Free Response - District Court of Arizona - Arizona

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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 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America,
CR04-1086-PHX-EHC

Plaintiff, v. Maria Rosa Barragan-Mercado, Defendant.

CR05-883-PHX-EHC UNITED STATES' RESPONSE TO THE PSR

The United States, through counsel undersigned, and pursuant to the minute entry of January

15 18, 2006, responds to the consolidated Presentence Report for the above cases, completed on 16 February 23, 2006. Pursuant to the calculations in the PSR and the stipulation within the 17 amended plea agreement in CR05-883 to sentence defendant separately on the two offenses, the 18 government recommends a total aggregate sentence of 46 months (to include a sentence of 33 19 months in CR04-1086 and 24 months in CR05-883, with 11 months of the sentence in CR05-883 20 to be served concurrent to the 33 months in CR04-1086, and the remaining 13 months to be 21 served consecutive) and a fine in an amount to be determined by the Court. The government 22 also seeks the forfeiture of the release bond in CR04-1086, pursuant to an earlier motion. (Dkt. 23 # 91.) 24 25 A. Factual Background 26 Between September 13, 2004 and September 15, 2004, defendant arranged with various 27 associates, including Luis Ortiz-Gonzalez, to bring 8 aliens into the United States. Defendant 28 had her initial appearance in Yuma on the charge on September 21, 2004, and was held pending MEMORANDUM

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1 a detention hearing in Phoenix. On September 24, 2004, after a detention hearing, Magistrate 2 Judge Edward Voss ordered defendant released on the payment of a $10,000.00 cash bond and 3 the compliance with other conditions. In particular, defendant was required to avoid committing 4 another federal crime and to avoid ingestion of any controlled substance "unless prescribed for 5 defendant by a licensed medical practitioner in the course of his/her legitimate medical practice." 6 A cash bond of $10,000.00 was tendered, through an affidavit by Yuliana Barragan, on 7 September 27, 2004 and defendant was released from custody pending trial. 8 Defendant entered into a plea agreement to an information on April 14, 2005 in CR04-1086-

9 PHX-EHC. In her plea agreement and its lengthy factual basis, she agreed that she had arranged 10 to bring more than 25 aliens to the United States in 2004, and that she exercised managerial 11 control over the smuggling operations. The government stipulated to acceptance of

12 responsibility provided that "the defendant demonstrates acceptance of responsibility for the 13 offense up to and including the time of sentencing." 14 Defendant did not demonstrate acceptance of responsibility up to and including the time for

15 sentencing. Prior to the sentencing in this matter defendant tested positive for cocaine, and 16 Pretrial Services Officer Ruben Salgado filed a Petition to Revoke Release on June 24, 2005. 17 Defendant was detained and held to answer and the Court referred the matter for a revocation 18 hearing, but released the defendant on July 8, 2005 pending a continued sentencing date. On 19 August 13, 2005, prior to the sentencing date, defendant was arrested on a new alien smuggling 20 offense, and subsequently charged in the instant case with conspiring to harbor illegal aliens. 21 The second alien smuggling offense arose from an undercover operation that commenced

22 when agents in a drop house answered a ringing cell phone and spoke in an undercover capacity 23 to defendant, known in the community as "Doña Rosa". Defendant inquired about arrangements 24 to have aliens picked up and brought to her drop house in Yuma. Over the course of several 25 days, between August 8 and August 12, 2005, an undercover agent and defendant engaged in 26 taped conversations. A copy of the entire transcript, certified by Isabel Fierros, was filed as an 27 attachment to an earlier response to objections to the PSR in CR05-883. (Dkt. # 56.) In 28
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1 particular, the defendant claimed on multiple occasions that her husband was arranging the 2 operation on the Mexican side of the border and further represented that she had a total haul of 3 12 aliens for transport to her drop house. Defendant entered a plea to an information on 4 November 29, 2005. 5 B. Length of Term of Imprisonment 6 Following the plea in CR05-883, U.S. Probation prepared a consolidated Presentence Report

7 and grouped the two offenses together. Defendant argued, in written filings and in open Court, 8 that the offenses should not be grouped, and that the sentence as to each case should be 9 calculated separately.1 The government argued, in written filings and in open Court, that the 10 offenses were properly grouped but that it would have no objection to calculating the sentences 11 separately. The parties accordingly amended the plea agreement to stipulate to a separate 12 calculation of sentences, and the Court continued the sentencing and ordered a revised PSR with 13 alternate calculations. 14 The revised PSR recommends a total offense level of 23 and a total sentence of 46 months

15 and one day. (PSR at 22 (green sheet).) The revised PSR also contains separate alternate 16 calculations for each offense. (PSR at 27-28 (pink sheet).) The government urges the Court to 17 use the alternate calculations to arrive at a similar sentence. 18 19 1. Term in CR04-1086 The Court should sentence defendant to a term of imprisonment of 33 months in CR04-

20 1086. This recommendation is based on a total offense level of 202, a criminal history category 21 of I, and the recommendation, pursuant to the plea agreement, of a low end sentence. 22 / / / 23 24 A separate calculation has two main effects: first, it increases defendant's criminal history category to II in CR05-883; and second, it provides additional discretion to the Court to 25 impose consecutive, partially concurrent or wholly concurrent sentences. 26 The offense level includes a base offense level of 12, a 6-level enhancement for the stipulated number of victims, and a 2-level enhancement for role in the offense, without any 27 adjustment for acceptance of responsibility. (PSR at 27.) 28
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2. Term in CR05-883 The Court should accept the plea agreement in CR05-883, including the stipulation to

3 calculate the sentences separately.3 This results in an offense level of 144 and a criminal history 4 category of II, with a guideline range of 18-24 months. Based on defendant's less-than-complete 5 admissions and her use of her daughter in the new offense, the government recommends a 6 sentence of 24 months in CR05-883, at the high end of the guideline range. 7 If the Court calculates the sentences separately, defendant will be subject to an undischarged

8 term of imprisonment (as to the initial offense) when sentenced on the new case. Accordingly, 9 the Court may generally impose sentence in CR05-883 concurrently, partially concurrently or 10 consecutively to the sentence imposed in CR04-1086. U.S.S.G. § 5G1.3(c) and comment n. 3. 11 In the instant case, at least some of the punishment for the new offense committed while on 12 release must be imposed consecutively. U.S.S.G. § 2J1.7, comment n. 2 and passim. The 13 government recommends that 13 months be imposed consecutive to the sentence in CR04-1086, 14 in order to take into account the blatant breach of release conditions. 15 16 3. Total aggregate term Under the government's recommendation, the aggregate term of imprisonment would be 46

17 months. Pursuant to the Sentencing Guidelines, see U.S.S.G. § 5G1.3, comment n. 3(B), this 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 In the event that the Court rejects the stipulation to calculate the sentences separately, 24 it should still sentence defendant in CR04-1086 and set CR05-883 for trial. 25 The offense level includes a base offense of 12, a 3-level enhancement pursuant to the stipulation in the plea agreement for committing the new offense while on pretrial release a 226 level enhancement for leadership role. Because U.S. Probation has recommended acceptance in the second case, the government will recommend the third acceptance point pursuant to the 27 plea agreement. 28
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1 may be accomplished by commencing the term of imprisonment in CR05-883 11 months (the 2 concurrent portion) prior to the anticipated termination date of the sentence in CR04-1086.5 3 C. Additional Sentencing Issues in CR04-1086-PHX-EHC 4 The government requests that the Court impose a fine, based on the initial offense and

5 consistent with the sentencing guidelines, of between $7,500.00 and $75,000.00 for this 6 defendant with an offense level of 20. U.S.S.G. § 5E1.2(c); see also PSR at 18 (top). 7 Defendant has retained counsel and has other assets, and has not met her burden for a waiver of 8 the fine under U.S.S.G. § 5E1.2(a). A fine would serve to provide additional deterrence and to 9 hold defendant accountable for her long-standing role in alien smuggling operations. The 10 government urges the Court to consider the following facts in imposing a fine within the range: 11 first, defendant's failure to pay income taxes in the United States since 1992 (PSR ¶ 69); second, 12 defendant's history of large cash payment transactions, including payments for a home whose 13 title was established in the name of her in-laws (PSR ¶ 70); and third, a documented record of 14 Western Union payments made by family members of smuggled aliens for payment of 15 smuggling fees (PSR ¶ 21.) 16 The government also requests a determination on its motion to forfeit the $10,000.00

17 pretrial release bond in CR04-1086. (Dkt. # 91.) Forfeiture of the bond is consistent with Fed. 18 R. Crim. P. 46(e) and (f)(1), which carries a presumption of forfeiture if defendant breaches any 19 condition of bond. In the instant case, defendant breached a bond condition through the 20 commission of a new alien smuggling offense. 21 / / / 22 / / / 23 24 By way of example, the PSR calculates that defendant had been in custody 155 days 25 as of January 6, 2006. Assuming defendant were sentenced on March 27, 2006, she would have been in custody for approximately 8 months at sentencing, and the sentence would be expected 26 to run until on or around May 1, 2008. To impose a partially concurrent sentence consistent with the government's recommendation, the Court set the sentence in CR05-883 to run from on or 27 around June 1, 2007. 28
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1 D. Conclusion 2 For the foregoing reasons, the government recommends the following: 1) a sentence of 33

3 months imprisonment in CR04-1086, and a sentence of 24 months imprisonment in CR05-883 4 (with 11 months to be served concurrent to the sentence imposed in CR04-1086, and the 5 remainder to be served consecutive), for a total aggregate sentence of 46 months; a fine within 6 the guideline range in CR04-1086; and forfeiture of the bond in CR04-1086. The government 7 also requests that the Court set a sentencing date. 8 9 10 11 12 13 14 15 CERTIFICATE OF SERVICE Respectfully submitted this 9th day of March, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Gary Restaino GARY M. RESTAINO Assistant U.S. Attorney

I hereby certify that on the above date, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of 16 Electronic Filing to the following CM/ECF registrants: Charles Thomas. 17 18 19 20 21 22 23 24 25 26 27 28
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