PROBATION OFFICE REPORT. MR. BURCHAM: FOR MR. MAGANA. MR. MILLER: THE COURT: STEVE MILLER FOR THE UNITED STATES. GOOD MORNING. GOOD MORNING, YOUR HONOR. GARY BURCHAM

(DEFENDANT ENTERING COURTROOM) MR. BURCHAM: THE COURT: MR. MAGANA IS NOW PRESENT, YOUR HONOR.

ALL RIGHT, COUNSEL, PRIOR TO TODAY, I'VE

REVIEWED AND CONSIDERED THE FINDINGS AND RECOMMENDATIONS OF THE MAGISTRATE JUDGE CONCERNING THE DEFENDANT'S PLEA OF GUILTY. OBJECTIONS WERE FILED TO THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS. ACCORDINGLY I ADOPT THE ENTIRE FINDINGS OF NO

THE MAGISTRATE JUDGE AND ACCEPT THE DEFENDANT'S PLEA OF GUILTY. PRIOR TO TODAY, I'VE ALSO REVIEWED AND CONSIDERED THE PRESENTENCE REPORT, THE DEFENDANT'S SENTENCING SUMMARY CHART AND THE GOVERNMENT'S SENTENCING SUMMARY CHART. COUNSEL, HAVE

YOU HAD AN OPPORTUNITY TO REVIEW AND DISCUSS THE PRESENTENCE REPORT WITH YOUR CLIENT? MR. BURCHAM : THE COURT: YES, I HAVE.

AND IS IT CORRECT THAT NO OBJECTIONS WERE

FILED TO THE PRESENTENCE REPORT?

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MR. BURCHAM: THE COURT:

THAT'S CORRECT.

ARE THERE ANY COMMENTS THAT YOU WOULD LIKE

TO MAKE WITH RESPECT TO THE SENTENCE THAT THE COURT SHOULD IMPOSE? MR. BURCHAM: YES, PLEASE. MR. MAGANA IS 26 YEARS

HE'S A U.S. CITIZEN, BUT HE HAS SPENT HIS ENTIRE LIFE IN HE SUPPORTS FOUR CHILDREN THROUGH HIS WORK PRIMARILY AND WE AGREE WITH THE RECOMMENDATIONS, THE WE

MEXICO.

AS A LANDSCAPER.

GUIDELINE RECOMMENDATIONS OF PROBATION AND THE GOVERNMENT.

SIMPLY ASK THE COURT TO IMPOSE A LOW-END SENTENCE OF 24 MONTHS AS OPPOSED TO THE GOVERNMENT'S RECOMMENDATION OF 27 MONTHS. AS THE COURT IS AWARE, THIS IS MR. MAGANA'S SECOND TIME FOR THIS SORT OF THE CRIME. IMPORTATION IN JANUARY 2005. ONCE. HE HAD A PRIOR MARIJUANA

THERE IS NO EXCUSE FOR DOING THIS

THERE CERTAINLY IS LESS OF AN EXCUSE FOR DOING IT TWICE,

SO WE LOOKED AT MR. MAGANA, WHAT WAS HAPPENING WITH HIM AND CLEARLY THIS IS A SITUATION WHERE HIS DRUG HABIT LED TO THE FIRST OFFENSE, AND IT LED TO THIS OFFENSE AS WELL. DESPITE ANOTHER TOUGH UPBRINGING -- THE COURT HAS BEEN FULL THIS MORNING OF PEOPLE WHO HAVE HAD DIFFICULT UPBRINGINGS. MR. MAGANA IS NO EXCEPTION. HIMSELF. HE HAS MADE A DECENT LIFE FOR

HE HAS WORKED VERY HARD AS A LANDSCAPER, IN THE AND DESPITE THE FACT THAT HE HAD NO

CONSTRUCTION INDUSTRY.

OPPORTUNITIES AS A YOUNGSTER FOR EDUCATION OR JOB TRAINING, HE HAS DONE OKAY FOR HIMSELF. HE HAS WORKED HARD, AND HE IS IN A

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COMMON-LAW RELATIONSHIP.

HE SUPPORTS HIS FOUR KIDS.

UNFORTUNATELY ALONG THE WAY, HE DEVELOPED A VERY NASTY METHAMPHETAMINE HABIT, AND THAT IS SOMETHING HE HAS BEEN BATTLING FOR SEVERAL YEARS. THE ONE THING HE ASKS OF THE COURT IN ADDITION TO THE LOW-END SENTENCE IS THE RECOMMENDATION FOR THE 500-HOUR DRUG PROGRAM. HE KNOWS HE IS LUCKY TO BE A U.S. CITIZEN, HE KNOWS

HE'S LUCKY TO BE ABLE TO WORK IN THIS COUNTRY TO MAKE AN HONEST WAGE FOR A DAY'S WORK, BUT HE ALSO KNOWS THAT AS LONG AS HE IS USING NARCOTICS, HIS LIFE WON'T TRULY BE UNDER HIS OWN CONTROL. IT WILL BE SUBJECT TO THE DRUGS. AND SO HE WOULD ASK THIS

COURT FOR A RECOMMENDATION FOR THE 500-HOUR DRUG PROGRAM. HE WOULD ALSO ASK THE COURT FOR A RECOMMENDATION TO THE WESTERN REGION, IN PARTICULAR TO TERMINAL ISLAND. ADDITION TO ATTENDING THE 500-HOUR DRUG PROGRAM, HE IS INTERESTED IN LEARNING SOME TRADES. I KNOW THE TERMINAL ISLAND IN

FACILITY HAS A UNICOR PROGRAM WHERE HE COULD HOPEFULLY LEARN SOME TRADES. THE GOVERNMENT IS RECOMMENDING 27 MONTHS. I THINK --

GIVEN THE 3553(A) FACTORS I THINK A SENTENCE OF 24 MONTHS IS SUFFICIENT. IF IT WEREN'T FOR THE DRUGS, I DON'T THINK THIS

HARD-WORKING MAN WOULD HAVE COMMITTED THE FIRST OFFENSE OR THE SECOND OFFENSE. I FEEL VERY STRONGLY IF HE GETS GOOD,

INTENSIVE DRUG COUNSELING, THIS WILL BE THE LAST TIME THE COURT SEES HIM.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SIR?

THE COURT:

IS THERE ANYTHING YOU WOULD LIKE TO SAY,

THE DEFENDANT(THROUGH THE INTERPRETER): TO ASK YOU TO BE JUST.

I ONLY WANT

I WOULD THANK YOU FROM THE BOTTOM OF MY

HEART, IF YOU COULD HELP ME WITH THE PROBLEM WITH DRUGS THAT I DO HAVE, AS MY ATTORNEY SAID. I KNOW THAT I MADE A MISTAKE. THE ONLY THING THAT I WANT IS -THE ONLY THING THAT I WANT TO DO

IS PAY FOR WHAT I DID, BE REUNITED WITH MY WIFE AND CHILDREN WHO ARE WAITING FOR ME IN TIJUANA. THE COURT: MR. MILLER. MR. MILLER: THE GOVERNMENT RECOMMENDS 27 MONTHS' THERE'S SOMETHING ALL RIGHT. THAT'S ALL.

THANK YOU.

CUSTODY AND THREE YEARS' SUPERVISED RELEASE.

I WOULD LIKE TO SAY, AND THIS IS FOR THE DEFENDANT'S BENEFIT. ON PAGE 12, THE PROBATION DEPARTMENT NOTES, MAGANA SHOULD BE MINDFUL THAT THE THIRD CONVICTION FOR SIMILAR CONDUCT OR A CRIME OF VIOLENCE WOULD CLASSIFY HIM AS A CAREER OFFENDER. HOPEFULLY THAT ADMONITION WOULD SERVE TO DETER HIM SINCE THAT LAST TERM OF SUPERVISED RELEASE DID NOT SERVE TO DETER HIM. BUT I WOULD ALSO LIKE THE DEFENDANT TO BE MINDFUL THAT THIS -- SINCE THIS IS HIS SECOND FELONY DRUG CONVICTION, THERE ARE CIRCUMSTANCES WHERE HE MAY BE HIRED TO DRIVE A LOAD OF DRUGS ACROSS THE BORDER AND IT DOESN'T TURN OUT TO BE MARIJUANA. SO IN CERTAIN EVENTS, HE MAY HAVE A RELATIVELY

SMALL AMOUNT OF METHAMPHETAMINE, HEROIN OR COCAINE THAT WOULD

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TURN INTO A TEN-YEAR MINIMUM MANDATORY.

AFTER THIS CONVICTION,

HE WOULD BE SUBJECTING HIMSELF TO A MINIMUM MANDATORY LIFE SENTENCE. SO IF THE LAST TERM OF SUPERVISED RELEASE DIDN'T SERVE TO DETER HIM AND YOUR TERM OF SUPERVISED RELEASE DOESN'T SERVE TO DETER HIM, KEEPING THAT IN MIND, THAT THE NEXT SENTENCE COULD POSSIBLY BE A LIFE SENTENCE OUGHT TO SERVE TO DETER HIM. THE COURT: ALL RIGHT. IN THIS INSTANCE, ON OCTOBER

8TH OF '07, THE DEFENDANT WAS THE DRIVER AND SOLE OCCUPANT OF A VEHICLE AT THE SAN YSIDRO PORT OF ENTRY. APPROXIMATELY $500 TO DRIVE THE VEHICLE. MARIJUANA WAS APPROXIMATELY 50 KILOGRAMS. HE WAS TO BE PAID THE AMOUNT OF THE THE BASE OFFENSE THE DEFENDANT

LEVEL PURSUANT TO SECTION 2D1.1(C)(10) IS 20. DOES QUALIFY FOR A ROLE IN THE OFFENSE.

IT'S A TWO-LEVEL THE PLEA

REDUCTION FOR ROLE PURSUANT TO SECTION 3B1.2(D).

AGREEMENT RECOMMENDS IT, AND THE COURT DOES FIND THE FACTS THAT ARE SET FORTH IN THE PRESENTENCE REPORT SUPPORT THAT HE WAS, IN ESSENCE, A COURIER WHO WAS BEING PAID THE $500 TO DRIVE THE VEHICLE FROM MEXICO INTO THE UNITED STATES. THE ADJUSTED OFFENSE LEVEL IS 18. THERE IS A

THREE-LEVEL REDUCTION FOR ACCEPTANCE OF RESPONSIBILITY PURSUANT TO SECTION 3E1.1. THAT LEAVES A TOTAL OFFENSE LEVEL OF 15. AS

THE DEFENDANT DOES HAVE FOUR CRIMINAL HISTORY POINTS.

INDICATED, IN JANUARY OF '05, HE IN ESSENCE COMMITTED ALMOST AN IDENTICAL OFFENSE FOR WHICH HE RECEIVED TWO POINTS AND THEN

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BECAUSE HE IS ON SUPERVISED RELEASE IN THAT CASE, HE RECEIVES AN ADDITIONAL TWO POINTS WHICH GIVES HIM FOUR AND PLACES HIM IN A CRIMINAL HISTORY CATEGORY III. HE DOES HAVE SOME OTHER LAW ENFORCEMENT CONTACTS. ONE

OF THEM WAS A NOVEMBER 19TH, 2002 ARREST AT THE SAN YSIDRO PORT OF ENTRY FOR THE HEALTH AND SAFETY CODE VIOLATION THAT DEALT WITH MARIJUANA. PROSECUTION OF THAT CASE WAS DECLINED. I DO

FIND THAT THE ADVISORY GUIDELINE RANGE IS 24 TO 30 MONTHS. THE NATURE AND CIRCUMSTANCES OF THE OFFENSE ARE NOT PARTICULARLY AGGRAVATED. THE HISTORY AND CHARACTERISTICS OF

THE DEFENDANT, CERTAINLY THE MOST AGGRAVATING FACTOR IS HE WAS ON SUPERVISED RELEASE FOR DOING ALMOST THE IDENTICAL OFFENSE. THE AMOUNT OF MARIJUANA INVOLVED WAS APPROXIMATELY 40 POUNDS. CERTAINLY THE NEED TO REFLECT THE SERIOUSNESS OF THE OFFENSE, PROMOTE RESPECT FOR THE LAW AND PROVIDE JUST PUNISHMENT, THE SENTENCE NEEDS TO BE INCREASED, AND HOPEFULLY THAT WILL AFFORD ADEQUATE DETERRENCE TO THE -- RELIEF FROM THE CONDUCT. THE COURT IS GOING TO IMPOSE A 27-MONTH SENTENCE. DO FIND THAT IS THE MINIMUM SENTENCE TO SATISFY THE 3553 FACTORS. IT IS TO BE TAKEN INTO ACCOUNT IT IS ALMOST THE SAME AT THAT TIME, I DON'T THINK I

OFFENSE THAT WAS COMMITTED IN JANUARY OF '05.

THE DEFENDANT DID RECEIVE A SIX-MONTH SENTENCE.

THAT A 27-MONTH SENTENCE IN THIS CASE WILL PROMOTE UNWARRANTED SENTENCING DISPARITIES IN LIGHT OF THE DEFENDANT'S CRIMINAL

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RECORD.

I'M AWARE OF THE OTHER TYPES OF SENTENCES THAT ARE

AVAILABLE, BUT I DO THINK IT IS THE SENTENCE THAT IS NECESSARY TO PROTECT THE PUBLIC FROM FURTHER CRIMES OF THE DEFENDANT. AND, AS INDICATED, I DO NOTE THIS IS NOT HIS FIRST CONTACT WITH LAW ENFORCEMENT FOR THIS TYPE OF ACTIVITY, AND I DON'T THINK THAT -- OBVIOUSLY I KNOW HE WAS NOT SUFFICIENTLY DETERRED THE FIRST TIME. I HAVE CONSIDERED ALL THE 3553 FACTORS, THOSE THAT I SPECIFICALLY ADDRESSED AND THE REMAINDER THAT I HAVE NOT AND DO CONCLUDE THE 27-MONTH SENTENCE IS THE MINIMUM SENTENCE TO SATISFY THE 3353 FACTORS. THEREFORE, PURSUANT TO THE

SENTENCING REFORM ACT OF 1984, IT IS THE JUDGMENT OF THIS COURT THAT DEFENDANT BE COMMITTED TO THE BUREAU OF PRISONS TO BE IMPRISONED FOR A TERM OF 27 MONTHS. UPON RELEASE FROM IMPRISONMENT, THE DEFENDANT SHALL BE PLACED ON A THREE-YEAR TERM OF SUPERVISED RELEASE, SUBJECT TO THE STANDARD CONDITIONS, IN ADDITION THE FOLLOWING SPECIAL CONDITIONS: THAT HE SUBMIT TO A SEARCH OF HIS PERSON, PROPERTY, RESIDENCE, ABODE OR VEHICLE AT A REASONABLE TIME AND A REASONABLE MANNER BY THE PROBATION OFFICER; THAT HE REPORT ALL VEHICLES OWNED OR OPERATED OR IN WHICH HE HAS AN INTEREST TO THE PROBATION OFFICER; THAT HE NOT ENTER OR RESIDE IN THE REPUBLIC OF MEXICO WITHOUT PERMISSION OF THE PROBATION OFFICER; THAT HE PARTICIPATE IN A PROGRAM OF DRUG OR ALCOHOL ABUSE

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TREATMENT, INCLUDING DRUG TESTING AND COUNSELING AS DIRECTED BY THE COURT OR THE PROBATION OFFICER. THE DEFENDANT MAY BE

REQUIRED TO CONTRIBUTE TO THE COST OF SERVICES RENDERED IN AN AMOUNT TO BE DETERMINED BY THE PROBATION OFFICER BASED UPON ABILITY TO PAY. THE COURT DOES NOT IMPOSE A FINE, FINDING THE DEFENDANT DOES NOT HAVE THE FINANCIAL ABILITY TO PAY A FINE. THE COURT DOES IMPOSE THE REQUIRED $100 MANDATORY SPECIAL PENALTY ASSESSMENT. I WILL RECOMMEND THAT THE DEFENDANT BE PERMITTED TO PARTICIPATE IN THE 500-HOUR DRUG TREATMENT PROGRAM. I DO FIND

THAT THE PRESENTENCE REPORT ON PAGE 6, THAT THE MCC RECORDS REFLECT THE DEFENDANT DID DISCLOSE HE HAD USED CRYSTAL AND ALSO WHILE HE WAS ON SUPERVISED RELEASE IN THE PREVIOUS CASE, IN ESSENCE, FOR COMMITTING ALMOST THE IDENTICAL CONDUCT, HE DID SUBMIT POSITIVE -- OR IT'S ALLEGED THAT HE DID SUBMIT POSITIVE DRUG TESTS, SO I DO FIND THERE IS SUFFICIENT INFORMATION IN THE PRESENTENCE REPORT. ALTHOUGH I WOULD SAY, COUNSEL, IF THIS OTHER INFORMATION WASN'T THERE, I WOULDN'T RECOMMEND IT. AND I NOTE

UNDER SUBSTANCE ABUSE, YOUR CLIENT ELECTED NOT TO DISCUSS SUBSTANCE ABUSE WITH THE PROBATION DEPARTMENT. SO HAD THERE

NOT BEEN ANY OTHER INDEPENDENT INFORMATION IN THE PRESENTENCE REPORT, I WOULD NOT RECOMMEND THE 500-HOUR DRUG TREATMENT PROGRAM. EVEN THOUGH HE DECLINED TO DISCUSS IT, THERE IS OTHER

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INFORMATION IN THE PRESENTENCE REPORT THAT I THINK WARRANTS IT, BUT IF THAT INFORMATION WAS NOT THERE BECAUSE HE ELECTED NOT TO DISCUSS IT, I WOULD NOT RECOMMEND IT. BUT FOR THE REASONS

STATED, I DO RECOMMEND IT IN THIS CASE. MR. BURCHAM: THE COURT: I UNDERSTAND.

I WILL RECOMMEND AS WELL THAT THE I'LL DECLINE TO

DEFENDANT BE DESIGNATED TO THE WESTERN REGION.

RECOMMEND A PARTICULAR INSTITUTION, BUT I WILL RECOMMEND THAT HE BE DESIGNATED TO THE WESTERN REGION. AS I UNDERSTAND IT, COUNSEL, THERE IS NO PLEA AGREEMENT IN THIS CASE, AND YOUR CLIENT HAS RETAINED HIS RIGHT TO APPEAL THE CONVICTION SENTENCE; IS THAT CORRECT? MR. BURCHAM: THE COURT: THAT'S CORRECT.

ALL RIGHT, SIR, YOU HAVE A RIGHT TO APPEAL

FROM THE JUDGMENT OF THIS COURT IN IMPOSING SENTENCE ON YOU TODAY. THAT MEANS IF YOU WISH TO APPEAL, YOU MUST FILE A

WRITTEN NOTICE OF YOUR INTENTION TO APPEAL WITHIN TEN DAYS FROM THE ENTRY OF JUDGMENT. THE NOTICE MUST BE IN WRITING, SIGNED IT MUST SPECIFY WHAT IT IS YOU

BY YOU, YOUR ATTORNEY OR BOTH. ARE APPEALING FROM.

IF YOU WISH TO APPEAL AND DO NOT HAVE THE

FINANCIAL ABILITY TO RETAIN THE SERVICES OF AN ATTORNEY, THE APPELLATE AUTHORITIES WILL APPOINT COUNSEL FOR YOU. DO YOU UNDERSTAND THAT UNLESS YOU FILE A WRITTEN NOTICE OF YOUR INTENTION TO APPEAL IN THIS COURT AND NOT THE COURT APPEALS WITHIN TEN DAYS OF THE ENTRY OF JUDGMENT, YOU

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WILL LOSE THAT RIGHT FOREVER? THE DEFENDANT: THE COURT: YES. AND, COUNSEL, YOU WILL ASSIST

ALL RIGHT.

YOUR CLIENT IN FILING THE NOTICE OF APPEAL IF HE ELECTS TO APPEAL? MR. BURCHAM: THE COURT: MR. MILLER: COUNTS. THE COURT: DISMISSED. WOULD YOU PLEASE COME FORWARD, COUNSEL, AND OBTAIN A COPY OF THE TERMS OF SUPERVISED RELEASE AND PROVIDE A COPY OF THOSE TO YOUR CLIENT. (COUNSEL COMPLIES) THE COURT: ANYTHING FURTHER, COUNSEL? NO, THANK YOU VERY MUCH. ALL RIGHT. THE REMAINING COUNTS WILL BE YES, I WILL. ANYTHING FURTHER, COUNSEL?

ALL RIGHT.

THE GOVERNMENT'S MOTION OF REMAINING

MR. BURCHAM: THE COURT: ***

GOOD LUCK TO YOU, SIR.

END OF REQUESTED TRANSCRIPT *** -OOO-

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DATE:

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 ON APRIL 18, 2008; 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.

MAY 27, 2008, AT SAN DIEGO, CALIFORNIA. S/MAURALEE A. RAMIREZ MAURALEE A. RAMIREZ OFFICIAL COURT REPORTER RPR, CSR NO. 11674

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