U.S. v. Valencia-Aguirre
| Decision Date | 09 January 2006 |
| Docket Number | No. 8:03CR445T23EAJ.,8:03CR445T23EAJ. |
| Parties | UNITED STATES of America v. Jose Eusebio VALENCIA-AGUIRRE. |
| Court | U.S. District Court — Middle District of Florida |
Joseph K. Ruddy, U.S. Attorney's Office, Middle District of Florida, Tampa, FL, for Government Counsel.
Terry C. Christian, Law Offices of Terry Clifton Christian, P.A., Tampa, FL, for Defense Counsel.
SENTENCING MEMORANDUM
Jose Eusebio Valencia-Aguirre returns to district court for re-sentencing after United States v. Valencia-Aguirre, 130 Fed.Appx. 305 (11th Cir.2005).
On October 23, 2003, a law enforcement detachment (LEDET) team from the United States Coast Guard, serving aboard the United States Navy frigate Samuel B. Roberts, observed a "fishing vessel" running without navigational lights in the Pacific Ocean off the coast of Colombia. Employing standard procedures to establish the "right of approach," the frigate signaled the unidentified vessel, which ignored the approach inquiry and attempted unsuccessfully to ram the frigate. After procuring consent from the government of Colombia, members of the Coast Guard LEDET team intercepted and boarded the vessel, identified as Santa Barbara.
Secreted in the dry goods storage hold aboard Santa Barbara and discovered after an ion scan and a "space accountability assessment" by the LEDET team were approximately 1,790 kilograms (almost two tons) of high purity cocaine worth on the wholesale market not less than $27,000,000 and packaged securely into ninety bales. The LEDET team arrested the eight crewmen aboard Santa Barbara, including Jose Eusebio Valencia-Aguirre, who was arraigned on October 26, 2003, in Tampa, Florida. Valencia-Aguirre entered a plea agreement in which he committed to plead guilty to conspiracy to possess with the intent to distribute five kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of the United States, which offends 46 Appendix U.S.C. §§ 1903(a), (g), and (j), and which offense is punishable by imprisonment between the minimum mandatory term of ten years and the maximum term of life.
Valencia-Aguirre's base offense level under the United States Sentencing Guidelines was 38, the offense level applicable to offenses involving 150 kilograms or more of cocaine, adjusted to 36 because of the "safety valve" provided in Section 5C1.2 of the Sentencing Guidelines. Valencia-Aguirre's acceptance of responsibility and his consequent cooperation with law enforcement (although insufficient to trigger a substantial assistance departure under Section 5K1.1) yielded an additional adjustment downward to an offense level of 33, which yields in Criminal History Category I a sentencing range between 135 and 168 months' imprisonment, followed by a term of supervised release between three and five years. Valencia-Aguirre received a sentence of 135 months imprisonment and three years of supervised release.
Valencia-Aguirre unsuccessfully claimed entitlement to a further reduction in his offense level based on his supposedly "minor role" in this offense. The circuit court affirmed the district court's denial of this proposed "minor role" adjustment because Valencia-Aguirre was unable to distinguish his culpability from that of his fellow crewmen, a matter for which Valencia-Aguirre bears the burden of proof, and because the "relevant conduct" for which Valencia-Aguirre is accountable includes only the cocaine aboard Santa Barbara and not the aggregate quantity of cocaine manufactured, packaged, transported, and delivered by the international criminal conspiracy in which he was an episodic actor. Not surprisingly, the prospect of a "minor role" reduction evanesces as a person undertakes with his confederates for premium pay (by Colombian standards) a voyage on the high seas for several days furtively transporting toward the United States a two-ton shipment of high purity cocaine (the weight of which will probably at least double by dilution before retail sale), all of which advances, despite a concerted law enforcement effort that includes the armed forces of the United States, an ongoing international criminal venture dedicated to trafficking massive quantities of illicit narcotics.1 That Valencia-Aguirre is an inconsequential, entirely fungible, unskilled, and unexceptional laborer without authority, ownership, or even longevity in this criminal enterprise fails under applicable law to justify a reduction in the assessment of his role in transporting this particular illicit cargo.
Because before his arrest Valencia-Aguirre resided with his family in Buenaventura, Colombia, details about his personal history are scarce and largely unverifiable. However, Valencia-Aguirre reports that he was born in 1951 in Mosquera, Colombia; that he has lived for twenty years in Buenaventura; that he has a wife, an adult son, and several brothers, sisters, and in-laws; that he has worked as a fisherman throughout his life; that he withdrew from school after the third grade to earn money for his family; that he chronically suffers from tetanus, the satisfactory control of which requires periodic medication by injection; that he is not a substance abuser; and that he is persistently and oppressively mired in intractable poverty, along with his Colombian neighbors.
Valencia-Aguirrre was sentenced on July 22, 2004, after Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), announced on June 24, 2004, but before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), announced on January 12, 2005. During the six-month interval between Blakely and Booker, the circuit courts of appeals divided on several questions both pertinent to sentencing and arguably affected by Blakely. See, e.g., United States v. Duncan, 381 F.3d 1070, 1074 (11th Cir.2004) (), vacated on rehearing, 400 F.3d 1297 (11th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 432, 163 L.Ed.2d 329 (2005). However, pending a more definitive pronouncement from the Supreme Court, the Eleventh Circuit resolved to adhere to the Sentencing Reform Act of 1984, the United States Sentencing Commission's guidelines, and the Supreme Court's specific disavowal that Blakely invalidated all or part of the federal sentencing regime.2 United States v. Reese, 382 F.3d 1308, 1312 (11th Cir.2004) (), cert. granted and remanded, 543 U.S. 1114, 125 S.Ct. 1089, 160 L.Ed.2d 1058 (2005), on remand, 397 F.3d 1337 (11th Cir.2005).
Booker appeared during the pendency of Valencia-Aguirre's appeal from his 135-month sentence. Applying Booker to Valencia-Aguirre, the Eleventh Circuit affirmed in part (the guidelines calculation) but vacated the sentence and remanded for re-sentencing. The circuit court explained the remand:
The district court found its hands tied. It stated that the base level was "undoubtedly high" but that it would adhere strictly to the guidelines.... Because Valencia-Aguirre timely raised his constitutional objection in the district court, this Court reviews the constitutional issue de novo, but will not reverse for harmless error.... In light of the district court's comments regarding Valencia-Aguirre's sentence and mandatory guidelines regime we find Booker error in Valencia-Aguirre's sentence. The government has not (and cannot) show that this error was harmless.
130 Fed.Appx. at 307 (citation omitted).
A careful review of the transcript reveals neither an avowal by the district judge of "strict adherence" to the guidelines nor a comment by the district judge that either the offense level or the sentence was "undoubtedly high." However, because calculation of the base offense level included a determination of the drug quantity, which was not determined by a jury beyond a reasonable doubt, the district court observed with respect to the defense's Blakely objection:
Well, the objection on the base offense level, although undoubtedly highly plausible after Blakely is, for the purposes of this sentence, overruled.
Apparently, the circuit court (mistakenly) construed this passage ("undoubtedly highly plausible") as the requisite "magic words," providing "some indication that the district court would have imposed a lesser sentence had the law permitted it to treat the guidelines as advisory rather than mandatory." United States v. Thompson, 422 F.3d 1285, 1302 (11th Cir. 2005) ). The circuit court remanded for the determination of a "reasonable sentence," as contemplated by Booker.3
Of course, since the appearance of Booker the district and circuit courts have explored the notion of a "reasonable sentence."4 As to the district court's determination of a "reasonable sentence," Justice Breyer's opinion on the "remedial question" in Booker confirms only that:
[T]he Sentencing Commission remains in place, writing Guidelines, collecting information about actual district court sentencing decisions, undertaking research, and revising the Guidelines accordingly.... The district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing.... The courts of appeals review sentencing decisions for unreasonableness.
125 S.Ct. at 767 (citations omitted). Booker's prescription for a "reasonable sentence" and the inclusion in the calculus of an unspecified evaluation by the district court of the factors arrayed in 18 U.S.C. § 3553(a) leave initially to the district and circuit courts the formidable...
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