Free Other Notice - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona GARY M. RESTAINO Arizona State Bar No. 017450 Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America Plaintiff, v. Besy Arely Maldonado-Perez, Defendant. Pursuant to the Order of March 3, 2006, the government, through counsel undersigned, files
UNITED STATES' BRIEF ON RESENTENCING

CR-03-1064-PHX-SMM

15 a brief with respect to the applicable re-sentencing process in this matter. As set forth below, 16 the Court should: 1) calculate an advisory offense level based on a preponderance of the 17 evidence; 2) use the Sentencing Guidelines as a starting point towards imposition of a sentence; 18 3) consider defendant's individualized circumstances; and 4) impose a reasonable sentence 19 following any allocution by defendant. 20 A. Factual Background 21 On or about March 24, 2003, officers from the Phoenix Police Department and agents from 22 U.S. Immigration and Customs Enforcement ("ICE") arrived at 4620 W. McDowell Road, 23 Apartment 1121, in response to allegations of alien smuggling activities. ICE agents detained 24 five adult individuals suspected of engaging in the alien smuggling activities, including Raul 25 Sotomayor-Nava and Carlos Henriquez-Gomez. Criminal charges were presented against the 26 five suspects on March 26, 2003, and each of the five has since entered a plea of guilty and has 27 either been sentenced or is awaiting sentencing. 28

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The investigation continued after the presentation of criminal charges against the original

2 five defendants. The investigation led to defendant Maldonado as a result in part of a phone call 3 from jail placed to her by the co-conspirators. (Trial Ex. 11.) On October 16, 2003, the grand 4 jury returned a four-count indictment against defendant Maldonado as a result of her 5 participation in the activities of the alien smuggling organization. The indictment charged 6 defendant with the following offenses: 1) conspiracy to hold illegal aliens hostage to compel 7 third parties to pay money (through the overt acts of holding illegal aliens hostage at gunpoint 8 and using Western Union to transmit funds from relatives of the aliens), in violation of 18 U.S.C. 9 § 1203; 2) detaining Humberto Hernandez-Ortega, Baltazar Aguirre-Diaz, Fidel Carillo10 Bermudez, Marcos Cruz-Delgado, Prospero Leon-Rodriguez and other illegal aliens in order to 11 compel third parties to pay money for their release, in violation of 18 U.S.C. §§ 1203 and 2; 3) 12 conspiracy to harbor illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) and (II); and 13 4) harboring illegal aliens in violation of 8 U.S.C. §1324(a)(1)(A)(iii). 14 On May 27, 2004, a jury convicted defendant of counts 1, 3 and 4, and acquitted her on

15 count 2. On October 6, 2004, the Court sentenced defendant, as to count 1 and at offense level 16 32, to 121 months imprisonment followed by 5 years supervised release. 17 B. Proposed Re-Sentencing Procedure 18 The Court must first calculate the offense level under the advisory Guidelines. United States

19 v. Booker, 125 S. Ct. 738, 767 (2005); United States v. Ameline, 409 F. 3d 1073, 1086 (9th Cir. 20 2005) (en banc); see also 18 U.S.C. § 3553(a)(4)-(5). To the extent the Court makes any factual 21 findings in resolving any objections to the Presentence Investigation Report, the preponderance 22 of the evidence standard remains, as a general rule, the appropriate standard for factual findings 23 post-Booker. See United States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005) (determining a 24 statutory sentencing enhancement for the discharge of a firearm in furtherance of a drug 25 trafficking offense); see also Booker, 125 S. Ct. at 763 (noting that "Congress would not have 26 enacted sentencing statutes that make it more difficult to adjust sentences upward than to adjust 27 them downward"). The government supports the recommendation in the PSR of offense level 28
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1 43 in this case based on defendant's role in the offense, the number of victims and the other 2 offense conduct. 3 The Guidelines are based on the various sentencing factors in 18 U.S.C. § 3553(a), and the

4 Court must next consult the Guidelines as a starting point. United States v. Zavala, ­ F.3d ­, 5 2006 WL 914528 (9th Cir. 2006). "[The Guideline calculation] is at least a point that has been 6 fixed after consideration of the various sentencing factors in § 3553(a)." Id. The starting point 7 to defendant's sentence is life imprisonment. 8 From the starting point of life imprisonment, the Court should consider other individualized

9 factors as to defendant that fit within section 3553(a). "And if there is more information about 10 the particular individual before the court, nothing discourages the consideration of that; nor can 11 anything discourage it." Id. This defendant had considerably more advantages in her

12 upbringing than the typical federal defendant, and many recognized departures are inapplicable 13 in consideration of defendant's individualized circumstances as the daughter of a successful 14 small-business owner in Honduras, the sister of a certified public accountant in Florida and the 15 recipient of a teaching degree. Under the circumstances of this case, the government contends 16 both that a Guideline sentence takes into account all of the individualized circumstances of 17 defendant, and that a Guideline sentence would be a reasonable sentence, and accordingly asks 18 the Court to reduce the sentence from life imprisonment, if at all, based on recognized 19 departures to the Guidelines. 20 The Court should, in particular, give a fresh look to defendant's rejected request for a

21 downward departure based on the duress allegedly caused by her absent common-law husband, 22 pursuant to U.S.S.G. § 5K2.12. (RT 10/6/04 62-63.) In the original sentencing hearing the 23 Court determined that duress provided a "closer basis" than other departures, and duress may 24 prove to be a reasonable departure in the context of a reduction from a life sentence. 25 At re-sentencing the Court is not bound to a cap of the original 121 months imposed,

26 provided that non-vindictive reasons support the sentence. See, e.g. United States v. Bad 27 Marriage, 439 F.3d 534, 539 (9th Cir. 2006) (affirming the higher sentence on remand after 28
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1 appeal, based on the non-vindictive reason that the Court was no longer bound by the 2 Guidelines). In the instant case, the retroactivity of Booker means that the Court may consider 3 uncharged Guidelines sentencing enhancements established by only a preponderance of the 4 evidence, which provide a non-vindictive and reasonable basis to impose a sentencing exceeding 5 121 months. See United States v.Kortgaard, 425 F.3d 602, 611 (9th Cir. 2006) (remanding for 6 resentencing "under the now-advisory Guidelines regime"). In recognition of the uncertainty 7 surrounding the meaning of Booker at the time of the filing of defendant's opening brief, the 8 government recommends the same sentence of 121 months imposed by the Court at the original 9 sentencing hearing in lieu of an increased sentence as supported by the facts and circumstances 10 of this case. 11 12 13 14 15 16 17 18 CERTIFICATE OF SERVICE Respectfully submitted this 8th day of May, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Gary Restaino GARY M. RESTAINO Assistant U.S. Attorneys

I hereby certify that on this date, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic 19 Filing to the following CM/ECF registrants: Neil LaBarge. 20 21 22 23 24 25 26 27 28
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