Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cr-00359-WYD

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EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 01-cr-00359-WYD

3 UNITED STATES OF AMERICA, 4 Plaintiff, 5 vs. 6 BRAULIO MEDINA-GARCIA, 7 Defendant. 8 ____________________________________________________________ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Proceeding Reported by Mechanical Stenography, Transcription Produced via Computer by Kara Spitler, RMR, CRR, 901 19th Street, Denver, CO, 80294, (303) 623-3080 CO Proceedings before the HONORABLE WILEY Y. DANIEL, Judge, United States District Court for the District of Colorado, commencing at 9:10 a.m., on the 10th day of January, 2007, in Courtroom A-1002, United States Courthouse, Denver, Colorado. APPEARANCES GUY TILL, Assistant United States Attorney, 1225 17th Street, Suite 700, Denver, CO 80202, for plaintiff. REPORTER'S TRANSCRIPT Sentencing ____________________________________________________________

CHRISTOPHER LEACH, 1600 Broadway, Suite 1950, Denver, 80202, for defendant.

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PROCEEDINGS (In open court at 9:10 a.m.) THE COURT: All right. You may be seated. This is

01-cr-359, U.S.A. vs. Braulio Medina-Garcia. Counsel enter their appearances. MR. TILL: Good morning, Your Honor. I'm Guy Till;

I'm an assistant U.S. of the attorney representing the government. MR. LEACH: Good morning. Christopher Leach appearing

as cocounsel for Mr. Harvey Steinberg, for Mr. Medina-Garcia. THE COURT: MR. LEACH: Where is the defendant? I have had recent contact with a friend of I don't know what the situation is, He was on Downing

He is on his way.

that maybe he was mixed up on the time. Street. THE COURT: continue.

I'm not inclined to grant the motion to

I'm inclined to go forward with the sentencing.

I'm very unhappy and frustrated with Mr. Steinberg's He filed a motion to continue the sentencing at He knew or should have known that he was

5:01 p.m. yesterday. in trial.

He previously filed an unopposed motion to continue And that pattern will stop.

the sentencing back in December.

And in fact, I'm inclined to order that Mr. Steinberg show up before me so I can inquire as to whether I should impose sanctions because he's delaying things.

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So, Mr. Leach, we're going to have this sentencing today, and you're going to conduct it, and you don't have any objection to it, do you? MR. LEACH: Your Honor, no. I anticipated. Given the I

motion, if I could give the Court a little more context.

believe that essentially I'm fully capable of taking care of the sentencing hearing today. This was a matter that I believe However, I

Mr. Steinberg wished to appear with his client. don't have any problem going forward today. THE COURT:

Well, why did Mr. Steinberg file a motion

to continue sentencing if he was comfortable with your sitting in with the client today? MR. LEACH: I don't know that that's the case. I

believe that Mr. Steinberg wanted to be here with the client at the time of sentencing. That's why he filed it. But I made

sure, myself, in talking with Mr. Steinberg, that I would be prepared because we anticipated that the motion may be not met that well. THE COURT: Well, you understand, you can tell He has a

Mr. Steinberg that I'm unhappy and upset with him.

tendency to file motions to continue at the eleventh hour, sometimes he contacts opposing counsel, sometimes he doesn't. And, Mr. Till, you were not contacted about this motion, were you? MR. TILL: Mr. Leach told me about it this morning,

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Your Honor, but I didn't hear from anybody yesterday.

And of

course Mr. Peña is the assistant U.S. attorney on the case, and he's in trial in another matter, so I don't know if there was an effort to contact him. THE COURT: He was in trial.

All right.

Well, and I'll deal with Mr. Steinberg in a different way with a different order. All right. his way. MR. LEACH: THE COURT: That's my understanding, Your Honor. All right. Well, I've got a ten o'clock So you're saying Mr. Medina-Garcia is on

change-of-plea, so let me know when he shows up, and then we will have this sentencing. And for the record, Mr. Steinberg's motion to continue sentencing filed at 5:01 yesterday is denied. a sentencing today. And we will have

And if Mr. Medina-Garcia isn't here by ten

o'clock, I may have some other things I want to say. So do you have a phone number for him? MR. LEACH: directly. his way. I do. I haven't been able to talk to him

I have been able to confirm, though, that he was on I think he thought it was at nine-thirty instead of

nine, some kind of miscommunication. THE COURT: MR. LEACH: Call me back when he's here. Thank you, Your Honor.

(Recess at 9:13 a.m.)

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(Reconvened at 9:37 a.m.) THE COURT: All right.

You may be seated. The defendant is here. So let's have Miss Bahr sworn in as the court-certified interpreter. (The interpreter was sworn.) THE COURT: All right. At parties are aware, this is

a sentencing hearing in the matter of the United States vs. Braulio Medina-Garcia, case no. 01-cr-359. Have both sides received and reviewed the presentence-investigation report, including all addenda? If

your answer is yes, tell me if you have any objections to the contents of the report, including the sentencing recommendation. MR. TILL: THE COURT: MR. LEACH: comments. THE COURT: Mr. Till, is there anything you want to Yes, Your Honor, and we have no objection. Mr. Leach. Yes, Your Honor, no objections or

say in particular about this sentencing? MR. TILL: Your Honor, we'd ask the Court to follow

the recommendation of the probation department. THE COURT: Mr. Leach, let me hear from you, and then

I'll give your client a chance to address the Court.

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MR. LEACH: THE COURT: MR. LEACH: the same.

Thank you, Your Honor. Go to the microphone. Behind you.

Your Honor, essentially we're asking for

Our belief is because the Guideline calculation in

this case came out to a level 35, which far exceeds the statutory maximum for which the defendant, for the offense the defendant pled guilty to, we believe the operative or appropriate sentence at that point would be 60 months. However, my request, given the nature of the case, would be consideration for the residential drug abuse program for the defendant. It would certainly seem appropriate.

To Mr. Medina-Garcia's credit, he has remained employed throughout the pendency of the action as well as he has had relative success on supervised release as well. He's

had the support of his family, essentially he -- I know he wants an opportunity to get through this and have a life again. That's all I have to say. THE COURT: All right.

Mr. Medina-Garcia, this is your opportunity as part of the criminal-sentencing proceeding to make a statement to the Court. So if you wish to make a statement, do it at this time. THE DEFENDANT: What I wanted to ask Your Honor is

that since my wife and children are moving, I was wanting to ask you, based on what my probation officer, to whom I'm reporting, suggested I ask for you, is a month or two before I

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would self-surrender so that I could get my family established. THE COURT: Well, the current -- if we complete this

sentencing today, the current surrender date is before noon on January 22, 2007. Actually, that is not correct because that

was predicated on a report that was generated back in November. Is that right, Mr. Stein? MR. STEIN: THE COURT: That's right. So when is the current report date, if we

don't do anything different? MR. STEIN: THE COURT: February 13, 2007. It would be February 13, Your Honor. All right. The current report date is

Since we didn't have a sentencing back in

December because your attorney filed a motion to continue. So are you asking for more time than February 13? THE DEFENDANT: No, just whatever you'd be willing to

allow on behalf of my wife and children. THE COURT: All right. Is there anything else you want to say? And the children need to be quiet. the mother needs to keep the kids silent. THE COURTROOM DEPUTY: Your Honor, I believe it They need to -- so Okay.

actually would be Monday, February 12, in talking with Mr. Stein. MR. STEIN: That's correct, Your Honor.

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THE COURT:

Mr. Stein, you can't read the calendar; is

that right, Mr. Stein? MR. STEIN: THE COURT: All right. Mr. Medina-Garcia, is there anything else you want to say to the Court? THE DEFENDANT: I would just like to apologize for the That's correct, Your Honor. Monday, February 12.

problems I've caused and to my children for how this is affecting them. THE COURT: All right.

Now, Mr. Medina-Garcia, do I have your assurance that you will show up at the institution designated by the Bureau of Prisons before noon on January 22, 2007 -- February 12 -- I used the wrong date. Do I have your assurance that you will show up at the institution designated by the Bureau of Prisons before noon on Monday, February 12, 2007? THE DEFENDANT: THE COURT: I promise you. Then the Court would note that

All right.

Mr. Medina-Garcia has been prompt about showing up for court appearances. Mr. Medina-Garcia, this is an independent question. When did you believe that the hearing was set for this morning? THE DEFENDANT: Nine-thirty.

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THE COURT:

All right.

Okay.

It was actually set for

But your attorney told you it was set for nine-thirty? THE DEFENDANT: A friend called us and had mentioned

and said this morning she called us and told us we should be here at nine, but the letter I had received said nine-thirty. THE COURT: All right.

I have nothing more to say on that issue. Mr. Stein, do you have any objection to counsel's request for the Court to include a recommendation for the RDAP program as part of the sentencing judgment in this case? MR. STEIN: Your Honor, the defendant marginally

qualifies for RDAP based on his reported substance-abuse history. On the other hand, I hate to turn someone down who's

requesting five hours of substance-abuse programming. THE COURT: All right.

Mr. Leach, let me have you make a record as to why you believe your client needs the RDAP program, on the merits. I'm

less concerned about whether it ends up reducing his sentence. I'm more concerned about whether he has a legitimate addiction to drugs and/or alcohol that would warrant the Court's recommendation. MR. LEACH: And certainly from the

presentence-investigation report there may be some concern of the Court for that. However, I believe what -- the nature of That it involved

the case would be the first factor.

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controlled substances, and the second would be that there was a, apparently a positive test at one point for cocaine, although Mr. Medina-Garcia has since had negative testing and remained compliant. I believe, however, that such a program

could be helpful to essentially rehabilitate him fully with that respect, too. Although there was a denial of the use of

illicit substances, clearly there's enough of a record from what's known to the Court and the nature of the case that such a program could be helpful to ensure that Mr. Medina-Garcia is able to, for lack of a better term, kick any habit that, that had developed throughout his life. THE COURT: Well, the presentence-investigation

report, at paragraphs 49 through 54 would seem to belie the suggestion that he has a serious addiction problem. For

example, it notes that he rarely drinks, and last had a beer when his baby Brian was born. How old is his baby Brian today? THE DEFENDANT: THE COURT: Seven months. Defendant said he smoked And further,

All right.

marijuana once when he was 18 years old.

defendant denied the illicit use of any controlled substances. Now, he did test positive for cocaine once on December 20, 2005, while on bond. positive. But that was the only time he tested

So I'm having trouble understanding that his past Most times when this Court

history suggests an addiction.

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recommends a program, we have defendants who have had repeated uses of illegal drugs and the record is much stronger. Let me hear from you, Mr. Till, on this topic, if you have any thoughts. MR. TILL: Your Honor, it doesn't look to me that he But I believe they have some kind of

does qualify for it.

screening process in the Bureau of Prisons where they can sort that out, but it could be that he wasn't fully forthcoming because he wanted to remain on bond. He might be more honest

when he gets to the Bureau of Prisons. THE COURT: Court today. Mr. Medina-Gracia, I need to talk to you about your addiction to drugs. last five years? THE DEFENDANT: that I recall. there. THE COURT: No, I'm not talking about temptation. While on You I, during the last five years, not Have you used illegal drugs during the Let's see if he'll be honest with the

But I have to tell you the temptation is always

tested positive for cocaine on December 20, 2005. bond.

Do you recall using drugs at or about that time? THE DEFENDANT: I know that's what they told me, too,

but I didn't -- I don't recall having used. THE COURT: Okay. Do you consider yourself addicted

today to any illegal drug, whether it be cocaine, marijuana,

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methamphetamine, amphetamine, heroin, or any other drug? THE DEFENDANT: I don't quite know what to say. But . . . . Based on the defendant's And while I

mean, addict, addicted, no. THE COURT:

All right.

honest answers, I don't think he qualifies for RDAP.

I understand the request, I think the Court makes a finding the request is really being made as an attempt to have the Court endorse something that might reduce his sentence further. But

I would note that the defendant is getting a huge sentencing break because the matter for which he's pled guilty has a five-year statutory maximum, whereas if he had pled to another type of offense and the Court applied the advisory Guidelines, his sentencing range would actually be in the magnitude of 168 to 210 months, a far longer period of time. So I think on the

record before me, the Court will not recommend the RDAP program because I don't believe it's warranted. Is there anything else from either side before the Court imposes sentence? MR. TILL: MR. LEACH: THE COURT: No, Your Honor. No, Your Honor. And I would note that 168 months is 14 So the defendant is

years and 210 months is 17.5 years.

getting a substantial break because of the government's willingness to allow him to plead to an offense that had a much, much lower statutory cap.

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In the matter, then, of the United States of America vs. Braulio Medina-Garcia, case no. 01-cr-359, pursuant to the United States Supreme Court's rulings in Booker and Fanfan two years ago, the federal Sentencing Guidelines are now advisory. The Court, while not bound to apply the Guidelines, has nonetheless consulted the advisory Guidelines and taken them into account along with the sentencing factors identified at 18 United States Code section 3553(a). Neither the government

nor the defendant has filed any objections to the presentence report. Therefore, the factual statements and Guideline

applications in the report are adopted without objection as the Court's findings of fact concerning sentencing. The Court finds that the total offense level is 35 and the defendant's criminal-history category is I which results in an imprisonment range of 168 to 210 months. However, the

statutory maximum term of imprisonment is five years, which becomes the Guideline term of imprisonment. The fine range is

20,000 to $200,000, and the supervised-release range is two to three years. The Court finds no reason to depart from the advisory Guideline range, which in effect is capped by the statutory maximum and therefore reduced substantially, which does not exceed 24 months, and will impose a sentence within the advisory Guideline range as modified by the statute. Pursuant to the Sentencing Reform Act of 1984, it is

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the judgment of the Court that the defendant, Braulio Medina-Garcia, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 60 months. Upon

release from imprisonment, the defendant shall be placed on supervised release for a term of three years. Within 72 hours

of release from the custody of the Bureau of Prisons, the defendant shall report in person to the probation office in the district to which the defendant is released. While on

supervised release, the defendant shall not commit another federal, state, or local crime; shall not possess a firearm as defined in 18 United States Code section 9921; and shall comply with the standard conditions that have been adopted by this court. If this sentence imposes a fine or restitution, it is a

condition of supervision that the defendant pay in accordance with the schedule of payment sheet set forth in the judgment. The Court waives the mandatory drug-testing provision of 18 United States Code section 3583(d) because the presentence report indicates a low risk of future substance abuse by the defendant. Let me just note, that's a further reason why the Court cannot and will not order RDAP, because I don't believe this defendant has demonstrated that he's a user of drugs, is addicted to drugs, and is someone for whom that program should be used. The spot that's been requested by the defendant, I

think should be used by someone who has an actual serious

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addiction problem. The defendant shall cooperate in the collection of DNA as directed by the probation officer. In addition, the defendant shall comply with the following special condition: if the defendant is deported, he shall not thereafter reenter the United States illegally. the defendant reenters the United States legally, he shall report to the nearest U.S. probation office within 72 hours of his return. Let me just stop there. Mr. Medina-Garcia, this is independent of the sentencing judgment. If you are deported and if you return to If

this country illegally, two things could happen to you: one, you could be subject to a supervised-release violation in this case if your return occurs within three years. And further,

you could be subject to a separate and independent charge for illegal reentry. I want to make sure you understand the

adverse consequences that could occur should you return to this country illegally assuming you are deported at some later date. Continuing on with the sentencing statement. defendant shall pay a special assessment of $100. The

I find that

the defendant lacks the ability to pay a fine, so the Court waives a fine in this case. Mr. Medina-Garcia, you're advised of your right to appeal the sentence I've just imposed. If you desire to

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appeal, a notice of appeal must be filed with the clerk of the court within ten days after the entry of judgment or your right to appeal will be lost. If you are unable to afford an

attorney for an appeal, the court will appoint one to represent you. If you so request, the clerk of the court must

immediately prepare and file a notice of appeal on your behalf. I find that the defendant is not likely to flee or pose a danger to the safety of any other person or the community, so I will allow him to self-surrender. It is

therefore ordered that the defendant, Braulio Medina-Garcia, surrender at the institution designated by the Bureau of Prisons before noon on Monday, February 12, 2007. The government has filed a motion to dismiss the indictment against this defendant. enter a conforming order. MR. TILL: Your Honor, I have to apologize. There's I'll grant that motion and

also a superseding indictment on file, so we'll file an amended motion to dismiss the superseding indictment as well. THE COURT: All right. Why don't we do this. Unless

there's some objection from the defendant, I'll let you make a verbal motion, just so we can file an order, because I assume the defendant has no objection to both the indictment and the superseding indictment. MR. LEACH: THE COURT: No. So the order should reflect the indictment

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and the superseding indictment are dismissed? MR. TILL: request that. THE COURT: All right. I'll grant that verbal motion, Yes, Your Honor. The government does

and we'll just add that to the order. Anything else from either side? MR. TILL: MR. LEACH: THE COURT: No, Your Honor. No, Your Honor. All right. I've got a separate question Thank you.

Stay there, Mr. Leach. for you.

Tomorrow afternoon is, unrelated to this case,

there's a Franks hearing set in United States of America vs. Hector Rene Garcia-Zambrano. Set for one-thirty. Is

Mr. Steinberg going to be here for that hearing? MR. LEACH: trial, I think. three days. It would depend what happens with the

I believe their belief is it will be done in

I'm trying to ascertain actually when I get back

to the office hopefully whether or not he has any reasonable belief that he would be out of trial. THE COURT: Well, I'm putting you on notice,

Mr. Steinberg on notice, if you have any belief that he won't be here, you need to file a motion for a continuance before 5:01 p.m. today. 'Cause you can tell Mr. Steinberg I'm very

unhappy that he chose to file a motion at 5:01 yesterday to continue the sentencing hearing this morning, which I denied.

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And it didn't make any sense for him to file that anyway, when we were talking about this case, because this is a routine sentencing. manner. And you showed up and you handled it in a capable

So I express no opinion about who should be here

tomorrow but what I'm saying is you need to be here, Mr. Steinberg needs to be here; and if for some reason neither of you thinks you should be here, if you file something later than about one o'clock today, I'm going to summarily deny it and I'm going to order that you show up. you some advance notice. MR. LEACH: THE COURT: MR. LEACH: Thank you, Your Honor. All right. Appreciate that. So I'm just giving

(Recess at 9:58 a.m.) REPORTER'S CERTIFICATE I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. Dated at Denver, Colorado, this 8th day of November, 2007.

s/KaraSpitler_________________ Kara Spitler