BRIAN K. EPPS, Magistrate Judge.
Petitioner, currently incarcerated at McRae Correctional Institution, brought the above-captioned case pursuant to 28 U.S.C. § 2241. Presently before the Court is Petitioner's motion for Rule 11 sanctions, (doc. no. 17), in which Petitioner claims Respondent intentionally failed to serve Petitioner with Respondent's return on order to show cause. (
Federal Rule of Civil Procedure 11 authorizes sanctions when a party files a pleading (1) that has no reasonable factual basis; (2) that is based on a legal theory that has no reasonable chance of success and cannot be advanced as a reasonable argument to change existing law; or (3) in bad faith for an improper purpose.
Rule 11(c)(2)'s safe harbor provision requires a party moving for sanctions to first serve the motion upon the offending party and wait twenty-one days after the motion is served before filing the motion with the court. Fed. R. Civ. P. 11(c)(2);
Here, Petitioner is not entitled to Rule 11 sanctions because Respondent has not committed misconduct. Respondent filed his return on order to show cause on November 23, 2015, and the certificate of service indicates it was mailed to Petitioner that same day. (Doc. no. 11, p. 8.) On January 11, 2016, Petitioner filed a motion for a default judgment, alleging he did not receive a copy of the return. (Doc. no. 12.) Respondent immediately reserved the return the next day. (Doc. no. 13.) Although Petitioner alleges Respondent acted in bad faith by sending a process receipt instead of the return, process receipts are sent from the United States Marshals Service, not the U.S. Attorney's Office. (Doc. no. 18, p. 4.) As the docket reflects, Respondent has made diligent efforts to ensure Petitioner received a copy of the return, and Respondent is not liable for lost mail.
Significantly, Petitioner has failed to comply with Rule 11(c)(2)'s twenty-one day safe harbor provision, subjecting his motion to dismissal.
For the reasons set forth above, the Court
SO ORDERED.
COMES NOW Respondent, Stacey Stone, Warden, through the United States Attorney for the Southern District of Georgia, to file this Return on Order to Show Cause, showing the Court as follows:
Inmate Jose Luis Villegas-Macias (Petitioner) filed a petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, alleging the Bureau of Prisons (BOP) erred in the calculation of his sentence. Specifically, Petitioner maintains he is entitled to credit against the pretrial portion of his sentence, for time spent in pretrial detention from November 16, 2012 to February 6, 2013. Doc. No. 1. Petitioner already received appropriate credit toward his sentence and his Petition should be denied.
Jose Luis Villegas-Macis, Federal Register No. 64371-019, is incarcerated, in this district, at the McRae Correctional Facility (McRae) in McRae, Georgia.
Petitioner exhausted his administrative remedies and his Petition is ripe for review.
On November 16, 2012, state authorities arrested Petitioner in Gwinnett County, Georgia for Trafficking in Marijuana. On February 4, 2013, state charges were dismissed and Petitioner was released to federal custody on February 6, 2013.
Nearly two years later, United States District Judge Amy Totenberg sentenced Petitioner on January 7, 2015, to forty-three-months based on his guilty plea to Conspiracy to Possess with Intent to Distribute Marijuana, in violation of 21 USC §§ 841 (a)(1), & (b)(1)(C) and 846.
At sentencing, Judge Totenberg "fashioned a sentence to give the defendant credit for time served in state custody from November 16, 2012 to February 6, 2013."
The BOP's Designation and Sentence Computation Center wrote Judge Totenberg a letter, on June 25, 2015, explaining why credit was not applied from November 16, 2012 through February 6, 2013. The BOP invited Judge Totenberg to contact them if she had any questions or concerns with the computation. The BOP never received a response from Judge Totenberg.
Petitioner already received credit for pretrial detention spent in state custody and he is not entitled to additional credit. Petitioner maintains he is entitled to credit against the in-custody portion of his federal sentence for time he spent in pretrial detention in Gwinnett County, Georgia. Petitioner seeks credits from November 16, 2012 to February 6, 2013 — a total of 82 days.
Title 18 U.S.C. § 3585 provides the following:
18 U.S.C. § 3585 (emphasis added).
This statute established two principles of sentence crediting. First, the defendant must have served the time as a result of either the offense underlying the sentence or an offense for which the defendant was arrested after commission of the underlying offense. 18 U.S.0 § 3585(b)(1)-(2). Petitioner satisfied this requirement because he seeks credit for 82 days he spent in state custody prior to his release to federal authorities for prosecution of the charge for which he is currently incarcerated.
Second, under no circumstances may a defendant receive double credit for time served prior to sentencing. Section 3585 expresses this principle in two ways, first by providing that a defendant shall receive credit for "the time he has spent in official detention prior to the date the sentence commences."
Citing
The issue at hand, unresolved by
First, such would elevate statutory form far over substance by demanding double credit based solely on the technicality that the BOP should have granted the credit after sentencing rather than the sentencing judge. While § 3585 does delegate this administrative duty to the BOP, a technical violation of this delegation does not justify granting double credit in violation of the statute's core principle of prohibiting double credit. Petitioner's request would not erase the technical violation but, instead, would exacerbate the problem by adding an egregious violation of a core principle of § 3585.
Second, the BOP has not abandoned its administrative duty under § 3585 to determine whether and to what extent the Petitioner is entitled to a credit. On the contrary, the BOP determined that (1) the sentencing judge correctly calculated and applied credit for Petitioner's pretrial detention in state custody; and (2) it could not award him additional days of credit because of the statutory double credit prohibition. BOP's determination is correct, and certainly well within reason under the deferential standard that applies to its interpretation and application of § 3585.
Two other courts considered this precise issue and both held — that the BOP should recognize the credit granted by the sentencing judge and — not award double credit.
Finally, even if the Court accepted Petitioner's argument that Judge Totenberg erred in awarding jail credit at sentencing, such error would not provide Petitioner with any grounds for relief because Petitioner invited the error.
For the above and foregoing reasons Petitioner's § 2241 habeas petition should be dismissed.
This 23rd day of November, 2015,
The defendant pleaded guilty to Count 1 of the Information.
Accordingly, the defendant is adjudged guilty of such count which involves the following offense:
The defendant is sentenced as provided in pages 2 through 5 of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984.
It is ordered that the defendant shall pay the special assessment of $100 which shall be due immediately.
IT IS FURTHER ORDERED that the defendant shall notify the United States attorney for this district within thirty days of any change of name, residence, or mailing address until all fines, restitution, costs and special assessments imposed by this judgment are fully paid.
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of
The Court recommends the defendant be incarcerated at CI McRae in McRae, GA.
Upon completion of the term of imprisonment and release from the custody of the Bureau of Prison, the defendant is to be turned over to a duly-authorized immigration official for appropriate removal proceedings from the United States, pursuant to 18 U.S.C. § 3583(d) in accordance with the Immigration and Nationality Act. The defendant shall not reenter the United States unless he applies and receives permission from the Secretary of Homeland Security to legally enter the United States.
The defendant is remanded to the custody of the United States Marshal
I have executed this judgment as follows:
_______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ Defendant delivered on _________________________ to ______________________ at _____________________________________ with a certified copy of this judgment
Upon release from imprisonment, the defendant snail be on supervised release for a term of
While on supervised release, the defendant shall not commit another federal, state or local crime and shall not illegally possess a controlled substance. The defendant shall comply with the standard and special conditions that have been adopted by this court (set forth below(. If this judgment Imposes a restitution obligation, it shall be a condition of supervised release that the defendant pay any such restitution that remains unpaid at the commencement of the term of supervised release. The defendant shall comply with the following additional conditions:
The defendant shall not possess a firearm as defined in 18 USC § 921.
The defendant shall report in person to the probation office In the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons.
Upon completion of the term of imprisonment and release from the custody of the Bureau of Prison, the defendant is to be turned over to a duly-authorized immigration official for appropriate removal proceedings from the United States, pursuant to 18 U.S.C. § 3583(d) in accordance with the Immigration and Nationality Act. The defendant shall not reenter the United States unless he applies and receives permission from the Secretary of Homeland Security to legally enter the United States_
The defendant shall submit to one drug urinalysis within 15 days after being placed on supervision and at least two periodic tests thereafter.
The defendant shall not own, possess or have under his control any firearm, dangerous weapon or other destructive device.
The defendant shall submit to a search of his person, property, residence and/or vehicle(s) at the request of the United States Probation Officer based upon reasonable suspicion that the defendant has violated his supervised release or the law.
Pursuant to 42 U.S.C. § 14135a(d)(1) and 10 U.S.C. § 1565(d), which requires mandatory DNA testing for federal offenders convicted of felony offenses, the defendant shall cooperate in the collection of DNA as directed by the probation officer.
While the defendant is on supervised release pursuant to this judgment, the defendant shall not commit another federal, state or local crime. In addition:
1. The defendant shall not leave the judicial district without the permission of the court or probation officer;
2. The defendant shall report to the probation officer as directed by the court or probation officer and shaft submit a truthful and complete written report within the first five days of each month;
3. The defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;
4. The defendant shall support his or her dependents and meet other family responsibilities;
5. The defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons;
6. The defendant shall notify the probation officer within 72 hours of any change in residence or employment;
7. The defendant shall refrain from the excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any narcotic or other controlled substance, or any paraphernalia related to such substances, except as prescribed by a physician, and shall submit to periodic urinalysis tests as directed by the probation officer to determine the use of any controlled substance;
8. The defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;
9, The defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer;
10. The defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer;
11. The defendant shall notify the probation officer within 72 hours of being arrested or questioned by a law enforcement officer;
12. The defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court;
13. As directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement.
The Court finds that the defendant does not have the ability to pay a fine and cost of incarceration. The Court will wave the fine and cost of incarceration in this case.
Regional Administrative Remedy Appeal 819958-R1 Part B Response
This is in response to your Regional Administrative Remedy Appeal in which you request additional prior custody credit. Specifically, you want credit from November 16, 2012, through February 5, 2013, while you were in state custody.
A review of your records reveals your sentence computation was certified by the Designations and Sentence Computation Center on February 5, 2015. They determined at that time that your sentence computation to include your release date of March 21, 2016, via GCT Release, was correct. Additionally, it should be noted that your sentence computation states on page 2 in the remarks section, "Court reduced term for time spent in state custody from 11-16-12, through 2-5-13." Therefore, it appears that you have already received credit for the time you spent in state custody by reducing the length of your federal sentence.
Based on the above, your appeal is denied. If you are dissatisfied with this response, you may appeal to the Office of General Counsel, Federal Bureau of Prisons, 320 First Street, NW, Washington, DC 20534. Your appeal must be received in the Office of General Counsel within 30 calendar days from the date of this response.
This is in response to your Central Office Administrative Remedy Appeal wherein you request to be given credit for time spent in state custody from November 16, 2012, through February 5, 2013.
Our review of your record reveals you were arrested in Gwinnett County, Georgia, on November 16, 2012, for Trafficking in Marijuana. On February 4, 2013, the state charges were dismissed. Records reflect on February 6, 2013, you were released from Gwinnett County custody to the United States Marshals Service based on a federal detainer.
On January 7, 2015, you were sentenced in the United States District Court, Northern District of Georgia, to a 43-month term of imprisonment for Conspiracy to Possess with Intent to Distribute Marijuana. The Court reduced your sentence to give you credit for time spent in state custody beginning November 16, 2012, through February 6, 2013.
Title 18 U.S.C. § 3585(b) states in part; "A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences, as a result of the offense for which the sentence was imposed or as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed, that
Additionally, you are receiving credit for the time spent in federal custody from February 6, 2013, through January 6, 2015, and your federal sentence commenced on the date it was imposed on January 7, 2015.
We find your sentence has been computed as directed by federal statute, the intent of the Court, and Bureau of Prisons Program Statement 5880.28,
Accordingly, your appeal is denied.
(Court was called to order at 3:34 p.m.)
THE COURT: Good afternoon. Please be seated.
Good afternoon, counsel. We are here for the sentencing in the cases of Raul Miramontes and Jose Luis Villegas-Macias. Good afternoon to both of you.
THE DEFENDANT: Good afternoon, Judge.
THE COURT: And good afternoon to counsel.
MR. KITCHENS: Good afternoon, Judge.
THE COURT: This is Case No. 14-cr-334.
MR. CALLAHAN: Your Honor?
THE COURT: Yes.
MR. CALLAHAN: Actually I believe it's 13-cr-339.
THE COURT: Oh. You have a different number?
COURTROOM DEPUTY: There are two numbers.
THE COURT: All right. Thank you. Well maybe that's the first thing we need to do is make sure that the correct number is on the presentence report.
But in connection with the pre-sentence report, I do want to say that I am enormously appreciative of the probation officer's work on this case. Mr. Lee worked throughout the vacation in order to — Christmas vacation — or
non-vacation — in order to get these done in time so that Mr. Callahan could go on with his life.
And of course the defendant who has been incarcerated for a substantial period of time could actually get a permanent assignment. So I am most appreciative of that, always.
So Mr. Miramontes' case is 1:14-cr-222, and Mr. Villegas-Macias's case is 1:14-cr-334. And I gave that — I was saying the four numbers wrong.
MR. CALLAHAN: No, that is correct.
THE COURT: Okay. All right. All right.
I was going to do Mr. Miramontes' case — I was going to do both, but we have an objection in the — Mr. Miramontes' case to not giving a larger adjustment for role. And to some extent the adjustment for role I would want to hear from both in case you have any objection, as well.
I understood from the probation officer just now that there has been a change in position since the presentence report as to the safety valve, is that right?
MR. KITCHENS: That's correct, Your Honor. Before the sentencing date we received a full debrief from both defendants, both Mr. Miramontes as well as
Mr. Villegas-Macias. And that was the last requirement that was missing in order to qualify for that safety valve and so we are withdrawing our objection.
THE COURT: Okay.
MR. KITCHENS: And we believe the two-level reduction should apply as well.
THE COURT: Thank you, very much.
Let me ask Mr. Miramontes, first of all, have you seen the presentence report in this case?
DEFENDANT MIRAMONTES: Yes.
THE COURT: All right. Did we —
COURTROOM DEPUTY: We did not, Your Honor.
THE COURT: All right. Would you go ahead and swear in the defendants.
having been first duly sworn, testified through the Spanish interpreter as follows:
THE COURT: So just to confirm, Mr. Miramontes, you did see the presentence report, and was it interpreted for you?
DEFENDANT MIRAMONTES: Yes.
THE COURT: All right. And did you have an opportunity to talk to your attorney about the report and any questions or concerns you had about that report?
DEFENDANT MIRAMONTES: Yes.
THE COURT: And was Mr. Cognac able to respond to your questions and concerns?
DEFENDANT MIRAMONTES: Yes.
THE COURT: Do you have any outstanding issues or questions that you want to ask him about before we proceed with the sentencing today?
DEFENDANT MIRAMONTES: No.
THE COURT: Okay. Let me ask Mr. Villegas the same questions.
Mr. Villegas, do you have any questions about the 6 report, and have you actually had it interpreted for you? Let's back up. I asked you two different questions.
First of all, did you see the presentence report?
DEFENDANT VILLEGAS-MACIAS: Yes.
THE COURT: And did you have an opportunity to talk with your attorney about the report?
DEFENDANT VILLEGAS-MACIAS: Yes.
THE COURT: And it was interpreted for you?
DEFENDANT VILLEGAS-MACIAS: Yes.
THE COURT: And do you have any outstanding questions or concerns about the report?
DEFENDANT VILLEGAS-MACIAS: No.
THE COURT: All right. Then if either of you at any time during the sentencing hearing need to talk to your attorney, you of course can just tell us that you want to and I will stop so that you can do so. All right.
Mr. Miramontes filed an objection indicating that he thought that the adjustment for role should be greater than 2; it should be 4. Mr. Cognac, did you want to go ahead and address that?
MR. COGNAC: Yes, Your Honor. And realistically, Your Honor, I believe that our clients are in the exact same situation.
THE COURT: All right.
MR. COGNAC: So anything that I argue, if it would be granted, it would — I believe it would necessarily apply to the codefendant as well because they are both in the same situation factually and as far as the criminal history.
THE COURT: Okay.
MR. COGNAC: So I think it would apply to both.
THE COURT: All right.
MR. COGNAC: And I would start by saying that the guidelines for minimal role, up until 2001, provided examples, specifically including the guidelines in 2000. There was an application note that said it would be appropriate, for example, for someone who played no other role in a very large drug smuggling operation than to offload part of a single marijuana shipment or, in a case involving an individual who is recruited as a currier, for a single smuggling transaction involving a small amount of drugs.
And my argument is that the former application note specifically delineates what I believe the situation is here for my client. He is a one-time offloader.
THE COURT: Was there any explanation in 2002 when that application note was deleted? Because they often have explanations.
MR. COGNAC: Right. The amendment was Amendment 635 to the guidelines. And what happened in that amendment was the sentencing commission modified the guidelines to take what was the Eleventh Circuit's opinion in Rodriguez de Varona to codify that into the sentencing guidelines.
So what they did was eliminate all the previous application notes, and then the new application notes basically were codifying Rodriguez de Varona which indicated that a defendant is not precluded from a mitigating role even if they are only held accountable for relevant conduct that they in fact participated in. Which is — and when they did that, they just eliminated the previous applications.
But there is no — they didn't disavow what they said in the previous application. They just replaced it with a new language, that being Rodriguez de Varona.
THE COURT: Well since I wasn't handling these matters back in 2000 or 2001, let me ask you this. From your perspective, did the Rodriguez case and its codification change the concept of minimal role or mitigation concepts that are currently — that were then in place and did it
MR. COGNAC: No. In fact in the Eleventh Circuit, it basically was adopting what the Eleventh Circuit opinion was. There was a split in the circuit. Some of the other circuits had indicated that if you were only held accountable for your relevant conduct, only what you participated in in that there wasn't a larger conspiracy that had more drugs that you had participated in. For instance in our case other circuits would have been saying you are precluded from any kind of mitigating role because your relevant conduct is only conduct that you participated in.
The Eleventh Circuit, pursuant to Rodriguez de Varona, which is a 1999 decision, was of the — the opinion was that simply that did not preclude you from consideration. That you didn't necessarily get it, but you're not precluded from consideration if you're only held accountable for what in fact you participated in.
THE COURT: All right.
MR. COGNAC: But other than that, I don't think there is any substantial difference between how the guidelines were applied previously and how they are applied after that.
So, you know, the factual scenario we have is my client and Mr. Villegas-Macias are one-time offloaders of this rather complex smuggling of marijuana. This wasn't a haphazard event.
These pieces of furniture were specifically designed with a very narrow false back, and the marijuana was packaged in an unusual manner and it was very narrow from what we typically see how marijuana is packaged in a kilo. They tend to be thicker. And it was done on purpose so these pieces of furniture, with a very narrow false back, you couldn't see it or look at it and say there is something off about that.
And when they did the search of the furniture store, as the Court remembers because you tried this case, half of the load went into the furniture store, half of it went to the warehouse. The marijuana was found in the furniture in the warehouse. There was no marijuana found in the furniture score furniture.
But when they did the search warrant they found pieces of furniture that had the same very narrow false back, which would indicate this was not the first time that this had happened. So it's a larger conspiracy and a complex one involving pressing the marijuana in a way that they don't nominally do and making this furniture specifically for this purpose.
So, you know, what the guidelines speak to is the defendant not having — a lack of knowledge and understanding of the scope and structure of the enterprise and activities of the others is indicative of a minimal role.
My argument is my client had no idea that there had been previous shipments; how this was done; how the furniture was made; how the marijuana was compressed in this way that was unusual to this case. And that it is evidence of a larger more complex conspiracy and that my client, being a one-time offloader, although the guidelines — and the Court knows, it's meant to be applied infrequently, but based on the example that the guideline used to give, is a one-time offloader of a marijuana shipment. Which is what we have here.
And I think given the facts and what my client did in relation to this larger more complex operation, and his lack of understanding or knowledge of the scope and structure of the criminal enterprise, that he in fact qualifies for minimal role as opposed to just minor role.
THE COURT: Well do you have any other evidence that you can point me to that relates to his being a one-time offloader?
I understand the argument if he just happened to be there that day and constructed and — for whatever reason, you know, the defendant, the lead defendant Mr. Bocanegra knew him, knew his father — just — I don't know why one person versus another of the six people who were working that day, in addition to Mr. Bocanegra, the day before, why these two ended up in the warehouse.
And I don't know whether it means that they had greater knowledge. I don't know whether it was simply because they were trapped because he knew them otherwise or . . . I have no information on whether or not — but the thing about it is is that, obviously, role reduction is the defendant's burden.
MR. COGNAC: I understand.
THE COURT: So I'm just trying to see is there other evidence that you're aware of that would clarify how they got into this position?
MR. COGNAC: Your Honor, in the debrief statement that we had provided to the government, my understanding of how this transpired was Mr. Bocanegra knew my client and knew Mr. Villegas-Macias because he had previously worked in construction with a friend who knew both Villegas and my client.
That they had a very casual relationship. Had never been involved in any kind of situation or worked together. Just kind of knew one another.
And approximately a day or two days before this transpired, Mr. Bocanegra called my client, asked him if he would help him unload furniture. Offered to pay him $100 or $120 to do it — which he never got paid. And then they went there. The truck that they were — they were in a pickup truck, they picked up those other individuals somewhere off of Buford Highway, who were like day laborers.
They unloaded half of the furniture into the furniture store —
THE COURT: So the other guys are day laborers, and he knew these gentlemen who I think — well, I know at least he must have known Mr. Villegas-Macias through his uncle, I think.
MR. COGNAC: Right.
THE COURT: Who appeared yesterday.
They all got together beforehand. It wasn't that they were picked up as day laborers.
MR. COGNAC: No. Mr. Bocanegra called my client. I can't speak for Mr. Villegas-Macias. My client knew Mr. Bocanegra because he had worked construction with a friend of my client some years ago.
And after they picked up the day laborers, they unloaded half into the furniture store, half into the warehouse. Mr. Bocanegra asked if he would come back the next day and asked if he would help to unpack. And that's when my client, unpacking the next day, when he learned that there was marijuana in there.
And that's, you know, that's the statement that my client has provided the government. I believe that to be true. I don't believe the government has any evidence that would indicate that that's not true.
THE COURT: All right. Thank you.
Mr. Callahan, do you want to —
MR. CALLAHAN: If I may, briefly, Your Honor.
THE COURT: Yes.
MR. CALLAHAN: And for the safety valve statement, Mr. Villegas-Macias also essentially wrote out that same version of events for the government for the safety valve. can provide a copy of that report.
What he has explained to the probation officer during iris interview and what I also explained to the Court during his plea is essentially what Mr. Cognac said. That they were called about going to work that first day to help offload, and the shipment was split up between the store and the warehouse.
And then he was called again the second day, with Mr. Miramontes, to go back to do work on the furniture. And by that, what Mr. Villegas-Macias understood going into it, his role the second day was to do light handy worked on the furniture, if you will. Fill in creases and cracks and put the door handles on the furniture, basically assemble it after having been shipped from Mexico
And it's when they were in the warehouse that second morning, that's when he realized at some point that there were drugs in the furniture and drugs being pulled out of it. And I believe we explained or discussed that during his plea and also explained that to probation.
I would argue that they both essentially were day laborers in this situation because they were contacted by Bocanegra the same as the other guys to help with the offloading, and then were asked to come back separately and do the additional work the second day. And that was the nature of Mr. Villegas-Macias's work in general, he was a construction day laborer and he had done a lot of work for Bocanegra's cousins and the uncle and that's how he knew — Bocanegra knew he was available for work.
THE COURT: Had he worked in this warehouse before?
MR. CALLAHAN: My understanding is he had not. In fact I spoke with him at length yesterday and advised him that if he did know of other shipments and had done this other work before, that there were other avenues available to him to get his sentence lowered even more. And he's just repeatedly and consistently stated that nothing like this had happened before. This was the very first time.
THE COURT: But had he worked there before?
MR. CALLAHAN: NO, I don't believe I can go ask him now, Your Honor. I don't; recall that he had worked at the warehouse before. I know he had done work for the family
THE COURT: I know he may have —
MR. CALLAHAN: Right, like light patch work with the furniture, but nothing with hidden compartments or drugs.
THE COURT: Okay. All right' I just want to know if he had worked there before, even if not day-by-day, but had he worked more than five times at, Let's say —
MR. CALLAHAN: I'll check with him again but I believe the last time I talked to him about it he told me he may have done work on furniture for Bocanegra one time before, but not offloading. Just like the repairing and handles and stuff. But he did not work regularly and consistently, if that's the question of the Court. He wasn't a regular employee of the furniture store or wasn't regularly there.
THE COURT: Well I think I'm going a little further than if he was an employee. But if he regularly worked in the warehouse or regularly, once every month, he would perhaps have an opportunity to see strange compartments and be in a position of knowledge?
MR. CALLAHAN: Right. But I've asked him that and he's told me no. And again, because if he had been aware of that it would have opened up other avenues of relief for him in sentencing, in particular in a 5K.
I'm convinced and I'll check with him again when I sit down to hopefully answer that for the Court. But I'm certain there was no knowledge of that before.
THE COURT: Mr. Cognac, did Mr. Miramontes work there before?
MR. COGNAC: No, not at either the warehouse or the furniture store before.
THE COURT: Mr. Kitchens?
MR. KITCHENS: Yes?
THE COURT: The government's position?
MR. KITCHENS: Yes. Thank you, Your Honor.
First, we do agree that the position of Mr. Miramontes and Mr. Villegas-Macias should be treated the same for purposes of whether there is a further reduction or not.
And I think also we are in agreement that the two defendants in fact were substantially less culpable than the average participant, and that applies for both a minor role or a minimal role.
I think the additional burden that of course the defendants have to establish in order to satisfy the very rare case where a four-level reduction applies instead of the two-level, which the probation office has recommended and which we agree, is that they need to satisfy the burden that they were the least culpable of those involved in the conduct of the group. And that is a standard that I don't think there has been sufficient evidence shown by the defendants to satisfy.
There are a couple of things in particular I want to highlight in this.
Mr. Cognac mentioned the Rodriguez de Varona case and the impact on the application notes. One thing I want to note factually in terms of what happened in Rodriguez de Varona, it in fact was a drug courier case. In that case the defendant was a drug courier carrying a large quantity of drugs. And based on that the Court denied a role reduction, both a minor role and a minimal role.
What I think is telling here and that comes out in Rodriguez de Varona is that one of the factors the Court should consider in doing the analysis is the quantity of drugs involved in the offense. And the large quantity of marijuana here militates against a further reduction for a minimal role compared to minor reduction.
Again, in de Verona, one of the factors that the Court cited as not supporting any role reduction whatsoever was the fact that there was a large amount of drugs involved with that drug courier. That even though that was the full extent of the defendant's involvement was as a courier, that based on the quantity of drugs, that was a relevant consideration for whether a role reduction should apply.
THE COURT: But isn't there a distinction between drug courier and regular warehouse worker and the situation here? I mean, if you're a drug courier, you know you're going to be responsible for the transportation of drugs from one person to the next and one place to the next.
These defendants on the other hand did not, quoting their argument, walk into this with any knowledge that that's what they were going to be doing, but instead they found themselves on the second day suddenly in a warehouse where they were asked to take apart furniture and seeing the marijuana.
That's a different level of intent and premeditation about I'm going to be involved with drugs and regardless of there is not even a moment, virtually, about what happened, what's happening? Or what's the scope? Or how many pieces of furniture have drugs in them?
Really it has some substantive differences, doesn't it? Or if it doesn't, tell me why.
MR. KITCHENS: No, and I think I do appreciate the distinction and I see that.
Based on the defendant's statements, this is the only evidence that we have, one way or the other. They are suggesting that they didn't know until the second day when it would have become apparent.
What I think is extraordinary was the quantity. And how this applies to both the drug courier situation as well as his situation is the level of trust placed on the workers. The fact that these two individuals out of the six other individuals on the first day were the only ones selected by Mr. Bocanegra, and entrusted to have this role on the second day in the warehouse, where, keep in mind, based on the evidence, what was going on that second day was not merely moving furniture or offloading from a truck.
What was actually happening on that second day was breaking down the secret compartments of the furniture and stacking up packets of marijuana.
The fact that Mr. Bocanegra entrusted only these two out of the six workers who were present on the previous day reflects the higher level of culpability that these two defendants have. And that's where the larger amount of drugs come into play, just as in the drug courier situation, is that given the level of how many drugs were involved and how serious this crime was, that's a factor that the Eleventh Circuit has recognized reflects upon and should be considered in determining the proper role based on what that individual was entrusted to essentially do in terms of their conduct.
The second factor — and I think this is kind of developing on the point I just made. As much as Mr. Cognac suggested this was a case of one-time offloaders, I think the conduct here, based on the evidence that we have, is that there was more than just offloading from a trailer.
It is correct that on the first day the — Mr. Bocanegra, as well as including Mr. Villegas-Macias and Mr. Miramontes, did just offload at two different locations. They were offloading at the furniture store and then the offloading at the warehouse. In fact if that had been the extent of it, I don't think we would contest the minimum role.
The second day, in terms of conduct and what the evidence shows what actually happened, I think demonstrates that these were not the least culpable defendants in terms of who was involved. Because the evidence, what it showed was by the time the agents came into the warehouse, they arrested the defendants. They came in and what they found was that a portion of the furniture inside had already been broken down with the secret compartments removed with the drug packets taken out of the furniture and stacked up in cardboard boxes.
The testimony also suggests that it took multiple agents to do this. That it was a very time-consuming task because multiple agents needed to move theses pieces of furniture, then break down the pieces of furniture to remove the drugs and move the drugs to a certain location.
THE COURT: What portion of the furniture had already been broken down?
MR. KITCHENS: That I think — and I'm just trying to recall from the testimony — I don't think we got a clear picture of how many had been broken down when the agents came in. I think the testimony was several pieces had been broken down. And the Court may recall the photographs that were taken and the officers — no one was allowed to touch anything until the examiner from Gwinnett, officer Leah Ingram (phonetic), came in to take the photos. And the Court may recall certain pieces of furniture were reflected in those photos that had already been broken down.
And the Court may also recall that I believe there were four cardboard boxes, two of which were opened, that had dozens of packets of marijuana inside. Again suggesting — this was at the time that the agents first came in that there were — I cannot give a specific number and I don't think we received testimony in terms of the specific number but there was enough pieces of furniture broken down to fill four cardboard boxes, ready to transport.
THE COURT: I just can't recall, and I think it is somewhat significant to know how much furniture was actually broken down. I mean maybe you have the photographs in the case file there on what portion of the marijuana was found that was already opened at that point.
I mean my concern is that assuming the defendants' position is true and they are taking the position that they did this, it still doesn't mean that they didn't walk into a situation where basically they had no idea how large it was and maybe this was a one-time thing.
Now I don't know precisely why Mr. Miramontes would have been trusted in that way, and it hasn't been addressed by Mr. Cognac. I could understand given the presentence report why Mr. Villegas-Macias was, because he had worked for members of the family and all of them had different businesses.
He might not technically have been in a position yesterday when he came to court and provided a statement, so he had worked for them for a good long time, many years, from 2004. So I can understand why Mr. Bocanegra, putting aside anything that this gentleman may have done, that he would have said oh this is somebody who works for my family, I can trust him.
I don't know why he would think that for somebody who has been working in the construction business, but . . .
MR. KITCHENS: There are, I think, just a couple responses.
First, just as a factual matter, both of the defendants, Mr. Miramontes and Mr. Villegas-Macias, were contacts in Bocanegra's phone. We don't have anything in terms of what we're able to prove that shows anything surrounding a discussion about marijuana or anything like that, or any drugs. We don't know. We do know that they were both contacts in Mr. Bocanegra's phone and that's it.
What we also know in terms of the amount of the drugs and I do not have — I don't think there was any sort of weight taken, just for the quantity of drugs that were taken in the boxes —
THE COURT: Would you agree, though, that it was quite a smaller fraction?
MR. KITCHENS: Oh, certainly.
THE COURT: Because it took them both hours and hours and hours to complete.
MR. KITCHENS: That's right. I think the Court may recall that the ultimate end result was a trailer-full of marijuana.
THE COURT: And four boxes does not make —
MR. KITCHENS: Certainly that's correct. The two boxes that we saw were visibly open. You could see that there were a few dozen packets but I don't know how many packets or how many pieces of furniture. And I don't believe there was specific evidence in terms of the amount of furniture, but what we do have testimony about was that there were several pieces of furniture that had been broken down. That the other area of light that was inside the entire warehouse, which again had no power, was hung up directly over where the pieces of furniture were being broken down. There was no area in the front where there was a working light or anything like that.
Nor, the Court may recall from the pictures, was there visible sanding tools and things like that. The only area where there were tools were, again, where the pieces of furniture were being broken down. And the two defendants were working with Mr. Bocanegra inside that warehouse for five hours while the pieces of furniture were being broken down.
So the evidence I think established that this was not a case where the defendants were merely offloading. Unlike the other four individuals that were part of this group on day one. That in fact during the five hours on day two, the defendants were in fact more involved with the actual drugs themself and were stacking them up as part of the process.
Based on that the defendants cannot establish that they were the least culpable within this group.
We do however fully recognize that we do think that both of these defendants were substantially less culpable than Mr. Bocanegra who was operating the operation. And we do think a two-level minor role enhancement as recommended reduction — excuse me — as recommended by probation is the appropriate reduction here.
THE COURT: What does "least culpable" really mean?
MR. KITCHENS: That's the issue exactly in the case law, where it is very, you know, if — a fact, case-by-case. . .
THE COURT: But were there other people involved?
MR. KITCHENS: There were certainly the people that were assisting with the offloading on day one. There was someone who we know just in terms of the importation that came in. There was someone involved in terms of the packaging of the drugs, people apparently in Mexico where the drugs came in. We know there were people in the United States who were aware of parts of the scheme.
What I don't think what we have is facts establishing that these two were the least culpable in this situation. And that's consistent with the Eleventh Circuit precedent that has come out since de Varona where there are cases like this where the go-fast boats, for example, where everyone that is on the go-fast ships that are transporting the cocaine — I think they are typically transporting cocaine. In many of those cases they are even denied a minor role based on the reasoning that each of those individuals who are on that ship are equally culpable and there is no showing that they are the least culpable involved.
And I think that what we have here is that we, from an evidentiary matter, we cannot establish the least —
THE COURT: Can you cite —
MR. KITCHENS: Sure. And I do not have the cases printed out but I'll give you a couple cites.
One of these is United States v. Carbajal. That is C-A-R-B-A-J-A-L. This is an unpublished Eleventh Circuit opinion from 2007, and this is 2007 Westlaw 4102474.
THE COURT: 2474.
MR. KITCHENS: That's right. And in that case the defendant was one of four deckhands on a go-fast boat that contained cocaine. The Court noted that of course this Individual as a deckhand was less culpable than the captain, certainly, but found that he — there was no evidentiary showing that he was less culpable than the fellow deckhands that were involved and just were on the ship.
THE COURT: Were they all charged, all the deckhands?
MR. KITCHENS: I believe all the deckhands were charged in that. And I believe the Court in that case applied a minor role but did not apply a minimal role.
One other, and this is a similar case. United States v. Hurtado, H-U-R-T-A-D-O.
That's 171 Federal —
THE COURT: I'm sorry. 171?
MR. KITCHENS: 171 Fed. Appx. 763. That's an Eleventh Circuit 2006 case. The defendant's role in that case was just to refuel a boat that contained marijuana — excuse me — cocaine in that case.
The Court found that the crew member, while the primary role (sic) to refuel the boat, that he assisted with the loading of the cocaine on that boat, and based on that he was no less culpable than other crew members. So in that case the Eleventh Circuit affirmed the District Court's decision to apply a minor role but not a minimal role.
And I apologize I have not provided these cases to the defendant in advance. But that, I think, is just a couple examples of case law and how it has developed since Rodriguez de Varona.
MR. COGNAC: Can I respond briefly, Your Honor?
THE COURT: Yes.
MR. COGNAC: I think what we need to make clear is when we're defining minimal participant — this is in application note 4 — what they are saying is the least culpable and minimally involved in the conduct of the group. And then in order to define participant, which is in application note 1 of 331.1. A participant is a person who is criminally responsible for the commission of the offense but need not have been convicted.
My argument is there are other people who are involved participants but they have no idea of what was in that furniture so they would not be criminally responsible because they did not have the intent or knowledge. There is no evidence to show that, so under the law they would not be defined as participants. And that my clients, under those involved, are the least culpable of the participants — that would be the people who are criminally responsible for the commission of the act.
THE COURT: Mr. Callahan?
MR. CALLAHAN: Yes, ma'am. Also briefly. I concur in what Mr. Cognac said. And I believe that the other point is Mr. Kitchens mentioned the entire string of people that had to work to put this large shipment of marijuana together to get it across the border, to get it to this point.
Every one of the people involved in the larger group, the difference is they have foreknowledge of the drugs. They had advanced knowledge —
THE COURT: One second.
THE INTERPRETER: Excuse me, Your Honor. The defendant is telling me that he cannot hear the headphone.
THE COURT: Would you ask the defendant how long he hasn't been able to hear so we can go back at least for his counsel's argument.
THE INTERPRETER: Yes, ma'am.
Just now, when Mr. Callahan started to talk.
THE COURT: All right. Would you just wind back so one has an opportunity to hear your argument?
Are you able to hear me now?
THE INTERPRETER: Yes, Your Honor. Thank you.
THE COURT: All right.
MR. CALLAHAN: Your Honor, we've been together for over two years. I'm sure he is tired of hearing me talk. Probably pulled the battery out on his own.
THE COURT: I know.
MR. CALLAHAN: At any rate, I agree with what Mr. Cognac said. And the whole crux of this issue is that they discovered the drugs, they knew the drugs were there the second day in the warehouse when the furniture was being offloaded. Everyone else involved in getting the drugs to That point had foreknowledge, advance notice of the drugs.
Somebody had to put — like I think Mr. Cognac said, somebody had to put it together in Mexico, package it, somebody had to get it on the truck. All of that was done without their knowledge, without their participation.
So when you view the larger conspiracy that is the supply chain, if you will, that brings the drugs to that point where they discover the drugs, they are the only two people who didn't have foreknowledge of the drugs and the amount of drugs.
And I think that's what separates them from the courier arguments that were discussed in de Varona that really focused on the advanced knowledge involved in the shipment of the drugs. And in fact to them, when they got to that point in the warehouse, they didn't know how much was in there. It could have been one pound of marijuana, it could have been a thousand pounds of marijuana. Their criminal culpability is the same at that point because instead of leaving they made it a point to stay for the rest of the day and do what needed to be done.
So to that extent I don't think the amount of drugs really matters at all to their criminal culpability, their interactions.
And in regards to that, Your Honor, even though the drugs were being unpacked from the furniture, at some point the furniture had to be put back together again and prepared for sale in Bocanegra's store. And that was, as a handyman, that was Mr. Villegas' expertise, if you will. Being able to fix up furniture and patch it.
I understand what Mr. Kitchens said about the status of everything that was found. But my point is it wasn't just offloading. At some point Mr. Bocanegra had to have someone put it back together.
And my final point, in looking at their relationship, you can't just assume that Bocanegra felt like he could trust Mr. Villegas and Mr. Miramontes. It would be an equally plausible explanation that he felt that he could control them more than some of the other people he didn't know, to keep them quiet.
It's a very subtle distinction but there is that element of control, especially with Mr. Villegas who had worked for the family for years. I'm sure that was an element, from what little I know of Mr. Bocanegra, that was probably more of his mindset. That these two were perhaps a little more vulnerable, perhaps economically, to his pressure than somebody he didn't know.
Thank you.
THE COURT: Thank you.
Let me ask Mr. Kitchens, do you have any evidence that the individuals had worked in any regular capacity with Mr. Bocanegra and his company that would suggest that they did have knowledge?
MR. KITCHENS: I think the only evidence in terms of the prior working relationship that he had with these two defendants again was the nature of the — the fact that both defendants were saved in Mr. Bocanegra's phone. The phone records did reflect some text messages that had been exchanged with the defendants. And it was my recollection that some of them did — were essentially tracked as schedule certain things. None of those messages referenced drugs specifically or anything like that.
THE COURT: How old were they? Were they scheduling their appearing here, or scheduling —
MR. KITCHENS: No, no. I think it was my recollection — let me check. Contacts scheduling prior — prior work, before this particular incident.
MR. CALLAHAN: And I don't think — and correct me if I'm wrong, it's been a while, but I think Mr. Kitchens is correct. Some text messages about possibly going to work. And it wasn't on a consistent basis like every day or every week. There may have been a period or a handful of those messages about work, and then maybe an absence for a month or two, and then another batch of text messages. That type of thing.
I know for Mr. Villegas-Macias and I can't speak for Mr. Miramontes as well, but that may be the case for him as well.
MR. COGNAC: That's my recollection as well. I believe that's accurate. There were a few mentions, but not with a weekly regularity or anything like that. But my client never worked with Mr. Bocanegra before. They were social acquaintances. They had friends that were in contact.
THE COURT: Friends in contact, or friends in common?
MR. COGNAC: Friends in common. I'm sorry. But my client had never worked for Mr. Bocanegra in any respect.
MR. KITCHENS: The one additional fact to that, very minor, but the agent reminded me that in fact the truck that you may recall from surveillance video that was used actually belonged to Mr. Miramontes' uncle. It was not Mr. Bocanegra's truck.
So for whatever reason — I mean I don't know more information — he was using a truck that belonged to Mr. Miramontes' relative to do the work with the workers at the warehouse that second day.
THE COURT: All right. I'm going to think about this. And let's just talk about assuming that I kept all the other adjustments in their current status, so basically we have swing here of either a level 24, Criminal History Category I. Or possibly a level 30. 23, or 22. I mean I'm authorized under the rules to give a 3, as well.
Level 24 at 53 months. Level 23 — category — I mean, 46 to 57. And a 22 is 41 to 51.
And the fine guideline range is $12,500 to a quarter million dollars. Supervised release period of up to three years.
Are there any other factual or other corrections that we need to address as far as the guideline modification?
MR. COGNAC: No, Your Honor. Just one thing that you might take into consideration. And we've already discussed this with the government.
Our clients were in state custody from November 16 until February 6. By my count that's 82 days that they spent in state custody that they would not get credit for unless That is taken into account in the sentence that the Court imposes.
THE COURT: All right.
And I did give recommendation that Mr. Bocanegra would do so. All right, I'm going to defer until I look at the whole totality of the evidence on the 3533A factors coming down, defendant's adjustment for role.
I'm going to adopt the findings of the presentence reports. I might add to them based on what we've said here and discussed here because there really aren't strong factual disputes. There are some additional facts that are illuminated and have been brought out.
Mr. Cognac, is there evidence you want me to consider or statements from your client in connection with determining what is a fair and reasonable sentence?
MR. COGNAC: Yes, Your Honor. Pursuant to the plea agreement, we agree not to seek a sentence outside the guideline range.
What I would like the Court to consider is what is already before the Court in that my client has no prior criminal history whatsoever. He will be deported when he's done serving his time. He won't be able to participate in any program in the B.O.P. He will serve a longer period of time, and once his sentence is up, he will have to be turned over to immigration authorities to be deported and there is a lengthier period of time that he would wind up serving in custody.
And I want to bring to the Court's attention he has been allowed to work in the laundry, and he was given a certificate for employee of the month for working in the laundry.
THE COURT: Thank you. And the certificate is dated January 5, 2015. And he was awarded, as you said, worker of the month.
Does your client wish to address the Court?
MR. COGNAC: Your Honor, he indicates that he would like the Court to rely on what I've said.
THE COURT: Mr. Miramontes, I'm certainly willing to rely on that but I want to — I need to just as a matter of law say to you directly that you have the opportunity and you may address me directly, even if it's just saying a few words. No one is asking you to argue.
I don't know your background or anything else in particular. I want you to know that you have the opportunity to address me, and just ask you one more time personally if you would say whether or not you want to address the Court.
THE DEFENDANT: No. I just accept the decision that you may make.
THE COURT: All right. Mr. Callahan, I would ask is there anything else that you would like to say here?
MR. CALLAHAN: Yes, ma'am.
Again, as Mr. Cognac stated, we have agreed to be sentenced within the guideline range.
Everyone else in the courtroom has challenged me to work towards "ditto" in my arguments today, so at this point I will simply say "ditto" regarding Mr. Cognac's arguments on that.
I would like to bring the Court's attention to the section in the PSR discussing Mr. Villegas-Macias' family background and considering his relationship with the Bocanegra family. In relevant part, Mr. Villegas-Macias had to discontinue school at the age of 13 to assist and work with his family.
Really what the PSR tries to convey is the fact that he is a very basic man. And I don't mean simple in a bad way, but he is simply a very basic man who makes his living through construction with his hands and has done that steadily. And that steady employment and steady work over the years indicates something about his character that I would ask the Court to consider in deciding upon his sentence.
More importantly, the probation officer, I have to commend him because he did a very thorough, thorough reporting of Mr. Villegas' history. And details the fact that Mr. Villegas-Macias actually began working for the various ocanegra relatives from the moment he arrived in the United States in 2004. And he was steadily employed as a construction worker, essentially as a day laborer, from 2004 until his arrest in 2012, working for various uncles or, as he thought cousins of Mr. Bocanegra as employment was available.
So the employment was verified by the probation officer, that type of working relationship. And their use of him for various projects I think bears out what we were discussing a few minutes ago about the text messages. Occasional work and being used by the family for a long period of time. A steadiness of that in his reliability.
And the simple fact that I suspect Bocanegra has used him and involved him before, and there is no indication that Mr. Villegas-Macias from his employment history, from his conduct, had been involved in anything like this since he came to the United States in 2004.
Thank you, Your Honor.
THE COURT: Thank you.
Mr. Villegas-Macias, do you wish to address the Court?
THE DEFENDANT: No.
THE COURT: Okay. And again I want to state that I'm not looking for anything in particular, but if there is anything you want to say on your own behalf, this is the time to say it. All right?
You still don't want to say anything?
THE DEFENDANT: I agree with what my attorney has discussed.
THE COURT: All right. One last factual question for you, Mr. Kitchens. I don't know whether the agent or you happen to recall the size of the contact list in Mr. Bocanegra's phone? The fact that — people have different practices, you know. If you're Bill Clinton, you have the entire world in your phone and you did from the time you were years old.
On the other hand, if you're my husband, you have seven people. He has two people. His daughters on FaceBook because they entered themselves; the other two didn't.
MR. KITCHENS: I do not recall the specific number. If I had to give a ballpark guess, I would say several dozen. It certainly was more than seven. I don't think there were hundreds of individuals.
So several dozens would be a fair ballpark estimate.
MR. CALLAHAN: I would concur, Your Honor. There were a lot of contacts. I printed out the phone analysis and the phone analysis for Bocanegra's phone was at least a hundred pages. Between contacts, text messages and calls. But I remember contact list being very huge.
THE COURT: That's more than several dozen.
MR. CALLAHAN: Well, I would consider that huge. Again, compared to my phone or your husband's.
I just put Mr. Cognac's back in the other day because he agreed to make all the objections for me. Once we are done, he's out.
MR. COGNAC: He's not in mine, so . . .
THE COURT: I think you know how to find each other.
All right. Thank you.
Do you want to address the sentencing?
MR. KITCHENS: Yes, Your Honor.
We do think, when you consider the Section 3553(a) factors, and I know this is in the plea agreement, but we also do think that the low end is appropriate for these two Individuals.
Part of what we look at the 3533(a) factors considers not only the nature of the individual but also the nature of the interest of the community. And I think it's a matter of balancing the two here.
Because you have two individuals I think that as the defendants — defense counsel have noted, that they do not have any criminal history. They have a history, you know, of working, doing, you know, regular labor. Nothing — and you know, as we've already established, we do think from the government's position that they certainly were less culpable than Mr. Bocanegra.
At the same time, the interest of the community we do think supports a low-end of the guideline sentence given the seriousness of this offense and the need for deterrence here.
As again the Court recalls, the overall quantity of marijuana here was very, very large. It was 3,000 pounds of marijuana that was being shipped in. And it was marijuana that had been transported in from Mexico.
These two individuals played a key part in that. It certainly was less culpable and less involved than Mr. Bocanegra, but they played a key role in a substantial amount of marijuana coming into this community.
The other aspect of this just that the Court consider the necessity of deterrence. Not so much I think specific deterrence with these two defendants given their past history as well as their immigration status and what may happen to these defendants here, but really in the nature of general deterrence.
When we have such a problem of drugs being transported in from Mexico, a prison sentence that reflects the seriousness of this crime and the nature of the harm that it does to this community is appropriate.
So based on that, and I think balancing both the history and the characteristics of these defendants with the seriousness of this offense on the other end and the harm that this type of activity poses the community, the low end of the guidelines is appropriate for both Mr. Miramontes as well as Mr. Villegas-Macias.
THE COURT: Thank you.
I'm going to need to take five minutes to take a look at those two decisions, Mr. Kitchens. And if you need me to print them up on behalf of you, I would be happy to do so. don't want to look at them and not give you the opportunity to look at them.
MR. COGNAC: I can just look at it on my phone.
MR. CALLAHAN: That's fine. I'm familiar with them as well.
THE COURT: All right. I haven't read those two cases so I did want to read them.
I had one other question to ask you.
With respect to the November 6, 2012 arrest statement, I have in another case been given basically — I've done two different things. With the one that you have a mandatory minimum, I just have to say give it, as I did yesterday, I'm going to give them credit and cite to one of the things in here.
It's always, as you know, a little dicey with the Bureau of Prisons. But I think they will give them credit if I say it, but I can never promise that. And the problem on the other hand is taking the month off of it, then the defendants don't get that 15 percent off on those two months.
And you both have a lot of experience on this, so I'm giving you . . .
MR. COGNAC: My experience has been regardless of whether you recommend it
THE COURT: All right.
MR. CALLAHAN: And Your Honor, as well, I've just researched this. The good time credit that B.O.P awards is only on a calendar or one-year basis. So in this case, if the sentence ends up being one to two years, they wouldn't get that —
THE COURT: They don't do it all the number of months, even though we have a chart that says it's the number of months and not the year?
MR. CALLAHAN: Your Honor, I looked at the policy statement recently and that's why I actually researched it. Because that was — that was my concern, that the person would not get that credit.
To be honest with you, I've seen the chart, but I've also seen the policy statement saying you don't get it for the year first. So my point being I would rather have the credit off his sentence. And I think Mr. Villegas-Macias would agree. I think any effect on the good time credit would be minimal.
If that makes sense.
THE COURT: I'm sort of stunned by the question of the year. If you would send Ms. McConochie the policy statement. It's something I would like to know for the future.
MR. CALLAHAN: If I am wrong, I'll take a look at it again.
THE COURT: I'll share it with probation and ask them to investigate for me. I certainly want to know that for the future.
MR. CALLAHAN: Thank you.
THE COURT: Okay. All right. We'll — let's take about a five-minute break. Normally these cases aren't too long to look at. So I'll go look at them.
(Court recessed and proceedings continued as follows:)
THE COURT: I think perhaps, predictably, the cases were not that helpful. I mean, we have differences in all these cases and they all are factually specific.
And of course in the Caberello case there hadn't been an objection but it was still viewed not on a different standard because there hadn't been an objection properly made, so it was on the most deferential standards possible.
Here's, for me though, the question we have kept going back and forth on is really the evidence, as it is in its current state, is certainly suggestive that the defendants had a minimal role. But at the same time it remains the defendant's burden of proof to really establish this.
I think the evidence really is suggestive that they had lack of knowledge or understanding of the scope and structure of the enterprise and the activities of others. That's identified in note 4. But this is as recounted by counsel and maybe inferred from the fact because they were Just there that time. But of course they weren't being monitored for any other period of time.
I think that in the case of Mr. Villegas-Macias as having worked for the family for a long time, would certainly suggest why Mr. Bocanegra would trust him without regard to his ever having been involved with drug transactions before. But for all I know he might have been. I don't have any idea. We have no evidence of this one way or other.
And the defendants certainly were not compelled to address this themselves but they didn't other than through counsel.
You know, I'm — there are any number of reasons, as we all know, that people keep their phone contacts as they do. So I can't necessarily make any inference one way or the other. I don't know why the truck Mr. Miramontes, his uncle's truck, was used that day. Maybe he arrived that way.
There are just so many questions I have. And it's certainly so that people who are unlawfully in the country and working, they happen to have been used. They might have needed the money and might not have thought I needed to leave this moment. It might have just been a complete surprise. There's a lot of "might haves."
I don't feel comfortable under the standards of the guidelines and the preponderance of the evidence standard in connection with that with just saying that I'm absolutely clear that it was a minimal role. It seems to be suggestive of one. My view as I said, particularly since I already have to in order to make sure that all the time is accounted for for the Bureau of Prisons that I have to vary in order to do that as it is at the bottom of the level of the guideline.
I think that it is more easily to recognizing that their situation appears to be one where they were used on an incidental basis as day laborers, perhaps needed to walk out as soon as they saw the marijuana there. They are not such young men that they are not in a position to see that there was something that was wrong. But that I should give them some credit for this in terms of looking at the total number.
The guideline, if not given any further modification of 24, based on a — I'm sorry, level 24, criminal history, 51 to 60 months. And my — what I think would be appropriate under the circumstances is to treat this as if it had been somewhere between a 2 and a 4 just for purposes of variance. And move it down to a 46-month sentence, and then give the defendants what is roughly — two and a half months?
MR. COGNAC: Yes, Your Honor. Well, 82 days.
THE COURT: 82 days. So I will treat that as if it's 90 days and give them a sentence of 43 months. And then they will get credit for whatever time is served after that.
In determining a fair and reasonable sentence in this case, I have determined — looked at the guidelines and heavily relied on the guidelines. And the thinking still that underlies the definitions "minimal" and "minor" participant, the volume of drugs involved, the seriousness of the offense, conduct — assuming that they were in fact involved which they have all acknowledged in their plea agreements.
Their particular circumstances, their individual characteristics. In the case of Mr. Villegas-Macias, he has an education through age 13 and had worked hard in this country. And I had seen one of his employers here yesterday, at Mr. Bocanegra's hearing, and was very impressed by Adam — I think it is Bocanegra — a man of some age who had worked very hard himself.
And I have no reason based on the way that he presented to believe that Mr. Villegas-Macias didn't work in a consistent basis for him. And based on what the representations are also in the presentence report of industrious labor suggested that whatever happened here was not a pattern of conduct. And I think the sentence will be sufficient to deter either of the defendants from returning.
In addition, I will note that for both of the defendants, they have been in pretrial detention for a very long period of time and the conditions in pretrial detention in an ironic way are more onerous, or can be, than if you have a permanent assignment because you're so restricted in your physical movement. The deviation here from the guideline sentence is relatively minor considering the sentence.
With respect to Mr. Miramontes also on the condition of he has a little bit more education than Mr. Villegas-Macias — not substantial. He, according to the representations of his counsel, he really just knew the defendant on a social basis and had no — never been in this warehouse before.
Of course I'm not in a position to assess that one way or the other, nor is really the government at this point. But I certainly still consider his representation in that regard in connection with his already having accepted responsibility for this conduct.
For all those reasons, I find that the sentence of 43 months is fair and reasonable, but not greater than necessary to achieve the sentencing purposes of the statute.
So, gentlemen, I need to announce sentence for each of you individually though it's basically the same thing, but I think for the record I need to do it that way.
So first of all, for Mr. Miramontes, pursuant to the Sentencing Reform Act of 1984, it is the judgment of this Court that you are hereby committed to the custody of the Bureau of Prisons, to be imprisoned for a term of 43 months, with credit to be provided for all time served since the initiation of your federal custody, which was on February 6, 2013.
I have given you already credit for the time that you served in state prison.,
It is further ordered that you shall pay to the United States a special assessment of $100, which will be due immediately. I find that you do not have the ability to pay a time of incarceration and I will waive the fine and the cost of incarceration in this case.
Upon release from imprisonment, you shall be placed on a supervised release term of three years. Now this may be somewhat confusing to you because if you are not in the United States, and I trust you will not return and are ordered not to return without expressed legal authorization — some of this will not be relevant — but if you are in the United States, whether legally or unlawfully, you must report to the probation office in the district to which you are released or to which you are or have basically returned.
While on supervised release, you shall not commit another federal, state, or local crime, and you shall comply with the standard conditions adopted by this Court, as well as the following additional conditions:
You shall be turned over first of all to a duly authorized immigration official for appropriate removal proceedings based on — once your term of imprisonment is completed. And you shall not re-enter the United States unless you apply and receive permission from the secretary of Homeland Security to legally enter the United States.
You shall submit to one drug urinalysis within 15 days after being placed on supervision and at least two periodic test thereafter.
And this is very important, the following one, is that you shall not own, possess or have under your control any firearm, dangerous weapon, or other destructive device. If you were to be found in the United States and be in possession of any type of weapon, you would be subject to very serious criminal sanctions.
If you are in the United States, you will submit to a search of your person, property, vehicle or residence by the United States probation officer upon reasonable suspicion that you have violated a term of your supervised release or have violated the law.
And you shall cooperate in the mandatory DNA testing required for all federal offenders convicted of felony offenses.
As I have indicated already, I have taken into consideration your individual characteristics, as well as the whole circumstances of this offense and the applicable guidelines pursuant to 18 U.S.C. 3553(e) and other factors outlined by that statutory provision and find that this is a Lair and reasonable sentence.
Mr. Miramontes, you entered a plea agreement in this case which restricted your rights of appeal, but to the extent that you have any rights of appeal under the agreement, you would need to exercise your appeal rights within 14 days of the judgment entered in this case.
If Mr. Cognac was not available to represent you and you wanted to file, have such a notice of appeal filed, I could appoint somebody else to represent you upon your request or you could ask the clerk of the court to file a notice of appeal at no cost to you based on your lack of resources.
Are there any objections in Mr. Miramontes' case that either of you wish to make?
MR. KITCHENS: None for the government, Your Honor.
MR. COGNAC: No, Your Honor. And we would ask for a recommendation to a facility in Georgia, specifically a facility in McRae, Georgia, if possible.
THE COURT: In McRae?
MR. COGNAC: Yes.
THE COURT: All right. I will make that recommendation.
Mr. Villegas-Macias, again, I'm going to go over the same things, but this is your sentence.
Pursuant to the Sentencing Reform Act of 1984, it is my judgment that you shall be committed to the custody of the Bureau of Prisons, to be imprisoned for a term of 43 months, with credit to be provided for all time served since the date of your federal incarceration on — or custody on February 6, 2013. And I have given you credit for any other time that you have served with the state prison system.
It is further ordered that you shall pay the United States a special assessment of $100 which shall be due immediately. I find that you do not have the ability to pay a fine for incarceration and I will waive the fine of the cost of incarceration.
Upon release of imprisonment, you shall be placed on a supervised release term of three years. Within 72 hours of release from the custody of the Bureau of Prisons, you shall report in person to the probation office in the district in which you are released if you are in fact released.
You shall also submit to the following additional terms beyond the normal terms or standard terms adopted by this Court:
Of course you shall not commit any other federal, state, or local crime. You shall duly be turned over to an immigration official for appropriate removal proceedings at the conclusion of your sentence and you shall not re-enter the United States unless you have applied and received permission from the secretary of Homeland Security to legally re-enter the United States.
You shall submit one drug urine analysis within 15 days after being placed on supervision, and at least two periodic tests thereafter. And you shall not own, possess, or have under your control any firearm, dangerous weapon, or other destructive device.
And as I explained to Mr. Miramontes, this is very important. If you should have the terrible judgment to re-enter the United States and you were found to have a gun, you would be under threat of very serious action.
You shall also submit to a search of your person, property, residence, or vehicle by the United States probation officer if you are in the United States and if there is reasonable suspicious that you have violated a term of your release or violated the law.
You shall also be required to participate in mandatory DNA testing for federal offenders.
I've already outlined why I believe that this sentence is consistent to the factors under 18 U.S.C. 3553(a).
Clearly both of you had worked hard in a variety of capacities in this country, although you were here unlawfully. Only you will know what happened that day ultimately. But you have accepted responsibility for your conduct here, and I know based on the combination of the time that you have served and the credit that you will receive for the time you've served in federal custody that this sentence and your deportation are, all things considered, not that far away.
So the question is what happens next? You are able people, and do not put yourself at risk by returning to this country. Whether you think the immigration laws are fair or right, or whatever the dangers you face in Mexico — and I understand there are some significant ones — you are putting your lives at real risk of returning to prison if you return to the United States.
So that's my first and foremost concern as I sentence you today. You've already done this very lengthy sentence in terms of being in pretrial incarceration and you have more in front of you. You don't need to do this again. I know that Mr. Miramontes, really, you're quite young. You're not 30 yet. And you have a whole life in front of you. And while I believe that Mr. Villegas-Macias is older, this is — you don't want to do this again. And it is very sad to me when I see people be — have already gone through a criminal proceeding of this sort of significance and then return to the United States and put themselves at risk. Because with this type of record, you would put yourself at enormous risk.
So whatever you think about the opportunities here or that it wasn't fair or that it was fair, but you've taken your knocks and what are your choices. Don't make this a bad choice. You've made already the choice that has brought you here today. Let that be the end of it
I wish you both the best of luck, and — did I read to Mr. Villegas-Macias his appeal rights?
COURTROOM DEPUTY: I don't think so.
THE COURT: All right. So Mr. Villegas-Macias, I want you to be sure that you understand what your appeal rights are as well. Your plea agreement restricted your right to appeal, but to the extent that you have some in this situation, you would need to exercise your right of appeal within 14 days of judgment entered in this case.
If Mr. Callahan is not available to assist you in filing your notice of appeal, I would appoint you another attorney or you could ask the court clerk to do so.
Mr. Callahan, what is your timeline for moving into —
MR. CALLAHAN: I'll still be here for the 14-day period. But my normal practice is to go see someone after the sentencing to confirm. I won't have that opportunity with Mr. Villegas-Macias, but I've discussed that at length today and I don't believe he intends to appeal the sentence.
THE COURT: If there is any issue in terms of your timeline, please notify the Court because I could, we would obviously have to move very quickly.
MR. CALLAHAN: And I understand, Your Honor. I would certainly file a notice of appeal if he felt strongly about it in order to preserve that right for him.
THE COURT: All right.
MR. CALLAHAN: And I would also ask for the McRae designation.
THE COURT: Very good. I will make that recommendation to the Bureau of Prisons.
Let me just tell the defendants that I'll make the recommendation as to McRae, but as I'm sure your counsel has advised you, the Bureau of Prisons with respect to the location of the prisoner is not required to follow that recommendation.
Mr. Kitchens, do you have any objection to the sentence in Mr. Villegas' case?
MR. KITCHENS: No, Your Honor.
THE COURT: Are there any objections on the part of Mr. Villegas?
MR. CALLAHAN: No, ma'am.
THE COURT: All right.
Is there anything else we need to address?
MR. KITCHENS: Nothing further, Your Honor.
MR. COGNAC: No, Your Honor.
THE COURT: Thank you, very much.
(Proceedings were adjourned at 5:20 p.m.)
I certify that the foregoing is a correct transcript from the record of proceedings in the above matter.
Dear Judge Totenberg:
On January 7, 2015, Jose Luis Villegas-Macias was sentenced in the United States District Court for the Northern District of Georgia to a total term of imprisonment of 43 months for Conspiracy to Possess with Intent to Distribute Marijuana. The sentence was reduced by 80 days to account for time spent in state custody.
A review of our records indicates Mr. Villegas-Macias' state charges were dismissed on February 4, 2013. The time spent in state custody from November 16, 2012, through February 6, 2013, would have been creditable under Title 18 U.S.C. § 3585(b) since it was not applied to any other sentence. However, due to Mr. Villegas-Macias receiving an 80 day reduction to account for his time in state custody, we have not applied this credit to his federal sentence.
The Bureau strives to administer sentences in accordance with federal statutes, Bureau policy, and to achieve the intent of the Court. Should you have any questions, please contact Ms. Annie Williams, Operations Manager, at (972) 595-3117.
