Free Sentencing Statement - District Court of Colorado - Colorado

Case 1:01-cr-00109-WYD

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 05-CR-090-MK UNITED STATES OF AMERICA, Plaintiff, v. 1. HUMBERTO ALONSO ORTIZ-ORONA Defendant.

PLEA AGREEMENT AND STATEMENT OF FACTS RELEVANT TO SENTENCING

The United States of America (the government), by and through, Wyatt Angelo, Assistant United States Attorney for the District of Colorado, and the defendant, Humberto Alonso OrtizOrona, personally and by counsel, Edward Nugent, submit the following Plea Agreement and Statement of Facts Relevant to Sentencing pursuant to D.C.COLO.LCrR 11.1. I. PLEA AGREEMENT a. Defendant's Obligations: the defendant will plead guilty to Count One of the Indictment alleging a violation of 8 U.S.C. § 1326(a)&(b)(2), pursuant to Fed. R. Crim.P.11(c)(1)(B). b. Government's Obligations: The Government agrees: (a) to seek no additional charges based on the facts now known to it; (b) make a non-binding recommendation that the sentence imposed in the defendant's supervised release violation in case number 01-CR-109-D, in the

(Rev. 04/23/02)

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United States District Court, District of Colorado, be concurrent to the sentence imposed herein; (c) and, file a motion for the additional one level downward adjustment for acceptance of responsibility. II. STATUTORY PENALTIES The maximum statutory penalty for a violation of 8 U.S.C. § 1326(a) &(b)(2) than 20 years imprisonment; not more than $250,000 is: not more

fine, or both; not more than 3 years

supervised release; and a $ 100.00 special assessment fee. There is no restitution. The conviction may cause the loss of civil rights, including but not limited to the rights to possess firearms, vote, hold elected office, and sit on a jury. If the defendant is an alien, the

conviction may cause the defendant to be deported or confined indefinitely if there is no country to which the defendant may be deported. A violation of the conditions of probation or supervised release may result in a separate prison sentence. III. STIPULATION OF FACTUAL BASIS AND FACTS RELEVANT TO SENTENCING

Pertinent facts are set out below in order to provide a factual basis of the plea and to provide facts which the parties believe are relevant, pursuant to §1B1.3, for computing the appropriate advisory sentencing guideline range. To the extent the parties disagree about the facts relevant to sentencing, the statement of facts identifies which facts are known to be in dispute at the time of the plea. (§6B1.4(b)) The statement of facts herein does not preclude either party from presenting and arguing, for

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sentencing purposes, additional facts or factors not included herein which are relevant to the advisory guideline computation (§1B1.3) or to sentencing in general pursuant to 18 U.S.C. § 3553. In "determining the factual basis for the sentence, the Court will consider the stipulation of the parties, together with the results of the presentence investigation, and any other relevant information." (§6B1.4 Comm.) The parties agree that the government's evidence would show that the date on which conduct relevant to the offense (§1B1.3) began is January 12, 2005. The parties further stipulate to the following facts as a factual basis for the defendant's plea and calculation of the advisory sentencing guideline, issued pursuant to 28 U.S.C. §994(a): The defendant was contacted by I.C.E. agents in the Mesa County Jail on January 12, 2005. Based on his fingerprints, he was tentatively identified as a person who had previously been deported following conviction of an aggravated felony. Fingerprints obtained at that time were examined by the F.B.I. Special Processsing Unit and confirmed be a match under the name Raul Molina-Morales, an alias previously used by the defendant. I.C.E. records reflect that the defendant had previously been convicted of a violation of 8 U.S.C. 1326, sentenced to 41 months and deported to Mexico via El Paso, Texas on February 13, 2004. The fingerprint in the I-205 warrant of deportation from that date matched that of the defendant and a search of I.N.S. and I.C.E. records and data bases revealed that the defendant had neither sought nor obtained permission of the Attorney General or his successor, the Secretary of the Department of Homeland Security to re-enter the United States. IV. SENTENCING COMPUTATION The parties understand that in sentencing the defendant in this case, the Court will be consult the advisory sentencing guidelines, issued pursuant to 28 U.S.C. § 994(a) and sentence the defendant 3

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in accordance with the sentencing factors enumerated in 18 U.S.C. § 3553. Any estimation by the parties regarding the estimated appropriate guideline application does not preclude either party from asking the Court to depart from the otherwise appropriate guideline range at sentencing, if that party believes that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the sentencing guidelines. (§5K2.0). The parties understand that the Court may impose any sentence, up to the statutory maximum, regardless of any guideline range computed, and that the Court is not bound by any position of the parties. (§6B1.4(d)) The Court is free, pursuant to §§6A1.3 and 6B1.4, to reach its own findings of facts and sentencing factors considering the parties' stipulations, the presentence investigation, and any other relevant information. (§6B1.4 Comm.; §1B1.4) To the extent the parties disagree about

the sentencing factors, the computations below identify the factors which are in dispute. (§6B1.4(b)) A. B. The base guideline is §2L1.1(a) , with a base offense level of 8. The Specific Offense Characteristic of § 2L1.1(b)(1)(B) applies with a 12 level

adjustment. and a resulting sentencing level of 20. C. D. E. The parties agree that there is no role-in-offense adjustments The adjusted offense level would therefore be 20. The defendant should receive the 3 level adjustment for acceptance of responsibility.

The resulting offense level would therefore be 17. F. The parties understand that the defendant's criminal history computation is tentative.

The criminal history category is determined by the Court. Known facts regarding the criminal history are as follows: October 22, 2001, Aggravated Illegal Reentry United States District Court for the 4

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District of Colorado, case number 01-CR-109-D.

The defendant was sentence to 41 mos

imprisonment followed by 3 years of supervised release.(§4A1.1(a), 3 points, §4A1.1(d), 2 points, and §4A1.1(e), 1 point) November 10 1996, Controlled or Counterfeit Substance /Distribution Prohibited -Marijuana, Luna County New Mexico, the defendant was sentenced to 18 months imprisonment, plus one year of parole, but the sentence was suspended for time served and the defendant was surrendered to Immigration. §4A1.1(b), 2 points) January 11, 2005, Third Degree Assault, Mesa County Colorado, the defendant was sentenced to one year probation. (§4A1.1(c), 1 point) September 11, 1999, Theft, Aurora Municipal Court, Aurora Co. The Defendant was sentenced to 30 days in jail which were suspended for on year.(4A1.(c), 1 point). Based on that information, if no other information were discovered, the defendant's criminal history category would be V . G. Assuming the tentative criminal history facts of (F) above, the career offender/criminal

livelihood/armed career criminal adjustments would not apply. H. The advisory guideline range resulting from the estimated offense level(s) of E above,

and the tentative criminal history category of F above, is 46-57 months. However, in order to be as accurate as possible, with the criminal history category undetermined at this time, the estimated offense level of E above could conceivably result in a range from 24 months (bottom of Category I), to 63 months (top of Category VI). The sentence would be limited, in any case, by the statutory maximum and minimum, if applicable. I. Pursuant to guideline §5E1.2, assuming the estimated offense level of E above, the

fine range for this offense would be $ 7 ,500.00 to $ 75 ,000.00, plus applicable interest and penalties. J. Pursuant to 18 U.S.C. § 3583, the Court shall impose a term of supervised release of 5

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not more than

years.

V. WHY THE PROPOSED PLEA DISPOSITION IS APPROPRIATE The parties believe the sentencing range resulting from the proposed plea agreement is appropriate because all relevant conduct is disclosed, the sentencing guidelines take into account all pertinent sentencing factors with respect to this defendant, and the charges to which the defendant has agreed to plead guilty adequately reflect the seriousness of the actual offense behavior. This document states the parties' entire agreement. There are no other promises, agreements (or "side agreements"), terms, conditions, understandings or assurances, express or implied. In entering this agreement, neither the government nor the defendant have relied, or are relying, on any terms, promises, conditions or assurances not expressly stated in this agreement.

Date: Defendant

Date: Esq. Attorney for Defendant

Date: Wyatt Angelo Assistant U.S. Attorney

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