United States v. Aguilar

• Decision Date: 14 August 2015
• Docket Number: No. 14–CR–0668.,14–CR–0668.
• Citation: 133 F.Supp.3d 468
• Parties: UNITED STATES of America v. Ignacio Diaz AGUILAR, Defendant.
• Court: U.S. District Court — Eastern District of New York

133 F.Supp.3d 468

UNITED STATES of America

v.Ignacio Diaz AGUILAR, Defendant.

No. 14–CR–0668.

United States District Court, E.D. New York.

Signed Aug. 14, 2015.

Nadia Elizabeth Moore, U.S. Attorney's Office, Brooklyn, NY, for United States of America.

Robert Soloway, Rothman, Schneider, Soloway & Stern. P.C., Avrom Jerome Robin, Law Offices of London & Robin, New York, NY, Michael Daniel Weil, Federal Defenders of New York, Inc., Brooklyn, NY, for Defendant.

Statement of Reasons for Sentence Pursuant to 18 U.S.C. § 3553(c)(2)

JACK B. WEINSTEIN

, Senior District Judge:

TABLE OF CONTENTS

I.	Introduction	470
II.	Underlying Charge and Conviction	471

A.	Illegal Activity	471
B.	Arrest on Instant Charge	471
C.	Guilty Plea	471
D.	Sentence	472

III. Context: Parental Detention and Deportation 472

A. Statistics 472

1.	National	472
2.	New York	475

B. Effects on Children 476

1.	Psychological	476
2.	Broken Families	479
3.	Poverty and Its Attendant Risks	480

IV. Law 480

A.	Imposition of Sentence	480
B.	Offense Level, Category, and Sentencing Guidelines Range	481
C.	18 U.S.C. § 3553(a) Considerations	481

V.	Sentence	482
VI.	Conclusion	482

I. Introduction

Defendant Diaz Aguilar entered this country from Mexico when he was twenty years old. He met his wife here two years later. Neither has papers. They had children here. The children are United States citizens. He was consistently employed here for fifteen years up until his arrest. He paid his income taxes here regularly. No criminal conduct other than this cause of conviction has been suggested. The crime charged appears to be a deviation from an otherwise legal way of life.

He has pleaded guilty to assisting in document forgery. The penalty of deportation is almost inextricably linked to this criminal conviction, with a corresponding effective restriction from ever re-entering this country. See United States v. Chin Chong, No. 13–CR–570, 2014 WL 4773978, at *3 (E.D.N.Y. Sept. 24, 2014)

("The ‘drastic measure’ of deportation or removal ... is now virtually inevitable [as a result of] changes to our immigration law[s]." (quoting Padilla v. Kentucky, 559 U.S. 356, 360, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) )). The dissolution of his family unit is a near certainty if general practice is followed by immigration authorities. The facts of this case lead to a recommendation of this court that the general practice of deportation not be followed.

A key role of a sentencing court is to reduce criminogenic factors present in society. See 18 U.S.C. § 3553(a)(2)(B)

(there is a "need for the sentence imposed ... to afford adequate deterrence to criminal conduct"); see also Craig Haney, Evolving Standards of Decency: Advancing the Nature and Logic of Capital Mitigation, 36 Hofstra L.Rev. 835, 857 (2008) ("[R]esearch confirms that traumas experienced earlier in someone's life—whether caused by structural forces like poverty and ... parental ... neglect—can be deeply ‘criminogenic’ (that is, persons exposed to them have a higher probability of subsequently engaging in crime)."). Its corollary responsibility is to ensure that its actions not create catalysts for criminal conduct by family members. The retributive collateral punishment of deportation that accompanies the vast majority of criminal convictions of non-U.S. citizens, see Chin Chong, 2014 WL 4773978, at *3, may create such a catalyst, see infra Part III.

This memorandum sets forth this court's policy regarding the issuance of recommendations to immigration judges adjudicating deportation proceedings of nonviolent noncitizens who have been found guilty of an illegal activity.

"Discretion remains an indispensable mitigating safety valve for the law's sometimes destructive and illogical effects." Id. at *4. Where credible evidence has been proffered demonstrating that deportation is likely to unreasonably traumatize United States-born children of a deportable criminal defendant, this court will issue a "non-deportation" recommendation to the immigration judge; where the defendant held a full-time job prior to his arrest, a work-release recommendation from detention will also be issued. See United States v. G.L., 305 F.R.D. 47, 48 (E.D.N.Y.2015)

(finding special circumstances may require deviation from general sentencing practice); cf. United States v. Phillips, No. 13–CR–631, 120 F.Supp.3d 263, 275–76, 2015 WL 4629217, at *11 (E.D.N.Y. Aug. 3, 2015) (dismissing illegal reentry indictment premised on defendant's prior deportation resulting from aggravated felony conviction, and taking "particular" note of defendant's testimony and letters provided by his family "stating that deporting him would have a substantial negative effect on his children"); Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) ("[T]he interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this [nation].").

II. Underlying Charge and Conviction

A. Illegal Activity

Homeland Security Investigations ("HSI") and the New York City Police Department ("NYPD") witnessed defendant's direct involvement in the provision of fraudulent documents to a confidential source on eight occasions between March and December 2014. See Presentence Investigation Report ¶¶ 3–31. Although arguably induced by the informant, these were serious crimes.

The first transaction linked to defendant occurred on March 19 of 2014. Id. at ¶ 4. On this day, a confidential source arranged a meeting with defendant to seek a false passport, social security card, and permanent resident card. Id. at ¶¶ 4–5. The source provided defendant with biographical information, photographs, and a $100 down payment. Id. at ¶ 4. Two days later, the documents were exchanged for $1,900; the passport number provided was linked to a passport that had been issued in 2013 and that was reported lost or stolen. Id. at ¶¶ 5–6.

One month later, on April 17, the source met with defendant again. Id. at ¶ 7. A down payment of $500 was made, and an additional $100 was paid directly to defendant, who allegedly insisted on receiving a cut of the money. Id. Two months later, defendant initiated contact with the source, informing the latter that he had the passport that had been requested in April. Id. at ¶ 8. He told the source that his supplier had additional passports, social security cards, and permanent resident cards available for sale. Id. Five more exchanges took place between defendant and the confidential informant. Id. at ¶¶ 10–31.

B. Arrest on Instant Charge

On December 11, 2014, HSI special agents and NYPD officers executed a warrant at a residence (not defendant's) associated with the fraudulent documents. Id. at ¶ 38. They recovered a printer, a computer, a document cutter, a laminator, United States passports, foreign passports, identification cards, and drivers licenses. Id. Defendant was arrested the following day for his involvement in the document forgery operation. Id. at ¶ 39.

C. Guilty Plea

On March 20, 2015, defendant pled guilty to producing false passports in violation of section 1543 of title 18 of the United States Code

. See Hr'g Tr. 19:25–22:17, Mar. 20, 2015, ECF No. 47; 18 U.S.C. § 1543 (providing that "[w]hoever falsely makes, forges, counterfeits, mutilates, or alters any passport or instrument purporting to be a passport, with intent that the same may be used; or ... furnishes to another for use any such false, forged, counterfeited, mutilated, or altered passport or instrument purporting to be a passport, or any passport validly issued which has become void by the occurrence of any condition therein prescribed invalidating the same ... [s]hall be fined under this title, imprisoned not more than ... 10 years ... or both"). He made a full confession.

D. Sentence

Four months later, Mr. Diaz Aguilar was sentenced to time-served of seven months, and a supervised release term of three years. See Sentencing Hearing Transcript, July 16, 2015 ("Sent. Hr'g"). The proceeding was videotaped to develop an accurate record of the courtroom atmosphere—including reactions of his children, wife and others—as well as some of the subtle factors and considerations that a district court considers in imposing a sentence. See In re Sentencing, 219 F.R.D. 262, 264–65 (E.D.N.Y.2004)

(describing the value of video recording for possible review of sentences on appeal).

Both children sat with their father during the sentencing hearing. See Sentencing Hearing Videotape, July 16, 2015. When asked to speak, the youngest, ten, could not hold back his tears. Id. His voice cracking, the boy explained to the court that he could not concentrate in school because he was always thinking about his father. Sent. Hr'g 15:17–21. Echoing his younger brother, the older brother, now age fourteen, dejected and visibly depressed, stated that he has been struggling in school ever since his father's incarceration. Id. at 14:24–15:3. The mother confirmed the defendant's good background as a father, spouse, and financial provider through legal work. Id. at 14:3–13.

III. Context: Parental Detention and Deportation

A. Statistics

1. National

a. Undocumented Migrants with United States Citizen Children

In 2012, the Pew Hispanic Center estimated that approximately 11.7 million undocumented migrants lived in the United States. See Estimates of the U.S. Unauthorized Immigrant Population, 1990–2012, Pew Research Center (Sept. 20, 2013), http://www.pewhispanic.org/2013/09/23/population-decline-of-unauthorized-immigrants-stalls-may-have-reversed/ph-unauthorized–immigrants–1–01/.

?

Id. Seventy-nine percent of their children, it has been reported, are United States citizens. See Jeffrey S. Passel & Paul Taylor, Unauthorized Immigrants and Their U.S.-Born Children, Pew Research Center 1 (Aug. 11, 2010), http://www.pewhispanic.org /files/reports/125.pdf.

In total, around 4.5 million United States citizen children live in families where at least one member is an undocumented migrant. See Jeffrey S. Passel...