U.S. v. Castillo

• Decision Date: 03 November 2005
• Docket Number: No. 03-20944.,03-20944.
• Citation: 430 F.3d 230
• Parties: UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Ricardo Angel CASTILLO, Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 230

430 F.3d 230

UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Ricardo Angel CASTILLO, Defendant-Appellant-Cross-Appellee.

No. 03-20944.

United States Court of Appeals, Fifth Circuit.

November 3, 2005.

COPYRIGHT MATERIAL OMITTED

Renata Ann Gowie, James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

David B. Adler, Bellaire, TX, for Castillo.

Appeals from the United States District Court for the Southern District of Texas.

Before KING, Chief Judge, and BARKSDALE and CLEMENT, Circuit Judges.

KING, Chief Judge:

The United States, Plaintiff-Appellee and Cross-Appellant in this matter, appeals the district court's decision to depart downwardly from the sentencing range established by the UNITED STATES SENTENCING GUIDELINES ("U.S.S.G." or the "Guidelines") on the grounds that: (1) the defendant's HIV-positive status constituted an extraordinary medical condition warranting a downward departure under U.S.S.G. § 5H1.4; and (2) comments made by the prosecutor at sentencing about the defendant's HIV-positive status were malicious and endangered the defendant's safety, thereby justifying a departure under § 5K2.0.¹ For the following reasons, we find that the district court abused its discretion when it departed downwardly on these bases, VACATE the district court's sentence, and REMAND this case for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 12, 2002, United States Customs agents, who had previously received a tip that Defendant Ricardo Castillo would receive two kilograms of heroin from a seaman within the next several days, initiated surveillance on Castillo's Houston apartment and on his boat, the CEC MIRAGE, which was docked at the San Jacinto Port of Houston. On the evening of November 13, the surveillance team followed Castillo to a Wal-Mart store, where they observed him talking on his cellular telephone. At approximately the same time, the surveillance team at the CEC MIRAGE observed Geronimo Lipit, the CEC MIRAGE's chief cook, disembark the boat while carrying a white shopping bag. Shortly thereafter, the surveillance team at Wal-Mart observed Castillo meet Lipit in the Wal-Mart parking lot and get into Castillo's car. Houston police officers then stopped Castillo's vehicle.

After his vehicle was stopped by the police, Castillo consented in writing to a search of the car. The police found two kilograms of heroin sewn inside a pair of men's athletic shorts in the white bag that Lipit had been carrying, which had been placed behind the driver's seat. After waiving his rights, Lipit informed the police that additional heroin was sewn into athletic shorts underneath his jeans. He further stated that the heroin belonged to Castillo, and he informed the police that he and Castillo were going to deliver it to a third party. The total amount of the seized heroin was 3.8 kilograms.

On December 4, 2002, Lipit, in a debriefing with Customs agents, explained how he acquired the heroin. According to Lipit, while the CEC MIRAGE was docked in Colombia, a Colombian man told him that he could earn $5000 by delivering heroin to Castillo. Lipit agreed to this arrangement, picked up the heroin, and delivered it to Castillo after the CEC MIRAGE arrived in Houston. According to Lipit, Castillo was supposed to pay him his $5000 fee after the delivery occurred.

On December 11, 2002, Castillo and Lipit were charged in a two-count indictment with: (1) conspiracy to possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(i), and 846; and (2) aiding and abetting possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A). On February 3, 2003, Castillo pleaded guilty to the indictment without a plea agreement.

Prior to sentencing, the parties were provided with a copy of the probation officer's presentence investigation report (PSR), which recommended a total offense level of twenty-nine, a criminal history category of I, and a Guideline sentencing range of 87-108 months imprisonment. Castillo subsequently filed written objections to the PSR regarding factual matters that did not affect the Guidelines calculation. On May 9, 2003, Castillo filed an "unopposed motion to continue sentencing and motion to file this motion and corresponding order under seal." In this motion, Castillo stated that he had provided information to law enforcement and expected that it would lead to a motion for a downward departure from the government. He asked that the motion be filed under seal "due to the sensitive nature of the information contained herein." The same day, the district court granted Castillo's request for a sixty-day continuance and sealed the motion and order.

On September 9, 2003, five days before Castillo was scheduled to be sentenced, Castillo filed a "sentencing memorandum and motion to file this pleading under seal." In this memorandum, Castillo argued that the district court should depart downward from the sentencing range established by the Guidelines for two reasons. First, he contended that the district court should depart downward because of a disparity between how the government rewarded him for his cooperation versus how it rewarded Lipit for his cooperation. According to Castillo, both he and Lipit cooperated with the government, but only Lipit stood to receive a motion for downward departure by the government as a result of that cooperation. Second, Castillo moved for a downward departure under U.S.S.G. § 5H1.4 because he was HIV-positive, which, in his view, constituted an extraordinary physical impairment. The sentencing memorandum noted that Castillo had been HIV-positive since 1993, had Hepatitis C, and suffered from muscle soreness and a groin rash. Castillo also noted in his sentencing memorandum that "[t]he probation officer had submitted to the Court a confidential document describing Mr. Castillo's condition." In fact, the PSR's Second Addendum noted that "a confidential page to the PSR" describing Castillo's condition had been submitted to the court under FED.R.CRIM.P. 32(c)(3)(A).² Specifically, in a sealed enveloped attached to Castillo's sentencing memorandum was a two-page document entitled "Information Excluded From the Presentence Report Pursuant to Rule 32(c)(3)(A) F.R.C.P." According to the government, this document was never disclosed to it.

On September 15, 2003, the day of sentencing, the government filed its response to Castillo's sentencing memorandum. The government did not file its response under seal. In its response, it stated that Castillo had not provided the government with substantial assistance, and it argued that Castillo's HIV-positive status was not, in and of itself, an appropriate basis for a downward departure under U.S.S.G. § 5H1.4. Unbeknownst to the government, its response to Castillo's sentencing memorandum, along with Castillo's sentencing memorandum, were both sealed by the district court. Although the district court had issued a separate order sealing Castillo's motion for continuance based on cooperation, it did not issue an order sealing either his sentencing memorandum or the government's response. According to the government, it never knew that either its response or Castillo's sentencing memorandum was filed under seal.

Later in the day on September 15, the district court held its sentencing hearing for Castillo. The court, adopting the PSR, first found that Castillo's total offense level was twenty-nine, his criminal history category was I, and the applicable Guidelines range was 87-108 months imprisonment. The district court then asked Castillo's lawyer to speak on her client's behalf. She replied that she wanted to discuss the issues raised in her sentencing memorandum but did not want to "go into all the detail that's in there, given that I filed it under seal." Then, after discussing Castillo's cooperation with the government, she began to discuss Castillo's "condition." The court inquired if drugs were available at the detention center for Castillo, and Castillo's lawyer, citing her sentencing memorandum, responded that "the very nature of jail conditions is dangerous for a person in his situation." The court then asked whether Castillo was "currently ill or not currently ill." Castillo's attorney replied that Castillo's medical records were "pretty vague," that Castillo had "muscle aches and the persistent rash that may or may not be related to his condition," and then said "I don't know." She also told the court that "I can't say to the court that he qualifies." The court then asked additional questions about the availability of medications for Castillo, and Castillo's lawyer once again said that "my real argument is that in his current condition, he should qualify for a downward departure given his increased susceptibility in the jail." After Castillo's counsel finished discussing Castillo's medical condition, Castillo addressed the court and asked for forgiveness.

After Castillo addressed the court, the prosecutor began his presentation, stating first that Castillo had not yet provided the government with substantial assistance. The court then told the prosecutor that it did not understand the government's written response to the motion for downward departure on health grounds and asked for clarification on the government's position. The following exchange ensued:

[The prosecutor]: My entire point — and she's right, I couldn't find any Fifth Circuit law on this particular point and so basically what I did was I went to the other circuits, as did she, and in my citation to the United States v. Johnson [sic United States v. Rabins], the Eighth Circuit case — it's cold and it's difficult for me to stand beside Mr. Castillo knowing his physical condition and the sympathy that I have for him, but the fact of the matter is, this isn't the first time in the country that this has happened...