Free Sentencing Memorandum - District Court of California - California

Case 4:08-cr-00063-CW

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BARRY J. PORTMAN Federal Public Defender ANGELA M. HANSEN Assistant Federal Public Defender 555 ­ 12th Street, Suite 650 Oakland, CA 94607-3627 510-637-3500 (phone) 510-637-3507 (fax) Counsel for Defendant BAEZ-BAEZ

6 7 8 9 10 11 12 13 14 15 16 Salvador Baez-Baez, though his attorney, Assistant Federal Public Defender Angela M. 17 Hansen, submits this sentencing memorandum to respectfully request that the Court sentence him to 18 24 months in custody for the instant offense and six months in custody for his supervised release 19 violation ­ for a total sentence of 30 months. Thirty months is a reasonable sentence, it comports 20 with the terms of the plea agreement and is sufficient but not greater than necessary to achieve the 21 sentencing goals of 18 U.S.C. § 3553(a). 22 Mr. Baez entered into a Rule 11(c)(1)(C) plea agreement with the government in which the 23 parties agreed to a sentencing range of 30-41 months. See Plea Agreement ¶ 8. If the Court accepts 24 Mr. Baez's plea agreement, he cannot be sentenced outside of this agreed-upon range. The actual 25 sentencing range for the instant offense is 24-30 months. The agreed-upon range is higher than this 26 UNITED STATES OF AMERICA, ) ) ) Plaintiff, ) ) vs. ) ) SALVADOR BAEZ-BAEZ, ) ) Defendant. _____________________________________ ) No. 04-40183-CW No. 08-00063-CW DEFENDANT'S SENTENCING MEMORANDUM Date: June 25, 2008 Time: 2:00 p.m. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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range because the parties reached an agreement that takes into account the fact that Mr. Baez was on supervised release for illegal reentry at the time he returned to the United States. PSR ¶ 3. Therefore, a sentence at the low-end of the agreed-upon range (30 months), which is six months higher than the low-end of the actual range, would provide a significant punishment for Mr. Baez on both cases. It is not disputed that Mr. Baez is at an offense level 10 and in Category VI criminal history, for an adjusted guideline range of 24-20 months for the new illegal reentry charge. PSR ¶ 62. While Mr. Baez has a significant criminal background, most of his prior offenses are misdemeanor convictions and he has no violent or aggravated felonies. In fact, his only pre-deportation felony conviction is the illegal reentry conviction he sustained in this Court in 2005. PSR ¶¶ 26-34. As a result, he does not receive the 16-level adjustment under Guideline § 2L1.2 as most other defendants in Mr. Baez's situation usually do. PSR ¶ 15. Mr. Baez admittedly lost the Court's trust in returning to this country while he was on federal supervision. But he returned to this country to work. See Exhibit A, June 5, 2008 Letter from Rogelio Chavez, attached. Like his brother and father, Mr. Baez is a fence builder. PSR ¶ 48. He was employed as a journeyman at Universal Fences in Oakland and was responsible for a crew of six. Exhibit A, Chavez Letter. In working with his team, he showed "great leadership skills and was definitely a team player." The president of the company reports that Mr. Baez "was always very polite and respectful to all of our staff and our customers." Id. He also returned because members of his family reside here in the United States. His father, three of his siblings and several cousins all live in the Bay Area. PSR ¶ 48; see also, Exhibit A, Letters from Roy Chavez and Brenda Camacho. Mr. Baez's cousin, Roy Chavez, reports that Mr. Baez is "a very humble person" and his "presence" in the family is missed. Exhibit A. Mr. Baez's cousin Brenda Camacho echoes the same sentiment: Mr. Baez "is a loving and caring person. He was "always known in the family as the person who would help others when they needed it." Id. -2-

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Sometime after Mr. Baez returned to the United States, he was arrested. He was at home sleeping on his family couch when officers conducted a probation search there. Officers recovered drugs from a safe in the home where Mr. Baez's brother was also staying. PSR ¶ 6. Mr. Baez took responsibility for the drugs and was then convicted of a new offense, possession of drugs for sale. PSR ¶ 35. He had no prior record of drug sales. PSR ¶¶ 26-34. The state court sentenced Mr. Baez to one year in state custody for this offense. PSR ¶ 35. Unfortunately, Mr. Baez will not get any federal credit for the state time he served. Nevertheless, Mr. Baez does not seek a downward departure to remedy that lost opportunity, although the Ninth Circuit has recognized that such a departure would be appropriate. See United States v. Sanchez-Rodriguez, 161 F.3d 556 (9th Cir. 1998). Nor does he request a fully concurrent sentence for his revocation. Instead, Mr. Baez requests a low-end sentence for the instant offense and an additional six months for the supervised release violation. In the alternative, if the Court decides to sentence Mr. Baez to a longer sentence for his supervised release violation, he requests that any time over six months be ordered to run concurrent to the time given for the instant offense.1 The Court has the discretion to sentence Mr. Baez to concurrent time despite the Commission's recommendation in Guideline § 7B1.3(f) that the Court impose consecutive sentences. Even before the Supreme Court changed the landscape of federal sentencing in Booker, Kimbrough and Gall, the revocation guidelines were not binding on the Court. In United States v. George, 184 F.3d 1119 (9th Cir. 1999), the Ninth Circuit held that the Sentencing Commission's policy statements in Chapter 7 are advisory. Id. at 1121-22 ("Because the Commission has not yet . . . changed its view that the Chapter 7 policy statements are merely advisory, we see no reason to reduce the flexibility of district courts in sentencing supervised release violators."); see also United States v. Bahe, 201 F.3d 1124, 1129, n.5 (9th Cir. 2000) ("The Sentencing Commission has yet to

Mr. Baez was on supervised release for a Class C felony, and thus the statutory maximum he can receive on a revocation is two years. 18 U.S.C. § 3583(e)(3). -3-

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promulgate mandatory guidelines dealing with revocation of probation or supervised release."). In United States v. Jackson, 176 F.3d 1175, 1178 (9th Cir. 1999), the Ninth Circuit explained that upon revocation of multiple terms of supervised release, it is within the district court's discretion to impose either a concurrent or consecutive sentence. Id. Courts may consider factors such as the seriousness of the offense, deterrence, protection of the public and the need for education or other treatments. Id. (citing sentencing factors listed in 18 U.S.C. § 3553(a)). In Mr. Baez's case, he has a less serious criminal record than most defendants charged with illegal reentry, as is reflected in his base offense level, and he is requesting a punishment (30 months) that is incrementally greater than the last sentence he received for illegal reentry (21 months). This greater punishment is a sufficient deterrent. Moreover, Mr. Baez most likely suffers from an untreated addiction to drugs, as is reflected in his most recent conviction. PSR ¶ 53. While his addiction does not excuse his behavior, it does put much of his criminal history into context. In deciding upon the appropriate sentence within the agreed-upon range, this Court must not only consider the guidelines, but must also consider the other directives set forth in 18 U.S.C. § 3553(a). See United States v. Booker, 543 U.S. 220 (2005). "The overarching statutory charge for a district court is to impose a sentence sufficient, but not greater than necessary" to achieve the goals of section 3553(a). United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (internal quotations omitted). Those goals include the need: · · · · to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

18 U.S.C. § 3553(a)(2). 23 Section 3553(a) directs sentencing courts to consider a number of additional factors, 24 including: 25 26 -4-

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· · · · · · ·

the nature and circumstances of the offense, § 3553(a)(1); the history and characteristics of the defendant, § 3553(a)(1); the kinds of sentences available, § 3553(a)(3); the sentencing guideline range, § 3553(a)(4); pertinent Sentencing Commission policy statements, § 3553(a)(5); the need to avoid unwarranted sentencing disparities, § 3553(a)(6); the need to provide restitution to any victims of the offense, § 3553(a)(7).

A sentence of thirty months imprisonment accomplishes the goals of section 3553(a). First, Mr. Baez's significant criminal history is adequately accounted for and substantially raised his guideline range. Additionally, his criminal record places him in criminal history category VI, a category that significantly increases the recommended sentencing range. Thus, the Guidelines have more than adequately considered Mr. Baez's criminal history, and a sentence at the low-end of the guidelines (24 months) for the instant offense is already sufficiently elevated to account for his individual criminal history, including his most recent conviction for which he served a year just prior to his writ into federal custody to face the instant offense. Moreover, the offense of conviction in this case is illegal re-entry after deportation. While Mr. Baez acknowledges the seriousness of his offense, and admits that he made a terrible mistake in coming back to this country without permission, it is not a violent crime and must be put into context relative to the seriousness of other federal felonies. Indeed, that is precisely what the sentencing guidelines appropriately do in this case. A sentence no higher than the low-end of the guidelines (24 months) appropriately reflects the seriousness of this offense and adequately accounts for his individual offense conduct. An additional six months on top of that will appropriately punish Mr. Baez for returning to this country in violation of his supervised release. No greater amount of time is necessary to achieve the goals of sentencing.

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CONCLUSION In full consideration of his history and characteristics, together with the other goals of sentencing, Mr. Baez respectfully requests that the Court sentence him to a total sentence of 30 months imprisonment for both of his pending cases ­ a sentence which comports with the plea agreement and is sufficient but not greater than necessary to meet the Court's sentencing objectives. Dated: June 18, 2008 Respectfully submitted, BARRY J. PORTMAN Federal Public Defender /S/ ANGELA M. HANSEN Assistant Federal Public Defender

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