Free Judgment for Revocation - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 04-cr-00435-MSK

3 UNITED STATES OF AMERICA, 4 Plaintiff, 5 vs. 6 ERNESTO MANUEL HERNANDEZ, 7 Defendant. 8 _______________________________________________________________ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REPORTER'S TRANSCRIPT (Sentencing Hearing: Order) _______________________________________________________________ Proceedings before the HONORABLE MARCIA S. KRIEGER, Judge, United States District Court for the District of Colorado, occurring at 10:23 a.m., on the 20th day of March,

2006, in Courtroom A901, United States Courthouse, Denver, Colorado. APPEARANCES JAIME PENA and GREGORY RHODES, Assistant U.S. Attorneys, 1225 17th Street, Suite 700, Denver, Colorado, 80202, appearing for the plaintiff. DONALD LOZOW, Attorney at Law, 1600 Stout Street, Suite 1910, Denver, Colorado, 80202, appearing for the defendant. Proceeding Recorded by Mechanical Stenography, Transcription Produced via Computer by Paul Zuckerman, 901 19th Street, Room A259, Denver, Colorado, 80294, (303) 629-9285

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(The following proceedings were had and entered of record after the Court heard the arguments of counsel and statement of defendant:) THE COURT: Thank you. Then I'll announce the Counsel, you'll have an

sentence that I intend to impose.

opportunity to make further argument before judgment is entered. As we all recognize, sentencing in federal cases is governed by the provisions of 18 U.S.C. Section 3553(a). That

requires the Court to impose a sentence that is sufficient but not greater than necessary to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment, to adequately deter criminal conduct, to protect the public from further crimes by the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. In order to tailor a sentence with these objectives, the Court looks to a number of factors: the nature and circumstances of the offense, the history and characteristics of the defendant, the kind of sentences that are available, what the Sentencing Guidelines would require, the need to avoid unwarranted sentence disparities among defendants with similar records found of guilty of similar conduct, and in the appropriate case, the need for restitution.

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The presentence report provides valuable information with regard to these factors. Here, the parties do not dispute

its factual contents; and the Court treats those facts in the presentence report as true. Then the Court considers how the federal sentencing guidelines would apply. Again, the parties do not dispute the

calculation contained in the presentence investigation report. The base offense level here is 26. Because there is a

violation of 21 U.S.C. Section 841(a)(1) and (b)(1)(B), the Sentencing Guidelines section that is applicable is Section 2D1.1. And because the type and amount of drugs involved in

this offense was more than 500 grams but less than 2 kilograms of cocaine, the base offense level is 26 pursuant to Section 2D1.1(c)(7). There are no specific offense characteristics, no There is an adjustment for role in

victim-related adjustments. the offense here.

The offense level is reduced by four levels

because the defendant's only involvement in this offense appears to have been providing transportation for Gonzales on the day the drug transaction occurred. There is an additional

reduction for -- an additional reduction as an adjustment for acceptance of responsibility. The offense level is reduced by

three levels because the offense level is 16 or greater and Sections 3E1.1(a) and (b) have been satisfied. a total offense level of 19. The criminal history category here is Category II. This results in

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There are three misdemeanor offenses for which no points are assigned. Two points are assigned for unlawful carrying of a

concealed weapon, a Class II misdemeanor; robbery, a Class IV felony, all arising in Case No. 00-cr-1933 in the state court in Jefferson County. No points are assigned for

permitting an unauthorized person to drive, which was a traffic infraction in 2005. The total criminal history points

therefore is 2; and pursuant to that calculation, there is a criminal history category of II. With a total offense level of 19 and a criminal history category of II, the guidelines provide for five years of imprisonment, four to five years of supervised release, a fine of $6,000 to $2 million, and a special assessment of $100. The probation department has recommended a sentence of five years of imprisonment, five years of supervised release, no fine, and a $100 assessment. Now, in this case, the Government has filed a motion under section 5K1.1 asking for a downward departure based upon substantial assistance. That motion requests imposition of a

sentence of 12 months and one day, essentially the minimum sentence that can be imposed for a felony conviction. It is

substantially less than what the federal Sentencing Guidelines provide for, and it reflects both the minimal participation by this defendant and his cooperation with the Government which aided the Government in prosecution of this case.

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As I've indicated, I'm inclined to grant that motion and adhere to the terms of the plea agreement that anticipated a 12-month-and-one-day period of incarceration. That is a

substantial departure from what the guidelines would require and one which is appropriate in this case when coupled with a lengthy period of supervised release and imposition of a fine. I have a young man before me who has the capability of engaging in lawful behavior and being a responsible member of society. I see a pattern of irresponsible behavior leading up

to this point involving not only this infraction but prior convictions. I know that he is loved and supported by his

family and he now realizes the benefit of that support. But frankly, Mr. Hernandez, you're responsible for your own behavior. This isn't about your family. It's about

what you choose to do.

And you are accountable not only to And

them and to society but to yourself for your own behavior.

I'm pleased to hear that you recognize that sometimes friends do not have your best interest at heart. can't have friends. We all need friends. That doesn't mean you

It means you've got to choose them wisely. But we must choose people who have our

best interests at heart, not their own interests. I am inclined to impose and intend to impose the sentence of incarceration reflected in the 5K1.1 motion, 12 months and one day. I agree with the probation department's

recommendation of the period of supervised release, five years.

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I intend to impose a fine of $6,000, which is the minimum fine here. And I intend to impose this because I want you to

continue in your gainful employment and I want you to discipline yourself to follow the law. You're going to be very tempted to develop friends when you're in prison who will not have your best interests at heart. And when you get out of prison, I want you to continue

to focus on the commitments that you're making today, commitments to lawful behavior, to living up to the values that society has and your family has. You will work out a payment schedule on that fine with your probation officer, and you'll have five years to get it paid. I expect it will be paid before your supervised release I intend to make this fine bear no interest

term expires.

because you're going to have other obligations for your own support during this supervised release time. But every time

you make a payment on this fine, you're recommitting to your family and to society that you will follow the law, and I want that reminder until the payments are all satisfied. I intend to impose as a condition on the supervised release period the standard conditions and the statutory conditions and that you participate in a program of testing and treatment for drug abuse as directed by the probation officer for so long as the probation officer requires you to participate. And to the extent that you are able and directed

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to by the probation officer, you will pay for that treatment. I'm required to impose a special assessment of $100; but as I've indicated, I will not impose any interest on this fine, waiving it in this case. Is there any further argument? MR. PENA: THE COURT: MR. LOZOW: your Honor. No, your Honor. Mr. Lozow? I may be premature on the self-surrender, For the Government?

Other than that, that's the only comment I have

left; but I may be a little premature on that. THE COURT: like to. MR. LOZOW: recommendation. self-surrender. THE COURT: MR. PENA: What's the Government's position? The Government leaves it up to the Court. I'd ask the Court to follow the Well, you can make whatever comment you'd

And the Government has no objection to a

We have no objection nor any information to present to the Court to indicate that it would be inappropriate to allow self-surrender. THE COURT: What are the parties' positions with

regard to exoneration of the bond: now or at the time of voluntary surrender? MR. PENA: Honor. At the time of voluntary surrender, your

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MR. LOZOW: THE COURT:

That would be proper, your Honor. All right. Then based upon the findings

made in this case, pursuant to the Sentencing Reform Act of 1984 and having considered all of the factors and objectives of 18 U.S.C. Section 35353(a), the Court finds and it is the judgment of the Court that Ernesto Manuel Hernandez be committed to the custody of the Bureau of Prisons to be imprisoned for a term of 13 months. Upon release from

imprisonment, he will be placed on supervised release for a term of five years. Within 72 hours of release from the

custody of the Bureau of Prisons, he will report in person to the probation office in the district to which he is released. While on supervised release, he will not commit another federal, state, or local crime, not possess a firearm as defined in 18 U.S.C. Section 921, and shall comply with the standard conditions that have been adopted by this court. He will not unlawfully possess a controlled substance. He will refrain from any unlawful use of a controlled substance. He will submit to one drug test within 15 days of

release on supervised release and at least two periodic tests thereafter. He will cooperate in the collection of DNA as directed by the probation officer. In addition, he will comply with the He will participate in a program

following special condition:

of testing and treatment for drug abuse as directed by the

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probation officer until such time as he is released from the program by the probation officer. He'll abstain from the use

of alcohol or other intoxicants during the course of treatment and shall pay the cost of treatment as directed by the probation officer. He will pay a special assessment of $100 and a fine of $6,000. The fine, however, will not bear interest after due The total

consideration of his financial circumstances.

monetary obligations will be paid by the time the supervised release period is concluded. I find that the defendant is not likely to flee or pose a danger to the safety of any other person or the community and therefore order that Ernesto Manuel Hernandez surrender at the institution designated by the Bureau of Prisons before noon on April 17, 2006. His bond is exonerated

or will be exonerated at the time of his voluntary surrender to the institution. MR. LOZOW: Your Honor inadvertently -- and maybe I

heard incorrectly -- but I think the Court may have said 13 months rather than 12 months and one day. THE COURT: MR. LOZOW: THE COURT: I did. That's correct. Thank you.

Thank you, your Honor. The oral recitation of the judgment is

amended to reflect 12 months and one day. Mr. Hernandez, I advise you of your right to appeal

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this sentence.

If you desire to appeal, the notice of appeal

must be filed with the Clerk of the Court within ten days after entry of the judgment or you lose your right to appeal. If

you're unable to afford an attorney for an appeal, the Court will appoint one to represent you. Ordinarily, Mr. Lozow would

file your notice of appeal for you; but if he is unable or unwilling to do so and you request, I will direct the Clerk of the Court to file a notice of appeal for you. The record should reflect that the motion found at Docket No. 85 is granted. The 5K1 motion -- and I'm not sure

what docket number that is; I can't tell from our docket -- is similarly granted. Ms. Nelson, are you showing any other pending motions? THE COURTROOM DEPUTY: No, your Honor. The only

pending motions I'm showing are the two motions to dismiss the counts, Docket No. 43 and 74, and the two motions and notices of sentencing factors, Docket No. 47 and 73. MR. PENA: Your Honor, the Government would move to I think

withdraw any other motions they had previously filed.

that the motions that the Court has already addressed are the appropriate motions for the sentencing hearing. THE COURT: MR. LOZOW: THE COURT: All right. Any objection?

None by the defendant, your Honor. All right. Those motions that you've just

referred to, Ms. Nelson, therefore are withdrawn.

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THE COURTROOM DEPUTY: THE COURT:

Thank you, your Honor.

Any further business to bring before the

MR. PENA: MR. LOZOW:

No, your Honor. Your Honor, just as an ounce of prevention

being worth a pound of cure, it's my understanding that the probation department will dictate and keep the defendant advised as to when he's to surrender himself. THE PROBATION OFFICER: That's correct. He'll receive

notification in the mail, and we will contact him personally. MR. LOZOW: THE COURT: Thank you, your Honor. Thank you. That will conclude this matter.

Thank you, Counsel. We will stand in recess. (Recess at 10:40 a.m.) * *

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REPORTER'S CERTIFICATE I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. at Denver, Colorado, this 20th day of March, 2006. Dated

______________________________ Paul A. Zuckerman