PAUL K. CHARLTON United States Attorney District of Arizona GARY M. RESTAINO Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 017450 Telephone (602) 514-7500 United States of America, UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Plaintiff, v. Teresa Caballero-Velazquez, Defendant. CR-04-407-PHX-EHC UNITED STATES RESPONSE TO DEFENDANT S SUPPLEMENTAL OBJECTION TO PARAGRAPH 19 OF THE PRESENTENCE REPORT The United States, through undersigned counsel, responds to defendant s supplemental objection to the PSR based on Blakely v. Washington, 2004 WL 1402697 (2004). Defendant objects to the imposition of a three-level sentencing enhancement for the specific offense characteristic of endangerment during an alien smuggling offense, pursuant to U.S.S.G. 2L1.1(b)(5). The government supports the recommendation of U.S. Probation to impose the three-level enhancement. This response is supported by the following Memorandum of Points and Authorities and incorporates by reference the United States Response to Defendant s Objection to Paragraph 19 of the Presentence Report, filed June 15,
2004. Respectfully submitted this day of July, 2004. PAUL K. CHARLTON United States Attorney District of Arizona GARY M. RESTAINO Assistant U.S. Attorney / / / MEMORANDUM OF POINTS AND AUTHORITIES Defendant argues that Blakely v. Washington, 2004 WL 1402697 (2004), precludes the imposition of a sentencing enhancement for conduct which was neither charged nor determined by a jury nor admitted in the factual basis of a plea agreement. The decision in Blakely can be distinguished as a result of the additional admissions in this case beyond the factual basis in the plea agreement, and may also be distinguished by the factors used to determine the increased sentence. A. Background United States Border Patrol agents arrested defendant on April 1, 2004 for transporting illegal aliens in a minivan near Coolidge, Arizona. Defendant confessed upon arrest, and admitted in the factual basis to transporting more than six individuals she knew to be aliens unlawfully present in the United States. Defendant did not admit the manner in which she transported the aliens, but two of the aliens gave statements as material witnesses describing
the manner of transport. In particular, Elizabeth Martinez-Dominguez stated that the first time she met defendant, on the day before the arrest, defendant told her group to get in a vehicle and lay down, so that they weren t visible. (Ex. A.) The government and defendant subsequently stipulated that material witness testimony shall be admitted as substantive evidence in any trial or hearing in the above-encaptioned matter. (Stipulation, filed April 9, 2004 at 4.) 1. The basis for the enhancement In its response to defendant s original objection, the government recommended that this Court impose the enhancement under U.S.S.G. 2L1.1(b)(5) because defendant s vehicle had no seats and because the aliens were lying down on the floor, and each of these facts creates a substantial risk of serious bodily injury to the passengers. As a threshold matter, the government urges this Court to first evaluate the applicability of the sentencing enhancement under the Guidelines, using the facts set forth and discussed in the original objection and response and without consideration of Blakely. In the event that this Court determines that the evidence does not establish the substantial risk of serious bodily injury, it should sustain the objection without ruling on Blakely. This Court need only address Blakely if it first determines that the evidence justifies the enhancement. 2. The additional admissions beyond the plea agreement Under defendant s reading of Blakely, the only facts admissible in a sentencing hearing would be facts admitted by the defendant. In most cases, those facts are set forth only in the 3
plea agreement. In the instant case the parties also entered into a stipulation in lieu of video depositions. Taken together, the plea agreement and the stipulation provide sufficient evidence of endangerment even under defendant s reading of Blakely. The only fact in the plea agreement that touches on endangerment is defendant s admission that she transported 9 passengers in a minivan, a fact which may lead, with additional evidence, to the legal conclusion that the vehicle was overcrowded and therefore unsafe. The additional evidence comes from the stipulation:... (1) Material witnesses Esteban Hernandez-Gonzalez and Elizabeth Martinez-Dominguez, were found in a vehicle operated by the defendant, Teresa Caballero-Velazquez; and (2) The government may elicit hearsay testimony from arresting agents regarding any statements made by the above-referenced material witnesses contained in the disclosure, and such testimony shall be admitted as substantive evidence in any hearing or trial in the aboveencaptioned matter. (Stipulation at 3-4.) Elizabeth Martinez-Dominguez told agents that when defendant first transported her, defendant directed her to lay down in the vehicle. (Ex. A.) That fact, when combined with the number of aliens found in the vehicle on the day of the arrest, should justify endangerment, provided it is a fact upon which this Court may rely. 4
The upcoming sentencing of defendant is a hearing as contemplated by the stipulation. The parties did not merely agree that the testimony would be admissible in theory, but that the testimony would actually be admitted. The stipulation thus forms part of the factual basis admitted by the defendant in this case, and is properly considered under defendant s reading of Blakely. 3. The scope of Blakely Defendant s reading of Blakely infers more than the Court determined. The decision in Blakely did not address the Federal Sentencing Guidelines ( the Guidelines ). The Federal Guidelines are not before us, and we express no opinion on them. Blakely, 2004 WL 1402697 at * 6 n. 9. The analysis in Blakely may not be comparable to a determination of specific offense characteristics of an admitted crime under Chapter 2 of the Guidelines. The Court in Blakely struck down a Washington sentencing scheme that contained a presumptive standard range based on the offense itself, with an exceptional sentencing enhancement for factors such as deliberate cruelty, provided that the trial court issued detailed findings of fact and conclusions of law in support. Id. at * 2. These factors in the Washington scheme are most analogous to the aggravating and mitigating circumstances addressed in 18 U.S.C. 3553(b) and outlined in U.S.S.G. 5K2.0. See, e.g. U.S.S.G. 5K2.8 (describing the Extreme Conduct enhancement). Similar to the detailed findings of fact in the Washington system, imposition of these Chapter 5 enhancements under the Guidelines requires a court to cite the specific reason for the imposition of a sentence 5
different from that described, which reasons also must be stated with specificity in the written order of judgment and commitment. 18 U.S.C. 3553(c)(2). To the extent that Blakely applies directly to the Guidelines, it applies only to departures from the presumptive range. In marked contrast, imposition of a sentence for the applicable category of offense committed by the applicable category of defendant does not require a court to state with specificity its reasons, and requires only a general rationale for the placement within the range. 18 U.S.C. 3553(a)(4)(A) and (c)(1). The applicable category of offense is set forth in Chapter 2 of the Guidelines, and includes both a base offense level and specific offense characteristics, and the government bases its recommendation of the endangerment enhancement on those specific offense characteristics. Departures outside a guideline range are different from specific offense characteristics within a range, and the imposition of the enhancement for the characteristics associated with alien smuggling, such as number of aliens and endangerment, is consistent with the Court s decision in Blakely. 1 C. Conclusion For the foregoing reasons, this Court should adopt the recommendation in the PSR and find that the placement of the aliens in the minivan created a substantial risk of serious 1 Defendant cites to the dissent in Blakely for the proposition that risk of bodily harm and other Chapter 2-type enhancements must be charged in an indictment and submitted to a jury. This proposition is misplaced. First, the dissent paints a picture of what may come to pass should the Court expand the principles in Blakely, rather than a definitive statement of what Blakely means. See Blakely, 2004 WL 1402697 at *16. Second, the Blakely dissent is 6
bodily injury to the passengers. Respectfully submitted this day of July, 2004. PAUL K. CHARLTON United States Attorney District of Arizona Copy of the foregoing mailed this date to: Greg Bartolomei Assistant Federal Public Defender Kelly Heitkam U.S. Probation GARY M. RESTAINO Assistant U.S. Attorney a dissent, not an opinion of the Court. 7