JAMES A. PARKER, Magistrate Judge.
(In open court.)
THE COURT: The next case is Number 2007-45, United States of America versus Benny A. Hurtado. Would counsel state their appearances, please?
MR. SPIERS: Good afternoon, Your Honor, Paul Spiers for the United States.
MR. JAMESON: Good afternoon, Your Honor, Tom Jameson on behalf of Mr. Hurtado who appears.
THE COURT: Mr. Hurtado, have you read your Presentence Report?
MR. HURTADO: Yes, sir.
THE COURT: Have you discussed it with your attorney?
MR. HURTADO: Yes, sir.
THE COURT: Are all of the statements of fact in your report true and correct?
MR. HURTADO: Yes, sir.
THE COURT: Mr. Jameson, is there any need for an evidentiary hearing on disputed facts?
MR. JAMESON: There is not, Your Honor.
THE COURT: I adopt as factual findings of the court all of the factual statements in Mr. Hurtado's Presentence Report. In addition to reading the Presentence Report, I have read the addendum to the Presentence Report which sets forth the defendant's statement of responsibility and a handwritten copy of that.
Are there any other written materials that I should take into account?
MR. JAMESON: No, sir.
MR. SPIERS: No, sir.
THE COURT: Based on the information provided by Mr. Hurtado at his change of plea hearing and the information in his Presentence Report, it is my finding that the defendant, Benny A. Hurtado, knowingly, voluntarily and intelligently entered a plea of guilty to the charge in Indictment 2007-45. At this time, I will accept his plea of guilty.
According to the Presentence Report, the offense level is 29, the Criminal History Category is VI, and the guideline imprisonment range is 151 to 188 months.
Are you in agreement with that?
MR. SPIERS: Yes, sir.
MR. JAMESON: That's correct, Your Honor.
THE COURT: It is my intent to impose a sentence at the bottom of the guideline range of 151 months given Mr. Hurtado's age the length of that sentence.
Let me ask Mr. Jameson if you would like to make a statement at this time.
MR. JAMESON: Your Honor, what I would like to communicate to you is Mr. Hurtado — and he can explain it to you himself. He feels that his letter best expresses himself, and I know you have just announced you have read it. He feels that the act he committed in this case was a cry for help, that it was in no way violent, and he feels that even a sentence at the low end of the guideline range is too excessive, and he's hoping that you will give him a sentence of not more than 10 years based on the lack of violence in this case. I think he would like to address you also.
THE COURT: Mr. Hurtado, you may speak if you wish.
MR. HURTADO: Basically, sir, that's — I don't have — there isn't any reason for the court to consider that other than the fact that throughout all my history of very low level of violence, I have never intended to hurt anyone. There was a period of time recently that I was strung out on heroin. I was on the street. I didn't snatch any purses or cut anybody or rob anybody. I just think that 10 years, I'll be 60, I think that that's a long time. I just finished doing 15 years straight. My level of security is very high, so it's — maximum security is a very dangerous situation, and I just think the 10 years is actually about what I can do and still have some kind of chance.
THE COURT: Well, there wasn't a written request for variance from the guideline sentence. Is that correct?
MR. JAMESON: That's correct, Your Honor.
THE COURT: Is that precluded by the plea agreement?
MR. JAMESON: I'm not certain, but I don't believe it was. But the government can tell me if I'm wrong. I don't think it was precluded by —
THE COURT: Well, let me ask what the government's position is on a sentence of 10 years.
MR. SPIERS: Your Honor, we indicate in the plea agreement we would not oppose the low end. The low end is 151 months. Anything more, we would oppose. I mean, anything less than that, we would oppose. So in other words, we don't oppose 151 months, which is the low end of the guidelines, but any variance on that or below that, we would oppose based on his record, based on the offense. We don't concede that there is not an aspect of violence to committing a bank robbery. He put a lot of people in fear.
THE COURT: Well, this is a proposed sentence, and — let me ask Mr. Jameson first, do you ask for a recommendation of an FCI?
MR. JAMESON: Mr. Hurtado wanted you to know that he's had problems with Texas prison gangs, and he would like a recommendation to Victorville, California, and in the alternative, not to a facility in Texas.
THE COURT: This is a proposed sentence. I have reviewed the presentence report factual findings. I have considered the sentencing guideline applications and the factors under 18 United States Code Section 3553(a).
It is the judgment of the court as to Indictment 2007-45 that the defendant, Benny A. Hurtado, is committed to the custody of the Bureau of Prisons to be imprisoned for a term of 151 months. I recommend that he serve his sentence in the Federal Correctional Institution Victorville, California, if he is eligible, but not in an FCI in Texas.
Further, I recommend that the defendant participate in the Bureau of Prisons 500-hour drug and alcohol treatment program.
The defendant is placed on supervised release for a term of three years. He must comply with the mandatory and standard conditions of supervised release, including the conditions that he submit to DNA collection in compliance with statutory requirements while incarcerated, and that he not possess firearms, ammunition, explosive devices, or other dangerous weapons.
In addition, the following special conditions are imposed:
First, the defendant must participate in and successfully complete a substance abuse treatment program. That program may include drug testing, outpatient counseling, or residential placement. The defendant may be required to pay all or part of the cost of that treatment as determined by the probation office.
Second, the defendant must refrain from the use and possession of alcohol and other forms of intoxicants.
Third, the defendant must submit to a search of his person, property or automobile to be conducted in a reasonable manner and at a reasonable time for the purpose of detecting illegal drugs or weapons as directed by the probation officer. The defendant must inform others living with him that the premises may be subject to a search.
In accordance with the Mandatory Restitution Act of 1996, it is ordered that the defendant make restitution to the Bank of America in the amount of $634. Payments must be in the amount of not less than $50 per month.
Because of the defendant's lack of financial resources, I will not impose a fine.
The defendant must pay a special assessment of $100, which is due immediately.
Under the terms of his plea agreement, Mr. Hurtado has waived his right to appeal this proposed sentence.
Let me ask counsel if you have comments on that proposed sentence.
MR. SPIERS: No, sir.
MR. JAMESON: Your Honor, we have no comments on the sentence, although Mr. Hurtado would like me to ask you to expedite his commitment to the Bureau of Prisons.
THE COURT: Well, I'll ask that they make a designation as rapidly as possible.
MR. HURTADO: Thank you.
THE COURT: Anything else?
MR. JAMESON: No, sir.
THE COURT: We're in recess, then, in Number 2007-45. (Court recessed at 2:05 a.m.)
