Free Sentencing Memorandum - District Court of Arizona - Arizona

1 TIMOTHY C. HOLTZEN 2 245 W. Roosevelt St. 3 Phoenix, Arizona 85003
State Bar No. 004723 Attorney at Law

4 (602) 799-6336 5 6 7 8 United States of America, 9 Plaintiff, 10
v. Attorney for Defendant UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) No. CR 04-1086-PHX-EHC SUPPLEMENTAL SENTENCING MEMORANDUM

11 Luis Alfonso Ortiz-Gonzalez, 12 Defendant. 13 14

The defendant, through undersigned counsel, submits the attached Supplemental

15 Sentencing Memorandum. The sentencing is set for August 8, 2005. 16 RESPECTFULLY SUBMITTED this 8 th day of August 2005. 17 18 19 20 21 this 8th day of August 2005 to: 22 Jeannie Moreno 23 24 26 27 28
U.S. Probation Office and hand-delivered to: Luis Alfonso Ortiz-Gonzalez Copy of the foregoing faxed s\ Timothy C. Holtzen Timothy C. Holtzen Attorney for Defendant

25 Defendant

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1 2

MEMORANDUM Ortiz previously objected to certain aspects of the presentence report and

3 requested certain corrections to the presentence report. At the time set for sentencing, 4 this Court expressed concerns about the accuracy or truthfulness of Mr. Ortiz and 5 continued the sentencing to permit the probation officer to respond to the objections. 6 The probation officer has responded and made some changes to the presentence report. 7 Ortiz offers this supplemental memorandum as additional information and explanation 8 of his circumstances and reasons for changing the guidelines calculations or asking this 9 Court to impose a lower sentence than that suggested by the presentence report. 10
Ortiz continues to disagree with a sentence enhancement for creating a

11 substantial risk of death or serious bodily injury and objects to the omission of a 12 sentence reduction for the commission of the offense without a profit motive. At the 13 very least, Ortiz asks this Court to consider that the facts in his case differ significantly 14 sufficient to permit this Court to impose a lower sentence, pursuant to United States v. 15 Booker, 543 U.S. ___ (2005) (2005 WL 50108) and its progeny clarifying that the 16 Sentencing Guidelines are not mandatory but are advisory, and also wishes to have the 17 presentence report paragraph 42 and 49 corrected. 18 FACTS 19 20 21 22
In the previous sentencing memorandum, undersigned counsel described: Ortiz grew up in Guadalajara Mexico. From about 2000 to 2003, he lived and worked in the area of Atlanta, Georgia. (PSR ¶ 43, 51 ­52.) In 2003, he returned to Mexico because of his mother's failing health. (PSR ¶ 43.) (Emphasis added.)

23 On June 30, 2005, the previous date set for sentencing in this case, this Court noted 24 inconsistency and questioned Ortiz' truthfulness because the presentence report 25 referred to Ortiz being arrested in Georgia in November of 2003 (PSR 6/30/05 ¶ 37) 26 and cited for speeding in Georgia in October of 2004 (PSR 6/30/05 ¶ 38), but the 27 28 2

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1 presentence report described his version as leaving the United States in 2003 until he 2 got caught coming back when arrested in this case in September of 2004. It also 3 reported that he worked with his father on a cattle ranch [in Mexico] from 2003 until 4 October 2004. (PSR 6/30/05 ¶ 43, 50-53). 5
There certainly has been confusion about the incidents and the dates. Since the

6 last court appearance, both the defendant and the probation office have noted that the 7 speeding charge listed against him was incorrect, and it has been removed from the 8 presentence report. The probation office found inconsistencies in the identifying 9 information between the perpetrator and the defendant, and the defendant has noted 10 that he was in custody in Arizona on this case when the citation was issued in Georgia 11 in October 2004, three weeks after he entered jail in Arizona. 12
Counsel would like to clarify confusion of dates and facts concerning Ortiz'

13 leaving the United States, returning to his parents in Mexico, and attempting to come 14 back to the United States. Although there has been some continuing communication, 15 counsel hopes to meet with Ortiz before the time set for sentencing to confirm this 16 understanding of the facts. 17
The defendant lived in Georgia, working hard as a waiter. In November 2003 he

18 was arrested in Georgia for the offenses listed in paragraph 37 (Driving with a 19 Suspended License; No Proof of Insurance; Operation of Unregistered Vehicle). He 20 was kept in jail there until the beginning of 2004. More specifically, On January 9, 21 2004, he was given a plea agreement to plead guilty in exchange for a fine, probation, 22 and two days of jail time with credit for time served! (PSR ¶ 37.) His mother's health 23 was not good. After the two months in jail, his job was not kept open for him and he 24 lost it, he had no money or place to live, and he left to Mexico. It was actually at the 25 beginning of 2004, rather than 2003, when he left the U.S. for Mexico. Perhaps it was 26 the fact that it was the early part of January 2004 that has lead to confusion, or perhaps 27 28 3

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1 it was that his year was taken over by incarceration into the new year that is confusing, 2 but Ortiz was in the United States in 2003, in jail in 2003-04, and returning to his 3 parents in Mexico very early in 2004. His mother was not in good health, and he did go 4 start to "help" his dad at the ranch. 5 NO CREATION OF SUBSTANTIAL RISK OF DEATH 6
The defense maintains that Ortiz did not create a substantial risk of death or

7 serious bodily injury pursuant to U.S.S.G. § to L1.1(b)(5). The probation officer does 8 not agree, suggesting that the defendant was driving a vehicle with a rated capacity of 9 six to nine passengers, there were insufficient seat belts for all passengers, and that 10 only five persons were visible and seven laid on the floor board in between the seats 11 and in the cargo area. Ortiz submits that this view is still mistaken. 12
Whether circumstances show an intentional or reckless disregard creating such a

13 substantial risk must be looked at on a case-by-case basis. The defense agrees that in 14 some circumstances a vehicle driven with 12 persons inside, with fewer than 12 15 seatbelts, may create a substantial risk of death or serious bodily injuries. Poor road 16 conditions, excessive speed, poor driving judgment, overly cramped passenger 17 conditions for prolonged trips, or insufficient heating, cooling, or oxygen from an 18 excessive amount of passengers might elevate some circumstances to creation of 19 substantial risk of death or serious bodily injuries. Here, however, the defendant was 20 driving a 2004 Ford Excursion, a very large and roomy sport utility vehicle ("SUV"), 21 on a well paved and traveled road, for a relatively short period of time, and at a 22 reasonable speed and circumstances that passengers did not sense any risks. 23 24 25 26 27 28 4
It was not a minivan or just an SUV. The Excursion has been described as: In terms of size, the Ford Excursion is the king of big sport-utilities. Supremely stable at speed, it feels safe and secure on the open highway. Whether you have a lot of cargo to carry, a bunch of people to transport, a big trailer to pull, or all of the above, the Excursion is ready for whatever you throw its way.

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1 ("2004 Ford Excursion: The big rig of SUVs," Mitch McCullough, New Car Test 2 Drive .com.1 ) Ford Excursions in 2004 were described as having been built to seat 3 eight or nine persons, depending upon the way they were configured, and can tow up to 4 11,000 pounds. Id.; "2004 Ford Excursion Styles," edmonds.com.2 Behind the third 5 row of seats there is a cargo area with a volume of 48 cubic feet. (Ford: Excursion 6 Specifications.3 ) Ortiz is not suggesting that transporting 11 illegal aliens was an 7 intended use, or even an appropriate use, of a 2004 Excursion. He is suggesting that 8 the size and quality of the vehicle is a consideration toward safety for a larger number 9 or heavier weight, although it was certainly more passengers than he intended and 10 more than he told them was his limit. 11
The probation officer suggests that the enhancement for creating a substantial

12 risk of death or serious bodily injury should be maintained based on a claim that there 13 were only five passengers visible and that seven passengers were lying on the 14 floorboards and in the cargo area of the vehicle. The defense does not know the source 15 of that allegation, and disagrees with it. For example, the evidence presented in the 16 testimony of the material witnesses is contrary to a suggestion that only five occupants 17 were visible with seven others lying on the floor. Saul Centeno-Alvarez testified that 18 he was seated in the backseat, and when asked by the prosecutor "were you able to see 19 out the windows as the car was driving along?" He responded her "Yes, because we 20 were all traveling sitting down like so." (Deposition of Centeno-Alvarez 10/5/04 18.) 21 Maria Mera-Diaz testified that she saw the face of the driver for 10 minutes, she was 22 23 24 25 26 27 28
3 1

Available at: www.autoauctiondirect.com/ur/ur,,_t,,review,,vehicleid,,5552,,car,,2004_Ford_Ex cursion.ne.aspx
2

Available at: www.edmunds.com/used/2004/ford/excursion/index.html Available at: www.fordvehicles.com/suvs/excursion/features/specs

5

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1 not sitting behind him, and when asked by the prosecutor where she was sitting in the 2 vehicle, she responded, "In the front there are two people there. Well, in the front it's 3 the driver and then another person next to him, there is two seats in the front and then 4 the next row there and four people and then I was in the last row." That testimony 5 suggests at least seven people were sitting up. Later in her testimony she confirmed 6 that the driver arrived and said the eight people should get into the vehicle. She 7 testified that there was one laying down across their feet and in the back area of the 8 vehicle there were two or three people also laying down. Ortiz did not tell anyone to 9 lay down on the floor. (Deposition of Mera-Diaz 10/5/04 19, 25­26.) Efrain Vasquez10 Martinez testified that he and two ladies were lying down in the back part of the 11 vehicle. He did not see any one else lying down in the vehicle, but his back was to 12 them. (Deposition of Efrain Vasquez-Martinez 10/5/04 16.) Thus, the material 13 witnesses testimony was that, from Centeno's viewpoint they were all sitting down, 14 from other material witnesses there were perhaps three or four persons lying down on 15 the floor area of the largest SUV available. At any rate, the testimony is inconsistent 16 with the allegation that only five people sat up while seven laid down on the floor. 17
The defense does not encourage seating conditions of 12 persons in an

18 Excursion, but submits that the number of persons alone, or the lack of seatbelts for the 19 occupants does not render the conduct of a driver dangerous. From a common sense 20 viewpoint, especially in Arizona, there are pickup trucks with passengers in the bed of 21 the truck, school busses without seatbelts, motorcycles without seatbelts, and 22 automobiles built and driven for decades before seat belts were available, that have not 23 been by their nature and circumstances "intentional or reckless" creation of a 24 substantial risk of death or serious bodily injury. The availability of safety features 25 does not make their absence a created danger. 26 27 28 6
The question is whether the vehicle in this case, with this driver under those

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1 circumstances created such a danger to call for an increased penalty. Ortiz did not 2 present such a danger. 3 ORTIZ WAS PAYING HIS FEE, NOT DRIVING FOR PROFIT/MINOR ROLE 4
Ortiz was permitted to pay for his transportation by driving a Ford Excursion

5 with the illegal alien passengers twice for a short distance between Gadsden and 6 somewhere on the way to Yuma, Arizona. The question for punishment purposes may 7 best be put "was he paying or being paid?" The defense asks this Court to consider that 8 he was simply paying the smugglers by driving twice for a very short distance, in a 9 much larger scale smuggling operation. He drove from Gadsden, Arizona to a gas 10 station up the road before Yuma, Arizona. There were other participants with larger 11 roles, including the Doña supervising, the coyote (border crossing smuggler) and 12 whoever would be driving the aliens to places far beyond Yuma. By comparison, 13 Ortiz' role was minor, and certainly minor by comparison to that of his codefendant. 14 15
CONCLUSION Based on the foregoing, Ortiz asks this Court to deny the guideline enhancement

16 based on the claim that he created a risk of death or serious bodily injury, grant a 17 reduction of the guideline calculation because the offense was committed to pay for his 18 transportation rather than for profit, and to order corrections or clarifications to the 19 presentence report as noted above. 20 21 22 23 24 25 26 27 28 7
s\Timothy C. Holtzen Timothy C. Holtzen Attorney for Defendant RESPECTFULLY SUBMITTED this 8 th day of August 2005.

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