Case :-cr-000-dcb-bpv Document Filed 0/0/ Page of 0 0 LAURA E. DUFFY United States Attorney TODD W. ROBINSON Special Attorney California State Bar No. FRED SHEPPARD Special Attorney California State Bar No. 0 DAVID D. LESHNER Special Attorney California State Bar No. 0 Federal Office Building 0 Front Street, Room San Diego, California 0- Telephone: () -0 David.Leshner@usdoj.gov Attorneys for Plaintiff United States of America UNITED STATES OF AMERICA, v. Plaintiff, MANUEL OSORIO-ARELLANES, Defendant. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Case No.: CR -0-TUC-DCB-BPV DATE: February 0, 0 TIME: :0 p.m. UNITED STATES SENTENCING MEMORANDUM COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Laura E. Duffy, United States Attorney, and Todd W. Robinson, Fred Sheppard and David D. Leshner, Special Attorneys, and hereby files its Sentencing Memorandum.
Case :-cr-000-dcb-bpv Document Filed 0/0/ Page of 0 0 I INTRODUCTION This case arises from the murder of Border Patrol Agent Brian Terry in December 00. Defendant Manuel Osorio-Arellanes ( Defendant ) has pled guilty to first degree felony murder. The Government recommends a sentence of 0 months custody. A. Agent Terry s Murder II STATEMENT OF FACTS In early December 00, Defendant and his five co-defendants entered the United States from Mexico. Their plan was to retrieve guns and supplies hidden in the United States, search for individuals transporting marijuana on foot and rob those individuals. On December, 00, Border Patrol agents encountered Defendant and his five co-defendants in a rural area north of Nogales, Arizona. Agents apprehended defendant Rito Osorio-Arellanes, but the other five co-defendants, including Defendant, dropped their backpacks and fled. Agents searched the backpacks and left them after determining they did not contain weapons or other contraband. Defendants and the four others later returned to the site and retrieved their backpacks. They continued to the cache of guns and supplies, armed themselves and proceeded to search for a group of drug smugglers to rob. On the evening of December, 00, four BORTAC team members, including Agent Terry, were positioned on a small hill above a wash. Two other BORTAC team members were positioned at a separate observation point to identify approaching foot traffic and to monitor radio communications. Agent Terry was positioned above the wash with Agents William Castano, Gabriel Fragoza and William Keller. Declarations from Agents Castano, Fragoza and Keller are attached.
Case :-cr-000-dcb-bpv Document Filed 0/0/ Page of 0 0 Shortly after :00 p.m., foot traffic activated a ground sensor in the vicinity of the four team members positioned above the wash. Within minutes, agents observed the five co-defendants traveling westbound toward the agents position on the hill. The agents observed that multiple co-defendants were armed and carrying their weapons at the ready position. As the co-defendants passed through the wash below, the agents announced their presence. Two or more of the armed co-defendants turned toward the agents and fired on the agents. The agents fired both non-lethal and lethal rounds at the co-defendants. A single bullet fired by the co-defendants struck Agent Terry. His fellow agents attempted to administer first aid, but Agent Terry died at the scene. Defendant sustained gunshot wounds to the torso and remained at the scene as the four other co-defendants fled. Agents responding to the scene found Defendant lying next to his assault rifle. The remaining four co-defendants fled to Mexico. In September 0, Mexican authorities arrested defendant Leonel Portillo-Meza. In September 0, Mexican authorities arrested defendant Ivan Soto-Barraza. Extradition proceedings for Portillo- Meza and Soto-Barraza are ongoing. The remaining two defendants, Heraclio Osorio- Arellanes (Defendant s brother) and Jesus Rosario Favela-Astorga, are fugitives in Mexico. B. Defendant s Guilty Plea On October 0, 0, Defendant pled guilty to first degree felony murder, in violation of U.S.C. and. In his plea agreement, Defendant admitted that he and the co-defendants entered the United States in December 00 with the intent to rob marijuana loads from smugglers and to provide the stolen marijuana to other individuals in the United States. Defendant further admitted that he and his co- Further investigation revealed that all five co-defendants were armed. The ready position means the gun is held in a position to allow almost immediate accurate firing.
Case :-cr-000-dcb-bpv Document Filed 0/0/ Page of 0 0 defendants retrieved guns and supplies upon entering the United States and that they were looking for drug smugglers to rob when they encountered Border Patrol agents on December, 00. Finally, Defendant admitted that one of his co-defendants killed Agent Terry. III THE APPROPRIATE SENTENCE IS 0 MONTHS A. The Sentencing Guidelines As set forth below, the Government recommends the following Guidelines calculations: Base Offense Level Official Victim + Acceptance of Responsibility - Adjusted Offense Level An offense level of results in a Guidelines sentence of life imprisonment, which is the statutory mandatory minimum. See U.S.C... Base offense level The base offense level for first degree murder is. See U.S.S.G. A... Official victim enhancement There is a -level increase under U.S.S.G. A.(a) because Agent Terry was a federal officer and the murder was motivated by such status. As the Ninth Circuit has explained: The Official Victim enhancement does not require that a defendant harbor any particular ill-will towards federal agents. It is enough that a defendant knows that the victim is a federal officer and then assaults the officer in an attempt to get away or evade capture... The key factors are knowledge of the victim s official status and assaultive conduct motivated by that knowledge.
Case :-cr-000-dcb-bpv Document Filed 0/0/ Page of 0 0 United States v. Rivera-Alonzo, F.d, (th Cir. 00) (upholding -level increase where defendant assaulted Border Patrol agent). See also United States v. Anchrum, 0 F.d, 0 (th Cir. 00) (official victim enhancement applied where defendant struck DEA agent with vehicle while attempting to evade capture); United States v. Sanchez, F.d, - (th Cir. 0) (enhancement applied where defendant drove at Border Patrol agent and rammed agent s vehicle). Here, there is ample evidence in the record to conclude that the defendants knew they were firing at law enforcement officers. As the co-defendants walked through the wash with weapons at the ready position, Agent William Castano yelled POLICE! in the Spanish language. See Castano Declaration ; Fragoza Declaration ; Keller Declaration. The co-defendants turned toward the agents and one or more of the co-defendants fired multiple rounds. During the exchange of gunfire, four of the five co-defendants fled the scene. Defendant was unable to flee because he had sustained gunshot wounds to the torso. The Government notes that Defendant has consistently denied firing any shots. But that does not matter for purposes of the official victim enhancement. Defendant is liable for the crime of first degree murder regardless whether he fired the bullet that killed Agent Terry because the murder occurred in the course of the attempted robbery in which Defendant was a knowing and voluntary participant. Similarly, the official victim enhancement applies because Agent Terry was killed as Defendant and his group attempted to evade capture. See U.S.S.G. B.(a)()(B) (Guideline adjustments apply to all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity ). The Government further notes that Defendant has denied hearing the agents announce their presence prior to shots being fired. In post-arrest interviews, Portillo- Meza and Soto-Barraza also denied hearing the agents announce their presence prior to shots being fired. However, the sworn declarations submitted by Agents Castano, Fragoza and Keller all make clear that Agent Castano announced POLICE! in the
Case :-cr-000-dcb-bpv Document Filed 0/0/ Page of 0 0 Spanish language and that the co-defendants in the wash below thereafter turned toward the agents. The fact that the co-defendants turned toward the agents upon hearing Agent Castano announce POLICE demonstrates that the co-defendants heard him. At that point, the co-defendants knew they had encountered law enforcement officers, and nevertheless shot at the agents in an attempt to evade capture. Under these facts, the official victim enhancement applies. See, e.g., Anchrum, 0 F.d at 0 (upholding official victim enhancement where defendant struck officer wearing vest marked Police ).. Acceptance of responsibility The Government recommends a -level downward adjustment under U.S.S.G. E.. B. Sentencing Recommendation. Nature and Circumstances Of The Offense Defendant was a willing participant in the conspiracy and attempted robbery that resulted in Agent Terry s murder. As such, he is liable for first degree felony murder. It should be noted that Defendant has consistently maintained that he was not a leader of the rip crew and had not engaged in similar robberies in the past. The Government does not possess any evidence to the contrary. Similarly, Defendant has denied firing any shots at the Border Patrol agents (while admitted that he chambered a round). Ballistics testing of the round recovered from Agent Terry s body was inconclusive; however, there is circumstantial evidence supporting Defendant s contention that he did not shoot Agent Terry. In particular, Defendant informed law enforcement that he had loaded about rounds of ammunition in each of his two magazines. When authorities recovered Defendant s assault rifle lying next to him, there was round in the chamber and rounds in the magazine. Defendant s backpack had another magazine loaded with rounds.
Case :-cr-000-dcb-bpv Document Filed 0/0/ Page of 0 0. Seriousness Of The Offense And Need For Just Punishment The gravity of the murder is self-evident. Although there is no evidence that Defendant joined the robbery conspiracy with the intent to kill someone, Agent Terry s murder was a tragically foreseeable consequence of Defendant s agreement to engage in armed robberies. Brian Terry s parents and siblings have lost a beloved son and brother. The written statements provided by the Terry family describe the loss they suffered on December, 00, which they will carry with them forever. Family members also will address the Court at sentencing.. Deterrence And Protection Of The Public Concerns of both specific and general deterrence further support a substantial sentence. Defendant s actions demonstrate a flagrant disregard for the law. Although Defendant may disclaim any intent to engage in such conduct in the future, a 0- month sentence will provide reasonable assurance that he will not do so. The need for general deterrence is equally clear. Those who may be tempted to engage in similar conduct and thereby create a grave risk of death or serious injury to others must be deterred. Similarly, the sentence imposed must make clear to others that there is no excuse or justification for refusing to yield to law enforcement or for the unconscionable decision to kill a law enforcement officer in an effort to evade capture. Law enforcement officers put their lives on the line every day to protect the public and the general welfare, and the sentence imposed must show others that such conduct will be severely punished.
Case :-cr-000-dcb-bpv Document Filed 0/0/ Page of 0 0 IV CONCLUSION For all the foregoing reasons, the Government respectfully urges the Court to impose a sentence of 0 months custody. DATED: February, 0 Respectfully submitted, LAURA E. DUFFY United States Attorney /s/ David D. Leshner DAVID D. LESHNER FRED SHEPPARD TODD W. ROBINSON Special Attorneys Attorneys for Plaintiff United States of America
Case :-cr-000-dcb-bpv Document Filed 0/0/ Page of 0 0 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, ) Case No. -0-TUC-DCB-BPV ) Plaintiff, ) CERTIFICATE OF SERVICE ) v. ) ) MANUEL OSORIO-ARELLANES, ) ) Defendant. ) ) IT IS HEREBY CERTIFIED THAT: I, DAVID D. LESHNER, am a citizen of the United States and am at least eighteen years of age. My business address is 0 Front Street, Room, San Diego, California 0-. I am not a party to the above-entitled action. I have caused service of UNITED STATES SENTENCING MEMORANDUM on the following parties by electronically filing the foregoing with the Clerk of the District Court: Clay Hernandez, Esq. I declare under penalty of perjury that the foregoing is true and correct. Executed on February, 0. /s/ David D. Leshner DAVID D. LESHNER
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