Estados Unidos v. Blanco-Ruiz


Southern District of Florida, flsd-1:2016-cr-20602-490262

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 16-CR-20602-MIDDLEBROOKS UNITED STATES OF AMERICA, Plaintiff, vs. WILTER BLANCO RUIZ, Defendant. _____________________________/SENTENCING MEMORANDUM The Defendant, WILTER BLANCO-RUIZ, through counsel and pursuant to Rule 32 of the Federal Rules of Criminal Procedure respectfully submits this Sentencing Memorandum, Request for Downward Departure and Request for Downward Variance. The Defendant respectfully moves this Court to impose a reasonable sentence that is sufficient but not greater than necessary to meet the sentencing concerns enumerated in 18 U.S. C. § 3553 (a) of the United States Code. In support of this memorandum and motion for downward departure, Mr. BLANCO-RUIZ submits the following memorandum demonstrating to the Court that a below guideline sentencing is appropriate for this case. THE OFFENSE CONDUCT According to paragraphs 7 through 10 of the PSR, between January and February 2015, Mr. Blanco-Ruiz and others conspired to move 1800 kilos of 1 cocaine from Colombia to Honduras, re-sold in Honduras and ultimately sent by other co-conspirators to Guatemala, Mexico and finally to the United States. FACTS Mr. Blanco-Ruiz is a 40 year-old first time offender who was born in Palacios, Gracias a Dios, Honduras on February 21, 1967. His parents, Pedro age 63 and Maria, age 57, are very supportive and he misses them a great deal and looks forward to seeing them as soon as possible. They in turn, long to see their so soon as possible. Neither of his parents have a U.S. Visa and it is highly unlikely that they will ever get one. Consequently, they will not be able to see their son until he is release from confinement on this matter. The undersigned traveled to Palacios, Gracias a Dios, Honduras on August 1, 2017 to meet Mr. Blanco-Ruiz’ family and friends from his community. Notably, at the entry way to the property where Mr. Blanco-Ruiz’ parents and siblings live in this small community which can only be reached via a four hour drive on a dirt road, there stands a Prayer Hall that his parents built in order to have religious services for the community. On August 2nd, 2017, the undersigned hosted a forum of over 50 relatives and friends of the Defendant who came to give me their testimony about the kindness in the defendants’ heart and how he had helped his community with numerous charitable acts, including counseling people against violence and hiring small planes to carry people in 2 dire need of medical treatment to the hospitals and clinics in La Ceiba, Honduras, which is a 6 hour drive away or a 45 minute to one-hour plane ride. Prior to the seizure of his legitimate seafood business by Honduran Government, Mr. Blanco-Ruiz employed nearly one hundred people from his community as fishermen, clerks, processors and packers. Those jobs are no longer available today. Two pastors from the area approached me and told me of the generous contributions made by Mr. Blanco-Ruiz which led to the construction of small "churches" and programs to advance their respective Ministries. The Mayor of the Municipality of JUAN FRANCISCO BULNES where PALACIOS is located, JOSE ANTONIO VILLALTA, marveled about all of the good things Mr. Blanco-Ruiz had done by providing employment to his constituents and making generous donations to the school system which uniforms to those children who could not afford them. The Director of the school, WALTER DAVID AVILA, confirmed the mayor’s testimony and described Mr. Blanco-Ruiz as "having the heart of a child" because when he would pass through Palacios he would visit and play with the children at the school. Countless people came up to me, blessing me, crying and imploring me to do my best as his counsel to advocate and obtain the lowest possible sentence available under United States law. Even small children 3 approached me crying and asking me to send Wilter home, as though I alone had the power to do that. THE SENTENCING PROCESS Pursuant to United States vs. Booker, 543 U.S. 220 (2005), the sentencing process is a two-step process: the Court must first consider and consult the guidelines and thereby calculate the range provided by the guidelines. Since Booker, the guidelines are no longer mandatory but they must be consulted and considered by the Sentencing Court, United States v. Crawford, 407 F.3d 1174, 1178(11th Cir. 2005). The second step to the sentencing process is to determine a reasonable sentence by considering the factors set out in 18 U.S.C. §3553 (a) which provides that the court should impose a sentence that is sufficient but not greater than necessary to satisfy the sentencing purposes set out in 18 U.S. §3553(a)(2). CALCULATION BASED UPON THE PRESENTENCE INVESTIGATION REPORT The Pre-Sentence Investigation Report in this case was prepared by LaQuisha Pierre-Louis and was available for disclosure to the undersigned on August 15, 2017. The Presentence Investigation Report calculates Mr. Blanco-Ruiz applicable guideline range as follows: Base Offense Level 2D1.1(c) 38 4 Specific Offense Characteristics, subdivisions (1)-(5) Of Sections §5C1.2(a) 0 Adjustment for Role in Offense, Section §3B1.1(a) +4 Acceptance of Responsibility, Section §3E1.1(a)(b)-3 Total Offense Level 39 MOTION FOR DOWNWARD VARIANCE PURSUANT TO 18 U.S.C. § 3553(a) The parsimony provision of 18 U.S. C. Section §3553(a) provides that the court should impose a sentence that is sufficient but not greater than necessary to comply with the purposes set forth in Paragraph 2 of the subsection. The Court, in determining the particular sentence to be imposed shall consider: (1) The nature and circumstances of the offense and history and characteristics of the Defendant; (2) The need for the sentence imposed; (A) To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) The afford adequate deterrence to criminal conduct; (C) To protect the public from further crimes of the Defendant; and 5 (D) To provide the Defendant with needed educational or vocational training, medical care or other correctional treatment in the most effective manner: (3) The kind of sentences available; (4) The kind of sentence in the sentencing range established for (A) The applicable category of offense committed by the applicable category of the Defendant as set forth in the guidelines; (5) Any pertinent policy statement; (6) The need to avoid unwarranted sentencing disparities among defendants with similar records that have been found guilty of similar conduct; (7) The need to provide restitution to any victims of the offense. This frees the sentencing court to consider arguments and evidence that the guidelines, or particular guideline do not appropriately consider the sentencing factors under 18U.S.C. § 3553(a), or that a sentence different from that prescribed by the guidelines is appropriate in a particular case, Pepper v. United States, 131 S.Ct. 1229, 1247 (2011); Rita vs. United States, 551 U.S. 338, 551 (2007). The reasonableness of a sentence depends on whether under the totality of the circumstances, the factors outlines in Section§ 3553(a) support sentence. Gall vs. 6 United States, 552 U.S. 38, 53-54 (2007). Therefore, the guidelines serve only as "the starting point and the initial bench mark." Pepper, 131 S.Ct. at 1241(citing Gall, 522 U.S., at 49-51). The court must then consider the history and characteristics of the defendant and impose a sentence which is sufficient but not greater than necessary to comply with the purposes set forth in paragraph 2 of the subsection which is the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law and to provide just punishment for the offense while affording adequate deterrence to criminal conduct and protecting the public from further crimes of this particular defendant. Pursuant to Kimbrough v. United States, 552 U.S. 85, 101 (2007) "Courts may vary [from guidelines ranges]" based solely on the court’s policy considerations, including disagreements with the guidelines". It is not an abuse of discretion to conclude that a guideline that is not the product of empirical data based on national experience yield a sentence which is greater than necessary to achieve the §3553(a) purposes. Consequently, the Courts are free to reject the guidelines. See the Memorandum Opinion of Judge Gleeson in United States of America v. Isidro Diaz. 851 F.Supp.2d 478 (EDNY 2012). This memorandum opinion explains a policy disagreement which Judge Gleeson has with the drug trafficking offense guidelines. The Judge explains that run-of the-mill, low level participants in a drug distribution offense, with no proprietary interest in the drugs that were 7 subject of this crime, receive a guideline sentence computation that is excessively severe. This is due to the fact that the guideline ranges for drug trafficking offenses are not based on empirical data, sentencing commission expertise or the actual culpability of the defendant. A flaw in the reasoning of the guideline ranges is rooted directly in the fateful choice of the original Commission to link the guideline ranges for all drug trafficking defendants to the onerous mandatory minimum penalties contained in the Anti-Drug Abuse Act of 1986 (ADAA) that were expressly intended for only a few, namely the drug Kingpins. Judge Gleeson explains that when he goes to sentence Mr. Diaz he would place almost no weight on the guideline range because of his fundamental policy disagreement with the offense guideline that produces it. Subsequent to the Memorandum Opinion on April 16, 2013, Judge Gleeson departed downward from 97 months to 48 months, as evinced by the judgment rendered in that case. Judge Gleeson posits that the Commission should use its resources, knowledge and expertise gathered in all drug cases litigated since the ADAA to fashion more reasonable sentences for drug trafficking offenses. Judge Gleeson reasons that the guidelines ranges will be substantially lower than the ranges provided by the current offense guidelines. The deep, easily traceable structural flaw in the current drug trafficking offense guidelines produce advisory guideline ranges that are greater than necessary to comply with the purposes of 8 sentencing. The court should never lose sight of the fact that real people are at the receiving end of these sentences. Incarceration is often necessary, but the unnecessarily punitive extra months and years the trafficking offense guidelines advise the courts to dish out matter: children grow up, loved ones drift away; employment opportunities fade and parents die. Judge Gleeson makes clear that he personally will not abide by the sentencing guideline range in sentencing {any}other defendant before his court and recommends that until the commission does the job correctly, the courts should lower ranges in drug trafficking cases by a third. In the meantime, Judge Gleeson states, the current ranges will be given very little weight. Moreover, pursuant to a news release from the U.S. Sentencing Commission dated January 9, 2014, the United States Sentencing Commission voted that day to publish proposed guideline amendments which could include possible reduction to the sentencing guideline levels for federal drug trafficking offenses. The bipartisan commission voted to seek comment on a proposed amendment to lower by two levels the base offense levels in the Drug Quantity Table across drug types in guideline Section 2D1.1, which governs drug trafficking cases. Commission analysis indicates that such a change in the guidelines would result in a reduction in the federal prison population of approximately 6,550 inmates by the fifth year after the change. With this 9 reduction, the sentencing guideline penalties for drug traffickers would remain consistent with pertinent drug trafficking statutes, including exi