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 existing 5 and 10 year statutory mandatory minimum penalties, by structuring the Drug Quantity Table based on levels 24 and 30 (which correspond to a guideline range of 51 to 63 months and 97 to 121 months, respectively), rather than the existing levels of26 and 32 (which correspond to 63 to 78 months and 121 to 151 months, respectively). "The Commission's proposal reflects its priority of reducing costs of incarceration and overcapacity of prisons, without endangering public safety," said Judge Patti B. Saris, Chair of the Commission. A Commission study of offenders who received a reduced sentence pursuant to a similar two-level decrease in guideline levels for crack cocaine offenders in 2007 found no difference in recidivism rates for those offenders released early compared to those who served their full sentence. "Like many in Congress and in the executive and judicial branches, the Commission is concerned about the growing crisis in federal prison populations and budgets, and believes it is appropriate at this time to carefully consider the sentences for drug traffickers, who make up about half of the federal prison population," Saris said. 10 DEPORTABLE ALIEN This court should reasonably consider a downward variance for this defendant because the Bureau of Prisons confines deportable aliens under stricter circumstances than non-deportable aliens. Initially, deportable aliens are not eligible to serve their prison terms in a minimum security facility because BOP policy mandates placement of deportable aliens in medium or higher security facilities. United States Department of Justice, Federal Bureau of Prisons Program Statement No. PS 5100.08(2006). Congress has directed the BOP not to place the prisoner at a facility that enables United States citizens to participate in a drug program because they are ineligible for early release, 28 C.F.R. § 550.54(a)(l). This court should consider the harsher conditions of Mr. Blanco-Ruiz' post sentencing confinement as a basis for a downward variance. In addition, Mr. Blanco-Ruiz will probably spend additional time incarcerated in an Immigration Jail prior to being deported from the United States. CREDIT FOR TIME SERVED AND MOTION FOR DOWNWARD VARIANCE BASED UPON CONDITIONS AT LA REFORMA MAXIMA PRISION PRISON IN COSTA RICA Mr. Blanco-Ruiz was arrested in Costa Rica on November 22nd, 2016 for the instant offense. He was incarcerated in LA REFORMA MAXIMA 11 PRISION PRISON near San Jose, Costa Rica until he was paroled into the United States for federal prosecution of this case on March15, 2017. Consequently, he spent about 3 months in La Reforma Maxima Prision prior to being extradited to the United States. Mr. Blanco-Ruiz has been incarcerated here in the United States for approximately 5 months. He has been incarcerated in total for a period of 8 months. Mr. Blanco-Ruiz respectfully requests this Court, that whatever sentence this Court imposes, that the judgment specifically include that he is to be given credit for time incarcerated since his arrest in Costa Rica on November 21st, 2016. In addition to seeking credit for the time served in Costa Rica, a further Reduction of Sentence is warranted because of the harsh conditions of Mr.Blanco-Ruiz' confinement in La Reforma Maxima Prision as illustrated in Defendant’s prior submission of a Response to the Pre-Sentence Investigation Report, D.E. 28. Prior to Booker/Crosby, harsh conditions of incarceration could be taken into consideration as grounds for a downward departure, See United States v. Carty, 264 F.3d, 191, 196 (2nd Cir. 2001) [in reversing the District Court the Second Circuit reasoned that nothing in the Sentencing Guidelines prohibits consideration of presentence confinement conditions as a basis for downward departure.] The same logic suggests that such conditions may reasonably be taken into consideration in fashioning a post Booker/Crosby 12 sentence. Although it is difficult to quantify how a day spent in the Federal Prison in the United States, it is respectfully requested that the Court credit two days to the Defendant for each day spent in a Costa Rican Prison. DESIGNATION REQUEST Mr. Blanco-Ruiz requests that this Court include in the Judgment a recommendation to the Bureau of Prisons that he be designated to the FCI Miami or to the Coleman Federal Correctional Complex in Coleman, Florida. This designation will afford, Mr. Blanco-Ruiz’ sister, who is the only family member who currently has a U.S. Visa the best opportunity to visit him because it would significantly reduce the distance and costs associated with travel to the facility. CONCLUSION In light of the foregoing, it is respectfully submitted that a Guidelines Sentence, even at the low end of the available range would be unnecessarily harsh. All of the factors listed in Section 3553(a)(2) would be more properly addressed by a lesser non-guideline sentence. Mr. Blanco-Ruiz has already been severely punished, having been removed and isolated from his family and community since his arrest in Costa Rica approximately eight (8) months ago. It is clear that given the anguish and despair that he has suffered being 13 separated from his family and community and the pain that he has caused his parents, his wife and children, Mr. Blanco-Ruiz will never again be involved in criminal activity. Recidivism at his age is surely not an issue. A sentence well below the guidelines would be "Sufficient but not greater than necessary to comply with the purpose of Section 3553 (a)(2)." CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed with the Clerk of Court using the CM/ECF Filing System on this 7th day of August 2017. Respectfully Submitted, LAW OFFICES OF VICTOR E. ROCHA, P.A. 990 Biscayne Blvd, Suite O-903 Miami, Florida 33132 Tel: (305) 774-9111 Fax: (305) 514-0987 Email: By:/s/Victor E. Rocha Victor E. Rocha, Esq. Fla Bar No.: 366382 14