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United States v. Amaya

United States District Court, N.D. Iowa

June 11, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
ANGEL AMAYA, Defendant

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[Copyrighted Material Omitted]

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For U.S. Probation, Interested Party: uspNotify, LEAD ATTORNEY.

For Angel Amaya, Defendant: R Scott Rhinehart, LEAD ATTORNEY, Rhinehart Law, PC, Sioux City, IA.

For Javier Amaya, Defendant: Bassel Farouk El-Kasaby, LEAD ATTORNEY, Paul Jason Forney, PRO HAC VICE, Christopher John Buckley, Kasaby & Nicholls, LLC, Omaha, NE.

For USA, Plaintiff: Timothy T Duax, U.S. Attorney's Office, Sioux City, IA.

OPINION

MARK W. BENNETT, UNITED STATES DISTRICT COURT JUDGE.

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SENTENCING OPINION AND STATEMENT OF REASONS PURSUANT TO 18 U.S.C. § 3553(c)

TABLE OF CONTENTS

I. INTRODUCTION

A. The Charges

B. The Trials

C. The Sentencing Hearing

II. LEGAL ANALYIS

A. Sentencing Methodology: Computing the Guideline Range;

Departures; and Variances

B. Step 1-Determining The Guideline Range

1. Amaya's objections to the PSR

a. Aggravating role in the offense

b. Using a minor

c. Obstruction of justice

d. Acceptance of responsibility

2. Offense level computation

C. Step 2--Determination Of Whether To Depart

D. Step 3--Application Of The § 3553(a) Factors

1. Overview of § 3553(a) factors

2. Nature and circumstances of the offense

3. Amaya's history and characteristics

4. The need for the sentence imposed

5. The kinds of sentences available

6. Any pertinent policy statement

7. The need to avoid unwarranted sentencing disparity

8. The need to provide restitution

9. Double jeopardy violation

10. Consideration

III. CONCLUSION

Page 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. See 18 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.

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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 ANALYIS

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

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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 engage in the three-step process of first ascertaining the applicable Guidelines range, then considering any permissible departures within the Guidelines' structure, and finally, deciding whether a non-Guidelines sentence would be more appropriate under the circumstances pursuant to § 3553(a)." See United States v. Washington, 515 F.3d 861, 866 (8th Cir. 2008).

Although " a court of appeals may apply a presumption of reasonableness when conducting substantive review of a sentence within the advisory range, 'the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.'" United States v. Henson, 550 F.3d 739, 740 (8th Cir. 2008) (quoting Rita 551 U.S. at 351). The Supreme Court has emphasized this point, noting " [o]ur cases do not allow a sentencing court to presume that a sentence within the applicable Guidelines range is reasonable," and that " [t]he Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable." Nelson v. United States, 555 U.S. 350, 129 S.Ct. 890, 892,

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172 L.Ed.2d 719 (2009) ( per curiam ) (emphasis in the original).

As the Eighth Circuit Court of Appeals has also explained, " [w]e may not require " 'extraordinary' circumstances to justify a sentence outside the Guidelines." Feemster, 572 F.3d at 462 (quoting Gall, 552 U.S. at 47). Instead, the district court

must " make an individualized assessment based on the facts presented." [Gall, 552 U.S. at 50.] If the court concludes that a sentence outside of the Guidelines range is warranted, then it must " consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance." Id. " [A] major departure should be supported by a more significant justification than a minor one." Id. After the district court determines the " appropriate sentence," it must then " adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing." Id.

Feemster, 572 F.3d at 461.

First, I will determine the advisory guideline range for Amaya. Next, I will determine whether any traditional departures, either upward or downward, are warranted. Third, I will consider whether to vary from the advisory guideline range based on my independent obligation to apply the § 3553(a) factors.

B. Step 1-Determining The Guideline Range

The first step in the sentencing process is to determine the proper guideline range for the defendant's sentence. See United States v. Lozoya, 623 F.3d 624, 625 (8th Cir. 2010) (" In sentencing a defendant, a district court must first determine the advisory sentencing range as recommended by the Guidelines." ); see also United States v. Mireles, 617 F.3d 1009, 1012 (8th Cir. 2010); Roberson, 517 F.3d at 993. In determining Amaya's advisory guideline range, I used the November 1, 2012, edition of the United States Sentencing Commission Guidelines Manual. See Lozoya, 623 F.3d at 625; see also VandeBrake, 679 F.3d at 1039 n.7.

The Presentence Investigation Report (" PSR" ) set Amaya's base offense level at 36, pursuant to U.S.S.G. § § 2D1.1 and 2S1.1, and recommended the following enhancements based on Amaya's relevant conduct: 1) a two-level enhancement, pursuant to U.S.S.G. § 2S1.1(b)(2)(B), for his § 1956 conviction; 2) a two-level enhancement, pursuant to U.S.S.G. § 3B1.4, for using a minor to commit the offense; 3) a three-level enhancement, pursuant to U.S.S.G. § 3B1.1(b), because Amaya was a manager or supervisor and the criminal activity involved five or more participants; and 4) a three-level enhancement, pursuant to U.S.S.G. § 3C1.1, because Amaya willfully obstructed or attempted to obstruct the investigation or prosecution of the charged offenses. Thus, the PSR set Amaya's adjusted offense level at 45. However, the PSR reset Amaya's total offense level as 43, because an " offense level of more than 43 is to be treated as an offense level of 43." U.S.S.G. Ch. 5, Pt. A, cmt. n.2; see United States v. Okun, 453 Fed. App'x 364, 373 (4th Cir. 2011) (" A total offense level of more than 43 is to be treated as an offense level of 43." ); United States v. Smith, 437 Fed. App'x 110, 112 n.2 (3d Cir. 2011) (" An offense level of more than 43 is treated as an offense level of 43 under the guidelines." ). At this offense level, the United States Sentencing Guidelines recommends a life sentence.

Amaya has objected to these enhancements. [5] Thus, before I can calculate Amaya's proper guideline sentence I must resolve

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his objections to those portions of the PSR which affect his guideline range.

1. Amaya's objections to the PSR

a. Aggravating role in the offense

Amaya objects to the recommendation in the PSR that he receive a three level upward adjustment as a manager or supervisor in the money laundering offense, pursuant to U.S.S.G. § 3B1.1(b). [6] See PSR at ¶ 23. Specifically, Amaya argues:

Defendant Amaya did not manage or control Munoz, Forbes, Wenzel, Deanda, Cancino-Torres or Dwyer. Each of these individuals had their own drug operation. Sometimes they bought from Angel Amaya, sometimes they sold to Defendants. It was a question of who had what available drugs at the particular time. The Government fails to recognize that out of all the parties involved in this case, Eduardo Deanda was by far the biggest drug dealer with his own operation. Deanda wanted Defendant Amaya to partner with him on a drug deal. Defendant Amaya refused. Nevertheless, for some reason, the Government contends that his refusal constitutes a conspiracy or that the quantities that Deanda was pushing should somehow be attributable to Defendant Amaya.
Noris was a cocaine addict. Noris was never dealing with Defendant Amaya as he testified to at trial. The U.S. Attorney's " assumption" that Defendant Amaya was some kind of kingpin or major source of supply is in error. Defendant Amaya did not control any of the Government cooperators in this case with the exception of Brendan Uhl and Octavio Noris. Defendant Amaya did use Brendan Uhl's address for their mutual benefit. To suggest that Defendant Amaya was a manager or supervisor of any of these folks is erroneous. This is true as it relates to the bank deposits as well. In this case, Defendant Amaya did provide deposited funds through Wells Fargo Bank. Defendant Amaya's roommate and now convicted felon, Luis Bernal, used the Bank of America for transferring funds as part of his operation. The Government's assumption that Defendant Amaya was regularly using Bank of America is mistaken. Defendant Amaya did coordinate drug transactions to control other people. For example, Shawn Forbes brought six ounces of cocaine to Defendant Amaya's house. Defendant Amaya took five ounces, Munoz took one ounce. Forbes also had several pounds of marijuana in his car. Defendant Amaya called Dan Wenzel over to buy the marijuana for Wenzel's own use. Defendant Amaya did send Octavio Noris down to Omaha with $35,000.00 however Noris mistakenly only took $30,000.00 down. Defendant Amaya did control Noris to a certain extent on this occasion.

Defendant's Objections To First Draft Of Presentence Investigation Report at ¶ ¶ 14-15 (" Defendant's Objections" ) (attached to PSR). The prosecution also objects to paragraph 23 of the PSR. However, the prosecution argues that Amaya should receive a four level upward adjustment because he should be considered an organizer or leader in the criminal activity, pursuant to U.S.S.G. § 3B1.1(a).

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Under U.S.S.G. § 3B1.1(a), a court should increase a defendant's offense level by four levels if defendant " was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." If a defendant was a " manager or supervisor" of a criminal activity involving five or more participants or that was otherwise extensive, then a court should increase the defendant's offense level by three levels. U.S.S.G. § 3B1.1(b). If a defendant " was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels." U.S.S.G. § 3B1.1(c). The terms " manager," " supervisor," " organizer," and " leader" are all broadly construed. See United States v. Frausto, 636 F.3d 992, 996 (8th Cir. 2011) (" 'Each of these four terms is construed broadly.'" ) (quoting United States v. De Oliveira, 623 F.3d 593, 599 (8th Cir. 2010)); see also United States v. Moreno, 679 F.3d 1003, 1004 (8th Cir. 2012) (" This court construes 'manager' and 'supervisor' broadly." ); United States v. Payton, 636 F.3d 1027, 1048 (8th Cir. 2011) (" 'We construe the terms 'manager' or 'supervisor' broadly. . ." ) (quoting United ...


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