United States v. Ngombwa
| Decision Date | 07 February 2017 |
| Docket Number | No. 14-CR-123-LRR,14-CR-123-LRR |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. GERVAIS (KEN) NGOMBWA, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
I. INTRODUCTION ....................................... 2
II. RELEVANT PROCEDURAL HISTORY ........................ 2
III. SENTENCING FRAMEWORK .............................. 4
IV. EVIDENTIARY RULES .................................. 5
V. FACTS .............................................. 6
VI. FACT OBJECTIONS ................................... 13
VII. OVERVIEW OF GUIDELINES ISSUES ....................... 29
VIII. BASE OFFENSE LEVEL & SPECIFIC OFFENSE CHARACTERISTICS 30
IX. ADJUSTMENTS ...................................... 37
X. PRE-DEPARTURE GUIDELINES RANGE .................... 41
XI. DEPARTURES ....................................... 41
XII. CONCLUSION ....................................... 47
I. INTRODUCTION
The matter before the court is the sentencing of Defendant Gervais (Ken) Ngombwa.
II. RELEVANT PROCEDURAL HISTORY
On October 30, 2014, a grand jury returned a four-count Indictment (docket no. 2) charging Defendant with (1) unlawfully procuring or attempting to procure naturalization or citizenship, in violation of 18 U.S.C. § 1425(a); (2) procuring or attempting to procure citizenship to which a person is not entitled, in violation of 18 U.S.C. § 1425(b); (3) conspiring to unlawfully procure or attempt to procure citizenship, in violation of 18 U.S.C. §§ 371 & 1425(a); and (4) making a materially false statement, in violation of 18 U.S.C. § 1001(a)(2). Defendant proceeded to trial. At trial, Assistant United States Attorneys Richard Murphy and Ravi Narayan represented the government. Assistant Federal Public Defender B. John Burns III ("trial counsel") represented Defendant. The trial was translated into the Kinyarwanda language by interpreters Jacqueline Adam and Zenaide Ntiranyibagira. On January 15, 2016, the jury unanimously found Defendant guilty of all four counts alleged in the Indictment and made specific findings regarding the overt acts undertaken as part of the conspiracy alleged in Count 3. See Jury Verdicts (docket no. 120).
After the jury trial, Attorney Raphael Scheetz entered an appearance on behalf of Defendant and trial counsel withdrew. See docket nos. 125, 126, 127. On May 13, 2016, the court held a hearing on Defendant's Motion for New Trial (docket no. 131). See May 13, 2016 Minute Entry (docket no. 156). On May 23, 2016, the court denied the Motionfor New Trial. See May 23, 2016 Order (docket no. 161). On September 2, 2016, the court entered an Order (docket no. 196) indicating that Defendant's conviction on Count 1 of the Indictment would be vacated at the time of sentencing.
On March 23, 2016, the United States Probation Office ("USPO") filed a Draft Presentence Investigation Report ("Draft PSIR") (docket no. 140). On April 20, 2016, both Defendant and the government filed objections to the Draft PSIR. See Gov't PSIR Objections (docket no. 150); Defense Objections to Draft PSIR (docket no. 151). On July 7, 2016, the USPO filed a Second Revised Final Presentence Investigation Report ("Final PSIR") (docket no. 172). On August 19, 2016, the government filed a Sentencing Brief ("Gov't Brief") (docket no. 194) and Defendant filed a Sentencing Memorandum ("Defense Brief") (docket no. 195), both of which addressed the contested sentencing issues identified in the Final PSIR. On September 16, 2016, the government filed a Response ("Government Response") (docket no. 197) to the Defense Brief.
On September 22 and 23, 2016, the court held a two-day sentencing hearing ("Hearing"), at which it received evidence. See Sept. 22, 2016 Minute Entry (docket no. 202); Sept. 23, 2016 Minute Entry (docket no. 203). Assistant United States Attorneys Murphy and Narayan represented the government. Attorney Scheetz represented Defendant, who was personally present. The Hearing was translated into the Kinyarwanda language by interpreters Adam and Ntiranyibagira. The court advised the parties that it would take the contested sentencing issues under advisement, issue this Sentencing Memorandum and then reconvene the Hearing to impose sentence. The Hearing is scheduled to reconvene on March 2, 2017 at 9:00 a.m. See Order Continuing Sentencing Hearing (docket no. 210).
All contested sentencing issues are now fully submitted and ready for decision.
III. SENTENCING FRAMEWORK
"The [United States Sentencing] Guidelines are 'the framework for sentencing' and 'anchor . . . . the district court's discretion.'" Molina-Martinez v. United States, 136 S.Ct. 1338, 1345 (2016) () (quoting Peugh v. United States, 133 S.Ct. 2072, 2083, 2087 (2013)). "At the outset of the sentencing proceedings, the district court must determine the applicable Guidelines range." Id. at 1342; see also United States v. Braggs, 511 F.3d 808, 812 (8th Cir. 2008) . "The court then entertains the parties' arguments regarding an appropriate sentence, including whether the sentence should be within the Guidelines range or not." Molina-Martinez, 136 S. Ct. at 1342; see also United States v. Omoware, 761 F.3d 951, 952 (8th Cir. 2014) (); United States v. Washington, 515 F.3d 861, 865 (8th Cir. 2008) (). "Although the district court has discretion to depart from the Guidelines, the court 'must consult those Guidelines and take them into account when sentencing.'" Molina-Martinez, 136 S. Ct. at 1342 (quoting United States v. Booker, 543 U.S. 220, 264 (2005)).
"[A]fter giving both parties a chance to argue for the sentence they deem appropriate, the court should consider all of the factors listed in 18 U.S.C. § 3553(a) to determine whether they support the sentence requested by either party." Braggs, 511 F.3d at 812. "The district court may not assume that the Guidelines range is reasonable, but instead 'must make an individualized assessment based on the facts presented.'" Id. (quoting Gall, 552 U.S. at 50); see also Nelson v. United States, 555 U.S. 350, 352 (2009) (). "A district court has substantial leeway indeciding how to weigh the § 3553(a) factors." United States v. Sholds, 827 F.3d 758, 760 (8th Cir. 2016); see also United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) . If the court determines that a sentence outside of the applicable Guidelines range is warranted, it "must 'consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.'" United States v. Martinez, 821 F.3d 984, 989 (8th Cir. 2016) (quoting Feemster, 572 F.3d at 461). "[A] district court, after settling on the appropriate sentence, 'must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.'" United States v. Chavarria-Ortiz, 828 F.3d 668, 670 (8th Cir. 2016) (quoting Gall, 552 U.S. at 50).
IV. EVIDENTIARY RULES
"When the district court applies the guidelines in an advisory manner . . . 'judicial fact-finding using a preponderance of the evidence standard is permitted.'" United States v. Shield, 831 F.3d 1079, 1083 (8th Cir. 2016) (quoting United States v. Ademi, 439 F.3d 964, 966 (8th Cir. 2006)); see also United States v. O'Brien, 560 U.S. 218, 224 (2010) () The court may consider a wide variety of evidence, including the undisputed portions of the PSIR, as well as the testimony and other evidence the parties introduced at the trial and at the Hearing. See, e.g., Shield, 831 F.3d at 1083 . The court does not "put on blinders" and consideronly the evidence directly underlying Defendant's offenses of conviction. In calculating Defendant's Guidelines range, for example, the court applies the familiar doctrine of relevant conduct. See USSG § 1B1.3. The Eighth Circuit has repeatedly held that a district court may consider uncharged, dismissed and even acquitted conduct at sentencing. See, e.g., United States v. Thomas, 760 F.3d 879, 889 (8th Cir. 2014). "The rules of evidence . . . do...
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