United States v. Amaya, CR11–4065–MWB.

• Decision Date: 11 June 2013
• Docket Number: No. CR11–4065–MWB.,CR11–4065–MWB.
• Citation: 949 F.Supp.2d 895
• Parties: UNITED STATES of America, Plaintiff, v. Angel AMAYA, Defendant.
• Court: U.S. District Court — Northern District of Iowa

949 F.Supp.2d 895

UNITED STATES of America, Plaintiff,
v.
Angel AMAYA, Defendant.

No. CR11–4065–MWB.

United States District Court,
N.D. Iowa,
Western Division.

June 11, 2013.

[949 F.Supp.2d 898]

Robert A. Knief, U.S. Attorney's Office, Sioux City, IA, for Plaintiff.

R. Scott Rhinehart, Rhinehart Law, PC, Sioux City, IA, for Defendant.

SENTENCING OPINION AND STATEMENT OF REASONS PURSUANT TO 18 U.S.C. § 3553(c)
MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I.
INTRODUCTION
899

A.	The Charges	899
B.	The Trials	899
C.	The Sentencing Hearing	900

II.
LEGAL ANALYSIS
900

A.	Sentencing Methodology: Computing the Guideline Range; Departures; and Variances	900
B.	Step 1–Determining The Guideline Range	902

1.
Amaya's objections to the PSR
903

a.	Aggravating role in the offense	903
b.	Using a minor	907
c.	Obstruction of justice	907
d.	Acceptance of responsibility	912

2.
Offense level computation
913

C.	Step 2—Determination Of Whether To Depart	914
D.	Step 3—Application Of The § 3553(a) Factors	914

1.	Overview of § 3553(a) factors	914
2.	Nature and circumstances of the offense	915
3.	Amaya's history and characteristics	917
4.	The need for the sentence imposed	917
5.	The kinds of sentences available	919
6.	Any pertinent policy statement	919
7.	The need to avoid unwarranted sentencing disparity	919
8.	The need to provide restitution	921
9.	Double jeopardy violation	921
10.	Consideration	921

III.
CONCLUSION
922

[949 F.Supp.2d 899]

Defendant Angel Amaya came before me for sentencing on June 11, 2013, after being convicted by a jury of conspiring to possess with intent to distribute 50 grams or more of pure methamphetamine or a mixture or substance containing 500 grams of methamphetamine, 5 kilograms or more of cocaine, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C), and 846, and conspiring to commit money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i), 1956(a)(1)(B)(ii), and 1956(h). Facing a possible life sentence, Amaya moved for a downward variance from his advisory guideline sentence based on what he characterizes as the prosecution's “double jeopardy violation” as well as the need to avoid unwarranted sentencing disparity among defendants. I concluded that a sentence within the advisory guideline sentence range was “greater than necessary” to accomplish the goals of sentencing, in light of all of the pertinent factors. See18 U.S.C. § 3553(a). Accordingly, I granted Amaya's motion for a downward variance, albeit on different grounds than those raised by Amaya, based on my independent obligation to apply the § 3553(a) factors. I now enter this written explanation of my rationale for a sentence tailored to Amaya's circumstances in light of the applicable guidelines and 18 U.S.C. § 3553(a) factors. Unfortunately for Amaya, this still resulted in a sentence of 180 months.

I. INTRODUCTION A. The Charges

In a two-count Superseding Indictment returned on July 28, 2011, defendant Angel Amaya and four co-defendants were charged with conspiracy to possess with intent to distribute 50 grams or more of pure methamphetamine or a mixture or substance containing 500 grams of methamphetamine, 5 kilograms or more of cocaine, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C), and 846, and with conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i), 1956(a)(1)(B)(ii), and 1956(h).

B. The Trials

The first attempt to try Amaya on the charges against him began on October 11, 2011.¹ However, I declared a mistrial that day, when the prosecution's first witness, a government agent, referred to material barred by a sealed ruling on a motion in limine.² The second attempt to try Amaya began on December 19, 2011, but it fared no better. I granted another mistrial on the first day, again during the testimony of the prosecution's first witness, the same government agent, when that witness disclosed for the first time the use of GPS devices to collect evidence in this case. I then entertained briefing on whether or not the second mistrial should result in dismissal with prejudice based on prosecutorial misconduct. On January 26, 2012, after considering the parties' briefs and hearing oral arguments, I concluded that the defendants had failed to meet the demanding standard for dismissal with prejudice after a mistrial.

The third attempt to try Amaya began on May 29, 2012. Although this trial proceeded past the first witness without a hitch, the jinx on the case continued, because the first day of the third trial did not pass without another motion for mistrial.

[949 F.Supp.2d 900]

In this instance, during the redirect examination of witness Jorge Aguilar, the prosecution vouched for the witness by making an inadvertent declarative statement in response to the witness's testimony that he was telling the truth. Amaya made no objection or comment at the time of the prosecutor's statement nor after I brought the matter to the parties' attention. Notwithstanding the lack of a contemporaneous objection or comment, Amaya filed a Motion For Mistrial And/Or Curative Instruction after regular business hours on May 29, 2012. I took up Amaya's motion the following morning and, after hearing the parties' arguments, I gave a curative instruction to the jury. The trial continued without further incident on May 30, May 31, and June 1, 2012. Altogether, the prosecution called twenty witnesses. The prosecution rested on June 1, 2012, and Amaya rested immediately thereafter without calling any witnesses. Later that day, the jury returned a verdict in which it found Amaya guilty of all charged offenses.

Amaya subsequently filed a Motion For New Trial And Judgment Of Acquittal And/Or Renewed Motion For Mistrial. I heard oral arguments on Amaya's post-trial motions on August 2, 2012, and denied them in a lengthy memorandum opinion and order on August 10, 2012. See United States v. Amaya, No. CR11–4065–MWB, 2012 WL 3288082, at *35 (N.D.Iowa Aug. 10, 2012).

C. The Sentencing Hearing

On October 24, 2012, Amaya filed a Motion for Downward Variance and supporting brief. In his motion, Amaya argues that I should “consider the double jeopardy violation as a factor that would justify a variance down to 120 months.” Defendant's Br. at 6. He argues that the prosecution has not been sanctioned for causing two mistrials while the resulting delays have subjected him to “embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity for months.” Defendant's Br. at 7. He also argues that the need to avoid unwarranted sentencing disparity among defendants supports a downward variance. On the same date, the prosecution filed a sentencing memorandum. The prosecution resisted Amaya's Motion for Downward Variance on October 26, 2012. On October 29, 2012, Amaya filed a response to the prosecution's sentencing memorandum. A sentencing hearing for Amaya began on October 30, 2012. The United States was represented by AUSA Timothy T. Duax of Sioux City, Iowa and Amaya was represented by R. Scott Rhinehart of the Rhinehart Law Firm, P.C., in Sioux City, Iowa. At the hearing, the prosecution presented documentary evidence and the testimony of two witnesses, Ana Cortes and Greg Fox. I heard oral arguments from the parties on Amaya's Motion for Downward Variance. Rather than imposing sentence that day, in order to permit myself time to give due consideration to my concerns regarding the appropriateness of a downward variance under the Sentencing Guidelines and to determine the appropriate sentence for Amaya, I completed the sentencing hearing on June 11, 2013. I now state the reasons for the sentence imposed on Amaya.

II. LEGAL ANALYSIS A. Sentencing Methodology: Computing the Guideline Range; Departures; and Variances

Following the Supreme Court's decision in Gall, the Eighth Circuit Court of Appeals has repeatedly stated the methodology for determining a defendant's sentence as follows:

The district court should begin “by correctly calculating the applicable Guidelines range.” “[T]he Guidelines should

[949 F.Supp.2d 901]

be the starting point and the initial benchmark [, but] [t]he Guidelines are not the only consideration [.]” The district judge should allow “both parties an opportunity to argue for whatever sentence they deem appropriate,” and then should “consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party.”

United States v. Hill, 552 F.3d 686, 691 (8th Cir.2009) (quoting Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)) (internal citations omitted); United States v. Roberson, 517 F.3d 990, 993 (8th Cir.2008); see also United States v. Feemster, 572 F.3d 455, 461–62 (8th Cir.2009) ( en banc ).

The Supreme Court has recognized that a party's argument for a sentence outside the calculated guideline range may “take either of two forms.” Rita v. United States, 551 U.S. 338, 344, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). A party may “argue within the Guidelines' framework, for a departure,” id. (emphasis in original), or a party may “argue that, independent of the Guidelines, application of the factors set forth in 18 U.S.C. § 3553(a) warrants a [different] sentence.” Id.³ The Eighth Circuit Court of Appeals has made clear that, while “similar factors may justify either a variance or a traditional departure,” United States v. Woods, 670 F.3d 883, 888 (8th Cir.2012), district courts are not limited by the Guidelines' departure policy framework when determining whether and by what extent to vary, see United States v. Chase, 560 F.3d 828, 832 (8th Cir.2009); United States v. VandeBrake, 679 F.3d 1030, 1037 (8th Cir.2012); see also United States v. Villareal–Amarillas, 562 F.3d 892, 898 (8th Cir.2009) (“The judge is cabined, but also liberated, by the § 3553(a) factors.”).⁴

As a matter of procedure, the Eighth Circuit Court of Appeals has instructed that district courts should “continue to...